AtlasClear Holdings, Inc. (Form: 8-K, Received: 02/15/2024 17:20:30)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934

Date of report (Date of earliest event reported): February 9, 2024

AtlasClear Holdings, Inc.
(Exact name of registrant as specified in its charter)

Delaware (State or other jurisdiction of incorporation)		001-41956 (Commission File Number)		92-2303797 (I.R.S. Employer Identification No.)
4030 Henderson Blvd., Suite 712 Tampa, FL (Address of principal executive offices)			33629 (Zip Code)
	(727) 446-6660 (Registrant’s telephone number, including area code) Calculator New Pubco, Inc. 4221 W. Boy Scout Blvd., Suite 300 Tampa, FL 33607 (Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

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

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company x

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Introductory Note

On February 9, 2024 (the “Closing Date”), the registrant consummated the previously announced transactions pursuant to that certain Business Combination Agreement, dated November 16, 2022 (as amended, the “Business Combination Agreement”), by and among the registrant, Quantum FinTech Acquisition Corporation (“Quantum”), Calculator Merger Sub 1, Inc., a Delaware corporation and a wholly-owned subsidiary of the registrant (“Merger Sub 1”), Calculator Merger Sub 2, Inc., a Delaware corporation and a wholly-owned subsidiary of the registrant (“Merger Sub 2”), AtlasClear, Inc., a Wyoming corporation (“AtlasClear”), Atlas FinTech Holdings Corp., a Delaware corporation (“Atlas FinTech”) and Robert McBey. The transactions contemplated by the Business Combination Agreement are hereinafter referred to as the “Business Combination.” In connection with the consummation of the Business Combination (the “Closing”), the registrant changed its name from “Calculator New Pubco, Inc.” to “AtlasClear Holdings, Inc.” (hereinafter referred to as “AtlasClear Holdings”).

Unless the context otherwise requires, the “Company” refers to the registrant, which is AtlasClear Holdings after the Closing, and Calculator New Pubco, Inc. prior to the Closing. All references herein to the “Board” refer to the board of directors of AtlasClear Holdings. Terms used in this Current Report on Form 8-K (this “Report”) but not defined herein, or for which definitions are not otherwise incorporated by reference herein, have the same

meaning given to such terms in the final prospectus dated October 10, 2023, and filed by the Company with the Securities and Exchange Commission (the “Commission”) on October 10, 2023 (as supplemented by Supplement No. 1 thereto dated October 31, 2023, the “Proxy Statement/Prospectus”), in the section entitled “Frequently Used Terms” beginning on page 1 thereof, and such definitions are incorporated herein by reference.

Pursuant to the Business Combination Agreement, among other things, (i) Merger Sub 1 merged with and into Quantum, with Quantum continuing as the surviving corporation and a wholly-owned subsidiary of AtlasClear Holdings and (ii) Merger Sub 2 merged with and into AtlasClear, with AtlasClear continuing as the surviving corporation and a wholly-owned subsidiary of AtlasClear Holdings. Prior to the Closing, pursuant to the (i) Contribution Agreement (as defined in the Business Combination Agreement), AtlasClear received certain assets from Atlas FinTech and Atlas Financial Technologies Corp., a Delaware corporation, and (ii) Broker-Dealer Acquisition Agreement (as defined in the Business Combination Agreement), completed the acquisition of broker-dealer, Wilson-Davis & Co., Inc. (“Wilson-Davis”). In addition, at Closing, the Bank Acquisition Agreement (as defined in the Business Combination Agreement), pursuant to which AtlasClear has agreed to acquire Commercial Bancorp, a Wyoming corporation and parent of Farmers State Bank (“Commercial Bancorp”), continued to be in full force and effect. Pursuant to the transactions contemplated by a letter of intent, AtlasClear expects to acquire certain technology assets of Pacsquare Technologies, LLC (“Pacsquare”) after the Closing.

In connection with the Closing, and pursuant to the terms of the Business Combination Agreement, AtlasClear Stockholders received merger consideration (the “Merger Consideration Shares”) consisting of 4,440,000 shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”). In addition, the AtlasClear Holdings Stockholders will receive up to 5,944,444 shares of Common Stock (the “Earn Out Shares”) upon certain milestones (based on the achievement of certain price targets of Common Stock following the Closing). In the event such milestones are not met within the first 18 months following the Closing, the Earn Out Shares will not be issued. Atlas FinTech will also receive up to $20 million of shares of Common Stock (“Software Products Earn Out Shares”), which will be issued to Atlas FinTech upon certain milestones based on the achievement of certain revenue targets of software products contributed to AtlasClear by Atlas FinTech and Atlas Financial Technologies Corp. following the Closing. The revenue targets will be measured yearly for five years following Closing, with no catch-up between the years.

In connection with the Closing, each share of Quantum’s common stock (“Quantum Common Stock” or “Public Shares”) that was outstanding and had not been redeemed was converted into one share of Common Stock. Each outstanding public warrant to purchase Quantum Common Stock became a warrant to purchase one-half of a share of Common Stock. Each outstanding warrant to purchase Quantum Common Stock initially issued in a private placement in connection with Quantum’s initial public offering became a warrant to purchase one share of Common Stock.

In connection with the stockholder vote to approve the Business Combination Agreement and the Business Combination, holders of an aggregate of 4,940,885 shares of Quantum Common Stock properly exercised their right to have their shares redeemed for a full pro rata portion of the Trust Account holding the proceeds from the IPO, which was approximately $10.92 per share, or $53,947,064.28 in the aggregate. The remaining balance of the Trust Account immediately prior to the Closing of approximately $1.2 million was used to partially fund the Business Combination.

As a result of such redemptions, a total of 109,499 Public Shares remained outstanding at the Closing. After giving effect to the Business Combination, the redemption of the Public Shares described above, the separation of the former Quantum Units and the issuance of Merger Consideration Shares and the issuance of shares of Common Stock pursuant to Expense Settlements (described below), as of the Closing Date, there were 11,781,759 shares of Common Stock issued and outstanding.

In connection with the Closing, the Company instructed Continental Stock Transfer & Trust Company (“CST”), as escrow agent under the Stock Escrow Agreement, dated as of February 4, 2021 (the “Stock Escrow Agreement”), between Quantum and CST, to release from escrow 4,000,000 of the Founder Shares that were held in escrow pursuant to the terms of the Stock Escrow Agreement (consisting of 949,084 shares owned by Chardan Quantum, LLC and 3,050,916 shares owned by the Quantum Ventures LLC (the “Sponsor”)), as contemplated by the previously-disclosed amendment to the Stock Escrow Agreement entered into on October 31, 2023.

The Common Stock commenced trading on the NYSE American LLC (“NYSE”) under the symbol “ATCH” on February 12, 2024. AtlasClear Holdings’ warrants commenced trading on the over-the-counter market (the “OTC”) under the symbol “ATCH WS” on February 12, 2024.

A more detailed description of the Business Combination is included in the section entitled “Proposal No. 1 — The Business Combination Proposal” of the Proxy Statement/Prospectus and is incorporated by reference herein. Further, the foregoing summary description of the Business Combination Agreement, as amended, is qualified in its entirety by reference to the Business Combination Agreement, as amended, a copy of which is attached to this Report as Exhibits

2.1 and 2.1(a) through (g) and incorporated herein by reference.

This Report incorporates by reference certain information from reports and other documents that were previously filed with the SEC, including certain information from the Proxy Statement/Prospectus. To the extent there is a conflict between the information contained in this Report and the information contained in such prior reports and documents and incorporated by reference herein, you should rely on the information in this Report.

Item 1.01

Entry into a Material Definitive Agreement.

Amendments to Broker-Dealer Acquisition Agreement

Prior to the Closing, AtlasClear and the Company entered into two amendments to the Broker-Dealer Acquisition Agreement with Wilson-Davis and the then-owners of Wilson-Davis (the “Wilson-Davis Sellers”), Amendment No. 8 dated January 9, 2024 (“Amendment No. 8”) and Amendment No. 9 dated February 7, 2024 (“Amendment No. 9” and, together with Amendment No. 8, the “Amendments”). Among other things, the Amendments reduced the total purchase price payable under the Broker- Dealer Acquisition Agreement by $5 million and reduced the cash payable at the Wilson-Davis Closing as part of the purchase price to $8 million, with the balance of the purchase price paid in the form of convertible promissory notes issued by AtlasClear to the Wilson-Davis Sellers, as follows: (i) $5,000,000 in aggregate principal amount of notes due 90 days after the Closing Date (the “Short-Term Notes”) and (ii) $7,971,000 in aggregate principal amount of notes due 24 months after the Closing Date (the “Long-Term Notes” and, together with the Short-Term Notes, the “Seller Notes”). The Short-Term Notes accrue interest at a rate of 9% per annum, payable quarterly in arrears, in shares of Common Stock at a rate equal to 90% of the trailing seven-trading day volume weighted average price of the Common Stock (“VWAP”) prior to payment (or, at the Company’s option, cash), and are convertible at the option of the holder at any time during the continuance of an event of default, at a rate equal to 90% of the trailing seven-trading day VWAP prior to conversion. The Long-Term Notes accrue interest at a rate of 13% per annum, payable quarterly in arrears, in shares of Common Stock at a rate equal to 90% of the trailing seven-trading day VWAP prior to payment (or, at the Company’s option, in cash), and are convertible at the option of the holder at any time commencing six months after the Closing Date, at a rate equal to 90% of the trailing seven-trading day VWAP prior to conversion (or 85% if an event of default occurs and is continuing).

Pursuant to the terms of the Amendments, at the closing of the transactions contemplated by the Broker-Dealer Acquisition Agreement (the “Wilson-David Closing”) the Company entered into a parent guaranty and registration rights agreement with the Wilson-Davis Sellers (the “Wilson-Davis Guaranty and RRA”), pursuant to which the Company guaranteed the obligations of AtlasClear under the Notes. The Company also agreed (i) to file, within 30 days of the Closing Date, a registration statement with the SEC, registering the resale of the shares of Common Stock issuable upon conversion of the Notes and (ii) if necessary to allow any of the Notes to be converted into shares of Common Stock in accordance with the rules of the NYSE, to seek stockholder approval for the issuance of such shares, including by filing a proxy statement by no later than April 30, 2024.

Quantum Ventures LLC (the “Sponsor”) also entered into Amendment No. 9, for the limited purpose of agreeing to transfer certain Founder Shares owned by the Sponsor to the Wilson-Davis Sellers. The Sponsor agreed to transfer to the Wilson-Davis Sellers, at the Wilson-Davis Closing, Founder Shares having an aggregate value of $6 million, based on the VWAP of Quantum Common Stock for the five trading days immediately prior to the Wilson-Davis Closing, which resulted in the transfer of an aggregate of 885,010 Founder Shares at the Closing. From time to time prior to the six month anniversary of the Closing, the Sponsor may be required to transfer additional Founder Shares to the Wilson-Davis Sellers, as set forth in Amendment No. 9, provided that in no event will the Sponsor be required to transfer more than an aggregate of 2,500,000 Founder Shares (including the Founder Shares transferred at the Closing).

The foregoing summaries provide only a brief description of Amendment No. 8, Amendment No. 9 and the Wilson-Davis Guaranty and RRA. The summaries do not purport to be complete and are qualified in their entireties by the full text of such documents, copies of which are attached as Exhibits 10.10(h), 10.10(i) and 10.11, respectively, and incorporated herein by reference.

Convertible Note Financing

On February 9, 2024, the Company and Quantum entered into a securities purchase agreement (the “Purchase Agreement”) with Funicular Funds, LP, a Delaware limited partnership (“Funicular”), pursuant to which the Company sold and issued to Funicular, on that date, a secured convertible promissory note in the principal amount of $6,000,000 (the “Funicular Note”) for a purchase price of $6,000,000, in a private placement (the “Note Financing”). The proceeds raised in the Note Financing were used to pay a portion of the purchase price paid at Closing to the Wilson-Davis Sellers.

The Funicular Note has a stated maturity date of November 9, 2025. Interest accrues at a rate per annum equal to 12.5%, and is payable semi-annually on each June 30 and December 31. On each interest payment date, the accrued and unpaid interest shall, at the election of the Company in its sole discretion, be either paid in cash or paid in-kind by increasing the principal amount of the Funicular Note. In the event of an Event of Default (as defined in the Funicular Note), in addition to Funicular’s other rights and remedies, the interest rate would increase to 20% per annum. The Funicular Note is convertible, in whole or in part, into shares of Common Stock at the election of the holder at any time at an initial conversion price of $10.00 per share (the “Conversion Price”). The Conversion Price is subject to adjustment monthly to a price equal to the trailing five-day VWAP, subject to a floor of $2.00 per share (provided that if the Company sells stock at an effective price below $2.00 per share, such floor would be reduced to such effective price), and is subject to customary adjustments for stock dividends, stock splits, reclassifications and the like. The Company has the right to redeem the Funicular Note upon 30 days’ notice after the earlier of August 7, 2024 and the effectiveness of the Registration Statement (as defined in the Funicular Note), and Funicular would have the right to require the Company to redeem the Note in connection with a Change of Control (as defined in the Note), in each case for a price equal to 101% of the outstanding principal amount of the Note plus accrued and unpaid interest. The Funicular Note contains covenants which, among other things, limit the ability of the Company and its subsidiaries to incur additional indebtedness, incur additional liens and sell its assets or properties.

The Funicular Note is secured by a perfected security interest in substantially all of the existing and future assets of the Company and each Grantor (as defined in the Security Agreement, as defined below), including a pledge of all of the capital stock of each of the Grantors, subject to certain exceptions, as evidenced by (i) a security agreement, dated as of February 9, 2024 (the “Security Agreement”), entered into among the Company, each of the Company’s subsidiaries and Funicular, and (ii) a guaranty, dated as of February 9, 2024 (the “Guaranty”), executed by each of the Company’s subsidiaries pursuant to which each of them has agreed to guaranty the obligations of the Company under the Funicular Note and the other Loan Documents (as defined in the Funicular Note).

Pursuant to the Purchase Agreement, the Company agreed, among other things, that if the Funicular Note becomes convertible into a number of shares of Common Stock in excess of 19.9% of the Company’s total number of shares of Common Stock outstanding, to seek the approval of its stockholders for the issuance of all shares of Common Stock issuable upon conversion of the Funicular Note in excess of that amount, in accordance with the rules of the NYSE American. Also pursuant to the Purchase Agreement, at the Closing the Sponsor transferred 600,000 Founder Shares and 600,000 private placement warrants to Funicular, which transfers terminated Quantum’s obligation to issue shares to Funicular pursuant to the terms of the non-redemption agreement, dated August 1, 2023, between Quantum and Funicular and previously disclosed in the Proxy Statement/Prospectus.

In connection with the Note Financing, on February 9, 2024, the Company entered into a registration rights agreement with Funicular (the “Funicular Registration Rights Agreement”), pursuant to which the Company agreed, among other things, to file with the U.S. Securities and Exchange Commission within 15 days after the Closing Date a registration statement registering the resale of the shares of Common Stock issuable upon exercise of the Funicular Note (the “Funicular Registration Statement”), and the Company agreed to use its best efforts to have the Funicular Registration Statement declared effective as promptly as reasonably possible after the filing thereof, but in any event within 60 days of the Closing Date. If the registration statement is not filed within 30 days after the Closing or is not declared effective by the applicable deadline set forth in the Registration Rights Agreement, or under certain other circumstances described in the Registration Rights Agreement, then the Company shall be obligated to pay to the Buyer an amount in cash equal to 5% of the original principal amount of the Note on a monthly basis until the applicable event giving rise to such payments is cured. The Funicular Registration Rights Agreement also provides that the Company is obligated to file additional registration statements under certain circumstances, and provides Funicular with customary “piggyback” registration rights.

The foregoing summaries provide only a brief description of the Purchase Agreement, the Funicular Note, the Guaranty, the Security Agreement and the Funicular Registration Rights Agreement. The summaries do not purport to be complete and are qualified in their entireties by the full text of such documents, copies of which are attached as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and incorporated herein by reference.

Expense Settlements

In connection with the Closing, the Company and Chardan Capital Markets LLC (“Chardan”) agreed that the fee, in the amount of $7,043,750, payable by Quantum to Chardan upon the Closing pursuant to the terms of the business combination marketing agreement entered into in connection with Quantum’s initial public offering, would be waived in exchange for the issuance by the Company to Chardan of a convertible promissory note in the aggregate principal amount of $4,150,000. Such note (the “Chardan Note”) was issued by the Company at the Closing.

The Chardan Note has a stated maturity date of February 9, 2028. Interest accrues at a rate per annum equal to 13%, and is payable quarterly on the first day of each calendar quarter. On each interest payment date, the accrued and unpaid interest shall, at the election of the Company, be either paid in cash or, subject to the satisfaction of certain conditions, in shares of Common Stock, at a rate equal to 85% of the VWAP for the trading day immediately prior to the applicable interest payment date. The Chardan Note is convertible, in whole or in part, into shares of Common Stock at the election of the holder at any time at a conversion price equal to 90% of the VWAP of the Common Stock for the trading day immediately preceding the applicable conversion date. In addition, on each conversion date the Company is required to pay to Chardan in cash (or, at the Company’s option and subject to certain conditions, a combination of cash and Common Stock) all accrued interest on the Chardan Note and all interest that would otherwise accrue on the amount of the Note being converted if such converted amount would be held to three years after the applicable conversion date. Conversion of the Chardan Note, including the issuance of shares to pay interest thereon, is limited to the extent that such conversion would result in Chardan (together with its affiliates and any other persons acting as a group together with Chardan or its affiliates) beneficially owning in excess of 9.99% of the outstanding shares of Common Stock outstanding immediately prior to such conversion. The conversion price applicable to the Chardan Note is subject to adjustment is subject to customary adjustments for stock dividends, stock splits, reclassifications and the like, and is subject to price-based adjustment, on a “full ratchet” basis, in the event of any issuances of Common Stock, or securities convertible, exercisable or exchangeable for, Common Stock at a price below the then-applicable conversion price (subject to certain exceptions). The Chardan Note is subject to a demand for immediate repayment in cash upon the occurrence of certain events of default specified therein.

Also on February 9, 2024, the Company entered into a registration rights agreement with Chardan (the “Chardan Registration Rights Agreement”), pursuant to which the Company agreed, among other things, to file with the U.S. Securities and Exchange Commission within 45 days after the Closing Date a registration statement registering the resale of the shares of Common Stock issuable upon exercise of the Chardan Note and to use its reasonable best efforts to have such registration statement declared effective as soon as possible after filing. If the registration statement is not filed within 45 days after the Closing or is not effective within a specified period after the Closing (or if effectiveness is subsequently suspended or terminated for at least 15 days, subject to certain exceptions), then the interest rate of the Chardan Note will increase by 2% for each week that such event continues. The Chardan Registration Rights Agreement also provides that the Company is obligated to file additional registration statements under certain circumstances, and provides Chardan with customary “piggyback” registration rights.

The foregoing summaries provide only a brief description of the Chardan Note and the Chardan Registration Rights Agreement. The summaries do not purport to be complete and are qualified in their entireties by the full text of such documents, copies of which are attached as Exhibits 10.6 and 10.7, respectively, and incorporated herein by reference.

Also in connection with the Closing, the Company agreed to settle certain accrued expenses and other obligations to certain parties through the issuance of shares of Common Stock. Pursuant to such arrangements, the Company issued an aggregate of 2,201,010 shares of Common Stock in settlement of obligations in the aggregate amount of $5,448,933, including the issuance of 2,000,000 shares of Common Stock to Qvent, LLC, an affiliate of the Sponsor, in settlement of an aggregate of $4,633,833 advanced to Quantum through the Closing Date.

Indemnification Agreements

On the Closing Date, in connection with the Closing, the Company entered into indemnification agreements with each of its directors and executive officers, which provide for indemnification and advancements by the Company of certain expenses and costs under certain circumstances. The indemnification agreements provide that AtlasClear Holdings will indemnify each of its directors and executive officers against any and all expenses incurred by that director or executive officer because of his or her status as a director or officer of AtlasClear Holdings, to the fullest extent permitted by Delaware law, the Amended and Restated Charter (as defined below) and the Amended and Restated Bylaws (as defined below).

The foregoing description of the Indemnification Agreement does not purport to be complete and is qualified in its entirety by reference to the text of the form of Indemnification Agreement, which is filed as Exhibit 10.13 hereto and is incorporated herein by reference.

Assignment, Assumption and Amendment Agreement

On the Closing Date, Quantum, AtlasClear Holdings and CST entered into that certain Assignment, Assumption and Amendment Agreement (the “New Warrant Agreement”). The New Warrant Agreement amends that certain Warrant Agreement, dated as of February 4, 2021, by and between Quantum and CST (the “Existing Warrant Agreement”), to provide for the assignment by Quantum of all its rights, title and interest in the warrants of Quantum to AtlasClear Holdings. Pursuant to the New Warrant Agreement, all Quantum warrants under the Existing Warrant Agreement will no longer be exercisable for shares of Quantum Common Stock, but instead will be exercisable for shares of Common Stock.

The foregoing description of the New Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to the text of the New Warrant Agreement, which is filed as Exhibit 4.1 hereto and is incorporated herein by reference.

Item 2.01

Completion of Acquisition or Disposition of Assets.

The disclosure set forth in the “Introductory Note” above is incorporated by reference into this Item 2.01.

On November 6, 2023, Quantum held a special meeting of stockholders (the “special meeting”), at which the Quantum stockholders considered and voted in favor of, among other matters, a proposal to approve and adopt the Business Combination Agreement and the Business Combination. On February 9, 2024, the parties to the Business Combination Agreement consummated the Business Combination.

FORM 10 INFORMATION

Item 2.01(f) of Form 8-K states that if the registrant was a “shell company” (as such term is defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), as the Company was immediately before the Business Combination, then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10. As a result of the consummation of the Business Combination, and as discussed below in Item 5.06 of this Report, the Company has ceased to be a shell company. Accordingly, the Company is providing the information below that would be included in a Form 10 if the Company were to file a Form 10. Please note that the information provided below relates to the combined company after the consummation of the Business Combination, unless otherwise specifically indicated or the context otherwise requires.

Forward-Looking Statements

Certain statements in this Report, including in the information that is incorporated by reference in this Report, may constitute “forward-looking statements” for purposes of the federal securities laws. These forward-looking statements include, but are not limited to, statements regarding the Company’s and the Company’s management team’s expectations, hopes, beliefs, intentions or strategies regarding the future, including statements regarding our future results of operations or financial condition, business strategy and plans, and objectives of management for future operations. In addition, any statements that refer to projections, forecasts or other characterizations of future events or circumstances, including any underlying assumptions, are forward-looking statements. The words “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intends,” “may,” “might,” “plan,” “possible,” “potential,” “predict,” “project,” “should,” “will,” “would” and similar expressions may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Forward-looking statements in this Report may include, for example, statements about:

•

the Company’s ability to recognize the expected benefits of the Business Combination;

•

the ability to maintain the listing of the Common Stock and warrants on the NYSE following the Business Combination;

•

the Company’s financial and business performance following the Business Combination, including the Company’s financial projections and business metrics;

•

the Company’s market opportunity;

•

changes in the Company’s strategy, future operations, financial position, estimated revenues and losses, forecasts, projected costs, prospects and plans;

•

expectations regarding the time during which the Company will be an emerging growth company under the JOBS Act;

•

the expected U.S. federal income tax impact of the Business Combination;

•

the Company’s ability to retain or recruit officers, key employees and directors following the completion of the Business Combination;

•

the impact of the regulatory environment and complexities with compliance related to such environment;

•

the future financial performance of the Company following the Business Combination, including AtlasClear’s financial projections and business metrics;

•

the contemplated acquisitions by AtlasClear of Commercial Bancorp and Pacsquare and the anticipated timing of such acquisitions;

•

expectations regarding future acquisitions, partnerships or other relationships with third parties;

•

the Company’s future capital requirements and sources and uses of cash, including the Company’s ability to obtain additional capital in the future; and

•

other factors detailed under the section titled “Risk Factors” in the Proxy Statement/Prospectus and incorporated by reference herein.

The forward-looking statements contained in this Report and in any document incorporated by reference are based on current expectations, forecasts and beliefs concerning future developments and their potential effects on the Company. There can be no assurance that future developments affecting the Company will be those that the Company has anticipated. These forward-looking statements involve a number of risks, uncertainties, some of which are beyond the Company’s control, or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by these forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described or incorporated by reference under the heading “Risk Factors” below. Should one or more of these risks or uncertainties materialize, or should any of the Company’s assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. It is not possible to predict or identify all such risks. Accordingly, forward-looking statements in this Report and in any document incorporated herein by reference should not be relied upon as representing the Company’s views as of any subsequent date, and the Company undertakes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

Business

The business of the Company is described in the Proxy Statement/Prospectus in the section entitled “Information About the Target Companies” beginning on page 187 thereof and that information is incorporated herein by reference.

Risk Factors

The risks associated with the Company’s business are described in the Proxy Statement/Prospectus in the section entitled “Risk Factors” beginning on page 49 thereof and are incorporated herein by reference. A summary of the risks associated with the Company’s business are also described beginning on

page 40 of the Proxy Statement/Prospectus under the heading “Summary of the Proxy Statement/Prospectus — Risk Factor Summary” and is incorporated by reference herein. There are no material changes to the Risk Factors section except for the additional risk factors set forth below.

A substantial number of shares of our Common Stock may be issued pursuant to the conversion terms of the Company’s convertible notes, which could cause the price of the Common Stock to decline.

Each of the Notes, the Funicular Note and the Chardan Note (collectively, the “Convertible Notes”) are convertible into shares of our Common Stock, at various conversion prices (which may be reduced under certain circumstances). The issuance of any of these shares will dilute our other equity holders, which could cause the price of our Common Stock to decline.

The requirement that we repay the Convertible Notes could adversely affect our business plan, liquidity, financial condition, and results of operations.

If not converted, we are required to repay principal amounts outstanding under the Convertible Notes, as well as interest thereon. These obligations could have important consequences on our business. In particular, they could:

●

limit our flexibility in planning for, or reacting to, changes in our businesses and the industries in which we operate;

●

increase our vulnerability to general adverse economic and industry conditions; and

●

place us at a competitive disadvantage compared to our competitors.

No assurances can be given that we will be successful in making the required payments under the Convertible Notes. If we are unable to make the required cash payments, there could be a default under the Convertible Notes. In such event, or if a default otherwise occurs under the Convertible Notes, including as a result of our failure to comply with the financial or other covenants contained therein:

●

the interest rate payable under the Convertible Notes could be increased, and holders of the Convertible Notes could declare all outstanding principal and interest to be due and payable;

●

the holders of the Funicular Note could foreclose against our assets; and/or

●

we could be forced into bankruptcy or liquidation.

Restrictive covenants under the Convertible Notes could limit our growth and our ability to finance our operations, fund our capital needs, respond to changing conditions and engage in other business activities that may be in our best interests.

The Convertible Notes contain a number of affirmative and negative covenants regarding matters such as the payment of dividends, maintenance of our properties and assets, transactions with affiliates, and our ability to issue other indebtedness.

Our ability to comply with these covenants may be adversely affected by events beyond our control, and we cannot assure you that we can maintain compliance with these covenants. The financial covenants could limit our ability to make needed expenditures or otherwise conduct necessary or desirable business activities.

Financial Information

The unaudited condensed consolidated financial statements of Wilson-Davis as of September 30, 2023, and for the three months ended September 30, 2023 and 2022 will be provided by amendment to this Report.

The audited consolidated financial statements of Wilson-Davis as of June 30, 2023, and for the years ended June 30, 2023 and 2022, are included in the Proxy Statement/Prospectus beginning on page F-49 thereof and are incorporated by reference herein.

The unaudited pro forma condensed combined financial information of the Company will be provided by amendment to this Report.

The financial information in the section to be titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Wilson- Davis” will be provided by amendment to this Report.

Properties

The Company maintains its principal executive offices at 4030 Henderson Blvd., Suite 712, Tampa, FL 33629.

Security Ownership of Certain Beneficial Owners and Management

The following table sets forth information known to the Company regarding the beneficial ownership of shares of Common Stock upon the Closing by:

• each person who is the beneficial owner of more than 5% of the outstanding shares of Common Stock;

• the Company’s named executive officer and directors; and

• all of the Company’s executive officers and directors as a group.

Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days. In computing the number of shares of Common Stock beneficially owned by a person and the percentage ownership, the Company deemed outstanding shares of Common Stock subject to warrants held by that person that are currently exercisable or exercisable within 60 days of the Closing Date. The Company did not deem these shares outstanding, however, for the purpose of computing the percentage ownership of any other person.

Unless otherwise indicated, the Company believes that all persons named in the table have sole voting and investment power with respect to all shares of Common Stock beneficially owned by them.

Unless otherwise indicated, the address of each beneficial owner listed in the table below is c/o AtlasClear Holdings, Inc., 4030 Henderson Blvd., Suite 712, Tampa, FL 33629.

The percentage ownership of Common Stock is based on 11,781,759 shares of Common Stock outstanding immediately following the Closing, after giving effect to the redemption of the Public Shares described above, the separation of the former Quantum Units, the issuance of Merger Consideration Shares and the issuance of shares of Common Stock pursuant to Expense Settlements.

Name and Address of Beneficial Owner⁽¹⁾	Number of Shares Beneficially Owned		Approximate Percentage of Outstanding Shares of Common Stock
Quantum Ventures LLC⁽²⁾		1,569,139		13.3	%
Chardan Quantum LLC⁽³⁾		949,084		8.1	%
Directors and Executive Officers of AtlasClear Holdings:
Robert McBey		977,974		8.3	%
Steven J. Carlson		59,844		*
Thomas J. Hammond		65,605		*
Richard Korhammer		48,700		*
Sandip I. Patel		120,410		1.0	%
Craig Ridenhour		—		*
John Schaible		153,348		1.3	%
James Tabacchi		—		—
Richard Barber		3,853		*
Ilya Bogdanov		—		—
All executive officers and directors as a group (10 individuals)		1,429,734		12.1	%
Five Percent Holders:
Funicular Funds, LP⁽⁴⁾		2,471,800		19.96	%
Dark Forest Capital Management LP⁽⁵⁾		1,348,563		13.4	%

* Less than 1%.

(1)

Unless otherwise noted, the business address of each of the following entities or individuals is c/o AtlasClear Holdings, Inc., 4030 Henderson Blvd., Suite 712, Tampa, FL 33629.

(2)

According to a Schedule 13G filed with the SEC on February 14, 2022, the shares reported above are held in the name of Quantum Ventures LLC. Messrs. Schaible and Patel are two of the three managers of Quantum Ventures LLC. Any action by Quantum Ventures LLC with respect to the Founder Shares held by it, including voting and dispositive decisions, requires a majority vote of the board of managers. Accordingly, under the so- called “rule of three,” because voting and dispositive decisions are made by a majority of Quantum Ventures LLC’s managers, none of the managers of Quantum Ventures LLC is deemed to be a beneficial owner of Quantum Ventures LLC’s securities, even those in which such manager holds a pecuniary interest. Accordingly, none of such individuals is deemed to have or share beneficial ownership of the Founder Shares held by Quantum Ventures LLC.

(3)

The business address of Chardan Quantum LLC is 17 State Street, New York, NY 10004.

(4)

According to a Schedule 13D and Schedule 13D/A, each filed with the SEC on February 10, 2023 by Funicular Funds, LP (the “Fund”) with respect to the shares beneficially owned and held by the Fund. The General Partner of the Fund is Cable Car Capital LLC (“Cable Car”). Jacob Ma-Weaver is the Managing Member of Cable Car and the ultimate individual responsible for directing the voting and disposition of shares held by the Fund. Cable Car, as the General Partner of the Fund, may be deemed the beneficial owner of all the shares owned by the Fund. Mr. Ma-Weaver, as the Managing Member of Cable Car, may be deemed the beneficial owner of all the shares owned by the Fund. The address for the Fund and Cable Car is 2261 Market Street #4307, San Francisco, CA 94114. The number of shares held by Funicular Funds, LP is reported as of February 6, 2023, as stated in the Schedule 13D/A. In addition, pursuant to the Purchase Agreement, at the Closing the Sponsor transferred 600,000 Founder Shares and 600,000 private placement warrants to the Fund.

(5)

According to a Schedule 13G filed with the SEC on November 8, 2021 by Dark Forest Capital Management LP, (the “Firm”), and Dark Forest Global Equity Master Fund LP (“Dark Forest Master”). The Firm and Dark Forest Master share voting and dispositive power with respect to all of the securities. The Firm, as the investment manager to Dark Forest Master, may be deemed to beneficially own these securities. Jacob Kline is the managing member of the general partner of the Firm and exercises investment discretion with respect to these securities. The address for the Firm and Dark Forest Master is 151 West Avenue, Darien, Connecticut 06820. The number of shares held by Firm and Dark Forest Master is reported as of October 28, 2021, as stated in the Schedule 13G, which does not reflect any redemption of shares by Quantum in connection with the Extension Amendment, Second Extension Amendment or any other transactions after October 28, 2021.

Directors and Executive Officers

Information with respect to the Company’s directors and executive officers after the Closing are described in the Proxy Statement/Prospectus in the section entitled “Management of the Company Following the Business Combination” beginning on page 214 thereof and that information is incorporated herein by reference.

Board Composition

Upon the Closing, the size of the Board was increased from two members to seven members. Pursuant to the approval of the Quantum stockholders at the special meeting, the following persons constitute the Board effective upon the Closing: Robert McBey, Steven J. Carlson, Thomas J. Hammond, Sandip I. Patel, Craig Ridenhour, John Schaible and James Tabacchi. Biographical information for these individuals is set forth in the Proxy Statement/Prospectus in the section entitled “Management of the Company Following the Business Combination” beginning on page 214 thereof, which information is incorporated herein by reference.

Director Independence

Upon the Closing, the Board determined, based on information provided by each director concerning his background, employment and affiliations, that Steven J. Carlson, Thomas J. Hammond, Sandip I. Patel and James Tabacchi, representing four of the Company’s seven directors, do not have material relationships with the Company (either directly or as a partner, shareholder or officer of an organization that has a relationship with the Company) that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director and that each of these directors is “independent” as that term is defined under the NYSE listing standards and the rules of the SEC relating to director independence requirements. In making these determinations, the Board considered the current and prior relationships that each non-employee director has with the Company and all other facts and circumstances the Board deemed relevant in determining their independence, including the beneficial ownership of the Company’s securities by non-employee directors and the transactions described below under the heading “Certain Relationships and Related Party Transactions.”

Committees of the Board of Directors

Effective upon the Closing, the standing committees of the Board consist of an audit committee, a compensation committee and a nominating and corporate governance committee. The Board appointed Steven J. Carlson, Sandip I. Patel and James Tabacchi to serve on the audit committee, with Mr. Patel serving as the chair. The Board also determined that Mr. Carlson qualifies as an “audit committee financial expert” within the meaning of the SEC regulations. The Board appointed Steven J. Carlson, Thomas J. Hammond and James Tabacchi to serve on the compensation committee, with Mr. Carlson serving as chair. The Board appointed Steven J. Carlson, Thomas J. Hammond and Sandip I. Patel to serve on the nominating and corporate governance committee, with Mr. Patel serving as chair.

Executive Officers

Effective as of the Closing, the Board appointed Robert McBey, Richard Barber, John Schaible, Craig Ridenhour and Ilya Bogdanov to serve as Chief Executive Officer, Chief Financial Officer, Chief Strategy Officer, Chief Business Development Officer and Chief Technology Officer, respectively. Biographical information for these individuals is set forth in the Proxy Statement/Prospectus in the section entitled “Management of the Company Following the Business Combination” beginning on page 214 thereof, which information is incorporated herein by reference.

Executive Compensation

The compensation of the Company’s named executive officer is described in the Proxy Statement/Prospectus in the section entitled “Executive Compensation” beginning on page 220 thereof and that information is incorporated herein by reference.

Compensation Committee Interlocks and Insider Participation

None of the Company’s officers currently serves, and in the past year has not served, as a member of the compensation committee of any entity that has one or more officers serving on the Board.

Certain Relationships and Related Person Transactions

Certain relationships and related person transactions are described in the Proxy Statement/Prospectus in the sections entitled “Certain Relationships and Related Party Transactions” beginning on page 221 thereof and are incorporated herein by reference.

Legal Proceedings

Reference is made to the disclosure regarding legal proceedings in the section of the Proxy Statement/Prospectus entitled “Information About the Target Companies — Legal Proceedings” beginning on page 200 thereof, which is incorporated herein by reference.

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

Market Information

Prior to the Closing, the Quantum Common Stock and Quantum Units were listed on the NYSE under the symbols “QFTA,” and “QFTA.U,” respectively, and the Quantum Warrants traded on the OTC under the symbol “QFTAW”. Upon the Closing, the Common Stock was listed on the NYSE under the symbol “ATCH” and the AtlasClear Warrants trade on the OTC under the symbol “ATCHW”. All outstanding Quantum Units automatically separated into their component securities upon the Closing and, as a result, no longer trade as a separate security and were delisted from the NYSE.

Dividends

The Company has not paid any cash dividends on shares of its common stock to date. The Company currently intends to retain any future earnings and does not expect to pay any dividends in the foreseeable future. Any future determination to declare cash dividends will be made at the discretion of the Board, subject to applicable laws, and will depend on a number of factors, including the Company’s financial condition, results of operations, capital requirements, contractual restrictions, general business conditions and other factors that the Board may deem relevant.

Holders of Record

Following the Closing, including the redemption of the Public Shares described above and the separation of the former Quantum Units, there were 61 holders of record of Common Stock and 4 holders of record of warrants. Such numbers do not include beneficial owners holding the Company’s securities through nominee names.

Securities Authorized for Issuance Under Equity Compensation Plan

Reference is made to the disclosure regarding the AtlasClear Holdings 2023 Equity Incentive Plan (which has been renamed the AtlasClear 2024 Equity Incentive Plan (the “2024 Incentive Plan”)), which is set forth under the heading “2024 Incentive Plan” in Item 5.02 of this Report, and which is incorporated herein by reference.

Recent Sales of Unregistered Securities

Reference is made to the disclosure set forth under Item 3.02 of this Report regarding the issuance and sale by the Company of certain unregistered securities, which is incorporated herein by reference.

Description of Registrant’s Securities

The Company’s securities are described in the Proxy Statement/Prospectus in the section entitled “Description of Securities” beginning on page 228 thereof and that information is incorporated herein by reference. As described below in Item 5.03 of this Report, the Amended and Restated Charter and Amended and Restated Bylaws became effective as of the Closing.

Indemnification of Directors and Officers

Information about the indemnification of the Company’s directors and officers is set forth in the Proxy Statement/Prospectus in the section entitled “Description of Securities — Anti-Takeover Effects of Provisions of the Proposed Charter, the Proposed Bylaws and Delaware Law — Limitation on Liability and Indemnification of Directors and Officers” beginning on page 234 thereof, which information is incorporated herein by reference. The information set forth under the heading “Indemnification Agreements” in Item 1.01 of this Report is incorporated herein by reference.

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth under the headings “Amendments to Broker-Dealer Acquisition Agreement,” “Convertible Note Financing” and “Expense Settlements” in Item 1.01 of this Report is incorporated by reference herein.

Item 3.02

Unregistered Sales of Equity Securities.

The information set forth in the “Introductory Note” and Item 2.01 above with respect to the issuance of Merger Consideration Shares and the potential issuance of Earnout Shares based on the achievement of trading price targets and of Software Products Earn Out Shares upon achievement of certain revenue targets following the Closing and subject to the terms provided in the Business Combination Agreement, and under the headings “Amendments to Broker-Dealer Acquisition Agreement,” “Convertible Note Financing” and “Expense Settlements” in Item 1.01 of this Report is incorporated by reference herein.

An aggregate of 4,440,000 shares of Closing Merger Consideration issued in connection with the Closing, an aggregate of 5,944,444 Earnout Shares, if such Earnout Shares become issuable following the Closing pursuant to the terms of the Business Combination Agreement will be issued to the AtlasClear stockholders, and up to $20 million of Software Products Earn Out Shares will be issued to Atlas FinTech, in each case, in reliance upon the exemption from registration provided under Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act in a transaction not requiring registration under the Securities Act.

The Amendments, Funicular Notes, Note Financing, Chardan Note and the settlement of certain accrued expenses and other obligations to certain parties through the issuance of an aggregate of 2,201,010 shares of Common Stock were issued in reliance upon Section 4(a)(2) of the Securities Act, in a transaction not requiring registration under the Securities Act.

Item 3.03

Material Modification to Rights of Security Holders.

The disclosure set forth under Item 5.03 of this Report is incorporated herein by reference.

Item 5.01

Changes in Control of Registrant.

The disclosure set forth in the “Introductory Note” above and in Item 2.01 of this Report is incorporated herein by reference.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

The disclosure set forth in Item 2.01 of this Report under the headings “Directors and Executive Officers,” and “Executive Compensation” is incorporated herein by reference.

2024 Incentive Plan

As previously disclosed, at the special meeting, the Quantum stockholders considered and approved the 2023 Incentive Plan. The 2023 Incentive Plan was previously approved, subject to stockholder approval, by Quantum’s board of directors. The 2023 Incentive Plan, renamed the 2024 Incentive Plan, became effective immediately upon the Closing.

Following the Closing, a total of 1,178,176 shares of Common Stock were reserved for issuance under the terms of the 2024 Incentive Plan, which equaled 10% of the total number of shares of Common Stock issued and outstanding immediately following the Closing. A summary of the other material terms of the 2024 Incentive Plan is included in the Proxy Statement/Prospectus in the section entitled “Proposal No. 3 — The Incentive Plan Proposal” beginning on page 145 thereof, which is incorporated herein by reference. The foregoing description of the 2024 Incentive Plan is qualified in its entirety by the full text of the 2024 Incentive Plan, which is attached to this Report as Exhibit 10.12 and incorporated herein by reference.

Item 5.03

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

On the Closing Date, the Company amended and restated its certificate of incorporation (as amended and restated, the “Amended and Restated Charter”), which became effective upon filing with the Secretary of State of the State of Delaware on the Closing Date and included the amendments proposed by “Proposals Nos. 2A through 2G — The Advisory Charter Proposals”, and adopted amended and restated bylaws (the “Amended and Restated Bylaws”), which became effective immediately prior to the Closing.

Copies of the Amended and Restated Charter and Amended and Restated Bylaws are attached to this Report as Exhibits 3.1 and 3.2, respectively, and incorporated herein by reference.

The material terms of the Amended and Restated Charter and the Amended and Restated Bylaws, and the general effect upon the rights of holders of the Company’s capital stock, are described in the sections of the Proxy Statement/Prospectus titled “Proposal Nos. 2A through 2G — The Advisory Charter Proposals”, “Description of Securities” and “Comparison of Stockholders’ Rights” beginning on pages 141, 228 and 236, respectively, thereof, which information is incorporated herein by reference.

Item 5.05

Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics.

On the Closing Date, in connection with the Closing, the Board adopted a new code of business conduct and ethics applicable to all of the Company’s directors, officers and employees. A copy of the code of business conduct and ethics is available on the investor relations portion of the Company’s website at www.atlasclear.com. The foregoing description of the code of business conduct and ethics does not purport to be complete and is qualified in its entirety by the full text of the code of business conduct and ethics, a copy of which is attached to this Report as Exhibit 14.1 and incorporated herein by reference.

Item 5.06

Change in Shell Company Status.

As a result of the Business Combination, the Company ceased to be a shell company. Reference is made to the disclosure in the Proxy Statement/Prospectus in the section entitled “Proposal No. 1 — The Business Combination Proposal” beginning on page 92 thereof, which is incorporated by reference herein.

Item 7.01

Regulation FD Disclosure.

On February 12, 2024, the Company issued a press release announcing, among other things, the Closing. The press release is attached to this Report as Exhibit 99.1 and incorporated herein by reference.

The information contained under this Item 7.01 in this Report, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Exchange Act or otherwise subject to the liabilities under that section and shall not be deemed to be incorporated by reference into any filing of the Company under the Securities Act or the Exchange Act, except as may be expressly set forth by specific reference in such filing.

Item 9.01

Financial Statements and Exhibits.

(a)

Financial statements of businesses or funds acquired.

The unaudited condensed consolidated financial statements of Wilson-Davis as of September 30, 2023, and for the three months ended September 30, 2023 and 2022, are set forth in Exhibit 99.1 attached hereto and are incorporated by reference herein.

(b)

Pro forma financial information.

The unaudited pro forma condensed combined financial information of the Company as of September 30, 2023, and for the year ended December 31, 2022, and the nine months ended September 30, 2023 will be provided in an amendment to this Report.

(d)

Exhibits.

Exhibit No.		Description

2.1†		Business Combination Agreement, dated as of November 16, 2022, by and among Quantum FinTech Acquisition Corporation, Calculator New Pubco, Inc., Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., AtlasClear, Inc., Atlas FinTech Holdings Corp. and Robert McBey (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on November 17, 2022).

2.1(a)		Amendment No. 1 to Business Combination Agreement, dated as of April 28, 2023, by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on May 2, 2023).

2.1(b)		Amendment No. 2 to Business Combination Agreement, dated as of August 8, 2023, by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on August 10, 2023).

2.1(c)		Business Combination Agreement Waiver, dated as of October 19, 2023 by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on October 20, 2023).

2.1(d)		Amendment No. 3 to Business Combination Agreement, dated as of November 6, 2023, by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on November 6, 2023).

2.1(e)		Amendment No. 4 to Business Combination Agreement, dated as of November 22, 2023, by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on November 24, 2023).

2.1(f)		Amendment No. 5 to Business Combination Agreement, dated as of December 14, 2023, by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (incorporated by reference to Exhibit 2.1 to Quantum’s Current Report on Form 8-K (File No. 001-40009), filed with the SEC on December 15, 2023).

2.1(g)		Amendment No. 6 to Business Combination Agreement, dated as of January 8, 2024, by and between Quantum FinTech Acquisition Corporation and AtlasClear, Inc. (File No. 001-40009), filed with the SEC on January 9, 2024).

3.1*		Amended and Restated Certificate of Incorporation of AtlasClear Holdings, Inc. (formerly Calculator New Pubco, Inc.).

3.2*		Amended and Restated By-Laws of AtlasClear Holdings, Inc.

4.1*		Assignment, Assumption and Amendment Agreement, dated as of February 9, 2024, by and among Quantum FinTech Acquisition Corporation, Calculator New Pubco, Inc. and Continental Stock Transfer & Trust Company.

10.1*†		Securities Purchase Agreement, dated as of February 9, 2024, among Quantum FinTech Acquisition Corporation, AtlasClear Holdings, Inc. (formerly Calculator New Pubco, Inc.) and Funicular Funds, LP.

10.2*†		Secured Convertible Promissory Note, dated as of February 9, 2024, between AtlasClear Holdings, Inc. and Funicular Funds, LP, in favor of Funicular Funds, LP.

10.3*		Guaranty, dated as of February 9, 2024, by and among the Guarantors identified on the signature page thereto and each other Person that becomes a party hereto pursuant to Section 19, for the benefit of Funicular Funds, LP.

10.4*†		Security Agreement, dated as of February 9, 2024, by and among AtlasClear Holdings, Inc. and each other Grantor from time to time party thereto and Funicular Funds, LP.

10.5*		Registration Rights Agreement, dated as of February 9, 2024, by and among AtlasClear Holdings, Inc. (formerly Calculator New Pubco, Inc.) and Funicular Funds, LP.


10.6*		Convertible Promissory Note, dated as of February 9, 2024, in favor of Chardan Capital Markets, LLC.

10.7*		Registration Rights Agreement, dated as of February 9, 2024, by and between AtlasClear Holdings, Inc. and Chardan Capital Markets, LLC.

10.8		Agreement and Plan of Merger, dated November 16, 2022, by and among AtlasClear, Inc. and Commercial Bancorp and, with respect to Section 6.16 only, AtlasClear Holdings, Inc. (formerly Calculator New Pubco, Inc.) (incorporated by reference to Exhibit 10.3 to Quantum’s Current Report on Form 8-K, filed on November 17, 2022).

10.9*		Assignment and Assumption Agreement and Bill of Sale, dated November 16, 2022, by and among AtlasClear, Atlas FinTech, and Atlas Financial Technologies, Corp.

10.10*		Stock Purchase Agreement, dated April 15, 2022, by and among Wilson-Davis & Co., Inc., all of its Stockholders and AtlasClear, Inc. (inadvertently identified as “Atlas Clear Corp.” in the Stock Purchase Agreement).

10.10(a)*		Amendment to Stock Purchase Agreement, dated as of June 15, 2022, by and among Wilson-Davis & Co., Inc., the individuals and entities listed in Exhibit A thereto, and AtlasClear, Inc.

10.10(b)*		Amendment No. 2 to Stock Purchase Agreement, dated as of November 15, 2022, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(c)*		Amendment No. 3 to Stock Purchase Agreement, dated as of May 30, 2023, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(d)*		Amendment No. 4 to Stock Purchase Agreement, dated as of August 8, 2023, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(e)*		Amendment No. 5 to Stock Purchase Agreement, dated as of November 6, 2023, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(f)*		Amendment No. 6 to Stock Purchase Agreement, dated as of November 22, 2023, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(g)*		Amendment No. 7 to Stock Purchase Agreement, dated as of December 14, 2023, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(h)*†		Amendment No. 8 to Stock Purchase Agreement, dated as of January 9, 2024, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.10(i)*		Amendment No. 9 to Stock Purchase Agreement, dated as of February 7, 2024, by and among Wilson-Davis & Co. Inc., the individuals and entities listed in Exhibit A thereto and AtlasClear, Inc.

10.11*		Parent Guaranty and Registration Rights Agreement, dated as of January 9, 2024, by and among AtlasClear Holdings, Inc. and the persons listed on the signature pages thereto.

10.12#*		AtlasClear Holdings, Inc. 2024 Equity Incentive Plan.

10.13#*		Form of Indemnification Agreement.

14.1*		AtlasClear Holdings, Inc. Code of Business Conduct and Ethics.

21.1*		List of Subsidiaries.

99.1*		Press release, dated February 12, 2024.

* Filed herewith.

†

Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The registrant agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.

Indicates management contract or compensatory plan, contract or arrangement.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	ATLASCLEAR HOLDINGS, INC.

Date: February 15, 2024	/s/ Robert McBey
	Name: Robert McBey
	Title: Chief Executive Officer

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
CALCULATOR NEW PUBCO, INC.

Calculator New Pubco, Inc., a corporation organized and existing under the laws of the State of Delaware, does hereby certify as follows:

A. The name of this corporation is Calculator New Pubco, Inc. Its original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on October 13, 2022.

B. This Amended and Restated Certificate of Incorporation (this “Amended and Restated Certificate”) was duly adopted by the Board of Directors of this corporation and by the stockholders in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware.

C. This Amended and Restated Certificate restates, integrates and amends the provisions of the Original Certificate. Certain capitalized terms used in this Amended and Restated Certificate are defined where appropriate herein.

D. The text of the Original Certificate of Incorporation of this corporation is hereby amended and restated in its entirety to read as follows:

ARTICLE I

The name of this corporation is AtlasClear Holdings, Inc. (the “Corporation”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, in the City of Wilmington, County of New Castle, State of Delaware, 19808, and the name of the Corporation’s registered agent at such address is Corporation Service Company.

ARTICLE III

The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “General Corporation Law”).

ARTICLE IV

Section 1. Total Authorized

1.1 The total number of shares of all classes of stock that the Corporation has authority to issue is 101,000,000 shares, consisting of 100,000,000 shares of Common Stock, $0.0001 par value per share (“Common Stock”), and 1,000,000 shares of Preferred Stock, $0.0001 par value per share (“Preferred Stock”).

1.2 The number of authorized shares of Common Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of capital stock representing a majority of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law, and no vote of the holders of the Common Stock voting separately as a class shall be required therefor.

Section 2. The Corporation’s Board of Directors (the “Board”) is authorized, subject to any limitations prescribed by the law of the State of Delaware, by resolution or resolutions adopted from time to time, to provide for the issuance of shares of Preferred Stock in one or more series, and, by filing a certificate of designation pursuant to the applicable law of the State of Delaware (the “Certificate of Designation”), to establish from time to time the number of shares to be included in each such series, to fix the designation, vesting, powers (including voting powers), preferences and relative, participating, optional or other rights (and the qualifications, limitations or restrictions thereof) of the shares of each such series and to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of such series then outstanding) the number of shares of any such series. The number of authorized shares of Preferred Stock may also be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all the then-outstanding shares of capital stock of the Corporation entitled to vote thereon, without a separate vote of the holders of the Preferred Stock or any series thereof, irrespective of the provisions of Section 242(b)(2) of the General Corporation Law, unless a vote of any such holders is required pursuant to the terms of any Certificate of Designation designating a series of Preferred Stock.

Section 3. Except as otherwise expressly provided in any Certificate of Designation designating any series of Preferred Stock pursuant to the foregoing provisions of this Article IV, (i) any new series of Preferred Stock may be designated, fixed and determined as provided herein by the Board without approval of the holders of Common Stock or the holders of Preferred Stock, or any series thereof, and (ii) any such new series may have powers, preferences and rights, including, without limitation, voting rights, dividend rights, liquidation rights, redemption rights and conversion rights, senior to, junior to or pari passu with the rights of the Common Stock, the Preferred Stock, or any future class or series of Preferred Stock or Common Stock.

Section 4. Each outstanding share of Common Stock shall entitle the holder thereof to one vote on each matter properly submitted to the stockholders of the Corporation for their vote; provided, however, that, except as otherwise required by law, holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including any Certificate of Designation relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate (including any Certificate of Designation relating to any series of Preferred Stock).

ARTICLE V

Section 1. The business and affairs of the Corporation shall be managed by or under the direction of the Board, except as otherwise provided by law. In addition to the powers and authority expressly conferred upon them by statute or by this Amended and Restated Certificate or the Bylaws of the Corporation (the “Bylaws”), the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation.

Section 2. Subject to the rights of the holders of any series of Preferred Stock to elect additional directors under specified circumstances, the total number of directors constituting the Whole Board shall be fixed from time to time exclusively by resolution adopted by a majority of the Whole Board. For purposes of this Amended and Restated Certificate, the term “Whole Board” shall mean the total number of authorized directors whether or not there exist any vacancies in previously authorized directorships.

Section 3. Subject to the special rights of the holders of any series of Preferred Stock to elect directors, the directors shall be elected at the annual meeting of the stockholders, except as provided in Section 4 below. At each annual meeting, the holders of shares entitled to vote in the election of directors shall elect directors to hold office until the next succeeding annual meeting and until his or her successor is elected and qualified, or until such director’s earlier death, resignation, disqualification or removal. Any director may resign at any time upon notice to the Corporation given in writing or by any electronic transmission as permitted by and in the manner set forth in the Bylaws. Subject to the special rights of the holders of any series of Preferred Stock, a director may be removed from the Board only by the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of the then-outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors voting together as a single class. In the event of any increase or decrease in the authorized number of directors, each director then serving as such shall nevertheless continue as a director. No decrease in the authorized number of directors constituting the Board shall shorten the term of any incumbent director.

Section 4. Subject to the special rights of the holders of any series of Preferred Stock to elect directors, any vacancy occurring in the Board for any cause, and any newly created directorship resulting from any increase in the authorized number of directors, shall, unless (a) the Board determines by resolution that any such vacancies or newly created directorships shall be filled by the stockholders or (b) as otherwise provided by law, be filled only by the affirmative vote of a majority of the directors then in office, even if less than a quorum, or by a sole remaining director, and not by the stockholders. Any director elected in accordance with the preceding sentence shall hold office for a term expiring at the annual meeting of stockholders or until such director’s successor shall have been duly elected and qualified, or until such director’s earlier death, resignation, disqualification or removal.

Section 5. Election of directors need not be by written ballot unless the Bylaws shall so provide.

ARTICLE VI

Section 1. To the fullest extent permitted by law, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Without limiting the effect of the preceding sentence, if the General Corporation Law is hereafter amended to authorize the further elimination or limitation of the liability of a director, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law, as so amended.

Section 2. Neither any amendment nor repeal of this Article VI, nor the adoption of any provision of this Amended and Restated Certificate inconsistent with this Article VI, shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing at the time of such amendment, repeal or adoption of such inconsistent provision.

ARTICLE VII

The Board shall have the power to adopt, amend or repeal the Bylaws. Any adoption, amendment or repeal of the Bylaws by the Board shall require the approval of a majority of the Whole Board. The stockholders shall also have power to adopt, amend or repeal the Bylaws; provided, however, that, notwithstanding any other provision of this Amended and Restated Certificate (including any Certificate of Designation) or any provision of law that might otherwise permit a lesser or no vote, but in addition to any vote of the holders of any class or series of stock of the Corporation required by applicable law or by this Amended and Restated Certificate (including any Preferred Stock issued pursuant to any Certificate of Designation), the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of the Bylaws; provided, further, that if two-thirds (2/3) of the Whole Board has approved such adoption, amendment or repeal of any provisions of the Bylaws, then only the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to adopt, amend or repeal any provision of the Bylaws.

ARTICLE VIII

Section 1. Subject to the rights of any series of Preferred Stock then outstanding, any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of stockholders of the Corporation and may not be effected by any consent in writing by such stockholders.

Section 2. Special meetings of stockholders of the Corporation may be called only by the Chairperson of the Board of Directors, the Chief Executive Officer, the Lead Independent Director (as defined in the Bylaws) or the Board of Directors acting pursuant to a resolution adopted by a majority of the Whole Board, and may not be called by any other person or persons. Only such business shall be considered at a special meeting of stockholders as shall have been stated in the notice for such meeting.

Section 3. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner and to the extent provided in the Bylaws.

ARTICLE IX

Section 1. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware lacks subject matter jurisdiction, any state court located within the State of Delaware or, if and only if all such state courts lack subject matter jurisdiction, the federal district court for the District of Delaware) shall be the sole and exclusive forum for the following types of actions or proceedings under Delaware statutory or common law: (i) any derivative action or proceeding brought on behalf of the Corporation; (ii) any action or proceeding asserting a claim of breach of a fiduciary duty owed by or any wrongdoing by any current or former director, officer, employee or agent of the Corporation or any stockholder to the Corporation or the Corporation’s stockholders; (iii) any action or proceeding asserting a claim against the Corporation or any current or former director, officer or other employee of the Corporation or any stockholder in such stockholder’s capacity as such arising out of or pursuant to any provision of the General Corporation Law, this Amended and Restated Certificate or the Bylaws of the Corporation (as each may be amended from time to time); (iv) any action or proceeding to interpret, apply, enforce or determine the validity of this Amended and Restated Certificate or the Bylaws of the Corporation (including any right, obligation or remedy thereunder); (v) any action or proceeding as to which the General Corporation Law confers jurisdiction to the Court of Chancery of the State of Delaware; and (vi) any action or proceeding asserting a claim governed by the internal affairs doctrine, in all cases to the fullest extent permitted by law and subject to the court’s having personal jurisdiction over the indispensable parties named as defendants. This Article IX shall not apply to suits brought to enforce a duty or liability created by the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended, or any other claim for which the federal courts have exclusive jurisdiction.

Section 2. Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended.

Section 3. Any person or entity holding, owning or otherwise acquiring any interest in any security of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article IX.

ARTICLE X

If any provision of this Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of this Amended and Restated Certificate (including, without limitation, all portions of any section of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable, that are not themselves invalid, illegal or unenforceable) shall remain in full force and effect.

ARTICLE XI

The Corporation reserves the right to amend or repeal any provision contained in this Amended and Restated Certificate in the manner prescribed by the laws of the State of Delaware and all rights conferred upon stockholders are granted subject to this reservation; provided, however, that, notwithstanding any other provision of this Amended and Restated Certificate (including any Certificate of Designation) or any provision of law that might otherwise permit a lesser vote or no vote, but in addition to any vote of the holders of any class or series of the stock of the Corporation required by law or by this Amended and Restated Certificate (including any Certificate of Designation), and subject to Section 1 and 2 of Article IV, the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal or adopt any provision inconsistent with this Article XI, Section 2, 3 and 4 of Article IV, or Article V, Article VI, Article VII, Article VIII, Article IX or Article X (the “Specified Provisions”); provided, further, that if two-thirds (2/3) of the Whole Board has approved such amendment or repeal of, or any provision inconsistent with, the Specified Provisions, then only the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to amend or repeal, or adopt any provision inconsistent with, the Specified Provisions.

IN WITNESS WHEREOF, this Amended and Restated Certificate is signed by a duly authorized officer of the Corporation, on this 9 day of February, 2024.

By:	/s/ Robert McBey
Name:	Robert McBey
Title:	Chief Executive Officer

Exhibit 3.2

ATLASCLEAR HOLDINGS, INC.

a Delaware corporation

AMENDED AND RESTATED BYLAWS

As adopted on February 9, 2024
(Effective as of February 9, 2024)

ARTICLE I: STOCKHOLDERS

Section 1.1: Annual Meetings. An annual meeting of stockholders shall be held for the election of directors at such date and time as the Board of Directors (the “Board”) of Calculator New Pubco, Inc. (the “Corporation”) shall each year fix. The meeting may be held either at a place, within or without the State of Delaware as permitted by the Delaware General Corporation Law (the “DGCL”), or by means of remote communication as the Board in its sole discretion may determine. Any proper business may be transacted at the annual meeting, subject to the requirements of Section 1.11 of these Bylaws.

Section 1.2: Special Meetings. Special meetings of stockholders for any purpose or purposes shall be called in the manner set forth in the Second Amended and Restated Certificate of Incorporation of the Corporation (as the same may be amended and/or restated from time to time, the “Certificate of Incorporation”). The special meeting may be held either at a place, within or without the State of Delaware, or by means of remote communication as the Board in its sole discretion may determine. Business transacted at any special meeting of stockholders shall be limited to matters relating to the purpose or purposes stated in the notice of the meeting.

Section 1.3: Notice of Meetings. Notice of all meetings of stockholders shall be given in writing or by electronic transmission in the manner provided by applicable law (including, without limitation, as set forth in Section 7.1.1 of these Bylaws) stating the date, time and place, if any, of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting. In the case of a special meeting, such notice shall also set forth the purpose or purposes for which the meeting is called. Unless otherwise required by applicable law or the Certificate of Incorporation, notice of any meeting of stockholders shall be given not less than ten (10), nor more than sixty (60), days before the date of the meeting to each stockholder of record entitled to vote at such meeting.

Section 1.4: Adjournments. The chairperson of the meeting shall have the power to adjourn the meeting to another time, date and place (if any). Any meeting of stockholders, annual or special, may be adjourned from time to time, and notice need not be given of any such adjourned meeting if the time, date and place (if any) thereof and the means of remote communication (if any) by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting the Corporation may transact any business that might have been transacted at the original meeting. To the fullest extent permitted by law, the Board may postpone, reschedule or cancel any previously scheduled special or annual meeting of the stockholders before it is to be held, regardless of whether any notice or public disclosure with respect to any such meeting has been sent or made pursuant to Section 1.3 hereof or otherwise, in which case notice shall be provided to the stockholders of the new date, time and place, if any, of the meeting as provided in Section 1.3 above.

Section 1.5: Quorum. Except as otherwise provided by applicable law, the Certificate of Incorporation or these Bylaws, at each meeting of stockholders the holders of a majority of the voting power of the shares of stock issued and outstanding and entitled to vote at the meeting, present in person or represented by proxy, shall constitute a quorum for the transaction of business; provided, however, that where a separate vote by a class or classes or series of stock is required by applicable law or the Certificate of Incorporation, the holders of a majority of the voting power of the shares of such class or classes or series of the stock issued and outstanding and entitled to vote on such matter, present in person or represented by proxy at the meeting, shall constitute a quorum entitled to take action with respect to the vote on such matter. If a quorum shall fail to attend any meeting, the chairperson of the meeting or, if directed to be voted on by the chairperson of the meeting, the holders of a majority of the voting power of the shares entitled to vote who are present in person or represented by proxy at the meeting may adjourn the meeting. Shares of the Corporation’s stock belonging to the Corporation (or to another corporation, if a majority of the shares entitled to vote in the election of directors of such other corporation are held, directly or indirectly, by the Corporation), shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any other corporation to vote any shares of the Corporation’s stock held by it in a fiduciary capacity and to count such shares for purposes of determining a quorum. A quorum, once established at a meeting, shall not be broken by the withdrawal of enough votes to leave less than a quorum.

Section 1.6: Organization. Meetings of stockholders shall be presided over by (a) such person as the Board may designate, or (b) in such person’s absence, the Chairperson of the Board, or (c) in such person’s absence, the Lead Independent Director, or, (d) in such person’s absence, the Chief Executive Officer of the Corporation, or (e) in such person’s absence, the President of the Corporation, or (f) in such person’s absence, by a Vice President. Such person shall be chairperson of the meeting and, subject to Section 1.10 of these Bylaws, shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seems to such person to be in order. The Secretary of the Corporation shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 1.7: Voting; Proxies. Each stockholder of record entitled to vote at a meeting of stockholders may authorize another person or persons to act for such stockholder by proxy. Such a proxy may be prepared, transmitted and delivered in any manner permitted by applicable law. Except as may be required in the Certificate of Incorporation, directors shall be elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. Unless otherwise provided by applicable law, rule or regulation applicable to the Corporation or its securities, the rules or regulations of any stock exchange applicable to the Corporation, the Certificate of Incorporation or these Bylaws, every matter other than the election of directors shall be decided by the affirmative vote of the holders of a majority of the voting power of the shares of stock entitled to vote on such matter that are present in person or represented by proxy at the meeting and are voted for or against the matter (or if there are two or more classes or series of stock entitled to vote as separate classes, then in the case of each class or series, the holders of a majority of the voting power of the shares of stock of that class or series present in person or represented by proxy at the meeting voting for or against such matter).

Section 1.8: Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60), nor less than ten (10), days before the date of such meeting. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to notice of or to vote at the adjourned meeting.

In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board and which shall not be more than sixty (60) days prior to such action. If no such record date is fixed by the Board, then the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

Section 1.9: List of Stockholders Entitled to Vote. The Secretary shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth (10th) day before the meeting date), arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, for a period of at least ten (10) days prior to the meeting, (a) on a reasonably accessible electronic network as permitted by applicable law (provided, that the information required to gain access to the list is provided with the notice of the meeting), or (b) during ordinary business hours, at the principal place of business of the Corporation. If the meeting is held at a location where stockholders may attend in person, the list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present at the meeting. If the meeting is held solely by means of remote communication, then the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access the list shall be provided with the notice of the meeting. Except as otherwise provided by law, the list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them.

Section 1.10: Inspectors of Elections.

1.10.1 Applicability. Unless otherwise required by the Certificate of Incorporation or by the DGCL, the following provisions of this Section 1.10 shall apply only if and when the Corporation has a class of voting stock that is: (a) listed on a national securities exchange; (b) authorized for quotation on an interdealer quotation system of a registered national securities association; or (c) held of record by more than two thousand (2,000) stockholders. In all other cases, observance of the provisions of this Section 1.10 shall be optional, and at the discretion of the Board.

1.10.2 Appointment. The Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting shall appoint one or more inspectors to act at the meeting.

1.10.3 Inspector’s Oath. Each inspector of election, before entering upon the discharge of such inspector’s duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of such inspector’s ability.

1.10.4 Duties of Inspectors. At a meeting of stockholders, the inspectors of election shall (a) ascertain the number of shares outstanding and the voting power of each share, (b) determine the shares represented at a meeting and the validity of proxies and ballots, (c) count all votes and ballots, (d) determine and retain for a reasonable period of time a record of the disposition of any challenges made to any determination by the inspectors, and (e) certify their determination of the number of shares represented at the meeting, and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the inspectors in the performance of the duties of the inspectors.

1.10.5 Opening and Closing of Polls. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced by the chairperson of the meeting at the meeting. No ballot, proxies or votes, nor any revocations thereof or changes thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery of the State of Delaware, upon application by a stockholder, shall determine otherwise.

1.10.6 Determinations. In determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies, any envelopes submitted with those proxies, any information provided in connection with proxies pursuant to Section 211(a)(2)b.(i) of the DGCL, or in accordance with Sections 211(e) or 212(c)(2) of the DGCL, ballots and the regular books and records of the Corporation, except that the inspectors may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the limited purpose permitted herein, the inspectors at the time they make their certification of their determinations pursuant to this Section 1.10 shall specify the precise information considered by them, including the person or persons from whom they obtained the information, when the information was obtained, the means by which the information was obtained and the basis for the inspectors’ belief that such information is accurate and reliable.

Section 1.11: Notice of Stockholder Business; Nominations.

1.11.1 Annual Meeting of Stockholders.

(a) Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only: (i) pursuant to the Corporation’s notice of such meeting (or any supplement thereto), (ii) by or at the direction of the Board or any committee thereof or (iii) by any stockholder of the Corporation who was a stockholder of record at the time of giving of the notice provided for in this Section 1.11 (the “Record Stockholder”), who is entitled to vote at such meeting and who complies with the notice and other procedures set forth in this Section 1.11 in all applicable respects. For the avoidance of doubt, the foregoing clause (iii) shall be the exclusive means for a stockholder to make nominations or propose business (other than business included in the Corporation’s proxy materials pursuant to Rule 14a-8 under the Securities Exchange Act of 1934, as amended (such act, and the rules and regulations promulgated thereunder, the “Exchange Act”)), at an annual meeting of stockholders, and such stockholder must fully comply with the notice and other procedures set forth in this Section 1.11 to make such nominations or propose business before an annual meeting.

(b) For nominations or other business to be properly brought before an annual meeting by a Record Stockholder pursuant to Section 1.11.1(a) of these Bylaws:

(i) the Record Stockholder must have given timely notice thereof in writing to the Secretary of the Corporation and provide any updates or supplements to such notice at the times and in the forms required by this Section 1.11;

(ii) such other business (other than the nomination of persons for election to the Board) must otherwise be a proper matter for stockholder action;

(iii) if the Proposing Person (as defined below) has provided the Corporation with a Solicitation Notice (as defined below), such Proposing Person must, in the case of a proposal other than the nomination of persons for election to the Board, have delivered a proxy statement and form of proxy to holders of at least the percentage of the Corporation’s voting shares required under applicable law to carry any such proposal, or, in the case of a nomination or nominations, have delivered a proxy statement and form of proxy to holders of a percentage of the Corporation’s voting shares reasonably believed by such Proposing Person to be sufficient to elect the nominee or nominees proposed to be nominated by such Record Stockholder, and must, in either case, have included in such materials the Solicitation Notice; and

(iv) if no Solicitation Notice relating thereto has been timely provided pursuant to this Section 1.11, the Proposing Person proposing such business or nomination must not have solicited a number of proxies sufficient to have required the delivery of such a Solicitation Notice under this Section 1.11.

To be timely, a Record Stockholder’s notice must be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the ninetieth (90th) day nor earlier than the close of business on the one hundred and twentieth (120th) day prior to the first anniversary of the preceding year’s annual meeting (except in the case of the Corporation’s first annual meeting following the closing the Transaction (as defined below), for which such notice shall be timely if delivered in the same time period as if such meeting were a special meeting governed by Section 1.11.2 of these Bylaws); provided, however, that in the event that no annual meeting was held during the preceding year or the date of the annual meeting is more than thirty (30) days before, or more than sixty (60) days after, such anniversary date, notice by the Record Stockholder to be timely must be so delivered (A) no earlier than the close of business on the one hundred and twentieth (120th) day prior to such annual meeting and (B) no later than the close of business on the later of the ninetieth (90th) day prior to such annual meeting or the close of business on the tenth (10th) day following the day on which Public Announcement (as defined below) of the date of such meeting is first made by the Corporation. In no event shall an adjournment or postponement of an annual meeting for which notice has been given commence a new time period (or extend any time period) for providing the Record Stockholder’s notice. Such Record Stockholder’s notice shall set forth:

(X) as to each person whom the Record Stockholder proposes to nominate for election or reelection as a director:

(i) the name, age, business address and residence address of such person;

(ii) the principal occupation or employment of such nominee;

(iii) the class, series and number of any shares of stock of the Corporation that are beneficially owned or owned of record by such person or any Associated Person (as defined in Section 1.11.3(c));

(iv) the date or dates such shares were acquired and the investment intent of such acquisition;

(v) all other information relating to such person that would be required to be disclosed in solicitations of proxies for election of directors in an election contest (even if an election contest is not involved), or would be otherwise required, in each case pursuant to and in accordance with Section 14(a) (or any successor provision) under the Exchange Act and the rules and regulations thereunder (including such person’s written consent to being named in the proxy statement as a nominee, to the public disclosure of information regarding or related to such person provided to the Corporation by such person or otherwise pursuant to this Section 1.11 and to serving as a director if elected); and

(vi) whether such person meets the independence requirements of the stock exchange upon which the Corporation’s Common Stock is primarily traded.

(Y) as to any other business that the Record Stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event that such business includes a proposal to amend the Bylaws, the text of the proposed amendment), the reasons for conducting such business at the meeting and any material interest in such business of such Proposing Person, including any anticipated benefit to any Proposing Person therefrom; and

(Z) as to the Proposing Person giving the notice:

(i) the current name and address of such Proposing Person, including, if applicable, their name and address as they appear on the Corporation’s stock ledger, if different;

(ii) the class or series and number of shares of stock of the Corporation that are directly or indirectly owned of record or beneficially owned by such Proposing Person, including any shares of any class or series of the Corporation as to which such Proposing Person has a right to acquire beneficial ownership at any time in the future;

(iii) whether and the extent to which any derivative interest in the Corporation’s equity securities (including without limitation any option, warrant, convertible security, stock appreciation right, or similar right with an exercise or conversion privilege or a settlement payment or mechanism at a price related to any class or series of shares of the Corporation or with a value derived in whole or in part from the value of any class or series of shares of the Corporation, whether or not such instrument or right shall be subject to settlement in the underlying class or series of shares of the Corporation or otherwise, and any cash-settled equity swap, total return swap, synthetic equity position or similar derivative arrangement, as well as any rights to dividends on the shares of any class or series of shares of the Corporation that are separated or separable from the underlying shares of the Corporation) or any short interest in any security of the Corporation (for purposes of this Bylaw a person shall be deemed to have a short interest in a security if such person directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has the opportunity to profit or share in any profit derived from any increase or decrease in the value of the subject security, including through performance-related fees) is held directly or indirectly by or for the benefit of such Proposing Person, including without limitation whether and the extent to which any ongoing hedging or other transaction or series of transactions has been entered into by or on behalf of, or any other agreement, arrangement or understanding (including without limitation any short position or any borrowing or lending of shares) has been made, the effect or intent of which is to mitigate loss to or manage risk or benefit of share price changes for, or to increase or decrease the voting power of, such Proposing Person with respect to any share of stock of the Corporation;

(iv) any other material relationship between such Proposing Person, on the one hand, and the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation, on the other hand;

(v) any direct or indirect material interest in any material contract or agreement with the Corporation, any affiliate of the Corporation or any principal competitor of the Corporation (including, in any such case, any employment agreement, collective bargaining agreement or consulting agreement);

(vi) any other information relating to such Proposing Person that would be required to be disclosed in a proxy statement or other filing required to be made in connection with solicitations of proxies or consents by such Proposing Person in support of the business proposed to be brought before the meeting pursuant to Section 14(a) (or any successor provision) under the Exchange Act and the rules and regulations thereunder (the disclosures to be made pursuant to the foregoing clauses (iv) through (vi) are referred to as “Disclosable Interests”). For purposes hereof “Disclosable Interests” shall not include any information with respect to the ordinary course business activities of any broker, dealer, commercial bank, trust company or other nominee who is a Proposing Person solely as a result of being the stockholder directed to prepare and submit the notice required by these Bylaws on behalf of a beneficial owner;

(vii) such Proposing Person’s written consent to the public disclosure of information provided to the Corporation pursuant to this Section 1.11;

(viii) a complete written description of any agreement, arrangement or understanding (whether oral or in writing) (including any knowledge that another person or entity is Acting in Concert (as defined in Section 1.11.3(c)) with such Proposing Person) between or among such Proposing Person, any of its respective affiliates or associates and any other person Acting in Concert with any of the foregoing persons;

(ix) as to each person whom such Proposing Person proposes to nominate for election or re-election as a director, any agreement, arrangement or understanding of such person with any other person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director known to such Proposing Person after reasonable inquiry;

(x) a representation that the Record Stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such business or nomination;

(xi) a representation whether such Proposing Person intends (or is part of a group that intends) to deliver a proxy statement or form of proxy to holders of, in the case of a proposal, at least the percentage of the Corporation’s voting shares required under applicable law to carry the proposal or, in the case of a nomination or nominations, a sufficient number of holders of the Corporation’s voting shares to elect such nominee or nominees (an affirmative statement of such intent being a “Solicitation Notice”); and

(xii) any proxy, contract, arrangement, or relationship pursuant to which the Proposing Person has a right to vote, directly or indirectly, any shares of any security of the Corporation.

A stockholder providing written notice required by this Section 1.11 will update and supplement such notice in writing, if necessary, so that the information provided or required to be provided in such notice is true and correct in all material respects as of (i) the record date for the meeting and (ii) the close of business on the fifth (5th) business day prior to the meeting and, in the event of any adjournment or postponement thereof, the close of business on the fifth (5th) business day prior to such adjourned or postponed meeting. In the case of an update and supplement pursuant to clause (i) of the foregoing sentence, such update and supplement will be received by the Secretary of the Corporation at the principal executive office of the Corporation not later than five (5) business days after the record date for the meeting, and in the case of an update and supplement pursuant to clause (ii) of the foregoing sentence, such update and supplement will be received by the Secretary of the Corporation at the principal executive office of the Corporation not later than two (2) business days prior to the date for the meeting, and, in the event of any adjournment or postponement thereof, two (2) business days prior to such adjourned or postponed meeting.

(c) Notwithstanding anything in the second sentence of Section 1.11.1(b) of these Bylaws to the contrary, in the event that the number of directors to be elected to the Board is increased and there is no Public Announcement by the Corporation naming all of the nominees for director or specifying the size of the increased Board at least ninety (90) days prior to the first anniversary of the preceding year’s annual meeting (or, if there was no annual meeting in the preceding year or the annual meeting is held more than thirty (30) days before or sixty (60) days after the anniversary date of the preceding year’s annual meeting, at least ninety (90) days prior to such annual meeting), a stockholder’s notice required by this Section 1.11 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation at the principal executive office of the Corporation no later than the close of business on the tenth (10th) day following the day on which such Public Announcement is first made by the Corporation.

(d) Notwithstanding anything in Section 1.11 or any other provision of the Bylaws to the contrary, any person who has been determined by a majority of the Whole Board to have violated Section 2.11 of these Bylaws or a Board Confidentiality Policy (as defined below) while serving as a director of the Corporation in the preceding five (5) years shall be ineligible to be nominated or serve as a member of the Board, absent a prior waiver for such nomination or service approved by two-thirds of the Whole Board.

1.11.2 Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of such meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of such meeting (a) by or at the direction of the Board or any committee thereof or (b) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record at the time of giving of notice of the special meeting, who shall be entitled to vote at the meeting and who complies with the notice and other procedures set forth in this Section 1.11 in all applicable respects. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder may nominate a person or persons (as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s notice required by Section 1.11.1(b) of these Bylaws shall be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation (i) no earlier than the one hundred twentieth (120th) day prior to such special meeting and (ii) no later than the close of business on the later of the ninetieth (90th) day prior to such special meeting or the tenth (10th) day following the day on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.

1.11.3 General.

(a) Only such persons who are nominated in accordance with the procedures set forth in this Section 1.11 shall be eligible to be elected at a meeting of stockholders and serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 1.11. Except as otherwise provided by law or these Bylaws, the chairperson of the meeting shall have the power and duty to determine whether a nomination or any other business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.11 and, if any proposed nomination or business is not in compliance herewith, to declare that such defective proposal or nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 1.11, unless otherwise required by law, if the stockholder providing the notice of business proposed to be brought before an annual meeting or nomination of persons for election to the Board at a stockholder meeting (or a Qualified Representative of the stockholder (as defined below)) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or proposed business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation.

(b) Notwithstanding the foregoing provisions of this Section 1.11, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 1.11 shall be deemed to affect any rights of (a) stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

(i) a person shall be deemed to be “Acting in Concert” with another person if such person knowingly acts (whether or not pursuant to an express agreement, arrangement or understanding) in concert with, or toward a common goal relating to the management, governance or control of the Corporation in substantial parallel with, such other person where (1) each person is conscious of the other person’s conduct or intent and this awareness is an element in their decision-making processes and (2) at least one additional factor suggests that such persons intend to act in concert or in substantial parallel, which such additional factors may include, without limitation, exchanging information (whether publicly or privately), attending meetings, conducting discussions or making or soliciting invitations to act in concert or in substantial parallel; provided, that a person shall not be deemed to be Acting in Concert with any other person solely as a result of the solicitation or receipt of revocable proxies or consents from such other person in response to a solicitation made pursuant to, and in accordance with, Section 14(a) (or any successor provision) of the Exchange Act by way of a proxy or consent solicitation statement filed on Schedule 14A. A person Acting in Concert with another person shall be deemed to be Acting in Concert with any third party who is also Acting in Concert with such other person;

(ii) “Associated Person” shall mean with respect to any subject stockholder or other person (including any proposed nominee) (1) any person directly or indirectly controlling, controlled by or under common control with such stockholder or other person, (2) any beneficial owner of shares of stock of the Corporation owned of record or beneficially by such stockholder or other person, (3) any associate (as defined in Rule 405 under the Securities Act of 1933, as amended), of such stockholder or other person, and (4) any person directly or indirectly controlling, controlled by or under common control or Acting in Concert with any such Associated Person;

(iii) “Proposing Person” shall mean (1) the stockholder providing the notice of business proposed to be brought before an annual meeting or nomination of persons for election to the Board at a stockholder meeting, (2) the beneficial owner or beneficial owners, if different, on whose behalf the notice of business proposed to be brought before the annual meeting or nomination of persons for election to the Board at a stockholder meeting is made, and (3) any Associated Person on whose behalf the notice of business proposed to be brought before the annual meeting or nomination of persons for election to the Board at a stockholder meeting is made;

(iv) “Public Announcement” shall mean disclosure in a press release reported by a national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act; and

(v) to be considered a “Qualified Representative” of a stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as a proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction thereof, at the annual meeting; provided, however, that if the stockholder is (1) a general or limited partnership, any general partner or person who functions as a general partner of the general or limited partnership or who controls the general or limited partnership shall be deemed a Qualified Representative, (2) a corporation or a limited liability company, any officer or person who functions as the substantial equivalent of an officer of the corporation or limited liability company or any officer, director, general partner or person who functions as an officer, director or general partner of any entity ultimately in control of the corporation or limited liability company shall be deemed a Qualified Representative, or (3) a trust, any trustee of such trust shall be deemed a Qualified Representative. The Secretary of the Corporation, or any other person who shall be appointed to serve as secretary of the meeting, may require, on behalf of the Corporation, reasonable and appropriate documentation to verify the status of a person purporting to be a “Qualified Representative” for purposes hereof.

ARTICLE II: BOARD OF DIRECTORS

Section 2.1: Number; Qualifications. The total number of directors constituting the Board (the “Whole Board”) shall be fixed from time to time in the manner set forth in the Certificate of Incorporation. No decrease in the authorized number of directors constituting the Whole Board shall shorten the term of any incumbent director. Directors need not be stockholders of the Corporation.

Section 2.2: Election; Resignation; Removal; Vacancies. Election of directors need not be by written ballot. Each director shall hold office until the annual meeting at which such director’s term expires and until such director’s successor is elected and qualified or until the next succeeding annual meeting and until his or her successor is elected and qualified, or until such director’s earlier death, resignation, disqualification or removal. Any director may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chairperson of the Board, the Chief Executive Officer, or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at a later time or upon the happening of an event. Subject to the special rights of holders of any series of Preferred Stock to elect directors, directors may be removed only as provided by the Certificate of Incorporation and applicable law. All vacancies occurring in the Board and any newly created directorships resulting from any increase in the authorized number of directors shall be filled in the manner set forth in the Certificate of Incorporation.

Section 2.3: Regular Meetings. Regular meetings of the Board may be held at such places, within or without the State of Delaware, and at such times as the Board may from time to time determine. Notice of regular meetings need not be given if the date, times and places thereof are fixed by resolution of the Board.

Section 2.4: Special Meetings. Special meetings of the Board may be called by the Chairperson of the Board, the Chief Executive Officer, the Lead Independent Director or at least two (2) members of the Board then in office and may be held at any time, date or place, within or without the State of Delaware, as the person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting shall be given, orally, in writing or by electronic transmission (including electronic mail), by the person or persons calling the meeting to all directors at least four (4) days before the meeting if the notice is mailed, or at least twenty-four (24) hours before the meeting if such notice is given by telephone, hand delivery, telegram, telex, mailgram, facsimile, electronic mail or other means of electronic transmission. Unless otherwise indicated in the notice, any and all business may be transacted at a special meeting.

Section 2.5: Remote Meetings Permitted. Members of the Board, or any committee of the Board, may participate in a meeting of the Board or such committee by means of conference telephone or other remote communications by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to conference telephone or other remote communications shall constitute presence in person at such meeting.

Section 2.6: Quorum; Vote Required for Action. At all meetings of the Board, a majority of the Whole Board shall constitute a quorum for the transaction of business. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to another place, date or time without further notice thereof. Except as otherwise provided herein or in the Certificate of Incorporation, or required by law, the vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the Board.

Section 2.7: Organization. Meetings of the Board shall be presided over by (a) the Chairperson of the Board, or (b) in such person’s absence, the Lead Independent Director, or (c) in such person’s absence, the Chief Executive Officer, or (d) in such person’s absence, a chairperson chosen by the Board at the meeting. The Secretary shall act as secretary of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.

Section 2.8: Unanimous Action by Directors in Lieu of a Meeting. Any action required or permitted to be taken at any meeting of the Board, or of any committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee, as applicable. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.

Section 2.9: Powers. Except as otherwise provided by the Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board.

Section 2.10: Compensation of Directors. Members of the Board, as such, may receive, pursuant to a resolution of the Board, fees and other compensation for their services as directors, including without limitation their services as members of committees of the Board.

Section 2.11: Confidentiality. Each director shall maintain the confidentiality of, and shall not share with any third party person or entity (including third parties that originally sponsored, nominated or designated such director (the “Sponsoring Party”)), any non-public information learned in their capacities as directors, including communications among Board members in their capacities as directors. The Board may adopt a board confidentiality policy further implementing and interpreting this bylaw (a “Board Confidentiality Policy”). All directors are required to comply with this bylaw and any such Board Confidentiality Policy unless such director or the Sponsoring Party for such director has entered into a specific written agreement with the Corporation, in either case as approved by the Board, providing otherwise with respect to such confidential information.

ARTICLE III: COMMITTEES

Section 3.1: Committees. The Board may designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting of such committee who are not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member. Any such committee, to the extent provided in a resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee shall have the power or authority in reference to the following matters: (a) approving, adopting or recommending to the stockholders any action or matter (other than the election or removal of members of the Board) expressly required by the DGCL to be submitted to stockholders for approval or (b) adopting, amending or repealing any bylaw of the Corporation.

Section 3.2: Committee Rules. Each committee shall keep records of its proceedings and make such reports as the Board may from time to time request. Unless the Board otherwise provides, each committee designated by the Board may make, alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board conducts its business pursuant to Article II of these Bylaws. Except as otherwise provided in the Certificate of Incorporation, these Bylaws or the resolution of the Board designating the committee, any committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and may delegate to any such subcommittee any or all of the powers and authority of the committee.

ARTICLE IV: OFFICERS; CHAIRPERSON; LEAD INDEPENDENT DIRECTOR

Section 4.1: Generally. The officers of the Corporation shall consist of a Chief Executive Officer (who may be the Chairperson of the Board or the President), a President, a Secretary and a Treasurer and may consist of such other officers, including, without limitation, a Chief Financial Officer and one or more Vice Presidents, as may from time to time be appointed by the Board. All officers shall be elected by the Board; provided, however, that the Board may empower the Chief Executive Officer of the Corporation to appoint any officer other than the Chief Executive Officer, the President, the Chief Financial Officer or the Treasurer. Except as otherwise provided by law, by the Certificate of Incorporation or these Bylaws, each officer shall hold office until such officer’s successor is duly elected and qualified or until such officer’s earlier resignation, death, disqualification or removal. Any number of offices may be held by the same person. Any officer may resign by delivering a resignation in writing or by electronic transmission to the Corporation at its principal office or to the Chairperson of the Board, the Chief Executive Officer or the Secretary. Such resignation shall be effective upon delivery unless it is specified to be effective at some later time or upon the happening of some later event. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board and the Board may, in its discretion, leave unfilled, for such period as it may determine, any offices. Each such successor shall hold office for the unexpired term of such officer’s predecessor and until a successor is duly elected and qualified or until such officer’s earlier resignation, death, disqualification or removal.

Section 4.2: Chief Executive Officer. Subject to the control of the Board and such supervisory powers, if any, as may be given by the Board, the powers and duties of the Chief Executive Officer of the Corporation are:

(a) to act as the general manager and, subject to the control of the Board, to have general supervision, direction and control of the business and affairs of the Corporation;

(b) subject to Article I, Section 1.6 of these Bylaws, to preside at all meetings of the stockholders;

(c) subject to Article I, Section 1.2 of these Bylaws, to call special meetings of the stockholders to be held at such times and, subject to the limitations prescribed by law or by these Bylaws, at such places as the Chief Executive Officer shall deem proper;

(d) to affix the signature of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers and instruments in writing which have been authorized by the Board or which, in the judgment of the Chief Executive Officer, should be executed on behalf of the Corporation;

(e) to sign certificates for shares of stock of the Corporation (if any); and

(f) subject to the direction of the Board, to have general charge of the property of the Corporation and to supervise and control all officers, agents and employees of the Corporation.

The person holding the office of President shall be the Chief Executive Officer of the Corporation unless the Board shall designate another officer to be the Chief Executive Officer. The Chief Executive Officer may be the Chairperson of the Board.

Section 4.3: Chairperson of the Board. Subject to the provisions of Section 2.7 of these Bylaws, the Chairperson of the Board shall have the power to preside at all meetings of the Board and shall have such other powers and duties as provided in these Bylaws and as the Board may from time to time prescribe.

Section 4.4: Lead Independent Director. The Board may, in its discretion, elect a lead independent director from among its members that are Independent Directors (as defined below) (such director, the “Lead Independent Director”). The Lead Independent Director shall preside at all meetings at which the Chairperson of the Board is not present and shall exercise such other powers and duties as may from time to time be assigned to such person by the Board or as prescribed by these Bylaws. For purposes of these Bylaws, “Independent Director” has the meaning ascribed to such term under the rules of the exchange upon which the Corporation’s Common Stock is primarily traded.

Section 4.5: President. The person holding the office of Chief Executive Officer shall be the President of the Corporation unless the Board shall have designated one individual as the President and a different individual as the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer other than the President), and subject to such supervisory powers and authority as may be given by the Board to the Chairperson of the Board, and/or to any other officer, the President shall have the responsibility for the general management and control of the business and affairs of the Corporation and the general supervision and direction of all of the officers, employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that are delegated to the President by the Board.

Section 4.6: Vice President. Each Vice President shall have all such powers and duties as are commonly incident to the office of Vice President or that are delegated to him or her by the Board or the Chief Executive Officer. A Vice President may be designated by the Board to perform the duties and exercise the powers of the Chief Executive Officer or President in the event of the Chief Executive Officer’s or President’s absence or disability.

Section 4.7: Chief Financial Officer. The person holding the office of Chief Financial Officer shall be the Treasurer of the Corporation unless the Board shall have designated another officer as the Treasurer of the Corporation. Subject to the direction of the Board and the Chief Executive Officer, the Chief Financial Officer shall perform all duties and have all powers that are commonly incident to the office of Chief Financial Officer, or as the Board may from time to time prescribe.

Section 4.8: Treasurer. The person holding the office of Treasurer shall have custody of all monies and securities of the Corporation. The Treasurer shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions. The Treasurer shall also perform such other duties and have such other powers as are commonly incident to the office of Treasurer, or as the Board or the Chief Executive Officer may from time to time prescribe.

Section 4.9: Secretary. The Secretary shall issue or cause to be issued all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings of the stockholders and the Board. The Secretary shall have charge of the corporate minute books and similar records and shall perform such other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board or the Chief Executive Officer may from time to time prescribe.

Section 4.10: Delegation of Authority. The Board may from time to time delegate the powers or duties of any officer of the Corporation to any other officers or agents of the Corporation, notwithstanding any provision hereof.

Section 4.11: Removal. Any officer of the Corporation shall serve at the pleasure of the Board and may be removed at any time, with or without cause, by the Board; provided that if the Board has empowered the Chief Executive Officer to appoint any officer of the Corporation, then such officer may also be removed by the Chief Executive Officer. Such removal shall be without prejudice to the contractual rights of such officer, if any, with the Corporation.

ARTICLE V: STOCK

Section 5.1: Certificates; Uncertificated Shares. The shares of capital stock of the Corporation shall be uncertificated shares; provided, however, that the resolution of the Board that the shares of capital stock of the Corporation shall be uncertificated shares shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation (or the transfer agent or registrar, as the case may be). Notwithstanding the foregoing, the Board may provide by resolution or resolutions that some or all of any or all classes or series of its stock shall be certificated shares. Every holder of stock represented by certificates shall be entitled to have a certificate signed, or in the name of the Corporation, by the Chairperson or Vice-Chairperson of the Board, the Chief Executive Officer or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, of the Corporation, representing the number of shares registered in certificate form. Any or all of the signatures on the certificate may be obtained via facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were an officer, transfer agent or registrar at the date of issue.

Section 5.2: Lost, Stolen or Destroyed Stock Certificates; Issuance of New Certificates or Uncertificated Shares. The Corporation may issue a new certificate of stock or uncertificated shares in the place of any certificate previously issued by it, alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative, to agree to indemnify the Corporation and/or to give the Corporation a bond sufficient to indemnify it, against any claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares.

Section 5.3: Other Regulations. Subject to applicable law, the Certificate of Incorporation and these Bylaws, the issue, transfer, conversion and registration of shares represented by certificates and of uncertificated shares shall be governed by such other regulations as the Board may establish.

ARTICLE VI: INDEMNIFICATION

Section 6.1: Indemnification of Officers and Directors. Each person who was or is a party to, or is threatened to be made a party to, or is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, legislative or any other type whatsoever (a “Proceeding”), by reason of the fact that such person (or a person of whom such person is the legal representative), is or was a director or officer of the Corporation or, while serving as a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation, or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans (for purposes of this Article VI, an “Indemnitee”), shall be indemnified and held harmless by the Corporation to the fullest extent permitted by the DGCL as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expenses, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith, provided such Indemnitee acted in good faith and in a manner that the Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or Proceeding, had no reasonable cause to believe the Indemnitee’s conduct was unlawful. Such indemnification shall continue as to an Indemnitee who has ceased to be a director or officer of the Corporation and shall inure to the benefit of such Indemnitees’ heirs, executors and administrators. Notwithstanding the foregoing, subject to Section 6.5 of these Bylaws, the Corporation shall indemnify any such Indemnitee seeking indemnity in connection with a Proceeding (or part thereof) initiated by such Indemnitee only if such Proceeding (or part thereof) was authorized by the Board or such indemnification is authorized by an agreement approved by the Board.

Section 6.2: Advance of Expenses. Except as otherwise provided in a written indemnification contract between the Corporation and an Indemnitee, the Corporation shall pay all expenses (including attorneys’ fees) incurred by an Indemnitee in defending any Proceeding in advance of its final disposition; provided, however, that if the DGCL then so requires, the advancement of such expenses shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of such Indemnitee, to repay such amounts if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VI or otherwise.

Section 6.3: Non-Exclusivity of Rights. The rights conferred on any person in this Article VI shall not be exclusive of any other right that such person may have or hereafter acquire under any statute, provision of the Certificate of Incorporation, Bylaws, agreement, vote or consent of stockholders or disinterested directors, or otherwise. Additionally, nothing in this Article VI shall limit the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons whom the Corporation is not obligated to indemnify or advance expenses pursuant to this Article VI.

Section 6.4: Indemnification Contracts. The Board is authorized to cause the Corporation to enter into indemnification contracts with any director, officer, employee or agent of the Corporation, or any person serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit plans, providing indemnification or advancement rights to such person. Such rights may be greater than those provided in this Article VI.

Section 6.5: Right of Indemnitee to Bring Suit. The following shall apply to the extent not in conflict with any indemnification contract provided for in Section 6.4 of these Bylaws.

6.5.1 Right to Bring Suit. If a claim under Section 6.1 or 6.2 of these Bylaws is not paid in full by the Corporation within sixty (60) days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be twenty (20) days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall be entitled to be paid, to the fullest extent permitted by law, the expense of prosecuting or defending such suit. In any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that the Indemnitee has not met any applicable standard of conduct which makes it permissible under the DGCL (or other applicable law) for the Corporation to indemnify the Indemnitee for the amount claimed.

6.5.2 Effect of Determination. Neither the absence of a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in applicable law, nor an actual determination that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, be a defense to such suit.

6.5.3 Burden of Proof. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VI, or otherwise, shall be on the Corporation.

Section 6.6: Nature of Rights. The rights conferred upon Indemnitees in this Article VI shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer or trustee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators. Any amendment, repeal or modification of any provision of this Article VI that adversely affects any right of an Indemnitee or an Indemnitee’s successors shall be prospective only, and shall not adversely affect any right or protection conferred on a person pursuant to this Article VI with respect to any Proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment, repeal or modification.

Section 6.7: Insurance. The Corporation may purchase and maintain insurance, at its expense, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

ARTICLE VII: NOTICES

Section 7.1: Notice.

7.1.1 Form and Delivery. Except as otherwise specifically required in these Bylaws (including, without limitation, Section 7.1.2 of these Bylaws) or by applicable law, all notices required to be given pursuant to these Bylaws shall be in writing and may (a) in every instance in connection with any delivery to a member of the Board, be effectively given by hand delivery (including use of a delivery service), by depositing such notice in the mail, postage prepaid, or by sending such notice by overnight express courier, facsimile, electronic mail or other form of electronic transmission and (b) be effectively delivered to a stockholder when given by hand delivery, by depositing such notice in the mail, postage prepaid or, if specifically consented to by the stockholder as described in Section 7.1.2 of these Bylaws by sending such notice by facsimile, electronic mail or other form of electronic transmission. Any such notice shall be addressed to the person to whom notice is to be given at such person’s address as it appears on the records of the Corporation. The notice shall be deemed given: (a) in the case of hand delivery, when received by the person to whom notice is to be given or by any person accepting such notice on behalf of such person; (b) in the case of delivery by mail, upon deposit in the mail; (c) in the case of delivery by overnight express courier, when dispatched; and (d) in the case of delivery via facsimile, electronic mail or other form of electronic transmission, at the time provided in Section 7.1.2 of these Bylaws.

7.1.2 Electronic Transmission. Without limiting the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation, or these Bylaws shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given in accordance with Section 232 of the DGCL. Any such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked if (a) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (b) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation or to the transfer agent, or other person responsible for the giving of notice; provided, however, that the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this Section 7.1.2 shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice; (iii) if by a posting on an electronic network together with separate notice to the stockholder of such specific posting, upon the later of such posting and the giving of such separate notice; and (iv) if by any other form of electronic transmission, when directed to the stockholder.

7.1.3 Affidavit of Giving Notice. An affidavit of the Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given in writing or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.

Section 7.2: Waiver of Notice. Whenever notice is required to be given under any provision of the DGCL, the Certificate of Incorporation or these Bylaws, a written waiver of notice, signed by the person entitled to notice, or waiver by electronic transmission by such person, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any waiver of notice.

ARTICLE VIII: INTERESTED DIRECTORS

Section 8.1: Interested Directors. No contract or transaction between the Corporation and one or more of its members of the Board or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are members of the board of directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the Board or committee thereof that authorizes the contract or transaction, or solely because such director’s or officer’s votes are counted for such purpose, if: (a) the material facts as to such director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the Board or the committee, and the Board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; (b) the material facts as to such director’s or officer’s relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or (c) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board, a committee thereof, or the stockholders.

Section 8.2: Quorum. Interested directors may be counted in determining the presence of a quorum at a meeting of the Board or of a committee which authorizes the contract or transaction.

ARTICLE IX: MISCELLANEOUS

Section 9.1: Fiscal Year. The fiscal year of the Corporation shall be determined by resolution of the Board.

Section 9.2: Seal. The Board may provide for a corporate seal, which may have the name of the Corporation inscribed thereon and shall otherwise be in such form as may be approved from time to time by the Board.

Section 9.3: Form of Records. Any records maintained by the Corporation in the regular course of its business, including its stock ledger, books of account and minute books, may be kept on or by means of, or be in the form of any other information storage device or method, electronic or otherwise, provided, that the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to any provision of the DGCL.

Section 9.4: Reliance Upon Books and Records. A member of the Board, or a member of any committee designated by the Board shall, in the performance of such person’s duties, be fully protected in relying in good faith upon the books and records of the Corporation and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers or employees, or committees of the Board, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Corporation.

Section 9.5: Certificate of Incorporation Governs. In the event of any conflict between the provisions of the Certificate of Incorporation and Bylaws, the provisions of the Certificate of Incorporation shall govern.

Section 9.6: Severability. If any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Certificate of Incorporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation) shall remain in full force and effect.

Section 9.7: Time Periods. In applying any provision of these Bylaws which requires that an act be done or not be done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included.

ARTICLE X: AMENDMENT

Notwithstanding any other provision of these Bylaws, any alteration, amendment or repeal of these Bylaws, and any adoption of new Bylaws, shall require the approval of the Board or the stockholders of the Corporation as expressly provided in the Certificate of Incorporation.

* * * * *

Exhibit 4.1

ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT

THIS ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”), dated February 9, 2024, is made by and among Quantum FinTech Acquisition Corporation, a Delaware corporation (the “Company”), Calculator New Pubco, Inc., a Delaware Corporation (“New Pubco”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (in such capacity, the “Warrant Agent”) and amends the Warrant Agreement (the “Existing Warrant Agreement”), dated February 4, 2021, by and between the Company and the Warrant Agent. Capitalized terms used but not defined herein shall have the meaning ascribed to such terms in the Existing Warrant Agreement.

WHEREAS, pursuant to the Existing Warrant Agreement, (i) the Company has issued (a) 20,125,000 Public Warrants and (b) 6,153,125 Private Placement Warrants (collectively, the “Warrants”);

WHEREAS, all of the Warrants are governed by the Existing Warrant Agreement;

WHEREAS, on November 16, 2022 , the Company, New Pubco, Merger Sub 1, Inc., a Delaware corporation and a wholly-owned subsidiary of New Pubco (“Merger Sub 1”), Calculator Merger Sub 2, Inc., a Delaware corporation and a wholly-owned subsidiary of New Pubco (“Merger Sub 2”), AtlasClear, Inc., a Wyoming corporation (“AtlasClear”), Atlas FinTech Holdings Corp., a Delaware corporation (“Atlas FinTech”) and Robert McBey entered into a Business Combination Agreement (as amended, modified or supplemented from time to time, the “Business Combination Agreement”)

WHEREAS, the transactions contemplated by the Business Combination Agreement are referred to herein as the “Business Combination”;

WHEREAS, pursuant to the Business Combination Agreement, among other things, (i) Merger Sub 1 will merge with and into Quantum, with Quantum continuing as the surviving corporation and a wholly-owned subsidiary of New Pubco and (ii) Merger Sub 2 will merge with and into AtlasClear, with AtlasClear continuing as the surviving corporation and a wholly-owned subsidiary of New Pubco;

WHEREAS, upon consummation of the Business Combination, as provided in Section 4.5 of the Existing Warrant Agreement, the Warrants will no longer be exercisable for shares of common stock of the Company but instead will be exercisable (subject to the terms of the Existing Warrant Agreement as amended hereby) for New Pubco common stock;

WHEREAS, in connection with the Business Combination, the Company desires to assign all of its right, title and interest in the Existing Warrant Agreement to New Pubco and New Pubco wishes to accept such assignment; and

WHEREAS, Section 9.8 of the Existing Warrant Agreement provides that the Company and the Warrant Agent may amend the Existing Warrant Agreement without the consent of any Registered Holders (i) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company contained in the Warrant Agreement and the Warrants, or (ii) as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the Registered Holders in any material respect under the Existing Warrant Agreement.

NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:

1.	Assignment and Assumption; Consent.

1.1

Assignment and Assumption. As of and with effect on and from the First Effective Time (as defined in the Business Combination Agreement), the Company hereby assigns to New Pubco all of the Company’s right, title and interest in and to the Existing Warrant Agreement (as amended hereby) and New Pubco hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of the Company’s liabilities and obligations under the Existing Warrant Agreement (as amended hereby) arising on, from and after the First Effective Time.

1.2

Consent. The Warrant Agent hereby consents to (i) the assignment of the Existing Warrant Agreement by the Company to New Pubco and the assumption of the Existing Warrant Agreement by New Pubco from the Company pursuant to Section 1.1, in each case effective as of the First Effective Time, and (ii) the continuation of the Existing Warrant Agreement (as amended hereby) in full force and effect from and after the First Effective Time.

2.	Amendment of Existing Warrant Agreement.

Effective as of the First Effective Time, the Company and the Warrant Agent hereby amend the Existing Warrant Agreement as provided in this Section 2, and acknowledge and agree that the amendments to the Existing Warrant Agreement set forth in this Section 2 are to provide for the delivery of the kind and amount of shares of stock or other securities or property (including cash) receivable upon reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event pursuant to Section 4.5 of the Existing Warrant Agreement (in connection with the Business Combination and the transactions contemplated by the Business Combination Agreement).

2.1	References to the “Company”. All references to the “Company” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to New Pubco.

2.2	References to Common Stock. All references to “Common Stock” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to shares of New Pubco common stock.

2.3

References to Business Combination. All references to “Business Combination” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to the transactions contemplated by the Business Combination Agreement, and references to “the completion of the Company’s initial business combination” and all variations thereof in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to the First Effective Time.

2.4	References to “stockholder”. All references to a “stockholder’ of the Company in the Existing Warrant Agreement (including all Exhibits thereto) shall be construed as a reference to a “stockholder” of the New Pubco.

2.5	Detachability of Warrants. Section 2.4 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

“[INTENTIONALLY OMITTED]”

2.6	Post IPO Warrants. All references to “Post IPO Warrant” in the Existing Warrant Agreement shall be deleted.

2.7	Duration of Warrants. The first sentence of Section 3.2 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

“A Warrant may be exercised only during the period (the “Exercise Period”) commencing on the date that is thirty (30) days after the consummation of the transactions contemplated by the Business Combination Agreement (a “Business Combination”), and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) the date that is five (5) years after the date on which the Business Combination is completed, (y) the liquidation of the Company, or (z) other than with respect to the Private Placement Warrants, the Redemption Date (as defined below) as provided in Section 6.2 hereof (the Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below with respect to an effective registration statement.”

2.8	Notice Clause. Section 9.2 of the Existing Warrant Agreement is hereby deleted and replaced with the following:

“Notices. Any notice, statement or demand authorized by this Warrant Agreement to be given or made by the Warrant Agent or by the Registered Holder of any Warrant to or on New Pubco shall be delivered by hand or sent by registered or certified mail or overnight courier service, addressed (until another address is filed in writing by New Pubco with the Warrant Agent) as follows:

Calculator New Pubco, Inc.

4030 Henderson Blvd.

Suite 712

Tampa, FL 33629

Tel: (727) 446-6660

Email: cridenhour@atlasclear.com

Attention: Craig Ridenhour

with a copy (which shall not constitute notice) to:

Greenberg Traurig, LLP

333 S.E. 2nd Avenue

Suite 4400

Miami, FL 33131

Email: annexa@gtlaw.com and simonj@gtlaw.com

Attention: Alan Annex and Jason Simon

with a copy (which shall not constitute notice) to:

Nelson Mullins Riley & Scarborough LLP

101 Constitution Ave. NW, Suite 900

Washington, DC 20001

Tel: (202) 689-2800

Email: jon.talcott@nelsonmullins.com and peter.strand@nelsonmullins.com

Attention: Jonathan H. Talcott, Esq. and E. Peter Strand, Esq.

Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:

Continental Stock Transfer & Trust Company

One State Street, 30th Floor

New York, NY 10004

Attention: Compliance Department

3.	Miscellaneous Provisions.

3.1

Effectiveness of the Amendment. Each of the parties hereto acknowledges and agrees that the effectiveness of this Agreement shall be expressly subject to the occurrence of the Business Combination and substantially contemporaneous occurrence of the First Effective Time and shall automatically be terminated and shall be null and void if the Business Combination Agreement shall be terminated for any reason.

3.2	Successors. All the covenants and provisions of this Agreement by or for the benefit of New Pubco, the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.

3.3

Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement shall be governed in all respects by the laws of the State of New York. Subject to applicable law, each of New Pubco and the Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive forum for any such action, proceeding or claim. Each of New Pubco and the Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.

Any person or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 3.3. If any action, the subject matter of which is within the scope the forum provisions above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York or the United States District Court for the Southern District of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.

3.4

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

3.5	Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.

3.6

Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Assignment, Assumption and Amendment Agreement to be duly executed as of the date first above written.

	QUANTUM FINTECH ACQUISITION
	CORPORATION

	By:	/s/ John Schaible
		Name: John Schaible
		Title: Chief Executive Officer

	CALCULATOR NEW PUBCO, INC.

	By:	/s/ Robert McBey
		Name: Robert McBey
		Title: Chief Executive Officer

	CONTINENTAL STOCK TRANSFER &
	TRUST COMPANY, as Warrant Agent

	By:	/s/ Douglas Reed
		Name:  Douglas Reed
		Title: Vice President

[Signature Page to Assignment, Assumption and Amendment Agreement]

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

This Securities Purchase Agreement (this “Agreement”) is dated as of February 9, 2024, between Quantum FinTech Acquisition Corporation, a Delaware corporation (“QFTA”), Calculator New Pubco, Inc., a Delaware corporation (the “Company”), and Funicular Funds, LP, a Delaware limited partnership (collectively, the “Purchaser” and collectively with the Company and QFTA, the “Parties”).

WHEREAS, the Company has entered into that certain Business Combination Agreement, dated as of November 16, 2022 by and among Quantum FinTech Acquisition Corporation, the Company, Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., AtlasClear, Inc., Atlas FinTech Holdings Corp. and Robert McBey, as the same has been or may be amended and supplemented from time to time (the “Business Combination Agreement,” and the transactions contemplated thereby, the “Business Combination”); and

WHEREAS, in connection with the Business Combination, subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as more fully described in this Agreement.

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:

ARTICLE I

DEFINITIONS

1.1 Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the meanings given to such terms in the Note (as defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:

“Action” shall have the meaning ascribed to such term in Section 3.1(j).

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

“Board of Directors” means the board of directors of the Company.

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

“Closing” means the Closing of the purchase and sale of the Securities pursuant to Section 2.1(a).

“Closing Date” means with respect to the closing of the purchase and sale of the Securities pursuant to Section 2.1(a), the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and all conditions precedent to the Company’s obligations to deliver the Securities to be issued and sold, in each case, have been satisfied or waived, but in no event later than the second Trading Day following the date on which the Company gives notice to the Purchaser that all conditions of such Closing have been met other than payment and delivery of the Closing deliverables required by this Agreement.

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

“Common Shares” means the shares of common stock of the Company, and any other class of securities into which such securities may hereafter be reclassified or changed.

“Conversion Price” shall have the meaning ascribed to such term in the Note.

“Disclosure Schedules” shall have the meaning ascribed to such term in Section 3.1.

“Environmental Laws” shall have the meaning ascribed to such term in Section 3.1(m).

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

“Exempt Issuance” means the issuance of securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into Common Shares issued and outstanding on the date of this Agreement (without regard to any vesting requirements), including warrants of the Company.

“Hazardous Materials” shall have the meaning ascribed to such term in Section 3.1(m).

“Indebtedness” means: (a) all obligations for borrowed money; (b) all obligations evidenced by bonds, debentures, notes, or other similar instruments and all reimbursement or other obligations in respect of letters of credit, bankers acceptances, current swap agreements, interest rate hedging agreements, interest rate swaps, or other financial products; (c) all obligations or liabilities secured by a lien or encumbrance on any asset of the Company irrespective of whether such obligation or liability is assumed; and (d) any obligation guaranteeing or intended to guarantee (whether directly or indirectly guaranteed, endorsed, co-made, discounted or sold with recourse) any of the foregoing obligations of any other person.

“Intellectual Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).

“Legend Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).

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

“Material Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).

“Material Permits” shall have the meaning ascribed to such term in Section 3.1(n).

“Note” means the secured convertible promissory note issued pursuant to this Agreement in the form of Exhibit A attached hereto.

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

“Proceeding” means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding, such as a deposition), whether commenced or threatened.

“Purchaser Party” shall have the meaning ascribed to such term in Section 4.5.

“Registration Rights Agreement” means the Registration Rights Agreement, to be dated as of the date hereof, between the Company and the Purchaser, in the form of Exhibit B attached hereto.

“Registration Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Underlying Shares by the Purchaser as provided for in the Registration Rights Agreement.

“Required Approvals” shall have the meaning ascribed to such term in Section 3.1(e).

“Required Minimum” means, as of any date, the maximum aggregate number of Common Shares then issued or potentially issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon conversion in full of the Note, ignoring any conversion limits set forth therein.

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

“SEC Reports” means the reports, schedules, forms, statements and other documents filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material), including the exhibits thereto and documents incorporated by reference therein.

“Securities” means the Note and the Underlying Shares.

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

“Security Agreement” means the Security Agreement by and among the Company and the Purchaser dated as of the date hereof.

“Subscription Amount” means the aggregate amount to be paid for the Note purchased hereunder as specified below in Section 2.1(b), in United States dollars and in immediately available funds.

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

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

“Transactions” mean the transactions contemplated by the Transaction Documents.

“Transaction Documents” means this Agreement, the Note, the Security Agreement and the Registration Rights Agreement, and all exhibits and schedules thereto and hereto.

“Transfer” means the (a) sale of, offer to sell, contract or agreement to sell, hypothecate, pledge, grant of any option to purchase or otherwise dispose of or agreement to dispose of, directly or indirectly, or establishment or increase of a put equivalent position or liquidation with respect to or decrease of a call equivalent position within the meaning of Section 16 of the Exchange Act, and the rules and regulations of the Commission promulgated thereunder with respect to, any security, (b) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any security, whether any such transaction is to be settled by delivery of such securities, in cash or otherwise, or (c) public announcement of any intention to effect any transaction specified in clause (a) or (b).

“Transfer Agent” means the transfer agent of the Company and any successor thereto.

“Underlying Shares” means the Common Shares issued and issuable pursuant to the terms of the Note, without respect to any limitation or restriction on the conversion of the Note.

“Variable Rate Transaction” means any transaction entered into by the Company, including any (i) equity line, an at-the-market or similar agreement for an at-the-market offering, or similar agreement, (ii) issuance, or agreement to issue, any capital stock, floating or variable priced equity linked instruments or any other Indebtedness or equity security, in any case with price reset rights including protection against lower priced issuances or adjustments in the event of such issuances (not including adjustments for stock splits, distributions, dividends, recapitalizations and the like).

“VWAP” means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Shares are then listed or quoted on a Trading Market, the daily volume weighted average price of the Common Shares for such date (or the nearest preceding date) on the Trading Market on which the Common Shares are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time); provided, however, that if the Common Shares are then listed or quoted on more than one Trading Market, then the Trading Market for purposes of any calculations to be made pursuant to the terms of this Note shall be the Trading Market selected by the Purchaser in its sole discretion), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the Common Shares for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the Common Shares are not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Shares are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Shares so reported, or (d) in all other cases, the fair market value of a Common Share as determined by an independent appraiser selected in good faith by the Purchaser of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company the reasonable fees and expenses of which shall be paid by the Company.

ARTICLE II

PURCHASE AND SALE

2.1 Closing.

(a) Closing. The Closing shall take place remotely via the exchange of documents and signatures upon consummation of the Business Combination or at such other time and place as the Company and the Purchaser mutually agree upon orally or in writing (the closing for which is designated as the “Closing”).

(b) Sale of Note. At the Closing, subject to the terms and conditions set forth herein, the Company agrees to sell, and the Purchaser agrees to purchase, the Note for the aggregate amount of $6,000,000, in the individual amount set forth on Schedule I.

(c) Closing Procedures. At the Closing, the Purchaser shall, upon delivery of the Note by the Company, deliver to the Company via wire transfer the Subscription Amount in immediately available funds in accordance with the wire instructions for the Company’s account as set forth on Exhibit C (the “Wire Instructions”), and the Company and the Purchaser shall deliver the other items set forth in Section 2.2 that are deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur by electronic exchange of documents and wiring of the Subscription Amounts by the Purchaser in accordance with the Wire Instructions.

(d) Beneficial Ownership Limitation. Notwithstanding any other provisions hereof, any purported delivery of Common Shares to the Purchaser hereunder shall be void and have no effect to the extent (but only to the extent) that, after such delivery, the amount of Common Shares owned by the Purchaser would exceed the Beneficial Ownership Limitation (as defined below). If any delivery owed to the Purchaser hereunder is not made, in whole or in part, as a result of this provision, the Company’s obligation to make such delivery shall not be extinguished and the Company shall make such delivery as promptly as practicable after, but in no event later than one Trading Day after, the Purchaser gives notice to the Company that, after such delivery, the Common Shares owned by the Purchaser would not exceed the Beneficial Ownership Limitation. The “Beneficial Ownership Limitation” shall be 9.99% of the number of the Common Shares outstanding. Beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.

(e) Bonus Shares. As soon as practicable following the date hereof, but in any event prior to the closing of the Business Combination, Quantum Ventures LLC will transfer or cause to be transferred 600,000 Common Shares (the “Bonus Shares”) and private warrants to purchase 600,000 of the Company’s Common Shares (the “Warrants”) to the Purchaser, which Bonus Shares and Warrants have been registered on the Registration Statement on Form S-4 filed in connection with the Business Combination. The parties hereto acknowledge and agree that upon issuance of the Bonus Shares and Warrants, the Company will no longer be obligated to issue any securities pursuant to the Securities Issuance, as defined in the Non-Redemption Agreement dated August 1, 2023 between Purchaser, Quantum Ventures LLC and QFTA. Purchaser hereby elects to be subject to the 9.99% Maximum Percentage set forth in subsection 3.3.7 of the Warrant Agreement.

2.2 Deliveries.

(a) On or prior to the Closing Date, the Company shall deliver or cause to be delivered to the Purchaser the following:

(i) this Agreement, duly executed by the Company;

(ii) the Note, registered in the name of the Purchaser;

(iii) the Registration Rights Agreement, duly executed by the Company;

(iv) the Security Agreement, duly executed by the Company;

(v) the Bonus Shares and the Warrants; and

(vi) a duly certified copy of a resolution or resolutions of the boards of directors of the Company relating to the authority of the Company to execute and deliver and perform their obligations under the Transaction Documents and all other instruments, agreements, certificates and other documents provided for or contemplated by the said Transaction Documents and the manner in which and by whom the foregoing documents are to be executed and delivered, certified by a senior officer of the relevant entity.

(b) On or prior to the Closing Date, the Purchaser shall deliver or cause to be delivered to the Company the following:

(i) this Agreement duly executed by the Purchaser;

(ii) the Purchaser’s Subscription Amount by wire transfer in accordance with the Wire Instructions; and

(iii) the Registration Rights Agreement duly executed by the Purchaser.

2.3 Closing Conditions.

(a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met or waived in writing by the Company:

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Purchaser contained herein (unless as of a specific date therein, in which case they shall be accurate as of such date);

(ii) all obligations, covenants and agreements of the Purchaser required to be performed at or prior to the Closing Date shall have been performed in all material respects; and

(iii) the delivery by the Purchaser of the items set forth in Section 2.2(b) of this Agreement.

(b) The obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met or waived in writing by the Purchaser:

(i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein, in which case they shall be accurate as of such date);

(ii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed in all material respects;

(iii) the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;

(iv) (a) all conditions precedent to the closing of the Business Combination set forth in the Business Combination Agreement shall have been satisfied (as determined solely by the parties to the Business Combination Agreement, and other than those conditions which, by their nature, are to be satisfied at the closing of the Business Combination, including to the extent that any such condition is waived by the party entitled to the benefit thereof under the Business Combination Agreement, and the closing of the Business Combination shall be scheduled to occur immediately following the Closing) and shall close on such scheduled date, unless otherwise mutually agreed, in writing, by the Parties, and (b) the Bonus Shares shall have been issued to the Purchaser without restrictive legend;

(v) the Company shall have filed with the NYSE American LLC (the “NYSE American”) an application for the listing of the Common Shares and the Common Shares shall have been approved for listing on the NYSE American, subject to official notice of issuance;

(vi) there shall have been no Material Adverse Effect with respect to the Company or QFTA since the date hereof; and

(vii) the Business Combination Agreement shall not have been amended, in any manner which is adverse to the rights of the Purchaser hereunder, without the prior written consent of the Purchaser.

ARTICLE III

REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of the Company. Except as set forth in (i) the SEC Reports and (ii) the disclosure schedules of the Company (the “Disclosure Schedules”), which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, and any other section hereof to the extent that it is readily apparent from a reading of such disclosure that is also qualifies or applies to such other sections, the Company hereby, individually and severally and not jointly with the other party, make the following representations and warranties to the Purchaser as of the Closing (which relate to the Company’s business (or that of any successor) as of the Closing):

(a) Subsidiaries. All of the direct and indirect subsidiaries of the Company, respectively, are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of its subsidiaries free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each subsidiary are validly issued and are fully paid, non-assessable and free of pre-emptive and similar rights to subscribe for or purchase securities.

(b) Organization and Qualification. Each of the Company and its subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (if a good standing concept exists for such form of entity in such jurisdiction), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any of its subsidiaries is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and its subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property they owned make such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and its subsidiaries, taken as a whole, or (iii) a material adverse effect on either of the Company’s ability to perform in any material respect on a timely basis their respective obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.

(c) Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents, as applicable, and otherwise to carry out their respective obligations hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents, as applicable, by the Company and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company, and no further action is required by the Company, the Board of Directors or the Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction Document to which the Company is a party, as applicable, has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(d) No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which they are a party, as applicable, the issuance and sale of the Securities and the consummation by the Company of the transactions contemplated hereby and thereby do not and will not: (i) conflict with or violate any provision of the Company’s or any of their respective subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or assets of the Company or any of its subsidiaries, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument (evidencing a Company or subsidiary debt or otherwise) or other understanding to which the Company or any of its subsidiaries is a party or by which any property or asset of the Company or any of its subsidiaries is bound or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or any of its subsidiaries is subject (including federal, state, and provincial securities laws and regulations), or by which any property or asset of the Company or any of its subsidiaries is bound or affected; except in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.

(e) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local, provincial, or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than, as applicable: (i) the filings required pursuant to Section 4.7 of this Agreement, (ii) the filing with the Commission pursuant to the Registration Rights Agreement, and (iii) the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).

(f) Issuance of the Securities. The Securities and Bonus Shares will be duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. Following consummation of the Business Combination, the Company shall have reserved from its duly authorized capital stock a number of Common Shares for issuance of the Underlying Shares at least equal to the Required Minimum on the date hereof.

(g) Capitalization. The capitalization of the Company as of the date hereof is set forth on Schedule 3.1(g), which Schedule 3.1(g) shall also include the number of Common Shares owned beneficially, and of record, by Affiliates of the Company as of the date hereof. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase and sale of the Securities or as set forth on Schedule 3.1(g), there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire any Common Shares or the capital stock of any subsidiary of the Company, or contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound to issue additional Common Shares or Common Shares equivalents or capital stock of any subsidiary. The issuance and sale of the Securities will not obligate the Company or any of its subsidiaries to Common Shares or other securities to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities or instruments of the Company or any of its subsidiaries that contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its subsidiaries is or may become bound to redeem a security of the Company or such subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal, state, and provincial securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors of the Company, the NYSE American or others is required for the issuance and sale of the Securities. Other than agreements that shall terminate, in accordance with their terms, at the closing of the Business Combination, there are no shareholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s shareholders.

(h) [Reserved]

(i) Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof, or as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) liabilities and obligations incurred in the ordinary course of business consistent with past practice, (B) liabilities not required to be reflected in their respective financial statements pursuant to GAAP or disclosed in filings made with the Commission, and (C) liabilities that are executory obligations arising under contracts to which the Company is a party, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to their respective shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of their capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans.

(j) Litigation. Except as disclosed in Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge of the Company threatened against or affecting the Company, any subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any of its subsidiaries, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal, state, or provincial securities laws or a claim of breach of fiduciary duty.

(k) Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or any of its subsidiaries’ employees are a member of a union that relates to such employee’s relationship with the Company or such subsidiary, and neither the Company nor any of its subsidiaries are a party to a collective bargaining agreement, and the Company and its subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any of its subsidiaries, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its subsidiaries to any liability with respect to any of the foregoing matters. The Company and its subsidiaries are in compliance with all federal, state, provincial, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(l) Compliance. Neither the Company nor any of its subsidiaries: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any of their subsidiaries under), nor have the Company or any of its subsidiaries received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state, provincial, and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.

(m) Environmental Laws. The Company and each of its subsidiaries (i) are in compliance with all federal, state, provincial, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.

(n) Regulatory Permits. The Company and each of its subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal, state, provincial, local or foreign regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any Material Permit.

(o) Title to Assets. The Company and its subsidiaries have good and marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business of the Company and its subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and its subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and its subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company and its subsidiaries are in compliance.

(p) Intellectual Property. The Company and its subsidiaries have, or have rights to use, all intellectual property rights and similar rights necessary or required for use in connection with their respective businesses which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither the Company nor any of its subsidiaries has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any of its subsidiaries has received a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(q) Insurance. The Company and its subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and its subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor any or its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.

(r) Transactions with Affiliates and Employees. Except as set forth on Schedule 3.1(r), none of the officers or directors of the Company or any of its subsidiaries and, to the knowledge of the Company, none of the employees of the Company or any of its subsidiaries is presently a party to any transaction with the Company or any of its subsidiaries (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.

(s) Certain Fees. Except as set forth on Schedule 3.1(s), there are no brokerage or finder’s fees or commissions that are or will be payable by the Company or any of its subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.

(t) Private Placement. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.3, no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchaser as contemplated hereby.

(u) Investment Company. The Company are not, and are not an Affiliate of, and immediately after receipt of payment for the Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Companies Act of 1940, as amended. The Company shall conduct their business in a manner so that they will not become an “investment company” subject to registration under the Investment Companies Act of 1940, as amended.

(v) Registration Rights. Except as set forth on Schedule 3.1(v) or as set forth in the SEC Reports, other than the Purchaser, no Person has any right to cause the Company or any of its subsidiaries to effect the registration under the Securities Act of any securities of the Company or any of its subsidiaries.

(w) Disclosure. All of the disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, are true and correct and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company acknowledge and agree that the Purchaser does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.3 hereof.

(x) No Integrated Offering. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.3, neither the Company, nor any of its Affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any Trading Market on which any of the securities of the Company are listed or designated.

(y) Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets exceed the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were they to liquidate all of their assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of their liabilities when such amounts are required to be paid. The Company do not intend to incur debts beyond their ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company have no knowledge of any facts or circumstances which lead them to believe that they will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Neither the Company nor any of its subsidiaries are in default with respect to any indebtedness for borrowed money or money due under any long-term leasing or factoring arrangement.

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

(aa) No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Securities by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchaser and certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.

(bb) Foreign Corrupt Practices. Neither the Company nor any of its subsidiaries, nor to the knowledge of the Company or any of its subsidiaries, any agent or other person acting on behalf of the Company or any of its subsidiaries, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, or (iii) failed to disclose fully any contribution made by the Company or any of its subsidiaries (or made by any person acting on its behalf of which the Company is aware) which is in violation of law.

3.2 [Reserved].

3.3           Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the applicable Closing to the Company as follows (unless as of a specific date therein, in which case they shall be accurate as of such date):

(a) Organization; Authority. The Purchaser is an entity duly incorporated or formed, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of the Purchaser. Each Transaction Document to which it is a party has been duly executed by the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of the Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.

(b) Own Account. The Purchaser understands that the Securities are “restricted securities” and have not been registered under the Securities Act or any applicable state or provincial securities law and is acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state or provincial securities law, has no present intention of distributing any of such Securities in violation of the Securities Act or any applicable state or provincial securities law and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state or provincial securities law (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with applicable federal, state, and provincial securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.

(c) Purchaser Status. At the time the Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which it converts the Note it will be an “accredited investor” as defined in Rule 501(a) under the Securities Act.

(d) Experience of Such Purchaser. The Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

(e) General Solicitation. The Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Purchaser, any other general solicitation or general advertisement.

(f) Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. The Purchaser acknowledges and agrees that the Company does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.1 hereof.

ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES

4.1 Transfer Restrictions.

(a) The Securities may only be disposed of in compliance with applicable state, federal, and provincial securities laws. In connection with any transfer of restricted Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and the Registration Rights Agreement and shall have the rights and obligations of the Purchaser under this Agreement and the Registration Rights Agreement.

(b) The Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of legend(s) on any of the Securities in the following forms:

“NEITHER THIS SECURITY NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE OR CONVERTIBLE HAS BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS.”

(c) The Company shall remove, or cause to be removed, any legend (including the legend set forth in Section 4.1(b) hereof) from certificates evidencing restricted Securities: (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144, (iii) if such Underlying Shares are eligible for sale under Rule 144 or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall request its counsel issue a legal opinion to the Transfer Agent or the Purchaser promptly if required by the Transfer Agent to effect the removal of any legends hereunder, or if requested by the Purchaser, respectively, without charge to such Purchaser. If all or any portion of a Note is converted at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Underlying Shares and without volume or manner-of-sale restrictions or if any such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Underlying Shares shall be issued free of all legends. The Company agrees that following such time as any such legend is no longer required under this Section 4.1(c), it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the DWAC transfer by the Purchaser to the Company or the Transfer Agent of the Underlying Shares issued with a restrictive legend (such date, the “Legend Removal Date”), remove any legend from the Underlying Share held electronically by the Purchaser; provided that such Purchaser shall have previously delivered to the Company all documents required by the Transfer Agent and/or counsel to deliver Underlying Shares that are free of restrictive legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4. The Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of such Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Shares as in effect on the date of delivery of the Underlying Shares issued with a restrictive legend.

(d) In addition to such Purchaser’s other available remedies, the Company shall pay to the Purchaser, in cash, (i) as partial liquidated damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Shares on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend(s) and subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such electronic shares no longer contain any restrictive legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Purchaser by the Legend Removal Date the Securities that are free from all restrictive and other legends and (b) if after the Legend Removal Date the Purchaser purchases (in an open market transaction or otherwise) Common Shares to deliver in satisfaction of a sale by the Purchaser of all or any portion of the number of Common Shares, or a sale of a number of Common Shares equal to all or any portion of the number of Common Shares that the Purchaser anticipated receiving from the Company without any restrictive legend, then, an amount equal to the excess of the Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the Common Shares so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Underlying Shares that the Company was required to deliver to the Purchaser by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Common Shares on any Trading Day during the period commencing on the date of the delivery by the Purchaser to the Company of the Underlying Shares and ending on the date of such delivery and payment under this clause (ii).

(e) The Purchaser agrees with the Company that the Purchaser will sell any Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend(s) from the Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.

4.2 Acknowledgment of Dilution. The Company acknowledge that the issuance of the Securities may result in dilution of the outstanding Common Shares, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Underlying Shares pursuant to the Transaction Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against the Purchaser and regardless of the dilutive effect that such issuance may have on the ownership of the other shareholders of the Company.

4.3 Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.

4.4 Conversion Procedures. The form of Notice of Conversion included in the Note sets forth the totality of the procedures required of the Purchaser in order to convert the Note. Without limiting the preceding sentences, no ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required in order to convert the Note. No additional legal opinion, other information or instructions shall be required of the Purchaser to convert the Note. The Company shall honor conversions of the Note and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.

4.5 Indemnification of the Purchaser. Subject to the provisions of this Section 4.5, the Company will indemnify and hold the Purchaser and the Purchaser’s directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any the Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any regulatory agency or stockholder of the Company who is not an Affiliate of the Purchaser Party, with respect to the Transactions or regulatory filings made by the Company in connection therewith (unless such action is solely based upon a material breach of the Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings the Purchaser Party may have with any such stockholder or any violations by the Purchaser Party of state or federal securities laws or any conduct by the Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought against the Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, the Purchaser Party shall promptly notify the Company in writing, and each of the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company have failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position of the Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser under this Agreement (y) for any settlement by the Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to the Purchaser Party’s breach of any of the representations, warranties, covenants or agreements made by the Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required by this Section 4.5 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of the Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.

4.6 Reservation of Securities. The Company shall maintain a reserve of the Required Minimum from its duly authorized Common Shares for issuance pursuant to the Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.

4.7 Disclosure. The Company shall provide to the Purchaser for review prior to filing with the Commission a draft of the Form 8-K disclosing the Purchaser’s purchase of the Securities and a summary of the Transaction Documents, and shall reasonably consult with the Purchaser regarding such disclosure, and such disclosure shall include all material non-public information provided by the Company or their representatives to the Purchaser prior to such date.

4.8 Subsequent Equity Sales. From the date hereof until sixty (60) days after the effective date of a Resale Registration Statement registering all of the Underlying Securities for the Note, the Company, or any of their subsidiaries shall not issue, or enter into any agreement to issue or announce the issuance or proposed issuance of any shares of capital stock, capital stock equivalents pursuant to a Variable Rate Transaction (an “Equity Issuance”). Notwithstanding the foregoing, this Section 4.8 shall not apply in respect of any issuance of securities at the closing of the Business Combination, including, but not limited to, securities that may be issued to third parties in lieu of cash payable at the closing of the Business Combination, provided that any such third parties shall enter into lockup agreements with respect to such securities for a lock-up period of the later of sixty (60) days from the Equity Issuance or the registration of such equity, or such securities are issued pursuant to an Exempt Issuance.

4.9 Stockholder Approval. In the event that the Note becomes convertible into a number of Common Shares in excess of 19.9% (the “Issuance Limit”) of the Company’s outstanding Common Shares (the date on which such event occurs, the “Threshold Date”), the Company shall, within 45 days of the Threshold Date, obtain the approval of the Company’s security holders to issue Common Shares in excess of the Issuance Limit in accordance with the requirements of the applicable exchange on which the Company’s securities are listed.

4.10 Dividends. Each of the Company or its subsidiary, directly or indirectly, agrees not to prepay, repurchase or declare or pay any cash dividend or distribution on any of its capital stock without the prior written consent of the Purchaser.

4.11 Termination.

(a) If, prior to the Closing, any governmental authority, including the Commission, issues comments with respect to or challenges the enforceability of the Transactions in a manner that the Company believe, in their sole discretion, could result in a material delay in the Business Combination or material liability to the Company, the Company shall be permitted to immediately terminate the Transaction without liability; provided, however, that in the event of such a termination, the Company shall remain responsible for legal fees incurred in connection with the Transaction pursuant to Section 5.1 hereof and will in good-faith allow the Purchaser to review all comments received that informed the decision to the extent permitted by the governmental authority or applicable law.

(b) If, prior to the Closing, any governmental authority, including the Commission, issues comments with respect to or challenges the enforceability of the Transactions in a manner that the Purchaser believes in its sole discretion could result in material liability to the Purchaser, the Purchaser shall be permitted to immediately terminate the Transactions without liability; provided, that in the event of such termination, the Company shall remain responsible for legal fees incurred in connection with the Transactions pursuant to Section 5.1 hereof and will in good-faith allow the Company to review all comments received that informed the decision to the extent permitted by the governmental authority or applicable law.

ARTICLE V.

MISCELLANEOUS

5.1 Fees and Expenses. Section 10(l) of the Note sets forth an agreement between the Company and Purchaser regarding payment of expenses incurred in connection with the transactions contemplated hereby. Except for the foregoing and as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or exercise notice delivered by the Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchaser.

5.2 Stock Loan. For a period of five years or until the purchasers debt obligation is satisfied, the Company shall, upon commercially reasonable request by Purchaser (i) open and maintain a brokerage account at Wilson-Davis & Co., Inc. (the “Broker”) for Purchaser upon satisfaction of Broker’s customary account opening and maintenance procedures and requirements, (ii) disclose to Purchaser, on an ongoing basis, all information regarding Broker’s available securities lending inventory (the “Inventory”), including but not limited to the security identifiers and aggregate number of shares which Broker may at any time be able to rehypothecate or access through its fully paid lending program, and (iii) subject to margin requirements and in compliance with applicable regulation, lend to Purchaser 50% of the allocation of securities within its Inventory designated by Purchaser, for the purpose of settling short sales in Purchaser’s account at Broker, at a fee rate not to exceed 50% of the then-prevailing weighted average benchmark fee rate, as reported by a reputable third-party data provider such as DataLend or Astec Analytics, or as otherwise mutually agreed by Purchaser and Broker; provided, however, that for all non-Inventory securities borrowed from third parties, the full cost of the borrow will be charged to the Purchaser.

5.3 Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.

5.4 Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earlier of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York City time) on a Business Day, (b) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second (2^nd) Business Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.

5.5 Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in the case of an amendment, by the Company and the Purchaser, or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected in accordance with this Section 5.4 shall be binding upon the Purchaser and holder of Securities, the Company.

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

5.7 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other than by merger). The Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the Purchaser.

5.8 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

5.9 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under this Agreement, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action or Proceeding.

5.10 Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.

5.11 Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.

5.12 Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

5.13 Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.

5.14 Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law would be adequate.

5.15 Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.

5.16 Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.

5.17 Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to share prices and Common Shares in any Transaction Document shall be subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Shares that occur after the date of this Agreement.

5.18 WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.

[Signature Page to Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

	QUANTUM FINTECH ACQUISITION CORP.

	By	/s/ John Schaible
	Name:	John Schaible
	Title:	Chief Executive Officer

	Address for Notice:
	4030 Henderson Blvd., Suite 712
	Tampa, FL 33629

	ATLASCLEAR HOLDINGS, INC. (F/K/A CALCULATOR NEW PUBCO, INC.)

	By	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	CBDO

	Address for Notice:
	4030 Henderson Blvd., Suite 712
	Tampa, FL 33629

	FUNICULAR FUNDS, LP

	By	/s/ Jacob Ma-Weaver
	Name:	Jacob Ma-Weaver
	Title:	Managing Member of the General Partner

	Address for Notice:
	601 California Street, Suite 1151
	San Francisco, CA 94108
	Email:

Agreed as to Section 2.1(e):

QUANTUM VENTURES LLC

By	/s/ John Schaible
Name:	John Schaible
Title:	Chief Executive Officer

Agreed as to Section 5.2:

WILSON-DAVIS & CO., INC.

By	/s/ Lyle W. Davis
Name:	Lyle W. Davis
Title:	Chairman

EXHIBIT A

FORM OF NOTE

EXHIBIT B

FORM OF REGISTRATION RIGHTS AGREEMENT

EXHIBIT C

WIRE TRANSFER INSTRUCTIONS

Schedule I
Schedule of Investment Amounts

Exhibit 10.2

THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR UNDER THE SECURITIES LAWS OF CERTAIN STATES. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

ATLASCLEAR HOLDINGS, INC. (F/K/A CALCULATOR NEW PUBCO, INC.)

SECURED CONVERTIBLE PROMISSORY NOTE

$6,000,000.00

Issuance Date: February 9, 2024

FOR VALUE RECEIVED, ATLASCLEAR HOLDINGS, INC. (f/k/a Calculator New Pubco, Inc., a Delaware corporation (the “Company”) promises to pay to FUNICULAR FUNDS, LP, a Delaware limited partnership, or its registered assigns (“Investor”), in lawful money of the United States of America the principal sum of SIX MILLION AND NO/100 DOLLARS ($6,000,000.00), or such lesser amount as shall equal the then outstanding principal amount hereof, together with simple interest from the date of this Secured Convertible Promissory Note (this “Note”) on the then outstanding principal balance at a rate equal to twelve and one half percent (12.5%) per annum, computed on the basis of the actual number of days elapsed and a year of 365 days. All then outstanding principal, together with any then unpaid and accrued interest and other amounts payable hereunder, shall be due and payable on the earlier of (i) when requested in writing by the Investor (as defined below) on or after November 9, 2025 (the “Maturity Date”) or (ii) when, upon the occurrence and during the continuance of an Event of Default, such amounts become due and payable in accordance with the terms hereof.

1.           Definitions. As used in this Note, the following capitalized terms have the following meanings:

(a)

“Attribution Parties” has the meaning set forth in Section 5(f).

(b)

“Beneficial Ownership Limitation” has the meaning set forth in Section 5(f).

(c)

“Business Combination” means the transactions contemplated by the Business Combination Agreement, dated as of November 16, 2022 by and among Quantum FinTech Acquisition Corporation, the Company, Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., AtlasClear, Inc., Atlas FinTech Holdings Corp. and Robert McBey, as the same has been or may be amended and supplemented from time to time.

(d)

“Business Day” means any day (other than a Saturday or a Sunday) on which banks are open for business in New York City or San Francisco.

(e)

“Buy-In” has the meaning set forth in Section 5(e)(v).

(f)

“Change of Control” means any Fundamental Transaction other than (i) any merger of the Company or any of its, direct or indirect, wholly-owned Subsidiaries with or into any of the foregoing Persons, (ii) any reorganization, recapitalization or reclassification of the shares of Common Stock in which holders of the Company’s voting power immediately prior to such reorganization, recapitalization or reclassification continue after such reorganization, recapitalization or reclassification to hold publicly traded securities and, directly or indirectly, are, in all material respects, the holders of the voting power of the surviving entity (or entities with the authority or voting power to elect the members of the board of directors (or their equivalent if other than a corporation) of such entity or entities) after such reorganization, recapitalization or reclassification, or (iii) pursuant to a migratory merger effected solely for the purpose of changing the jurisdiction of incorporation of the Company or any of its Subsidiaries. Notwithstanding the foregoing, the Business Combination shall not be deemed to be a Change of Control for any purposes hereunder.

(g)

“Charter” shall mean the Company’s certificate of incorporation as may be amended or restated from time to time.

(h)

“Collateral” shall have the meaning set forth in the Security Agreement.

(i)

“Common Stock” shall mean the Company’s common stock, par value $0.0001 per share.

(j)

“Contractual Obligation” means as to any Person, any provision of any security issued by such Person or of any agreement, instrument, or other undertaking to which such Person is a party or by which it or any of its property is bound.

(k)

“Conversion Date” has the meaning set forth in Section 5(e)(iii).

(l)

“Conversion Price” shall mean $10.00 per share, subject to adjustment monthly to a price equal to the trailing five-day VWAP of the Company’s common stock, such Conversion Price not to be less than $2.00 per share; provided, however, that in the event of a Financing Event with an effective price below $2.00 per share of Common Stock, the Conversion Price shall be further reduced to equal the effective price per share of such Financing Event.

(m)

“Conversion Shares” means, collectively, the Shares issuable upon conversion of this Note in accordance with the terms hereof.

(n)

“Credit Parties” shall mean the Company and the Guarantors.

(o)

“Deposit Accounts” means all “deposit accounts” as such term is defined in the UCC, now or hereafter held in the name of any Person.

(p)

“Deposit Account Control Agreement” means a deposit account control agreement in form and substance reasonably satisfactory to Investor among Investor, the applicable deposit bank, and the applicable Credit Party with respect to the applicable Deposit Account, as the same may be amended, restated, supplemented, amended and restated or otherwise modified from time to time.

(q)

“Environmental Laws” means all federal, state and local laws, statutes, ordinances and regulations, now or hereafter in effect, and in each case as amended or supplemented from time to time, and any applicable judicial or administrative interpretation thereof relating to the regulation and protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation).

(r)

“Environmental Liabilities” means all liabilities, obligations, responsibilities, remedial actions, removal costs, losses, damages of whatever nature, costs and expenses (including all reasonable fees, disbursements and expenses of counsel, experts and consultants and costs of investigation and feasibility studies), fines, penalties, sanctions and interest incurred as a result of any claim, suit, action or demand of whatever nature by any Person and which relate to any health or safety condition regulated under any Environmental Law, environmental permits or in connection with any Release, threatened Release, or the presence of a Hazardous Material.

(s)

“ERISA” means the Employee Retirement Income Security Act of 1974 (or any successor legislation thereto), as amended from time to time, and any regulations promulgated thereunder.

(t)

“ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with Company, is treated as a single employer under Section 414(b), (c), (m) or (o) of the IRC, or, solely for the purposes of Section 302 of ERISA and Section 412 of the IRC, is treated as a single employer under Section 414 of the IRC.

(u)

“ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30-day notice period is waived); (b) the existence with respect to any Plan of an “accumulated funding deficiency” (as defined in Section 412 of the IRC or Section 302 of ERISA), whether or not waived; (c) the filing pursuant to Section 412(b) of the IRC or Section 303(d) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by Company or any ERISA Affiliate of any liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by Company or any ERISA Affiliate from the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to appoint a trustee to administer any Plan; (f) the incurrence by Company or any ERISA Affiliate of any liability with respect to any withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by Company or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from Company or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA.

(v)

“Exchange Act” means the Securities Exchange Act of 1934.

(w)

“Excluded Account” means (a) any deposit account specifically and exclusively used for payroll, payroll taxes, withholding taxes and other trust fund type taxes, and other employee wage and benefit payments to or for the benefit of any Credit Party’s employees, (b) any zero balance accounts, (c) escrow, trustee or fiduciary accounts for the benefit of third parties, (d) cash collateral accounts holding cash upon which a Permitted Encumbrance exists and (e) deposit accounts with deposits in an aggregate amount not in excess of $100,000 individually or in the aggregate for any consecutive two (2) Business Days.

(x)

“Financial Statements” means the consolidated and consolidating income statement and balance sheet and statement of cash flows of each Credit Party and its Subsidiaries, internally prepared for each Fiscal Quarter and audited for each Fiscal Year, prepared in accordance with GAAP.

(y)

“Financing Event” shall mean the Company sells, enters any agreement to sell or grants any right to reprice, or otherwise disposes of or issues (or announce any offer, sale, grant or any option to purchase or other disposition) any Shares or any securities of the Company or any of its subsidiaries which would entitle the holder thereof to acquire or sell on behalf of the Company at any time Shares (including, without limitation, through conversion or other option rights (including pursuant to any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive Shares or other securities)) at an effective price per share less than the then existing Conversion Price.

(z)

“Fiscal Quarter” means any of the quarterly accounting periods of Company.

(aa)

“Fiscal Year” means the twelve (12) month period of Company ending December 31 of each year. Subsequent changes of the fiscal year of Company shall not change the term “Fiscal Year” unless Investor shall consent in writing to such change.

(bb)

“Fundamental Transaction” means (A) that the Company shall, directly or indirectly, including through Subsidiaries, affiliates or otherwise, in one or more related transactions, (i) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Person, or (ii) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Company or any of its “significant subsidiaries” (as defined in Rule 1-02 of Regulation S-X) to one or more Persons, or (iii) make, or allow one or more Persons to make, or allow the Company to be subject to or have its Common Stock be subject to or party to one or more Persons making, a purchase, tender or exchange offer that is accepted by the holders of at least either (x) 50% of the outstanding shares of Common Stock, (y) 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all Persons making or party to, or affiliated with any Persons making or party to, such purchase, tender or exchange offer were not outstanding; or (z) such number of shares of Common Stock such that all Persons making or party to, or affiliated with any Person making or party to, such purchase, tender or exchange offer, become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (iv) consummate a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with one or more Persons whereby all such Persons, individually or in the aggregate, acquire, either (x) at least 50% of the outstanding shares of Common Stock, (y) at least 50% of the outstanding shares of Common Stock calculated as if any shares of Common Stock held by all the Persons making or party to, or affiliated with any Person making or party to, such stock purchase agreement or other business combination were not outstanding; or (z) such number of shares of Common Stock such that the Persons become collectively the beneficial owners (as defined in Rule 13d-3 under the Exchange Act) of at least 50% of the outstanding shares of Common Stock, or (v) reorganize, recapitalize or reclassify its Common Stock, (B) that the Company shall, directly or indirectly, including through Subsidiaries, affiliates or otherwise, in one or more related transactions, allow any Person individually or the Persons in the aggregate to be or become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, whether through acquisition, purchase, assignment, conveyance, tender, tender offer, exchange, reduction in outstanding shares of Common Stock, merger, consolidation, business combination, reorganization, recapitalization, spin-off, scheme of arrangement, reorganization, recapitalization or reclassification or otherwise in any manner whatsoever, of either (x) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock, (y) at least 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock not held by all such Persons as of the date of this Note calculated as if any shares of Common Stock held by all such Persons were not outstanding, or (z) a percentage of the aggregate ordinary voting power represented by issued and outstanding shares of Common Stock or other equity securities of the Company sufficient to allow such Persons to effect a statutory short form merger or other transaction requiring other stockholders of the Company to surrender their shares of Common Stock without approval of the stockholders of the Company or (C) directly or indirectly, including through Subsidiaries, affiliates or otherwise, in one or more related transactions, the issuance of or the entering into any other instrument or transaction structured in a manner to circumvent, or that circumvents, the intent of this definition in which case this definition shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this definition to the extent necessary to correct this definition or any portion of this definition which may be defective or inconsistent with the intended treatment of such instrument or transaction. Notwithstanding the foregoing, the Business Combination shall not be deemed to be a Fundamental Transaction for any purposes hereunder.

(cc)

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, consistently applied.

(dd)

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

(ee)

“Guaranteed Indebtedness” means, as to any Person, any obligation of such Person guaranteeing any indebtedness, lease, dividend, or other obligation (“primary obligations”) of any other Person (the “primary obligor”) in any manner, including any obligation or arrangement of such guaranteeing Person (whether or not contingent): (a) to purchase or repurchase any such primary obligation; (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor; (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation; or (d) to indemnify the owner of such primary obligation against loss in respect thereof.

(ff)

“Guarantor” means each Person that executes a guaranty or a support, put or other similar agreement in favor of Investor in connection with the transactions contemplated by this Note.

(gg)

“Guaranty” means any agreement entered into by a Guarantor to perform all or any portion of the Obligations on behalf of any other Credit Party, in favor of, and in form and substance satisfactory to, Investor, together with all amendments, modifications and supplements thereto, and shall refer to such Guaranty as the same may be in effect at the time such reference becomes operative.

(hh)

“Hazardous Material” means any substance, material or waste that is regulated by or forms the basis of liability now or hereafter under, any Environmental Laws, including any material or substance that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or phrase under any Environmental Laws or (b) petroleum or any fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB’s), or any radioactive substance.

(ii)

“In-Kind Interest” has the meaning set forth in Section 2(a).

(jj)

“Indebtedness” means, without duplication, with respect to any entity, the principal or face amount of (i) all obligations of such entity for borrowed money, (ii) all obligations of such entity evidenced by debentures, notes or other similar instruments, (iii) all obligations of such entity in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations with respect thereto), (iv) all obligations of such entity to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business and not more than forty-five (45) days past due, and (v) all obligations of such entity as lessee which are capitalized in accordance with GAAP; provided, however, that “Indebtedness” shall exclude the effect of the adoption of Accounting Standards Update No. 2016-02 by the Financial Accounting Standards Board in February 2016 (“ASU 2016-02”) such that capital lease obligations and “Indebtedness” shall specifically exclude liabilities that were considered operating lease liabilities under GAAP prior to the adoption of ASU 2016-02, (vi) any contingent obligation and (vii) all net payment obligations of such entity in respect of any interest rate swap, repurchase agreement with a term of one year or longer or similar agreements; (viii) all Guaranteed Indebtedness; (ix) all Indebtedness referred to in clauses (i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness and (x) the Obligations.

(kk)

“IRC” and “IRS” mean respectively, the Internal Revenue Code of 1986 and the Internal Revenue Service, and any successor thereto.

(ll)

“Lien” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, claim, charge or other encumbrance.

(mm)

“Loan Documents” shall mean this Note, any Guaranty, the Security Agreement, each Deposit Account Control Agreement, and any other document executed by a Credit Party in favor of the Investor in connection therewith relating to the Collateral and/or the repayment of the Obligations.

(nn)

“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, prospects or financial or other condition of Company or the industry within which Company operates, (b) Company’s ability to pay or perform the Obligations under the Loan Documents to which Company is a party in accordance with the terms thereof, (c) the Collateral or Investor’s Liens on the Collateral or the priority of any such Lien, or (d) Investor’s rights and remedies under this Note and the other Loan Documents.

(oo)

“Minimum Actionable Amount” means $250,000.

(pp)

“Multiemployer Plan” means a “multiemployer plan,” as defined in Section 4001(a) (3) of ERISA, to which Company or any ERISA Affiliate is making, is obligated to make, has made or been obligated to make, contributions on behalf of participants who are or were employed by any of them.

(qq)

“Notice of Conversion” has the meaning set forth in Section 5(e)(ii).

(rr)

“Obligations” shall mean and include all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Investor of every kind and description, now existing or hereafter arising under or pursuant to the terms of this Note or any other Loan Document, including all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by the Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq.), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.

(ss)

“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.

(tt)

“Permitted Encumbrances” means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges or levies, either not yet due and payable or to the extent that nonpayment thereof is permitted by the terms of this Note; (b) pledges or deposits securing obligations under worker’s compensation, unemployment insurance, social security or public liability laws or similar legislation; (c) Liens in favor of Investor securing the Obligations.

(uu)

“Permitted Indebtedness” has the meaning set forth in Section 9(a).

(vv)

“Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.

(ww)

“Plan” means any employee pension benefit plan (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the IRC or Section 302 of ERISA, and in respect of which Company or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.

(xx)

“Real Property” means each real property location owned, leased or occupied by Company.

(yy)

“Registration Rights Agreement” means that certain Registration Rights Agreement dated as of the date hereof by and among the Company and the buyers party thereto.

(zz)

“Registration Statement” has the meaning set forth in Section 9(c)(i).

(aaa)

“Release” means, as to any Person, any release, spill, emission, leaking, pumping, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials in the indoor or outdoor environment by such Person, including the movement of Hazardous Materials through or in the air, soil, surface water, ground water or property.

(bbb)

“Requirement of Law” means as to any Person, the certificate or articles of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case binding upon such Person or any of its property or to which such Person or any of its property is subject.

(ccc)

“Securities Act” has the meaning set forth in the header to this Note.

(ddd)

“Security Agreement” means that certain Security Agreement by and among Investor and Company dated as of the date hereof, as such agreement may be amended, amended and restated, supplemented, or otherwise modified from time-to-time.

(eee)

“Shares” means shares of the Company’s Common Stock.

(fff)

“Share Delivery Date” has the meaning set forth in Section 5(e)(iii).

(ggg)

“Stock” means all certificated and uncertificated shares, options, warrants, membership interests, general or limited partnership interests, participation or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock, or any other “equity security” (as such term is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Exchange Act).

(hhh)

“Subsidiary” means, with respect to any Person, (a) any corporation of which an aggregate of more than 50% of the outstanding Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person and/or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of 50% or more of such Stock whether by proxy, agreement, operation of law or otherwise; and (b) any partnership or limited liability company in which such Person or one or more Subsidiaries of such Person has an equity interest (whether in the form of voting or participation in profits or capital contribution) of more than 50% or of which any such Person is a general partner or manager or may exercise the powers of a general partner or manager.

(iii)

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

(jjj)

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

(kkk)

“UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided, however, that, in the event that, by reason of mandatory provisions of any applicable Requirement of Law, any of the attachment, perfection or priority of the Investor’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

(lll)

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

2.           Payments.

(a)

Interest. Accrued interest on this Note shall be payable semi-annually on each June 30 and December 31 either (x) in cash, or (y) at the Company’s option, in-kind on the then outstanding amount of the Obligations by increasing the principal amount of the Obligations by the amount of such scheduled interest payment (“In-Kind Interest”). Any amounts not paid in cash by the second Business Day after such payment is due shall be deemed to have been paid-in-kind (except for any payments due on the Maturity Date). All amounts payable hereunder shall be paid in full in cash on or before the Maturity Date.

(b)           Optional Redemption by the Company. The Company may redeem this Note with 30 days’ notice, from time to time after the earlier of effectiveness of the Registration Statement or 180 days following the closing of the Business Combination for a cash purchase price equal to 101% of the principal amount of such Note plus accrued and unpaid interest; provided that, for the avoidance of doubt, any such conversion shall be permitted during the notice period.

(c)           Redemption by Investor Upon a Change of Control. In connection with a Change of Control and upon giving not less than thirty (30) days’ notice to the Investor prior to the Change of Control, Investor may require the Company to redeem this Note in whole but not in part, at an amount equal to 101% of the outstanding principal amount being redeemed plus accrued but unpaid interest, to but excluding the redemption date, if any, plus any remaining amounts that would be owed to, but excluding, the Maturity Date, including all regularly scheduled interest payments; provided that, for the avoidance of doubt, any such conversion shall be permitted during the notice period.

(d)           Payments Generally. The Company will make all cash payments due under this Note in immediately available funds by 3:00 p.m. ET on the date such payment is due at the address for such purpose specified below Investor’s signature hereto, or at such other address, or in such other manner, as Investor or other registered holder of this Note may from time to time direct in writing.

3.           Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note:

(a)           Failure to Pay. The Company shall fail to pay (i) when due any principal payment on the due date hereunder, (ii) any interest payment required under the terms of this Note on the due date hereunder and such payment shall not have been made within two (2) Business Days of such due date, or (iii) other payment required under the terms of this Note on the due date hereunder and such payment shall not have been made within five (5) Business Days of the Company’s receipt of written notice to the Company of such failure to pay.

(b)           Voluntary Bankruptcy or Insolvency Proceedings. The Company shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its or any of its creditors, (iii) be dissolved or liquidated, (iv) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (v) take any action for the purpose of effecting any of the foregoing.

(c)           Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company, if any, or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within 60 days of commencement.

(d)           Breach of Covenants. The Company or any other Credit Party shall fail or neglect to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in this Note or any other Loan Document.

(e)           Cross-Default. An event of default shall occur under any Contractual Obligation of the Company or any other Credit Party (other than this Note), and such event of default (i) involves the failure to make any payment (whether or not such payment is blocked pursuant to the terms of an intercreditor agreement or otherwise), whether of principal, interest or otherwise, and whether due by scheduled maturity, required prepayment, acceleration, demand or otherwise, in respect of any Indebtedness (other than the Obligations) of such Person in an aggregate amount exceeding the Minimum Actionable Amount, or (ii) causes (or permits any holder of such Indebtedness or a trustee to cause) such Indebtedness, or a portion thereof, in an aggregate amount exceeding the Minimum Actionable Amount to become due prior to its stated maturity or prior to its regularly scheduled dates of payment.

(f)           Representations and Warranties. Any representation or warranty in this Note or any other Loan Document, or in any written statement pursuant hereto, or in any report, financial statement or certificate made or delivered to Investor by Company or any Credit Party or shall be untrue or incorrect as of the date when made or deemed made, regardless of whether such breach involves a representation or warranty with respect to a Person that has not signed this Note.

(g)           Judgments. A final judgment or judgments for the payment of money in excess of the Minimum Actionable Amount in the aggregate shall be rendered against Company or any Credit Party, unless the same shall be (i) fully covered by insurance and the issuer(s) of the applicable policies shall have acknowledged full coverage in writing within fifteen (15) days of judgment, or (ii) vacated, stayed, bonded, paid or discharged within a period of fifteen (15) days from the date of such judgment.

(h)           Change of Control. A Change of Control shall have occurred.

(i)            ERISA. An ERISA Event shall have occurred that, in the opinion of the Investor, when taken together with all other ERISA Events that have occurred and are then continuing, could reasonably be expected to result in liability of the Company or any Credit Party in an aggregate amount exceeding the Minimum Actionable Amount.

(j)            Listing. The Company shall fail for any reason to remain listed as a public company on the NYSE American LLC (the “NYSE American”) or any other national securities exchange on which the Common Stock is listed.

(k)           Registration Statement. The Company fails to cause the Registration Statement to become effective within three (3) months following the closing of the Business Combination.

(l)            Deficiency Notice. The Company shall have received a deficiency notice from the NYSE American or any other national securities exchange on which the Common Stock is listed which has not been resolved for more than sixty (60) days after notice thereof.

(m)           Common Stock. The Common Stock cease to be listed on a national securities exchange, which for the avoidance of doubt shall exclude the OTCQB, the OTCQX and the Pink markets (or any successors to any of the foregoing), or upon the filing of a Form 25.

(n)           Failure to Deliver Shares. The Company shall fail for any reason to deliver Common Stock to the holder within two (2) Trading Days after the election by holder to convert this Note pursuant to Section 5, or the Company shall provide at any time notice to the holder, including by way of public announcement, of the Company’s intention to not honor a conversion of this Note in accordance with the terms hereof.

4.           Rights of Investor upon Default. Upon the occurrence of any Event of Default (other than an Event of Default described in Sections 3(b) or 3(c)) and at any time thereafter during the continuance of such Event of Default, Investor may, by written notice to the Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. Upon the occurrence of any Event of Default described in Sections 3(b) or 3(c), immediately and without notice, all outstanding Obligations payable by the Company hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence and during the continuance of any Event of Default, Investor may exercise any other right, power or remedy granted to it by this Note or any other Loan Document or otherwise permitted to it by law, either by suit in equity or by action at law, or both. Furthermore, upon the occurrence of any Event of Default, and without notice to Company, the Obligations shall automatically bear interest at the rate of 20% per annum.

5.           Conversions.

(a)           Conversion Right. The Investor shall have the right, at the Investor’s sole option, on any Business Day to convert all or any portion of the Note on any Conversion Date at the Conversion Price.

(b)           Reserved.

(c)           Dividends; Stock Splits. If the Company, at any time while this Note is outstanding: (i) pays a share dividend or otherwise makes a distribution or distributions payable in Shares on Shares or any Share equivalents (which, for avoidance of doubt, shall not include any Shares issued by the Company upon conversion of, or payment of interest on, the Notes), (ii) subdivides outstanding Shares into a larger number of shares, (iii) combines (including by way of a reverse share split) outstanding Shares into a smaller number of shares or (iv) issues, in the event of a reclassification of Shares, any shares of capital stock of the Company, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of Shares (excluding any treasury shares of the Company) outstanding immediately before such event, and of which the denominator shall be the number of Shares outstanding immediately after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stock Investor is entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification. Any adjustment pursuant to this Section 5(c) shall become effective immediately after the effective date of such subdivision or combination. If any event requiring an adjustment under this Section 5(c) occurs during the period that a Conversion Price is calculated hereunder, then the calculation of such Conversion Price shall be adjusted appropriately to reflect such event.

(d)           Remedies Not Exclusive. Nothing herein shall limit Investor’s right to pursue actual damages or declare an Event of Default pursuant to Section 3 hereof and the Investor shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Investor from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

(e)           Mechanics of Conversion.

(i)           Conversion Shares Issuable Upon Conversion. The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing (x) the outstanding principal amount of this Note to be converted (including, for the avoidance of doubt, any In-Kind Interest) plus accrued but unpaid interest calculated on the basis of a year of 360 days, by (y) the Conversion Price.

(ii)           Notice of Conversion. Before the Investor of the Note shall be entitled to convert all or any portion of the Note as set forth above, the Investor shall (1) complete, manually sign and deliver an irrevocable notice to the Company as set forth in the Form of Notice of Conversion (or an electronic version thereof) in substantially the form attached hereto as Exhibit A (a “Notice of Conversion”) at the office of the Company, if applicable, and state in writing therein the principal amount of Notes to be converted, the numbers Conversion Shares and the name or names (with addresses) in which the Investor wishes the Shares to be delivered upon settlement of the conversion to be registered, and (2) if required, pay all transfer or similar taxes, if any.

(iii)          Delivery of Conversion Shares Upon Conversion. The Note shall be deemed to have been converted immediately prior to the close of business on any date (the “Conversion Date”) that the Investor has complied with the requirements set forth in subsection (ii) above. Not later than two (2) Business Days following the applicable conversion of the Note (the “Share Delivery Date”), the Company shall electronically deliver, or cause to be delivered via Deposit/withdrawal at custodian transfer, to the Investor the Conversion Shares. The Company shall deliver any Conversion Shares required to be delivered by the Company under this Section 5(e) electronically through the Depository Trust Company or another established clearing corporation performing similar functions.

(iv)         Obligation Absolute; Partial Liquidated Damages. The Company’s obligation to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof is absolute and unconditional, irrespective of any action or inaction by the Investor to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Investor or any other Person of any obligation to the Company or any violation or alleged violation of law by the Investor or any other Person, and irrespective of any other circumstance which might otherwise limit such obligation of the Company to the Investor in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Company of any such action the Company may have against the Investor. Upon the closing of the Business Combination, the Company may not refuse conversion based on any claim that the Investor or anyone associated or affiliated with the Investor has been engaged in any violation of law, agreement or for any other reason, unless an injunction from a court, on notice to Investor, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained, and the Company posts a surety bond for the benefit of the Investor in the amount of 150% the outstanding principal amount of this Note, which is subject to such injunction (if any), which bond shall remain in effect until the completion of arbitration/litigation of the underlying dispute and the proceeds of which shall be payable to the Investor to the extent it obtains judgment. In the absence of such injunction, the Company shall issue Conversion Shares or, if applicable, cash, upon a conversion. If the Company fails for any reason to deliver to the Investor such Conversion Shares pursuant to Section 5(c)(iii) by the Share Delivery Date, the Company shall pay to the Investor, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $7 per Trading Day (increasing to $10 per Trading Day on the fifth (5th) Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Share Delivery Date until such Conversion Shares are delivered or Investor rescinds such conversion. Nothing herein shall limit Investor’s right to pursue actual damages or declare an Event of Default pursuant to Section 3 hereof for the Company’s failure to deliver Conversion Shares within the period specified herein and the Investor shall have the right to pursue all remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. The exercise of any such rights shall not prohibit the Investor from seeking to enforce damages pursuant to any other Section hereof or under applicable law.

(v)          Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Investor, if the Company fails for any reason to deliver to the Investor such Conversion Shares by the Share Delivery Date pursuant to Section 5(e)(iii), and if after such Share Delivery Date the Investor is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Investor’s brokerage firm otherwise purchases, Shares to deliver in satisfaction of a sale by the Investor of the Conversion Shares which the Investor was entitled to receive upon the conversion relating to such Share Delivery Date (a “Buy-In”), then the Company shall (A) pay in cash to the Investor (in addition to any other remedies available to or elected by the Investor) the amount, if any, by which (x) the Investor’s total purchase price (including any brokerage commissions) for the Shares so purchased exceeds (y) the product of (1) the aggregate number of Shares that the Investor was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B) at the option of the Investor, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Investor the number of Shares that would have been issued if the Company had timely complied with its delivery requirements under Section 5(e)(iii). For example, if the Investor purchases Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Company shall be required to pay the Investor $1,000. The Investor shall provide the Company written notice indicating the amounts payable to the Investor in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit the Investor’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver Conversion Shares upon conversion of this Note as required pursuant to the terms hereof.

(vi)         Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued Shares for the sole purpose of issuance upon conversion of this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Investor, not less than 300% of such number of Shares as shall from time to time be sufficient to effect the conversion of this Note (disregarding for this purpose any and all limitations of any kind on such conversion). The Company covenants that all Shares that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement (subject to such Investor’s compliance with its obligations under the Registration Rights Agreement).

(vii)         Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of all or any portion of this Note. As to any fraction of a share which the Investor would otherwise be entitled to purchase upon such conversion, the Company shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price, or round up to the next whole share.

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

(f)           Investor’s Conversion Limitations. The Company shall not effect any conversion of this Note to the extent that after giving effect to the conversion, the Investor (together with the Investor’s affiliates, and any other Persons acting as a group together with the Investor or any of the Investor’s affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Shares beneficially owned by the Investor and its affiliates and Attribution Parties shall include all Shares beneficially owned by the Attribution Parties pursuant to the terms of the Purchase Agreement and the number of Shares issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of Shares which are issuable upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Investor or any of its affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by the Investor or any of its affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 5(f), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 5(f) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Investor together with any affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the sole discretion of the Investor, and the submission of a Notice of Conversion shall be deemed to be the Investor’s determination of whether this Note may be converted (in relation to other securities owned by the Investor together with any affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation. To ensure compliance with this restriction, the Investor will be deemed to represent to the Company that the conversion has not violated the restrictions set forth in this paragraph and the Company shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 5(f), in determining the number of outstanding Shares, the Investor may rely on the number of outstanding Shares as stated in the most recent of the following: (i) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (ii) a more recent public announcement by the Company, or (iii) a more recent written notice by the Company or the Company’s transfer agent setting forth the number of Shares outstanding. Upon the written or oral request of Investor, the Company shall within one Trading Day confirm orally and in writing to the Investor the number of Shares then outstanding. In any case, the number of outstanding Shares shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Note, by the Investor or its affiliates since the date as of which such number of outstanding Shares was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Shares outstanding immediately after giving effect to the issuance Shares issuable upon conversion of this Note held by the Investor. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 5(f) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor Investor of this Note.

(g)           Notice to Investor. Upon the occurrence of any Financing Event, the Company shall promptly deliver to the Investor by email a notice setting forth the Conversion Price after such Company action or adjustment and any resulting adjustment to the number of Conversion Shares and setting forth a brief statement of the facts requiring such adjustment.

6.           Security Interest.

(a)           The Obligations under this Note are secured by a security interest granted to the Investor in the Collateral as more fully described in the Security Agreement. At the request of Investor, the Company shall use commercially reasonable efforts to procure, execute and deliver from time to time any consents, approvals, endorsements, assignments, financing statements and other writings deemed necessary or appropriate by Investor to perfect, maintain and protect its security interest and the priority thereof.

(b)           The Company and each other Credit Party hereby grants and transfers the right and power of attorney to Investor as the attorney in fact of the Company or such other Credit Party, in the name and place of the Company or such other Credit Party to execute such documents and to take such other actions as Investor may deems necessary, useful or appropriate to perfect, enforce, exercise, collect or otherwise effectuate Investor’s security interest in any or all of the Collateral or any of Investors rights or remedies with respect to the Collateral or this Note or any other Loan Document.

(c)           Upon either (i) the Company’s indefeasible repayment in cash in accordance with this Note of the outstanding principal balance of this Note, all interest accrued and unpaid thereon and all other amounts owing in connection with this Note or secured by any or all of the Collateral, or (ii) the conversion of this Note, Investor will execute and deliver any agreement, financing statement termination or other writings necessary to release the security interest granted pursuant to this Section 6.

(d)           In the event any of the Collateral is liquidated by the Company, the Maturity Date shall immediately accelerate to the date of said liquidation, and all proceeds of said liquidation must first be applied to the repayment of this Note until this Note is satisfied in full.

7.           Representations and Warranties of the Company. The Company represents and warrants to the Investor that:

(a)           Due Incorporation, Qualification, etc. The Company (a) (i) is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a material adverse effect on the Company, (iv) is in compliance with all Requirements of Law and Contractual Obligations, except to the extent failure to comply therewith could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (b) has and will continue to have (i) the requisite power and authority and the legal right to execute, deliver and perform its obligations under the Loan Documents, and to own, pledge, mortgage or otherwise encumber and operate its properties, to lease the property it operates under lease, and to conduct its business as now, heretofore or proposed to be conducted, and (ii) all licenses, permits, franchises, rights, powers, consents or approvals from or by all Persons or Governmental Authorities having jurisdiction over Company that are necessary or appropriate for the conduct of its business.

(b)           Authority. The execution, delivery and performance by the Company and each other Credit Party of this Note and the other Loan Documents to which it is a party and the consummation of the transactions contemplated thereby (i) are within the power of the Company and (ii) have been duly authorized by all necessary actions on the part of the Company.

(c)           Enforceability. This Note and the other Loan Documents executed by the Company have been duly executed and delivered by the Company and such Loan Documents (including the Liens created thereunder) constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

(d)           Non-Contravention. The execution and delivery by the Company of this Note and the other Loan Documents executed by the Company and the performance and consummation of the transactions contemplated thereby do not and will not (i) violate the Charter or bylaws of the Company, or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; or (ii) result in the creation or imposition of any Lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.

(e)           Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of this Note or the other Loan Documents by the Company and the performance and consummation of the transactions contemplated thereby, other than such as have been obtained and remain in full force and effect and other than such qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Note or the other Loan Documents.

(f)            Executive Offices; Corporate or Other Names. Schedule 7(f) sets forth (a) each Credit Party’s name as it appears in official filings in the state of its incorporation or organization, (b) the type of entity of each Credit Party, (c) the organizational identification number issued by each Credit Party’s state of incorporation or organization or a statement that no such number has been issued, (d) each Credit Party’s state of organization or incorporation, and (e) the location of each Credit Party’s chief executive office, corporate offices, warehouses, other locations of Collateral and locations where records with respect to Collateral are kept (including in each case the county of such locations) and, except as set forth in such Schedule, such locations have not changed during the preceding twelve (12) months. As of the date hereof, during the prior five (5) years, except as set forth in Schedule 7(f), Company has not been known as or conducted business in any other name (including trade names). Each Credit Party has only one state of incorporation or organization.

(g)           Taxes. All tax returns, reports and statements required by any Governmental Authority to be filed by each Credit Party have, as of the date hereof, been filed and will, until the Termination Date, be filed with the appropriate Governmental Authority and no tax Lien has been filed against any Credit Party.

(h)           Payment of Obligations. Company and each other Credit Party will pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its charges and other obligations of whatever nature, except where the amount or validity thereof is currently being contested in good faith by appropriate proceedings and reserves in conformity with GAAP with respect thereto have been provided on the books of Company and each other Credit Party, as applicable, and none of the Collateral is or could reasonably be expected to become subject to any Lien or forfeiture or loss as a result of such contest.

(i)            ERISA. No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other existing ERISA Events, could reasonably be expected to result in a liability of more than the Minimum Actionable Amount.

(j)            Litigation. No Litigation is pending or, to the knowledge of Company, threatened by or against Company, any other Credit Party or against any of Company’s properties or revenues (a) with respect to any of the Loan Documents or any of the transactions contemplated hereby or thereby, or (b) that could reasonably be expected to have a Material Adverse Effect. Except as set forth in Schedule 7(j), as of the date hereof there is no Litigation pending or threatened against Company that seeks damages in excess of the Minimum Actionable Amount or injunctive relief or alleges criminal misconduct of Company. Company shall notify Investor promptly upon learning of the existence, threat or commencement of any Litigation against Company, any ERISA Affiliate or any Plan or any allegation of criminal misconduct against Company.

(k)           Insurance. As of the date hereof, Schedule 7(k) lists all insurance of any nature maintained for current occurrences by Company and the other Credit Parties, as well as a summary of the terms of such insurance. Company shall, on each anniversary of the date hereof and from time to time at Investor’s request, deliver to Investor a report by a reputable insurance broker, satisfactory to Investor, with respect to such Person’s insurance policies.

(l)           Deposit Accounts. Schedule 7(l) lists all banks and other financial institutions at which Company maintains deposits and/or other accounts and such Schedule correctly identifies the name, address and telephone number of each such depository, the name in which the account is held, a description of the purpose of the account, and the complete account number.

(m)          Conduct of Business; Maintenance of Existence. Company, and each other Credit Party, (a) shall conduct its business substantially as now conducted or as otherwise permitted hereunder and preserve all of its rights, privileges and franchises necessary and desirable in connection therewith, and (b) shall at all times maintain, preserve and protect all of the Collateral and such Credit Party’s other property, used or useful in the conduct of its business and keep the same in good repair, working order and condition (taking into consideration ordinary wear and tear) and from time to time make, or cause to be made, all necessary or appropriate repairs, replacements and improvements thereto consistent with industry practices.

(n)           Further Assurances. At any time and from time to time, upon the written request of Investor and at the sole expense of Company, Company shall promptly and duly execute and deliver any and all such further instruments and documents and take such further action as Investor may reasonably deem desirable (a) to obtain the full benefits of this Note and the other Loan Documents, (b) to protect, preserve and maintain Investor’s rights in the Collateral, or any of it, or (c) to enable Investor to exercise all or any of the rights and powers herein granted.

(o)           Hazardous Materials. Except as set forth in Schedule 7(o), as of the date hereof, (a) each location of Real Property is maintained free of contamination from any Hazardous Material, (b) no Credit Party is subject to any Environmental Liabilities or, potential Environmental Liabilities, in excess of the Minimum Actionable Amount, (c) no notice has been received by a Credit Party identifying it as a “potentially responsible party” or requesting information under the Comprehensive Environmental Response, Compensation, and Liability Act or analogous state statutes, and to the knowledge of Company or any other Credit Party, there are no facts, circumstances or conditions that may result in Company or any other Credit Party being identified as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act or analogous state statutes; and (d) Company has provided to Investor copies of all existing environmental reports, reviews and audits and all written information pertaining to actual or potential Environmental Liabilities, in each case relating to Company or any other Credit Party. Company and each other Credit Party: (i) shall comply in all material respects with all applicable Environmental Laws; (ii) shall notify Investor in writing within seven (7) days if and when it becomes aware of any Release, on, at, in, under, above, to, from or about any of its Real Property; and (iii) shall promptly forward to Investor a copy of any order, notice, permit, application, or any communication or report received by it in connection with any such Release.

(p)           Dividends. Except as set forth in Schedule 7(p), as of the date hereof, neither the Company nor any of its Subsidiaries, directly or indirectly, have entered into a binding obligation to prepay, repurchase or declare or pay any cash dividend or distribution on any of its Stock.

8.           Representations and Warranties of Investor. Investor represents and warrants to the Company upon the acquisition of this Note as follows:

(a)           Binding Obligation. Investor has full legal capacity, power and authority to execute and deliver this Note and the other Loan Documents and to perform its obligations hereunder. This Note and the other Loan Documents constitutes valid and binding obligations of Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

(b)           Securities Law Compliance. Investor has been advised that this Note and the underlying securities have not been registered under the Securities Act or any state securities laws and, therefore, cannot be resold unless it or they are registered under the Securities Act and applicable state securities laws or unless an exemption from such registration requirements is available. Investor is aware that the Company is under no obligation to effect any such registration with respect to this Note or the underlying securities or to file for or comply with any exemption from registration. Investor has not been formed solely for the purpose of making this investment and is purchasing this Note for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Investor has such knowledge and experience in financial and business matters that Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite period of time. Investor is an “accredited investor” as such term is defined in Rule 501 of Regulation D under the Securities Act and shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. The residency of Investor (or, in the case of a partnership or corporation, such entity’s principal place of business) is correctly set forth beneath Investor’s name on the signature page hereto.

(c)           Access to Information. Investor acknowledges that the Company has given Investor access to the corporate records and accounts of the Company and to all information in its possession relating to the Company, has made its officers and representatives available for interview by Investor, and has furnished Investor with all documents and other information required for Investor to make an informed decision with respect to the purchase of this Note.

(d)           Tax Advisors. Investor has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Note. With respect to such matters, Investor relies solely on any such advisors and not on any statements or representations of the Company or any of its agents, written or oral. Investor understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment and the transactions contemplated by this Note.

(e)           No “Bad Actor” Disqualification Events. Neither (i) the Investor, (ii) any of its directors, executive officers, general partners or managing members, nor (iii) any beneficial owner of any of the Company’s voting equity securities (in accordance with Rule 506(d) of the Securities Act) held by the Investor if such beneficial owner is deemed to own 20% or more of the Company’s outstanding voting securities (calculated on the basis of voting power) is subject to any disqualifications described in Rule 506(d)(1)(i) through (viii) of the Securities Act (“Disqualification Events”), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed reasonably in advance of the Issuance Date in writing in reasonable detail to the Company.

9.           Covenants.

(a)           Limitation on Additional Indebtedness. Without Investor’s prior written consent, neither the Company nor any of its Subsidiaries will create, incur, assume or permit to exist any Indebtedness unless such Indebtedness either (x) (i) is outstanding on the date hereof, (ii) is set forth on Schedule 9(a) and (ii) has not be subject to a subsequent extension, renewal, increase, or refinancing since the date hereof, or (y) (i) ranks pari passu or is junior in right of payment to the Note, (ii) is subject to either a subordination agreement or intercreditor agreement in form and substance acceptable to Investor, and (iii) has a maturity date at least 91 days after the Maturity Date (clauses (x) and (y) collectively, “Permitted Indebtedness”).

(b)           Reservation of Shares Issuable Upon Conversion. The Company covenants that it will at all times reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of this Note and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than Investor, not less than such aggregate number of shares of the Common Stock as shall be issuable upon the conversion of the then outstanding principal amount of this Note and payment of interest hereunder. The Company covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement (subject to Investor’s compliance with its obligations under Section 9(c)).

(i)           The Company shall prepare and file or cause to be prepared and filed with the Securities and Exchange Commission (the “Commission”), no later than forty-five (45) days following the Issuance Date, a registration statement to permit the public resale of all the Shares held by Investor from time to time as permitted by Rule 415 of the Securities Act, or any successor thereto on the terms and conditions specified herein (the “Registration Statement”). The Company shall not identify Investor as a statutory underwriter in the Registration Statement. The Registration Statement shall be on Form S-1 (or such other form of registration statement as is then available to permit registration of such Shares for resale). The Company shall use reasonable best efforts to cause the Registration Statement to be declared effective as soon as possible after filing, but in no event later than sixty (60) days following the filing deadline (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to ninety (90) days after the filing deadline if the registration statement is reviewed by, and receives comments from, the Commission. Once effective, the Company shall use reasonable best efforts to cause the Registration Statement to remain effective and to be supplemented and amended to the extent necessary to ensure that such registration statement is available or, if not available, to ensure that another registration statement is available, under the Securities Act at all times until all Shares held by Investor have been disposed of in accordance with the intended method(s) of distribution set forth in such registration statement (the “Expiration Date”).

(ii)           Prior to the Expiration Date, the Company shall advise Investor within three (3) Business Days: (i) when a registration statement or any post-effective amendment thereto has become effective; (ii) of the issuance by the SEC of any stop order suspending the effectiveness of any registration statement or the initiation of any proceedings for such purpose; and (iii) of the occurrence of any event that requires the making of any changes in any registration statement or prospectus contained therein so that the statements therein are not misleading and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. Notwithstanding anything to the contrary set forth herein, the Company shall not, when so advising of such events described in this Section 9(c)(ii), provide Investor with any material, nonpublic information regarding the Company unless, prior to such disclosure, it has received the written consent of Investor to provide such information to it.

(iii)           The Company shall pay all expenses associated with its obligations in this Section 9(c). In addition, the Company agrees to indemnify and hold harmless, to the extent permitted by law, Investor, its directors, and officers, employees, and agents, and each person who controls Investor and each affiliate of Investor from and against any and all losses, claims, damages, liabilities and expenses (including, without limitation, any reasonable external attorneys’ fees and expenses incurred in connection with defending or investigating any such action or claim) caused by any untrue or alleged untrue statement of material fact contained in any registration statement, prospectus included in any registration statement or preliminary prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by information furnished in writing to the Company by or on behalf of Investor expressly for use therein.

(iv)           Alternatively, and without prejudice to any of Investor’s rights and remedies set forth in Section 9.1(c), if after twelve (12) months from the Issuance Date (the “Twelve-month Period Date”), the Company has not registered any of Investor’s Shares on an effective registration statement, then the Company will confirm in writing that such Shares are freely sellable under Rule 144 of the Securities Act (“Rule 144”), if Rule 144 is available. No later than the Twelve-month Period Date, the Company shall provide Investor a valid legal opinion that its Shares are eligible for resale pursuant to Rule 144, if Rule 144 is available. For as long as Investor holds Shares, the Company will use reasonable best efforts to file all reports necessary to enable Investor to resell the Shares pursuant to Rule 144. In addition, in connection with any sale, assignment, transfer or other disposition of the Shares by Investor pursuant to Rule 144 or pursuant to any other exemption under the Securities Act such that the Shares held by Investor become freely tradable, if requested by Investor, the Company shall cause the transfer agent for the Shares (the “Transfer Agent”) to remove any restrictive legends related to the book entry account holding such Shares and make a new, unlegended entry for such book entry Shares sold or disposed of without restrictive legends within two (2) trading days of any such request therefor from Investor, provided that the Company and the Transfer Agent have timely received from Investor customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith. Subject to receipt from Investor by the Company and the Transfer Agent of customary representations and other documentation reasonably acceptable to the Company and the Transfer Agent in connection therewith, including, if required by the Transfer Agent, an opinion of the Company’s counsel, in a form reasonably acceptable to the Transfer Agent, to the effect that the removal of such restrictive legends in such circumstances may be effected under the Securities Act, Investor may request that the Company remove any legend from the book entry position evidencing its Shares following the earliest of such time as such Shares (i) are subject to, or have been or are about to be sold or transferred pursuant to, an effective registration statement, (ii) have been or are about to be sold pursuant to Rule 144, or (iii) are eligible for resale under Rule 144(b)(1) or any successor provision without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 and without volume or manner-of-sale restrictions applicable to the sale or transfer of such Shares. If restrictive legends are no longer required for such Shares pursuant to the foregoing, the Company shall, in accordance with the provisions of this section and within two (2) trading days of any request therefor from Investor accompanied by such customary and reasonably acceptable representations and other documentation referred to above, deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for such book entry Shares. The Company shall be responsible for the fees of its Transfer Agent and all DTC fees associated with such issuance.

(d)           Liens. The Company will not, and will not permit any Subsidiary to, create, incur, assume or permit to exist any Lien on any property or asset now owned or hereafter acquired by it, or assign or sell any income or revenues (including accounts receivable) or rights in respect of any thereof, except for (i) Permitted Encumbrances and (ii) Liens securing Indebtedness permitted under Section 9(a) above.

(e)           Dispositions. The Company will not, and will not permit any Subsidiary to, sell, transfer, issue, convey, assign, exclusively license, or otherwise dispose of any of its assets or properties or engage in any sale-leaseback, synthetic lease or similar transaction (provided, that the foregoing shall not prohibit the sale of inventory or obsolete or unnecessary equipment in the ordinary course of its business).

(f)            Certain Changes. Other than changing the name of the Company from Calculator New Pubco, Inc. to AtlasClear Holdings, Inc. on the date hereof, the Company will not, and will not permit any Credit Party to change (i) its name as it appears in official filings in the state of its incorporation or organization, (ii) its chief executive office, corporate offices, warehouses or other Collateral locations, or location of its records concerning the Collateral, (iii) the type of legal entity that it is, (iv) its organization identification number, if any, issued by its state of incorporation or organization, or (v) its state of incorporation or organization, or acquire any Real Property after the date hereof without such Person, in each instance, giving thirty (30) days prior written notice thereof to Investor and taking all actions deemed necessary or appropriate by Investor to continuously protect and perfect Investor’s Liens upon the Collateral.

(g)           Business Objectives. The Company will not, and will not permit any Subsidiary to make any changes in any of its business objectives, purposes, or operations that could reasonably be expected to adversely affect repayment of the Obligations or could reasonably be expected to have a Material Adverse Effect or engage in any business other than that presently engaged in or amend its charter or by-laws or other organizational documents.

(h)           Other Reports and Information. Company shall advise Investor promptly, in reasonable detail, of: (a) any Lien, other than Permitted Encumbrances, attaching to or asserted against any of the Collateral or any occurrence causing a material loss or decline in value of any Collateral and the estimated (or actual, if available) amount of such loss or decline; and (b) the occurrence of any Event of Default or other event that has had or could reasonably be expected to have a Material Adverse Effect. Company shall, upon request of Investor, furnish to Investor such other reports and information in connection with the affairs, business, financial condition, operations, prospects or management of such Company or the Collateral as Investor may request, all in reasonable detail.

(i)           Communication with Accountants. Company authorizes Investor to communicate directly with its independent certified public accountants and authorizes and shall instruct those accountants and advisors to communicate to Investor information relating to Company with respect to the business, results of operations and financial condition of the Company.

(j)           Restricted Payments. Neither the Company nor any of its Subsidiaries, directly or indirectly, will prepay, repurchase or declare or pay any cash dividend or distribution on any of its capital stock without the prior written consent of the Investor, other than pursuant to any binding obligation listed on Schedule 7(p).

(k)           Investments. Neither the Company nor any of its Subsidiaries, directly or indirectly, will, except as provided in the Company’s officially filed S-X statement, merge with, consolidate with, acquire all or substantially all of the assets or Stock of, or otherwise combine with or make any investment in or, loan or advance to, any Person or form any Subsidiary without Investor’s consent. If Company or any Credit Party, acquires or forms a Subsidiary, such Credit Party will cause such Subsidiary to execute a Guaranty and any other documentation in form and substance necessary to have such Subsidiary join the Loan Documents and pledge its assets thereunder.

(l)           Quarterly Financial Statements. Within forty-five (45) days following the end of each Fiscal Quarter, Company will deliver to Investor the Financial Statements for such Fiscal Quarter and accompanied by a certification by the chief executive officer or chief financial officer of Company that such Financial Statements are complete and correct, that there was no Event of Default (or specifying those Events of Default of which he or she was aware); provided that the Company may satisfy this obligation by delivering a publicly filed form 10-Q covering such period, in accordance with applicable Requirements of Law.

(m)           Yearly Financial Statements. Within ninety (90) days following the close of each Fiscal Year, the Company will deliver Financial Statements for such Fiscal Year certified without qualification by an independent certified accounting firm acceptable to Investor, which shall provide comparisons to the prior Fiscal Year, and shall be accompanied by (i) report from such Company’s accountants to the effect that in connection with their audit examination nothing has come to their attention to cause them to believe that an Event of Default has occurred or specifying those Events of Default of which they are aware, and (ii) any management letter that may be issued; provided that the Company may this obligation by delivering a publicly filed form 10-K covering such period, in accordance with applicable Requirements of Law.

(n)           Deposit Accounts.

(i) Within thirty (30) days of the date hereof, the Company will and will cause each other Credit Party to, cause each of its Deposit Accounts that are not Excluded Accounts to be subject to a Deposit Account Control Agreement.

(ii) With respect to any Deposit Account created or acquired after the date hereof, within thirty (30) days of the acquisition or creation of a Deposit Account that is not an Excluded Account, by Company or any other Credit Party, the Company or such other Credit Party will cause such Deposit Account to be subject to a Deposit Account Control Agreement.

(o)           FINRA. Within thirty (30) days of the date hereof, the Company will cause Wilson-Davis & Co, Inc., a Utah corporation, to provide telephonic notification to its FINRA regulatory coordinator of the transactions contemplated under the Loan Documents. To the extent that the FINRA regulatory coordinator or FINRA have requests, the Company shall promptly comply with all such requests.

(p)           Post-Closing.

(i) Within 10 days of the date hereof (or such later date as the Investor agrees to in its sole discretion), the Investor shall have received a favorable opinion of counsel for AtlasClear, Inc., in form and substance reasonably satisfactory to Investor and addressed to Investor for its benefit.

(ii) Within 10 days of the date hereof (or such later date as the Investor agrees to in its sole discretion), the Investor shall have received a favorable opinion of counsel for Wilson-Davis & Co., Inc., in form and substance reasonably satisfactory to Investor and addressed to Investor for its benefit.

(q)           Restricted Debt Payments. Neither the Company nor any of its Subsidiaries will make any payment on account of the purchase, redemption, defeasance or other retirement of Company’s or any Subsidiary’s Permitted Indebtedness or make any other payment or distribution in respect of any Permitted Indebtedness, either directly or indirectly; other than (x) regularly scheduled interest payments and regularly scheduled amortization, in each case when due without acceleration or modification of such interest payment or such amortization payment as in effect on the date hereof, under Permitted Indebtedness and (y) in the case Permitted Indebtedness permitted under Section 9(a)(y), payments permitted in accordance with the terms of the subordination agreement made in favor of Investor as described in Section 9(a)(y).

10.           Miscellaneous.

(a)           Waivers and Amendments. Any provision of this Note may be amended, waived or modified only with the written consent of the Company and of Investor. Any amendment or waiver effected in accordance with this paragraph shall be binding upon all of the parties hereto.

(b)           Governing Law. This Note and all actions arising out of or in connection herewith or therewith shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of law provisions of the State of New York or of any other state.

(c)           Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Note.

(d)           Jurisdiction and Venue. Investor and the Company irrevocably consent to the exclusive jurisdiction of, and venue in, the United States District Court for the Southern District of New York or in the Supreme Court of the State of New York, New York County, Commercial Division, in connection with any matter based upon or arising out of this Note or the matters contemplated herein or therein, and agree that process may be served upon them in any manner authorized by the laws of the State of New York for such Persons.

(e)           Waiver of Jury Trial; Judicial Reference. Investor hereby agrees and the Company hereby agrees to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Note.

(f)            Successors and Assigns. Subject to the restrictions on transfer set forth herein, the rights and obligations of the Company and Investor under this Note shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.

(g)           Transfer and Replacement of this Note. The Company will keep, at its principal executive office, books for the recordation of Investor and recordation of transfer of this Note. Prior to presentation of this Note for transfer, the Company shall treat the Person in whose name this Note is recorded as the owner and holder of this Note for all purposes whatsoever, whether or not this Note shall be overdue, and the Company shall not be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in this Note, the holder of this Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Company’s chief executive office, and promptly thereafter and at the Company’s expense, except as provided below, receive in exchange therefor this Note in the principal requested by such holder, dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note and recorded in the name of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of this Note. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of this Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the case of mutilation, upon surrender thereof, the Company, at its expense, will execute and deliver in lieu thereof a new Note executed in the same manner as this Note, in the same principal amount as the unpaid principal amount of this Note and dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note.

(h)           Transfer of this Note or Securities Issuable on Conversion Thereof. This Note may not be transferred by Investor without the prior written consent of the Company. Any Shares into which this Note may be converted shall be subject to any transfer restrictions set forth in the Company’s organizational documents.

(i)            Assignment by the Company. The rights, interests or obligations of the Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of Investor.

(j)            Entire Agreement. This Note and the other Loan Documents constitutes and contains the entire agreement among the Company and Investor and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.

(k)           Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall in writing and faxed, mailed, emailed or delivered to each party as follows: (i) if to Investor, at Investor’s address or electronic mail address set forth beneath Investor’s name on the signature page hereto, or at such other address or electronic mail address as Investor shall have furnished the Company in writing, or (ii) if to the Company, at the Company’s address or electronic mail address set forth beneath the Company’s name on the signature page hereto, or at such other address or electronic mail address as the Company shall have furnished to Investor in writing. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one (1) Business Day after being deposited with an overnight courier service of recognized standing, (iv) four days after being deposited in the U.S. mail, first class with postage prepaid, or (v) if sent via electronic mail, when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next Business Day.

(l)           Expenses. Company agrees to pay or reimburse Investor for all costs and expenses (including the fees and expenses of all special counsel, advisors, consultants (including environmental and management consultants) and auditors retained in connection therewith), incurred in connection with: (a) the preparation, negotiation, execution, delivery, performance and enforcement of the Loan Documents and the preservation of any rights thereunder; (b) collection, including deficiency collections; (c) the forwarding to Company or any other Person on behalf of Company by Investor of the proceeds of this Note (including wire transfer fees); (d) any amendment, extension, modification or waiver of, or consent with respect to any Loan Document or advice in connection with the administration of the loan made hereunder or the rights thereunder; (e) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or between any combination of Investor, Company or any other Person or Persons), and an appeal or review thereof, in any way relating to the Collateral, any Loan Document, or any action taken or any other agreements to be executed or delivered in connection therewith, whether as a party, witness or otherwise; and (f) any effort (i) to monitor the loan made hereunder, (ii) to evaluate, observe or assess Company or any other Credit Party or the affairs of such Person, and (iii) to verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of the Collateral; provided that, the Company will pay any amount of attorney’s fees incurred in connection with such negotiation, drafting and execution of the Loan Documents in-kind on the then outstanding amount of the Obligations by increasing the principal amount of the Obligations by the amount of such attorney’s fees. Company shall reimburse Investor promptly after demand for any costs and expenses (including attorneys fees) incurred by Investor after the date of this Note in connection with any amendment to any Loan Document, restructuring and/or liquidation of the Obligations and/or the Collateral and, for the avoidance of doubt, shall be paid in cash.

(m)           Severability of this Note. If any provision of this Note shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(n)           Payment. Unless converted into Shares pursuant to the terms hereof, payment shall be made in lawful tender of the United States.

(o)           Usury. If any interest is paid on this Note that is deemed to be in excess of the then legal maximum rate, then that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against the principal of this Note.

(p)           Waivers. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.

(q)           Counterparts. This Note may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Electronic copies of manually executed signature pages will be deemed binding originals.

Signature Page Follows

The parties have caused this Note to be duly executed and delivered as of the date first written above.

	COMPANY:

	ATLASCLEAR HOLDINGS, INC. f/k/a CALCULATOR NEW PUBCO, INC.
	a Delaware corporation

	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	CBDO

Signature Page to Secured Convertible Promissory Note

	INVESTOR:

	FUNICULAR FUNDS, LP
	a Delaware limited partnership

	By:	/s/ Jacob Ma-Weaver
	Name:	Jacob Ma-Weaver
	Title:	Managing Member of the General Partner

Signature Page to Secured Convertible Promissory Note

Exhibit A

[FORM OF NOTICE OF CONVERSION]

To:

[Name and Address of the Company]

The undersigned registered owner of this Note hereby exercises the option to convert this Note, or the portion hereof below designated, into Shares in accordance with the terms of the Note, and directs that any cash payable and any Shares issuable and deliverable upon such conversion, together with any cash for any fractional share, and any Notes representing any unconverted principal amount hereof, be issued and delivered to the Investor hereof unless a different name has been indicated below. If any Shares or any portion of this Note not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all documentary, stamp or similar issue or transfer taxes, if any in accordance with the Note. Capitalized terms used herein but not defined shall have the meanings ascribed to such terms in the Note.

Dated:

			Signature


(City, State and Zip Code)
Please print name and address

	Principal amount to be converted (if less than all):

	$__________,000

	Number of Conversion Shares:

Exhibit 10.3

GUARANTY

This Guaranty (this “Guaranty”) is by and among the Guarantors identified on the signature page hereto and each other Person that becomes a party hereto pursuant to Section 19 (each a “Guarantor”; together, the “Guarantor(s)”), for the benefit of FUNICULAR FUNDS, LP (the “Investor”), and is dated as of February 9, 2024 (the “Effective Date”).

WHEREAS, Calculator New Pubco, Inc., a Delaware corporation (the “Borrower”), has entered into that certain Secured Convertible Promissory Note (as amended, restated, supplemented or otherwise modified from time to time, the “Note”) dated as of the Effective Date in favor of the Investor;

WHEREAS, to induce the Investor to extend credit to the Borrower as set forth in the Note, each Guarantor absolutely and unconditionally guarantees all of the Obligations (as such term is defined in the Note); and

WHEREAS, each Guarantor has agreed to absolutely and unconditionally, and jointly and severally, guarantee the Obligations.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged by the parties hereto, each Guarantor hereby agrees as follows:

1.             Definitions. Capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Note.

2.             Guaranty. To induce the Investor to make the loan under the Note, each Guarantor hereby unconditionally guarantees, as primary obligor and not merely as surety, the prompt and complete payment and performance when due, whether by demand, acceleration or otherwise, of the Obligations in the currency in which and as such Obligations are to be paid or performed.

3.             Guaranty Absolute. This is a guaranty of payment and not merely of collection. Each Guarantor’s obligations under this Guaranty shall be absolute and unconditional, irrespective of: (a) any lack of capacity or authority of the Borrower or any lack of validity, regularity or enforceability of any provision of any Loan Document or other agreement relating to the Obligations; (b) any change in the amount, time, manner or place of payment of, or in any other term of, all or any of the Loan Documents or Obligations, or any other amendment or waiver of or any consent to departure from any of the terms of any Loan Document or Obligation, (c) any variation, extension, waiver, compromise or release of any or all of the Obligations or of any security from time to time provided therefor, (d) any release or amendment or waiver of, or consent to departure from, any other Guarantor or any other guaranty or support document, or any exchange, release or non-perfection of any collateral, for all or any of the Loan Documents or Obligations; or (e) any present or future law, regulation or order of any jurisdiction (whether of right or in fact) or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Loan Document or Obligation. This Guaranty shall not be affected by any circumstance (other than complete, irrevocable payment or performance) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. The Investor makes no representation or warranty in respect of any such circumstance and has no duty or responsibility whatsoever to any Guarantor in respect of the management and maintenance of the Obligations or any collateral therefor. The Investor shall not be obligated to file any claim relating to the Obligations in the event that the Borrower becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure by the Investor to so file shall not affect any Guarantor’s obligations hereunder. In the event that any payment to the Investor in respect of any Obligations is rescinded or must otherwise be returned for any reason whatsoever, each Guarantor shall remain liable hereunder in respect of such Obligations, and each Guarantor’s obligations hereunder shall be reinstated, all as if such payment had not been made. Each Guarantor waives any right of set-off or counterclaim which such Guarantor may have or acquire against the Investor. Each Guarantor agrees that this Guaranty is a continuing guaranty and shall cover any present Obligations, and also all Obligations that have been created or may hereafter be created as such Obligations may be changed from time to time. Each Guarantor agrees that the Investor may deal freely with the Borrower with respect to the Obligations, without notice to such Guarantor, the same as if this Guaranty had not been given, all without in any way affecting such Guarantor’s obligations hereunder.

4.             Representations and Warranties. Each Guarantor represents and warrants to the Investor that:

(a)           Name, Etc. Such Guarantor’s legal name is correctly set forth on the signature page hereto and the other information regarding such Guarantor set forth below such Guarantor’s signature hereto is true, correct and complete on the Effective Date. Such Guarantor has not changed such Guarantor’s name or, if applicable, principal residence in the past five (5) years or, if applicable, its jurisdiction of organization (which is correctly identified on the signature page hereto) in the past five (5) years.

(b)           Enforceable Obligations. Such Guarantor, is duly organized and, if applicable, validly existing in good standing under the laws of its jurisdiction of formation, is, if applicable, duly qualified and in good standing in all such foreign jurisdictions where its business or property so requires and is authorized to enter into this Guaranty and the other Loan Documents to which it is a party. The execution, delivery and performance by such Guarantor of the Loan Documents to the extent such Guarantor is a party thereto, the consummation of the transactions contemplated by this Guaranty and the other Loan Documents: (i) will not violate any law or regulation, or any order or decree of any court or Governmental Authority; (ii) if such Guarantor is a corporation, limited liability company, partnership, trust or other legal entity, will not violate any organizational documents of such Guarantor, (iii) will not conflict with or result in the breach or termination of, constitute a default under, or accelerate any performance required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which such Guarantor is a party or by which such Guarantor or any of such Guarantor’s property is bound; (iv) will not result in the creation or imposition of any lien upon any of the property of such Guarantor; and (v) do not require the consent or approval of any Governmental Authority or any other Person, except such consents as have been obtained. Each of the Loan Documents delivered in connection herewith at such time shall have been duly authorized (if such Guarantor is a corporation, limited liability company, partnership or other legal entity), executed and delivered by or on behalf of such Guarantor, and each shall then constitute a legal, valid and binding obligation of such Guarantor, enforceable against him or it in accordance with its terms.

(c)           Compliance with Laws. Such Guarantor is not in violation in any material respect of any applicable law. Such Guarantor is not in default concerning any judgment, order, writ, injunction or decree of any Governmental Authority, and there is no investigation, enforcement action or regulatory action pending or threatened against or affecting such Guarantor by any Governmental Authority. There is no remedial or other corrective action that such Guarantor is required to take to remain in compliance with any judgment, order, writ, injunction or decree of any Governmental Authority or to maintain any material permits, approvals or licenses granted by any Governmental Authority in full force and effect.

(d)           Taxes. Such Guarantor has filed or caused to be filed all federal, state and local tax returns that are required to be filed by it, which returns were true, accurate and complete in all material respects, and has paid or caused to be paid all taxes shown to be due and payable on such returns or on any assessments received by it.

(e)           Solvency. Such Guarantor is solvent.

(f)           Complete Disclosure. All factual information, including, without limitation, all financial statements, furnished by or on behalf of such Guarantor to the Investor for purposes of or in connection with this Guaranty and the other Loan Documents is, and all other such factual information hereafter furnished by or on behalf of such Guarantor will be, true and accurate in all material respects on the date as of which such information is furnished and not incomplete by omitting to state any fact necessary to make such information not misleading at such time in light of the circumstances under which such information is provided.

(g)          Absence of Undisclosed Liabilities. Such Guarantor has no liabilities or obligations, either accrued, absolute, contingent or otherwise, other than the liabilities and obligations set forth in the financial statements and financial representations previously delivered or made to the Investor.

(h)           Intentionally Omitted.

(i)           No Default. Such Guarantor is not, and after giving effect to this Guaranty shall not be, in default in the payment or performance of any contractual obligation.

(j)           No Litigation. Except as set forth on any Schedule 4(j) that may be attached hereto, there are no actions, suits, litigations, arbitrations, administrative or other legal proceedings, or investigations, pending or threatened, against such Guarantor or any of the Collateral in which such Guarantor has rights, nor has there been any judgment(s) or other legal proceedings against such Guarantor in the past seven (7) years, that will or could (a) have a material adverse effect on the business or affairs, condition (financial or otherwise), obligation, operations, performance, properties or prospects of such Guarantor, or (b) affect such Guarantor’s ability to enter into and perform its obligations under this Guaranty or any of the transactions contemplated by this Guaranty.

(k)           No Material Adverse Change. Since the date of such Guarantor’s most recent financial statement, tax return or other financial representations delivered or made to the Investor, there has been no material adverse change in the business, condition (financial or otherwise), obligations, performance, properties, or prospects of such Guarantor.

(l)           Miscellaneous. Such Guarantor has made its own credit analysis with respect to the Borrower and the Obligations and has made such arrangements with the Borrower not inconsistent with the provisions hereof as it has deemed appropriate. Such Guarantor will receive substantial direct or indirect benefits in connection with the Obligations and the waivers of suretyship defenses are knowingly made in contemplation of such benefits. Such Guarantor has not transferred, concealed or removed any of its property with the intent to hinder, delay or defraud its creditors, nor is it now making this Guaranty with intent to hinder, delay or defraud its creditors.

Each Guarantor acknowledges that, to the extent the Obligations are, or arise under or in connection with, forward contracts, master netting agreements, repurchase agreements, swap agreements, margin loans or other securities contracts or commodity contracts (as such terms are used or defined in sections 101, 741 and 761 of the U.S. Bankruptcy Code (the “Code”)) (“protected financial contracts”), (i) this Guaranty also constitutes a protected financial contract and (ii) any payment or collection hereunder constitutes a settlement payment (as defined in sections 101 or 741 of the Code) and transfer under and in connection with one or more types of protected financial contract.

5.           Covenants. For so long as any Guarantor shall have any obligation under this Guaranty, unless the Investor shall otherwise consent in writing, such Guarantor shall:

(a)          Defaults. Give the Investor prompt written notice of any Event of Default under the Note or any other default under any other agreement that could have a material adverse effect on such Guarantor, as soon as such Guarantor becomes aware of such breach.

(b)          Execution of Supplemental Instruments. Execute and deliver to the Investor from time to time, upon demand, such supplemental agreements, statements, assignments, transfers, instructions, instruments or documents as the Investor may reasonably request, in order that the full intent of this Guaranty or any other Loan Document to which such Guarantor is a party may be carried into effect.

(c)           Obligations and Taxes. Pay and discharge promptly when due all taxes, assessments and governmental charges or levies imposed upon it or upon its income or assets before the same shall become delinquent or in default, as well as all lawful claims for labor, materials and supplies or otherwise, which, if unpaid, might give rise to liens or charges upon such assets or any part thereof; provided, however, that such Guarantor shall not be required to pay and discharge or to cause to be paid and discharged any such tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings.

(d)          Litigation. Give the Investor prompt written notice of the filing or commencement of any action, suit or proceeding against the Guarantor, whether at law or in equity or by or before any court or any Governmental Authority, in each case, that could reasonably be expected to have a material adverse effect on the Guarantor or where the amount demanded is in excess of $250,000.

(e)           Intentionally Omitted.

(f)           Solvency. At all times be solvent.

(g)           Intentionally Omitted.

(h)          Name, Etc. Without the prior written consent of the Investor, such consent not to be unreasonably withheld, not change such Guarantor’s (i) legal name, (ii) address or (iii) if applicable, principal residence or principal place of business, chief executive office, jurisdiction of organization, situs for administration or its organizational documents.

(i)           Compliance with Laws. Comply in all material respects, with all applicable laws, statutes, codes, ordinances, regulations, rules, orders, awards, judgments, decrees, injunctions, approvals and permits. If Guarantor is a corporation, limited liability company, partnership, trust or other legal entity, Guarantor shall preserve and maintain its existence and all necessary rights, licenses and authority to own Guarantor’s property and assets and to transact the business in which the Guarantor is engaged.

(j)           Financial Statements. Promptly upon the request of the Investor, but in any event no later than thirty (30) days after receipt of such request, deliver to the Investor copies of such Guarantor’s most recently filed federal tax returns, bank and brokerage statements and other financial statements (in substantially the same form submitted to the Investor prior to the Effective Date) reasonably requested by Investor. In addition, such Guarantor acknowledges that he has reviewed a copy of the Note and such Guarantor covenants and agrees to comply with the reporting requirements contained in the Note, which include requirements that the Borrower provide certain financial information to the Investor, all as more particularly set forth in the Note.

6.             Set-Off. Upon the occurrence of any Event of Default, and without limiting any other rights of the Investor, the Investor in its sole discretion and without notice (which notice is expressly waived hereunder) and irrespective of whether (x) the Investor has made a demand for payment hereunder or under any other Loan Document or (y) the Obligations are due and payable, contingent, or unsecured, may also set-off any or all of the Obligations against any securities, cash, or other property of the Guarantor(s) in the possession of the Investor and against any obligations owed to the Guarantor(s) by the Investor to the extent that it does not impact the Investor’s ability to recover amounts owed to the Investor. EACH GUARANTOR UNDERSTANDS THAT PURSUANT TO THE TERMS OF THIS GUARANTY SUCH GUARANTOR IS ALLOWING THE INVESTOR TO SET-OFF ANY OR ALL OBLIGATIONS OF SUCH GUARANTOR TO THE INVESTOR.

7.            Taxes. All payments by any Guarantor under this Guaranty shall be made free and clear of any restrictions or conditions, without set-off or counterclaim (any such set-off and/or counterclaim rights of Guarantor being hereby expressly waived by Guarantor, to the maximum extent permissible under the applicable law), and free and clear of, and without any deduction or withholding whether for or on account of tax or otherwise. If any such deduction or withholding is required by law to be made by any Guarantor or any other Person (whether or not a party to, or on behalf of a party to this Guaranty) from any sum paid or payable by, or received or receivable from, any Guarantor, the Guarantors shall pay in the same manner and at the same time such additional amounts as will result in the Investor’s receiving and retaining (free from any liability other than tax on its overall net income) such net amount as would have been received by it had no such deduction or withholding been required to be made.

8.             Waiver. Each Guarantor hereby waives any notices or confirmations whatsoever of acceptance by the Investor of this Guaranty and as to the current condition of the Obligations or any changes therein from time to time and the manner of advancing or collecting the same or otherwise. In the event of any default by the Borrower, each Guarantor hereby waives any demands or notices whatsoever in respect thereof and any requirement of legal or equitable proceedings or otherwise by the Investor against the Borrower or any other guarantor of the Obligations (including the other Guarantor) or any collateral securing the Obligations or the obligations hereunder as a condition precedent to enforcing the obligations of such Guarantor hereunder. To the extent not referred to above, each Guarantor hereby waives all defenses (other than payment) which the Borrower may now or hereafter have to the payment of the Obligations, together with all suretyship defenses, which could otherwise be asserted by the Guarantor.

9.             Waiver of Subrogation. Each Guarantor agrees not to exercise any rights which it may acquire by way of subrogation or by any indemnity, reimbursement or other agreement until all the Obligations have been indefeasibly paid in full in cash and the Loan Documents have been terminated. If any amount shall be paid to any Guarantor in violation of the preceding sentence, such amount shall be held in trust for the benefit of the Investor and shall forthwith be paid to the Investor to be credited and applied to the Obligations, whether matured or unmatured.

10.           Successors and Assigns. This Guaranty shall be binding upon each Guarantor, such Guarantor’s successors and permitted assigns and (if applicable) such Guarantor’s estate and legal representatives in the event of the death or incapacity of such Guarantor, whether or not an executor, administrator, guardian, committee, trustee, or other representative has been appointed to such Guarantor’s estate, and shall inure to the benefit of the Investor’s successors and permitted assigns, and to the individual managing directors and assigns of the Investor or any successor of the Investor.

11.           Severability. Any provision in this Guaranty that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions of this Guaranty in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction.

12.           Termination. Subject to reinstatement of this Guaranty pursuant to Section 3 hereof, upon the indefeasible payment and performance in full of the Obligations in cash, this Guaranty shall terminate.

13.           Amendments. Each Guarantor agrees that no agreement on the Investor’s behalf to waive or modify this Guaranty or any provision hereof shall be valid or binding unless evidenced by a writing signed by the Investor. No failure on the part of the Investor to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Investor of any right, remedy or power hereunder preclude any other or future exercise of any other right, remedy or power. Each and every right, remedy and power hereby granted to the Investor or allowed the Investor by law or other agreement shall be cumulative and not exclusive of any other right, remedy or power, and may be exercised by the Investor from time to time.

14.           Expenses. The Guarantor shall pay to the Investor on demand all expenses and costs (including, without limitation, all attorneys’ fees and expenses) incurred in connection with (i) the protection of the Investor’s rights hereunder or a breach by the Guarantor of the Loan Documents; (ii) the collection and enforcement of all Obligations under the Loan Documents; (iii) any proceeding commenced by or against the Guarantor under Title 11 of the U.S. Code; and (iv) entering into hedging or offsetting transactions to preserve or enforce the Investor’s rights or to reduce any risk to the Investor of loss or delay. The Guarantor’s obligations under this Section shall survive the termination of the Loan Documents and payment of the Obligations. All such amounts shall be part of the Obligations.

15.           APPLICABLE LAW. THIS GUARANTY AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.

16.           CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.

(A)         SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THE PARTIES, SHALL BE BROUGHT IN ANY FEDERAL COURT OF THE UNITED STATES OF AMERICA SITTING IN THE BOROUGH OF MANHATTAN OR, IF THAT COURT DOES NOT HAVE SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY AND COUNTY OF NEW YORK. BY EXECUTING AND DELIVERING THIS GUARANTY, THE GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY THE INVESTOR OR ITS AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY DOCUMENT GOVERNED BY LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE LOAN PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 17; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE LOAN PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT THE INVESTOR AND ITS AGENTS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY SECURITY DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.

(B)          EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE INVESTOR/GUARANTOR RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS GUARANTY, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE UNDER THE NOTE. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

17.           Giving Notice. Unless otherwise provided herein, all notices and other communications provided to any party hereto under this Guaranty or any other Loan Document shall be in writing or by electronic mail and addressed or delivered to such party at its address as follows: (a) if to any Loan Party, at the address set forth below such Loan Party’s name on the signature page hereto unless otherwise designated in writing from such Loan Party to (x) the Investor or (y) such Loan Party’s private wealth advisers or financial advisers at an Affiliate of the Investor and (b) if to the Investor, at the address set forth below the Investor’s name on the signature page hereto unless otherwise designated in writing from the Investor or its Affiliates (on behalf of the Investor) to any Loan Party. Unless otherwise provided herein, any notice, if mailed and properly addressed with postage prepaid, shall be deemed given three (3) Business Days after being sent; any notice, if transmitted by electronic mail, shall be deemed given when transmitted with a confirmation of receipt; any notice, if hand delivered, shall be deemed given on the date of such delivery; and any notice, if mailed by overnight courier, shall be deemed given on the date of such delivery.

18.           Joint and Several Liability. If there is more than one Guarantor party hereto, each Guarantor agrees that such Guarantor will be jointly and severally liable for the Obligations with the other Guarantor(s). Notice provided by the Investor to any Guarantor will be deemed notice to all Guarantors.

19.           Additional Guarantors. Each Guarantor agrees that any new Person who desires, or is otherwise required, to become a Guarantor hereunder, shall execute and deliver to the Investor a guaranty supplement in form and substance satisfactory to the Investor and such new Person shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Guarantor party hereto on the Effective Date.

20.           Counterparts. This Guaranty may be executed in multiple counterparts, all of which shall be construed as one document, and any of the parties hereto may execute this Guaranty by signing any such counterpart. Executed counterparts of this Guaranty with signatures sent by electronic mail (i.e., in PDF format) and/or electronically signed may be used in the place of original signatures on this Guaranty. The parties hereto intend to be bound by the signatures of the electronically mailed and/or electronically signed signatures and the delivery of the same shall be effective as delivery of an original executed counterpart of this Guaranty. The parties hereto hereby waive any defenses to the enforcement of the terms of this Guaranty based on the form of the signature, and hereby agree that such electronically mailed and/or electronically signed signatures shall be conclusive proof, admissible in judicial proceedings, of the parties’ execution of this Guaranty. This Guaranty shall be effective when it has been executed by each party hereto.

21.           Intentionally Omitted.

22.           Errors. Notwithstanding anything to the contrary contained herein, the parties hereto hereby agree that the Investor may correct scrivener’s errors and other obvious errors or omissions in this Guaranty or any other Loan Document at any time without the consent of any other party hereto; provided that, the Investor will provide notice to the Guarantor and any other Loan Party affected by any such correction as required by applicable law.

23.           Documents. To the extent any Loan Party fails to insert a date where required or otherwise requested in any Loan Document, and the date of such document cannot be determined by the terms thereof, such document shall be deemed to be dated as of the date such Loan Document is received by the Investor unless the facts and circumstances of the applicable document or the delivery thereof indicates otherwise as determined by the Investor in its sole discretion.

Remainder of page intentionally left blank; signature page follows

IN WITNESS WHEREOF, each Guarantor has executed this Guaranty as of the Effective Date.

Jurisdiction of Organization (if an entity):	ATLAS FINTECH HOLDINGS CORP.
Wyoming

	By:	/s/ Craig Ridenhour
Chief Executive Office or Place of Business:	Name:	Craig Ridenhour

4030 Henderson Blvd., Ste 712
Tampa, FL 33629

Title (if applicable):

CBDO





Notice Address (if different from above):





Jurisdiction of Organization (if an entity):	ATLASCLEAR, INC.
Wyoming
	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour

Chief Executive Office or Place of Business:
4030 Henderson Blvd., Ste 712
Tampa, FL 33629

Title (if applicable):

CBDO






Notice Address (if different from above):

Jurisdiction of Organization (if an entity):	WILSON-DAVIS & CO., INC.
Utah
	By:	/s/ Lyle W. Davis
	Name:	Lyle W. Davis
Chief Executive Office or Place of Business: 236 South Main Street Salt Lake City, Utah 84101	Title (if applicable):	Chairman






Notice Address (if different from above):





Jurisdiction of Organization (if an entity):	QUANTUM FINTECH ACQUISITION CORPORATION
Delaware
	By:	/s/ John Schaible
Chief Executive Office or Place of Business:	Name:	John Schaible

4030 Henderson Blvd., Ste 712

Tampa, FL 33629

Title (if applicable):

Chief Executive Officer


Notice Address (if different from above):

Acknowledged and Agreed
as of the Effective Date:

INVESTOR:
FUNICULAR FUNDS, LP

By:	/s/ Jacob Ma-Weaver
Name:	Jacob Ma-Weaver
Title:	Managing Member of the General Partner
Address: 601 California Street, Suite 1151, San Francisco, CA 94108
Email: jacob@cablecarcapital.com

Exhibit 10.4

SECURITY AGREEMENT

Dated as of February 9, 2024

among

AtlasClear Holdings, Inc. (f/k/a Calculator New Pubco, Inc.)

and

Each Other Grantor
From Time to Time Party Hereto

and

FUNICULAR FUNDS, LP

TABLE OF CONTENTS

		Page

ARTICLE I	DEFINED TERMS	1
1.1	Terms Defined in Note	1
1.2	Terms Defined in UCC	1
1.3	Definitions of Certain Terms Used Herein	1

ARTICLE II	GRANT OF SECURITY INTEREST	4
2.1	Collateral	4
2.2	Grant of Security Interest in Collateral	5

ARTICLE III	REPRESENTATIONS AND WARRANTIES	5
3.1	Title; No Other Liens	5
3.2	Perfection and Priority	6
3.3	Jurisdiction of Organization; Chief Executive Office	6
3.4	Locations of Inventory, Equipment and Books and Records	6
3.5	Pledged Collateral	7
3.6	Instruments and Tangible Chattel Paper Formerly Accounts	7
3.7	Intellectual Property	7
3.8	Commercial Tort Claims	7
3.9	Specific Collateral	8
3.10	Enforcement	8

ARTICLE IV	COVENANTS	8
4.1	Maintenance of Perfected Security Interest; Further Documentation and Consents	8
4.2	Changes in Locations, Name, Etc.	9
4.3	Pledged Collateral	9
4.4	Accounts	10
4.5	Commodity Contracts	10
4.6	Delivery of Instruments and Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper	10
4.7	Intellectual Property	11
4.8	Notices	12
4.9	Notice of Commercial Tort Claims	12

ARTICLE V	REMEDIAL PROVISIONS	12
5.1	Code and Other Remedies	12
5.2	Accounts and Payments in Respect of General Intangibles	15
5.3	Pledged Collateral	16
5.4	Proceeds to be Turned over to and Held by Secured Party	17
5.5	Registration Rights	17
5.6	Deficiency	18

ARTICLE VI	MISCELLANEOUS	18
6.1	Reinstatement	18
6.2	Independent Obligations	19

TABLE OF CONTENTS

		Page

6.3	Additional Grantors; Additional Pledged Collateral	19
6.4	Rules of Construction	19
6.5	Complete Agreement; Modification of Agreement	19
6.6	No Waiver	20
6.7	Severability; Section Titles	20
6.8	Notices	20
6.9	Counterparts	20
6.10	Successors and Assigns	20
6.11	GOVERNING LAW	20
6.12	SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL	21
6.13	Advice of Counsel	21
6.14	No Strict Construction	21

EXHIBITS AND SCHEDULES

Exhibit 1	Form of Pledge Amendment

Exhibit 2	Form of Joinder Agreement

Exhibit 3	Form of Intellectual Property Security Agreement

Schedule 1	Commercial Tort Claims

Schedule 2	Filings

Schedule 3	Jurisdiction of Organization; Chief Executive Office

Schedule 4	Location of Inventory and Equipment

Schedule 5	Pledged Collateral

Schedule 6	Intellectual Property

iii

SECURITY AGREEMENT

SECURITY AGREEMENT, dated as of February 9, 2024 (this “Agreement”), by and among AtlasClear Holdings, Inc. f/k/a Calculator New Pubco, Inc., a Delaware corporation (the “Borrower”), each of the other entities listed on the signature pages hereof or that becomes a party hereto pursuant to Section 8.6 (the “Grantors”), and FUNICULAR FUNDS, LP, a Delaware limited partnership, or its registered assigns (the “Secured Party”).

A.            Pursuant to the Secured Convertible Promissory Note dated as of February 9, 2024 (as the same may be modified from time to time, the “Note”) by Borrower and the Secured Party, the Secured Party has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein;

B.            Each Grantor (other than the Borrower) has agreed to guaranty the Obligations (as defined in the Note) of the Borrower pursuant to the Guaranty (as defined in the Note).

C.            Each Grantor will derive substantial direct and indirect benefits from the making of the extensions of credit under the Note.

D.            To induce Secured Party to enter into the Note and to make the extension of credit thereunder to the Borrower, the Grantors shall have executed and delivered this Agreement to the Secured Party.

The parties accordingly agree as follows:

ARTICLE I
Defined Terms

1.1            Terms Defined in Note. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Note.

1.2            Terms Defined in UCC. Terms defined in the UCC which are not otherwise defined in this Security Agreement are used herein as defined in the UCC, including but not limited to the following terms: all accounts, chattel paper, deposit accounts, documents, equipment, general intangibles, instruments, inventory, investment property, supporting obligations, commercial tort claims, books and records, fixtures, and proceeds.

1.3            Definitions of Certain Terms Used Herein. As used in this Agreement, in addition to the terms defined in the preamble and the premises, the following terms shall have the following meanings:

(a)            “Applicable IP Office” means the United States Patent and Trademark Office, the United States Copyright Office or any similar office or agency within or outside the United States.

(b)            “Collateral” is defined in Section 2.1.

(c)            “Copyright License” means rights under any written agreement now owned or hereafter acquired by any Person granting the right to use any Copyright or Copyright registration.

(d)            “Copyrights” means all of the following now owned or hereafter adopted or acquired by any Person: (a) all copyrights in any original work of authorship fixed in any tangible medium of expression, now known or later developed, all registrations and applications for registration of any such copyrights in the United States or any other country, including registrations, recordings and applications, and supplemental registrations, recordings, and applications in the United States Copyright Office; and (b) all Proceeds of the foregoing, including license royalties and proceeds of infringement suits, the right to sue for past, present and future infringements, all rights corresponding thereto throughout the world and all renewals and extensions thereof.

(e)            “Excluded Equity” means any voting stock in excess of 66% of the outstanding voting stock of any Excluded Foreign Subsidiary. For purposes of this Section 1.3(e), “voting stock” means, with respect to any issuer, the issued and outstanding shares of each class of Stock of such issuer entitled to vote (within the meaning of Treasury Regulations § 1.956-2(c)(2)).

(f)            “Excluded Property” means, collectively, (i) Excluded Equity; (ii) any permit or license or any Contractual Obligation entered into by any Grantor (A) that prohibits or requires the consent of any Person other than the Grantors and their Affiliates as a condition to the creation by such Grantor of a Lien on any right, title or interest in such permit, license or Contractual Agreement or any Stock related thereto or (B) to the extent that any Requirement of Law applicable thereto prohibits the creation of a Lien thereon, but only, with respect to the prohibition in (A) and (B), to the extent, and for as long as, such prohibition is not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other Requirement of Law; (iii) fixed or capital assets owned by any Grantor that is subject to a purchase money Lien or a capital lease if the Contractual Obligation pursuant to which such Lien is granted (or in the document providing for such capital lease) prohibits or requires the consent of any Person other than the Grantors and their Affiliates as a condition to the creation of any other Lien on such equipment; (iv) any “intent to use” Trademark applications for which a statement of use has not been filed (but only until such statement is filed); (v) any Excluded Accounts; (vi) any cash that AtlasClear, Inc. is required to keep on its books in order to satisfy capital requirements pursuant to Exchange Act Rule 15c3-1, and (vii) all assets of Wilson-Davis to the extent (other than Pledged Stock of Wilson-Davis owned by a Grantor) solely to the extent that granting a lien on such assets would result in Wilson-Davis having a net capital balance below the requirement to maintain its ability to act as a registered broker-dealer; provided, however, “Excluded Property” shall not include any proceeds, products, substitutions or replacements of Excluded Property (unless such proceeds, products, substitutions or replacements would otherwise constitute Excluded Property). For the avoidance of doubt, in the event that Wilson-Davis becomes subject to a lower net capital requirement, or if FINRA were to lower the net capital requirement applicable to Wilson-Davis, clause (vii) of this definition shall be of no further force and effect and Wilson-Davis shall at such time automatically be deemed to be a Grantor hereunder to the extent possible under any applicable Requirements of Law.

(g)            “IP Licenses” means, collectively, Copyright Licenses, Trademark Licenses and Patent Licenses.

(h)            “Intellectual Property” means any and all Licenses, Patents, Copyrights, Trademarks, trade secrets and customer lists.

(i)             “License” means any Copyright License, Patent License, Trademark License or other license of rights or interests now held or hereafter acquired by any Person

(j)             “Patent License” means rights under any written agreement now owned or hereafter acquired by any Person granting any right with respect to any invention on which a Patent is in existence.

(k)            “Patents” means all of the following in which any Person now holds or hereafter acquires any interest: (a) all letters patent of the United States or any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or any other country, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State or Territory thereof, or any other country; and (b) all reissues, continuations, continuations-in-part or extensions thereof.

(l)             “Pledged Certificated Stock” means all certificated securities and any other Stock or of any Person evidenced by a certificate, instrument or other similar document (as defined in the UCC), in each case owned by any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including all Stock listed on Schedule 5.

(m)            “Pledged Collateral” means, collectively, the Pledged Stock and the Pledged Debt Instruments.

(n)            “Pledged Debt Instruments” means all right, title and interest of any Grantor in instruments evidencing any Indebtedness owed to such Grantor or other obligations, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, exceeding $50,000 in the aggregate including all Indebtedness described on Schedule 5, issued by the obligors named therein.

(o)            “Pledged Investment Property” means any investment property of any Grantor, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, exceeding $50,000 in the aggregate other than any Pledged Stock or Pledged Debt Instruments.

(p)            “Pledged Stock” means all Pledged Certificated Stock and all Pledged Uncertificated Stock.

(q)            “Pledged Uncertificated Stock” means any Stock of any Person that is not Pledged Certificated Stock, including all right, title and interest of any Grantor as a limited or general partner in any partnership not constituting Pledged Certificated Stock or as a member of any limited liability company, all right, title and interest of any Grantor in, to and under any organizational document of any partnership or limited liability company to which it is a party, and any distribution of property made on, in respect of or in exchange for the foregoing from time to time, including in each case those interests set forth on Schedule 5, to the extent such interests are not certificated.

(r)             “Software” means (a) all computer programs, including source code and object code versions, (b) all data, databases and compilations of data, whether machine readable or otherwise, and (c) all documentation, training materials and configurations related to any of the foregoing.

(s)            “Trademark License” means rights under any written agreement now owned or hereafter acquired by any Person granting any right to use any Trademark or Trademark registration.

(t)             “Trademarks” means all of the following now owned or hereafter adopted or acquired by any Person: (a) all trademarks, trade names, corporate names, business names, trade styles, service marks, logos, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, including all registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof; (b) all reissues, extensions or renewals thereof; and (c) all goodwill associated with or symbolized by any of the foregoing.

(u)            “UCC” means the Uniform Commercial Code as from time to time in effect in the State of New York; provided, however, that, in the event that, by reason of mandatory provisions of any applicable Requirement of Law, any of the attachment, perfection or priority of the Secured Party’s security interest in any Collateral is governed by the Uniform Commercial Code of a jurisdiction other than the State of New York, “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such attachment, perfection or priority and for purposes of the definitions related to or otherwise used in such provisions.

(v)            “Vehicles” means all vehicles covered by a certificate of title law of any state.

(w)            “Wilson-Davis” means Wilson-Davis & Co., Inc., a Utah corporation.

ARTICLE II
Grant of Security Interest

2.1            Collateral. For the purposes of this Agreement, all of the following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor now has or at any time in the future may acquire any right, title or interests is collectively referred to as the “Collateral”:

(a)            all accounts, chattel paper, deposit accounts, documents, goods, equipment, general intangibles, instruments, inventory, money, letter-of-credit rights, investment property (including, but not limited to, the Pledged Collateral), Intellectual Property, Vehicles, electronic chattel paper, and any supporting obligations related thereto;

(b)            all causes of action including, but not limited to, the commercial tort claims described on Schedule 1 and on any supplement thereto received by the Secured Party pursuant to Section 4.9;

(d)            all property of such Grantor held by the Secured Party, including all property of every description, in the custody of or in transit to the Secured Party for any purpose, including safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may have any right or power, including but not limited to cash;

(e)            all other goods (including but not limited to fixtures) and personal property of such Grantor, whether tangible or intangible and wherever located; and

(f)             to the extent not otherwise included, all proceeds of the foregoing;

provided, however, that “Collateral” shall not include any Excluded Property; and provided, further, that if and when any property shall cease to be Excluded Property, such property shall be deemed at all times from and after the date thereof to constitute Collateral.

2.2            Grant of Security Interest in Collateral. Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations of such Grantor (the “Secured Obligations”), hereby mortgages, pledges and hypothecates to the Secured Party, and grants to the Secured Party a Lien on and security interest in, all of its right, title and interest in, to and under the Collateral of such Grantor.

ARTICLE III
Representations and Warranties

To induce the Secured Party to enter into the Loan Documents, each Grantor hereby represents and warrants each of the following to the Secured Party:

3.1            Title; No Other Liens. Except for the Lien granted to the Secured Party pursuant to this Agreement and other Permitted Encumbrances (except for those Permitted Encumbrances not permitted to exist on any Collateral) under any Loan Document (including Section 3.2), such Grantor owns each item of the Collateral free and clear of any and all Liens or claims of others. Such Grantor (a) is the record and beneficial owner of the Collateral pledged by it hereunder constituting instruments or certificates and (b) has rights in or the power to transfer each other item of Collateral in which a Lien is granted by it hereunder, free and clear of any other Lien.

3.2            Perfection and Priority. The security interest granted pursuant to this Agreement constitutes a valid and continuing perfected security interest in favor of the Secured Party in all Collateral subject, for the following Collateral, to the occurrence of the following: (a) in the case of all Collateral in which a security interest may be perfected by filing a financing statement under the UCC, the completion of the filings and other actions specified on Schedule 2 (which, in the case of all filings and other documents referred to on such schedule, have been delivered to the Secured Party in completed and duly authorized form), (b) with respect to any deposit account, the execution of a control agreement among the applicable Grantor, the depository institution and the Secured Party pursuant to which the Secured Party is granted control over such deposit account, (c) in the case of all Copyrights, Trademarks and Patents for which UCC filings are insufficient, all appropriate filings having been made with the Applicable IP Office, (d) in the case of letter-of-credit rights that are not supporting obligations of Collateral, the execution of a Contractual Obligation granting control to the Secured Party over such letter-of-credit rights, (e) in the case of electronic chattel paper, the completion of all steps necessary to grant control to the Secured Party over such electronic chattel paper and (f) in the case of Vehicles, the actions required under Section 4.1(e). Such security interest shall be prior to all other Liens on the Collateral except for Permitted Encumbrances having priority over the Secured Party’s Lien by operation of law or unless otherwise permitted by any Loan Document upon (a) in the case of all Pledged Certificated Stock, Pledged Debt Instruments and Pledged Investment Property, the delivery thereof to the Secured Party of such Pledged Certificated Stock, Pledged Debt Instruments and Pledged Investment Property consisting of instruments and certificates, in each case properly endorsed for transfer to the Secured Party or in blank, (b) in the case of any Pledged Investment Property not in certificated form, the execution of a control agreement among the applicable Grantor, the securities intermediary and the Secured Party pursuant to which the Secured Party is granted control over such investment property and (c) in the case of all other instruments and tangible chattel paper that are not Pledged Certificated Stock, Pledged Debt Instruments or Pledged Investment Property, the delivery thereof to the Secured Party of such instruments and tangible chattel paper. Except as set forth in this Section 3.2, all actions by each Grantor necessary or desirable to protect and perfect the Lien granted hereunder on the Collateral have been duly taken.

3.3            Jurisdiction of Organization; Chief Executive Office. Such Grantor’s jurisdiction of organization, legal name and organizational identification number, if any, and the location of such Grantor’s chief executive office or sole place of business, in each case as of the date hereof, is specified on Schedule 3 and such Schedule 3 also lists all jurisdictions of incorporation, legal names and locations of such Grantor’s chief executive office or sole place of business for the five years preceding the date hereof.

3.4            Locations of Inventory, Equipment and Books and Records. On the date hereof, such Grantor’s inventory and equipment (other than inventory or equipment in transit) and books and records concerning the Collateral are kept at the locations listed on Schedule 4 and such Schedule 4 also lists the locations of such inventory, equipment and books and records for the five years preceding the date hereof.

3.5            Pledged Collateral.

(a)            The Pledged Stock pledged by such Grantor hereunder (i) is listed on Schedule 5 and constitutes that percentage of the issued and outstanding equity of all classes of each issuer thereof as set forth on Schedule 5, (ii) has been duly authorized, validly issued and is fully paid and nonassessable (other than Pledged Stock in limited liability companies and partnerships) and (iii) constitutes the legal, valid and binding obligation of the obligor with respect thereto, enforceable in accordance with its terms.

(b)            All Pledged Collateral (other than Pledged Uncertificated Stock) and all Pledged Investment Property consisting of instruments and certificates has been delivered to the Secured Party in accordance with Section 4.3(a).

3.6            Instruments and Tangible Chattel Paper Formerly Accounts. No amount payable to such Grantor under or in connection with any account is evidenced by any instrument or tangible chattel paper that has not been delivered to the Secured Party, properly endorsed for transfer, to the extent delivery is required by Section 4.6(a).

3.7            Intellectual Property.

(a)            Schedule 6 sets forth a true and complete list of the following Intellectual Property such Grantor owns, licenses or otherwise has the right to use: (i) Intellectual Property that is registered or subject to applications for registration, (ii) Internet Domain Names and (iii) Intellectual Property and Software, separately identifying that owned and licensed to such Grantor and including for each of the foregoing items (A) the owner, (B) the title, (C) the jurisdiction in which such item has been registered or otherwise arises or in which an application for registration has been filed, (D) as applicable, the registration or application number and registration or application date and (E) any IP Licenses or other rights (including franchises) granted by the Grantor with respect thereto.

(b)            All Intellectual Property owned by such Grantor is valid, in full force and effect, subsisting, unexpired and enforceable, and no Intellectual Property has been abandoned. No breach or default of any IP License shall be caused by any of the following, and none of the following shall limit or impair the ownership, use, validity or enforceability of, or any rights of such Grantor in, any Intellectual Property: (i) the consummation of the transactions contemplated by any Loan Document or (ii) any holding, decision, judgment or order rendered by any Governmental Authority. There are no pending (or, to the knowledge of such Grantor, threatened) actions, investigations, suits, proceedings, audits, claims, demands, orders or disputes challenging the ownership, use, validity, enforceability of, or such Grantor’s rights in, any Intellectual Property of such Grantor. To such Grantor’s knowledge, no Person has been or is infringing, misappropriating, diluting, violating or otherwise impairing any Intellectual Property of such Grantor. Such Grantor, and to such Grantor’s knowledge each other party thereto, is not in material breach or default of any IP License.

3.8            Commercial Tort Claims. The only commercial tort claims of such Grantor existing on the date hereof (regardless of whether the amount, defendant or other material facts can be determined and regardless of whether such commercial tort claim has been asserted, threatened or has otherwise been made known to the obligee thereof or whether litigation has been commenced for such claims) are those listed on Schedule 1, which sets forth such information separately for each Grantor.

3.9            Specific Collateral. None of the Collateral is or is proceeds or products of farm products, as-extracted collateral, health-care-insurance receivables or timber to be cut.

3.10            Enforcement. No license or permit from any Governmental Authority or notice to or filing with any Governmental Authority or any other Person or any consent from any Person is required for the exercise by the Secured Party of its rights (including voting rights) provided for in this Agreement or the enforcement of remedies in respect of the Collateral pursuant to this Agreement, including the transfer of any Collateral, except as may be required in connection with the disposition of any portion of the Pledged Collateral by laws affecting the offering and sale of securities generally or any approvals that may be required to be obtained from any bailees or landlords to collect the Collateral.

ARTICLE IV
Covenants

Each Grantor agrees with the Secured Party to the following, as long as any Obligation remains outstanding and, in each case, unless the Secured Party otherwise consents in writing:

4.1            Maintenance of Perfected Security Interest; Further Documentation and Consents.

(a)            Generally. Such Grantor shall (i) not use or permit any Collateral to be used unlawfully or in violation of any provision of any Loan Document, any Requirement of Law or any policy of insurance covering the Collateral and (ii) not enter into any Contractual Obligation or undertaking restricting the right or ability of such Grantor or the Secured Party to sell, transfer, issue, convey, assign or otherwise dispose of any Collateral if such restriction would have a Material Adverse Effect.

(b)            Such Grantor shall maintain the security interest created by this Agreement as a perfected security interest having at least the priority described in Section 3.2 and shall defend such security interest and such priority against the claims and demands of all Persons.

(c)            Such Grantor shall furnish to the Secured Party from time to time statements and schedules further identifying and describing the Collateral and such other documents in connection with the Collateral as the Secured Party may reasonably request, all in reasonable detail and in form and substance satisfactory to the Secured Party.

(d)            At any time and from time to time, upon the written request of the Secured Party, such Grantor shall, for the purpose of obtaining or preserving the full benefits of this Agreement and of the rights and powers herein granted, (i) promptly and duly execute and deliver, and have recorded, such further documents, including an authorization to file (or, as applicable, the filing) of any financing statement or amendment under the UCC (or other filings under similar Requirements of Law) in effect in any jurisdiction with respect to the security interest created hereby and (ii) take such further action as the Secured Party may reasonably request, including (A) using its best efforts to secure all approvals necessary or appropriate for the assignment to or for the benefit of the Secured Party of any Contractual Obligation, including any IP License, held by such Grantor and to enforce the security interests granted hereunder and (B) executing and delivering any control agreements with respect to deposit accounts and securities accounts.

(e)            If requested by the Secured Party, such Grantor shall arrange for the Secured Party’s first priority security interest to be noted on the certificate of title of each Vehicle and shall file any other necessary documentation in each jurisdiction that the Secured Party shall deem advisable to perfect its security interests in any Vehicle.

(f)            To ensure that any of the Excluded Property set forth in Section 1.3(f)(ii) becomes part of the Collateral, such Grantor shall use its best efforts to obtain any required consents from any Person other than the Borrower and its Affiliates with respect to any permit or license or any Contractual Obligation with such Person entered into by such Grantor that requires such consent as a condition to the creation by such Grantor of a Lien on any right, title or interest in such permit, license or Contractual Obligation or any Stock related thereto.

4.2            Changes in Locations, Name, Etc. Except upon 30 days’ prior written notice to the Secured Party and delivery to the Secured Party of (a) all documents reasonably requested by the Secured Party to maintain the validity, perfection and priority of the security interests provided for herein and (b) if applicable, a written supplement to Schedule 4 showing any additional locations at which inventory or equipment shall be kept, such Grantor shall not do any of the following:

(i)            permit any inventory or equipment to be kept at a location other than those listed on Schedule 4, except for inventory or equipment in transit;

(ii)           change its jurisdiction of organization or its location, in each case from that referred to in Section 3.3; or

(iii)          change its legal name or organizational identification number, if any, or corporation, limited liability company, partnership or other organizational structure to such an extent that any financing statement filed in connection with this Agreement would become misleading.

4.3            Pledged Collateral.

(a)            Delivery of Pledged Collateral. Such Grantor shall (i) deliver to the Secured Party, in suitable form for transfer and in form and substance satisfactory to the Secured Party, (A) all Pledged Certificated Stock, (B) all Pledged Debt Instruments and (C) all certificates and instruments evidencing Pledged Investment Property and (ii) maintain all other Pledged Investment Property in a securities account that is subject to a control agreement, in form and substance acceptable to the Secured Party, in favor of the Secured Party.

(b)            Event of Default. During the continuance of an Event of Default, the Secured Party shall have the right, at any time in its discretion and without notice to any Grantor, to (i) transfer to or to register in its name or in the name of its nominees any Pledged Collateral or any Pledged Investment Property and (ii) exchange any certificate or instrument representing or evidencing any Pledged Collateral or any Pledged Investment Property for certificates or instruments of smaller or larger denominations.

(c)            Cash Distributions with respect to Pledged Collateral. Except as provided in Article V, such Grantor shall be entitled to receive all cash distributions paid in respect of the Pledged Collateral.

(d)            Voting Rights. Except as provided in Article V, such Grantor shall be entitled to exercise all voting, consent and corporate, partnership, limited liability company and similar rights with respect to the Pledged Collateral; provided, however, that no vote shall be cast, consent given or right exercised or other action taken by such Grantor that would impair the Collateral or be inconsistent with or result in any violation of any provision of any Loan Document.

4.4            Accounts.

(a)            Such Grantor shall not, other than in the ordinary course of business, (i) grant any extension of the time of payment of any account, (ii) compromise or settle any account for less than the full amount thereof, (iii) release, wholly or partially, any Person liable for the payment of any account, (iv) allow any credit or discount on any account or (v) amend, supplement or modify any account in any manner that could adversely affect the value thereof.

(b)            The Secured Party shall have the right to make test verifications of the Accounts in any manner and through any medium that it reasonably considers advisable, and such Grantor shall furnish all such assistance and information as the Secured Party may reasonably require in connection therewith. At any time and from time to time, upon the Secured Party’s request, such Grantor shall cause independent public accountants or others satisfactory to the Secured Party to furnish to the Secured Party reports showing reconciliations, aging and test verifications of, and trial balances for, the accounts; provided, however, that unless a Default shall be continuing, the Secured Party shall request no more than four such reports during any calendar year.

4.5            Commodity Contracts. Such Grantor shall not have any commodity contract other than with a Person approved by the Secured Party and subject to a control agreement in favor of the Secured Party.

4.6            Delivery of Instruments and Tangible Chattel Paper and Control of Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper.

(a)            If any amount in excess of $50,000 payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by an instrument or tangible chattel paper other than such instrument delivered in accordance with Section 5.3(a) and in the possession of the Secured Party, such Grantor shall mark all such instruments and tangible chattel paper with the following legend: “This writing and the obligations evidenced or secured hereby are subject to the security interest of Funicular Funds, LP” and, at the request of the Secured Party, shall immediately deliver such instrument or tangible chattel paper to the Secured Party, duly indorsed in a manner satisfactory to the Secured Party.

(b)            Such Grantor shall not grant “control” (within the meaning of such term under Article 9-106 of the UCC) over any investment property to any Person other than the Secured Party.

(c)            If such Grantor is or becomes the beneficiary of a letter of credit that is (i) not a supporting obligation of any Collateral and (ii) in excess of $50,000, such Grantor shall promptly, and in any event within 2 Business Days after becoming a beneficiary, notify the Secured Party thereof and enter into a Contractual Obligation with the Secured Party, the issuer of such letter of credit or any nominated person with respect to the letter-of-credit rights under such letter of credit. Such Contractual Obligation shall assign such letter-of-credit rights to the Secured Party and such assignment shall be sufficient to grant control for the purposes of Section 9-107 of the UCC (or any similar section under any equivalent UCC).

(d)            If any amount in excess of $50,000 payable under or in connection with any Collateral owned by such Grantor shall be or become evidenced by electronic chattel paper, such Grantor shall take all steps necessary to grant the Secured Party control of all such electronic chattel paper for the purposes of Section 9-105 of the UCC (or any similar section under any equivalent UCC) and all “transferable records” as defined in each of the Uniform Electronic Transactions Act and the Electronic Signatures in Global and National Commerce Act.

4.7            Intellectual Property.

(a)            Within 30 days after any change to Schedule 6 for such Grantor, such Grantor shall provide the Secured Party notification thereof and the short-form intellectual property agreements and assignments as described in this Section 4.7 and other documents that the Secured Party reasonably requests with respect thereto.

(b)            Such Grantor shall (and shall cause all its licensees to) (i) (A) continue to use each Trademark included in the Intellectual Property in order to maintain such Trademark in full force and effect with respect to each class of goods for which such Trademark is currently used, free from any claim of abandonment for non-use, (B) maintain at least the same standards of quality of products and services offered under such Trademark as are currently maintained, (C) use such Trademark with the appropriate notice of registration and all other notices and legends required by applicable Requirements of Law, (D) not adopt or use any other Trademark that is confusingly similar or a colorable imitation of such Trademark unless the Secured Party shall obtain a perfected security interest in such other Trademark pursuant to this Agreement and (ii) not do any act or omit to do any act whereby (A) such Trademark (or any goodwill associated therewith) may become destroyed, invalidated, impaired or harmed in any way, (B) any Patent included in the Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, (C) any portion of the Copyrights included in the Intellectual Property may become invalidated, otherwise impaired or fall into the public domain or (D) any trade secret that is Intellectual Property may become publicly available or otherwise unprotectable.

(c)            Such Grantor shall notify the Secured Party immediately if it knows, or has reason to know, that any application or registration relating to any Intellectual Property may become forfeited, misused, unenforceable, abandoned or dedicated to the public, or of any adverse determination or development regarding the validity or enforceability or such Grantor’s ownership of, interest in, right to use, register, own or maintain any Intellectual Property (including the institution of, or any such determination or development in, any proceeding relating to the foregoing in any Applicable IP Office). Such Grantor shall take all actions that are necessary or reasonably requested by the Secured Party to maintain and pursue each application (and to obtain the relevant registration or recordation) and to maintain each registration and recordation included in the Intellectual Property.

(d)            Such Grantor shall not knowingly do any act or omit to do any act to infringe, misappropriate, dilute, violate or otherwise impair the Intellectual Property of any other Person. In the event that any Intellectual Property of such Grantor is or has been infringed, misappropriated, violated, diluted or otherwise impaired by a third party, such Grantor shall take such action as it reasonably deems appropriate under the circumstances in response thereto, including promptly bringing suit and recovering all damages therefor.

(e)            Such Grantor shall execute and deliver to the Secured Party in form and substance reasonably acceptable to the Secured Party and suitable for (i) filing in the Applicable IP Office the short-form intellectual property security agreements in the form attached hereto as Exhibit 3 for all Copyrights, Trademarks, Patents and IP Licenses of such Grantor and (ii) recording with the appropriate Internet domain name registrar, a duly executed form of assignment for all internet domain names of such Grantor (together with appropriate supporting documentation as may be requested by the Secured Party).

4.8            Notices. Such Grantor shall promptly notify the Secured Party in writing of its acquisition of any interest hereafter in property that is of a type where a security interest or lien must be or may be registered, recorded or filed under, or notice thereof given under, any federal statute or regulation.

4.9            Notice of Commercial Tort Claims. Such Grantor agrees that, if it shall acquire any interest in any commercial tort claim (whether from another Person or because such commercial tort claim shall have come into existence), (i) such Grantor shall, immediately upon such acquisition, deliver to the Secured Party, in each case in form and substance satisfactory to the Secured Party, a notice of the existence and nature of such commercial tort claim and a supplement to Schedule 1 containing a specific description of such commercial tort claim, (ii) Section 2.1 shall apply to such commercial tort claim and (iii) such Grantor shall execute and deliver to the Secured Party, in each case in form and substance satisfactory to the Secured Party, any document, and take all other action, deemed by the Secured Party to be reasonably necessary or appropriate for the Secured Party to obtain, on behalf of the Secured Party, a perfected security interest having at least the priority set forth in Section 3.2 in all such commercial tort claims. Any supplement to Schedule 1 delivered pursuant to this Section 4.9 shall, after the receipt thereof by the Secured Party, become part of Schedule 1 for all purposes hereunder other than in respect of representations and warranties made prior to the date of such receipt.

ARTICLE V
Remedial Provisions

5.1            Code and Other Remedies.

(a)            UCC Remedies. During the continuance of an Event of Default, the Secured Party may exercise, in addition to all other rights and remedies granted to it in this Agreement and in any other instrument or agreement securing, evidencing or relating to any Secured Obligation, all rights and remedies of a secured party under the UCC or any other applicable law.

(b)            Disposition of Collateral. Without limiting the generality of the foregoing, the Secured Party may, without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by law referred to below) to or upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and notices are hereby waived), during the continuance of any Event of Default (personally or through its agents or attorneys), (i) enter upon the premises where any Collateral is located, without any obligation to pay rent, through self-help, without judicial process, without first obtaining a final judgment or giving any Grantor or any other Person notice or opportunity for a hearing on the Secured Party’s claim or action, (ii) collect, receive, appropriate and realize upon any Collateral and (iii) sell, transfer, issue, convey, assign or otherwise dispose of any Collateral or grant option or options to purchase and deliver any Collateral (enter into Contractual Obligations to do any of the foregoing), in one or more parcels at public or private sale or sales, at any exchange, broker’s board or office of the Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. The Secured Party shall have the right, upon any such public sale or sales and, to the extent permitted by the UCC and other applicable Requirements of Law, upon any such private sale, to purchase the whole or any part of the Collateral so sold, free of any right or equity of redemption of any Grantor, which right or equity is hereby waived and released.

(c)            Management of the Collateral. Each Grantor further agrees, that, during the continuance of any Event of Default, (i) at the Secured Party’s request, it shall assemble the Collateral and make it available to the Secured Party at places that the Secured Party shall reasonably select, whether at such Grantor’s premises or elsewhere, (ii) without limiting the foregoing, the Secured Party also has the right to require that each Grantor store and keep any Collateral pending further action by the Secured Party and, while any such Collateral is so stored or kept, provide such guards and maintenance services as shall be necessary to protect the same and to preserve and maintain such Collateral in good condition, (iii) until the Secured Party is able to sell or otherwise dispose of any Collateral, the Secured Party shall have the right to hold or use such Collateral to the extent that it deems appropriate for the purpose of preserving the Collateral or its value or for any other purpose deemed appropriate by the Secured Party and (iv) the Secured Party may, if it so elects, seek the appointment of a receiver or keeper to take possession of any Collateral and to enforce any of the Secured Party’s remedies, with respect to such appointment without prior notice or hearing as to such appointment. The Secured Party shall not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against third parties with respect to any Collateral while such Collateral is in the possession of the Secured Party.

(d)            Application of Proceeds. Upon receipt by the Secured Party of any cash proceeds from any action taken by it pursuant to this Section 5.1, after deducting all reasonable costs and expenses of every kind incurred in connection therewith or incidental to the care or safekeeping of any Collateral or in any way relating to the Collateral or the rights of the Secured Party hereunder, including reasonable attorneys’ fees and disbursements, the Secured Party shall either apply such proceeds to the payment in whole or in part of the Secured Obligations in such order as Secured Party shall elect in its sole discretion or hold such proceeds as collateral security for the Secured Obligations. Following application of all such proceeds to the Secured Obligations and the payment by the Secured Party of any other amount required by any Requirement of Law, the Secured Party shall account for the surplus, if any, to any Grantor.

(e)            Direct Obligation. The Secured Party shall not be required to make any demand upon, or pursue or exhaust any right or remedy against, any Grantor or any other Person with respect to the payment of the Obligations or to pursue or exhaust any right or remedy with respect to any Collateral therefor or any direct or indirect guaranty thereof. All of the rights and remedies of the Secured Party under any Loan Document shall be cumulative, may be exercised individually or concurrently and not exclusive of any other rights or remedies provided by any Requirement of Law. To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and relinquishes the benefit and advantage of, and covenants not to assert against the Secured Party, any valuation, stay, appraisement, extension, redemption or similar laws and any and all rights or defenses it may have as a surety, now or hereafter existing, arising out of the exercise by them of any rights hereunder. If any notice of a proposed sale or other disposition of any Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at least 10 days before such sale or other disposition.

(f)            Commercially Reasonable. To the extent that applicable Requirements of Law impose duties on the Secured Party to exercise remedies in a commercially reasonable manner, each Grantor acknowledges and agrees that it is not commercially unreasonable for the Secured Party to do any of the following:

(i)            fail to incur significant costs, expenses or other liabilities reasonably deemed as such by the Secured Party to prepare any Collateral for disposition or otherwise to complete raw material or work in process into finished goods or other finished products for disposition;

(ii)           fail to obtain permits, licenses or other consents, for access to any Collateral to sell or otherwise dispose of any Collateral or for the collection or disposition of any Collateral, or, if not required by other Requirements of Law, fail to obtain permits, licenses or other consents for the collection or disposition of any Collateral;

(iii)           fail to exercise remedies against account debtors or other Persons obligated on any Collateral or to remove Liens on any Collateral or to remove any adverse claims against any Collateral;

(iv)          advertise dispositions of any Collateral through publications or media of general circulation, whether or not such Collateral is of a specialized nature or to contact other Persons, whether or not in the same business as any Grantor, for expressions of interest in acquiring any such Collateral;

(v)           exercise collection remedies against account debtors and other Persons obligated on any Collateral, directly or through the use of collection agencies or other collection specialists, hire one or more professional auctioneers to assist in the disposition of any Collateral, whether or not such Collateral is of a specialized nature or, to the extent deemed appropriate by the Secured Party, obtain the services of other brokers, investment bankers, consultants and other professionals to assist the Secured Party in the collection or disposition of any Collateral, or utilize Internet sites that provide for the auction of assets of the types included in the Collateral or that have the reasonable capacity of doing so, or that match buyers and sellers of assets to dispose of any Collateral;

(vi)          dispose of assets in wholesale rather than retail markets;

(vii)         disclaim disposition warranties, such as title, possession or quiet enjoyment; or

(viii)        purchase insurance or credit enhancements to insure the Secured Party against risks of loss, collection or disposition of any Collateral or to provide to the Secured Party a guaranteed return from the collection or disposition of any Collateral.

Each Grantor acknowledges that the purpose of this Section 5.1 is to provide a non-exhaustive list of actions or omissions that are commercially reasonable when exercising remedies against any Collateral and that other actions or omissions by the Secured Party shall not be deemed commercially unreasonable solely on account of not being indicated in this Section 5.1. Without limitation upon the foregoing, nothing contained in this Section 5.1 shall be construed to grant any rights to any Grantor or to impose any duties on the Secured Party that would not have been granted or imposed by this Agreement or by applicable Requirements of Law in the absence of this Section 5.1.

(g)            IP Licenses. For the purpose of enabling the Secured Party to exercise rights and remedies under this Section 5.1 (including in order to take possession of, collect, receive, assemble, process, appropriate, remove, realize upon, sell, transfer or grant options to purchase any Collateral) at such time as the Secured Party shall be lawfully entitled to exercise such rights and remedies, each Grantor hereby grants to the Secured Party (i) an irrevocable, nonexclusive, worldwide license (exercisable without payment of royalty or other compensation to such Grantor), including in such license the right to sublicense, use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and access to all media in which any of the licensed items may be recorded or stored and to all Software and programs used for the compilation or printout thereof and (ii) an irrevocable license (without payment of rent or other compensation to such Grantor) to use, operate and occupy all Real Property owned, operated, leased, subleased or otherwise occupied by such Grantor.

5.2            Accounts and Payments in Respect of General Intangibles. (a) In addition to, and not in substitution for, any similar requirement in the Note, if required by the Secured Party at any time during the continuance of an Event of Default, any payment of accounts or payment in respect of general intangibles, when collected by any Grantor, shall be promptly (and, in any event, within 2 Business Days) delivered by such Grantor in the exact form received, duly indorsed by such Grantor to the Secured Party. Until so turned over, such payment shall be held by such Grantor in trust for the Secured Party, segregated from other funds of such Grantor. Each such deposit of proceeds of accounts and payments in respect of general intangibles shall be accompanied by a report identifying in reasonable detail the nature and source of the payments included in the deposit.

(a)            At any time during the continuance of an Event of Default:

(i)            each Grantor shall, upon the Secured Party’s request, deliver to the Secured Party all original and other documents evidencing, and relating to, the Contractual Obligations and transactions that gave rise to any account or any payment in respect of general intangibles, including all original orders, invoices and shipping receipts and notify account debtors that the accounts or general intangibles have been collaterally assigned to the Secured Party and that payments in respect thereof shall be made directly to the Secured Party;

(ii)            the Secured Party may, without notice, at any time during the continuance of an Event of Default, limit or terminate the authority of a Grantor to collect its accounts or amounts due under general intangibles or any thereof and, in its own name or in the name of others, communicate with account debtors to verify with them to the Secured Party’s satisfaction the existence, amount and terms of any account or amounts due under any general intangible. In addition, the Secured Party may at any time enforce such Grantor’s rights against such account debtors and obligors of general intangibles; and

(iii)           each Grantor shall take all actions, deliver all documents and provide all information necessary or reasonably requested by the Secured Party to ensure any Internet Domain Name is registered.

(b)            Anything herein to the contrary notwithstanding, each Grantor shall remain liable under each account and each payment in respect of general intangibles to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. The Secured Party shall have no obligation or liability under any agreement giving rise to an account or a payment in respect of a general intangible by reason of or arising out of any Loan Document or the receipt by the Secured Party of any payment relating thereto, nor shall the Secured Party be obligated in any manner to perform any obligation of any Grantor under or pursuant to any agreement giving rise to an account or a payment in respect of a general intangible, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to take any action to enforce any performance or to collect the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times.

5.3            Pledged Collateral.

(a)            Voting Rights. During the continuance of an Event of Default, upon notice by the Secured Party to the relevant Grantor or Grantors, the Secured Party or its nominee may exercise (i) any voting, consent, corporate and other right pertaining to the Pledged Collateral at any meeting of shareholders, partners or members, as the case may be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (ii) any right of conversion, exchange and subscription and any other right, privilege or option pertaining to the Pledged Collateral as if it were the absolute owner thereof (including the right to exchange at its discretion any Pledged Collateral upon the merger, amalgamation, consolidation, reorganization, recapitalization or other fundamental change in the corporate or equivalent structure of any issuer of Pledged Stock, the right to deposit and deliver any Pledged Collateral with any committee, depositary, transfer agent, registrar or other designated agency upon such terms and conditions as the Secured Party may determine), all without liability except to account for property actually received by it; provided, however, that the Secured Party shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be responsible for any failure to do so or delay in so doing.

(b)            Proxies. In order to permit the Secured Party to exercise the voting and other consensual rights that it may be entitled to exercise pursuant hereto and to receive all dividends and other distributions that it may be entitled to receive hereunder, (i) each Grantor shall promptly execute and deliver (or cause to be executed and delivered) to the Secured Party all such proxies, dividend payment orders and other instruments as the Secured Party may from time to time reasonably request and (ii) without limiting the effect of clause (i) above, such Grantor hereby grants to the Secured Party an irrevocable proxy to vote all or any part of the Pledged Collateral and to exercise all other rights, powers, privileges and remedies to which a holder of the Pledged Collateral would be entitled (including giving or withholding written consents of shareholders, partners or members, as the case may be, calling special meetings of shareholders, partners or members, as the case may be, and voting at such meetings), which proxy shall be effective, automatically and without the necessity of any action (including any transfer of any Pledged Collateral on the record books of the issuer thereof) by any other person (including the issuer of such Pledged Collateral or any officer or agent thereof) during the continuance of an Event of Default and which proxy shall only terminate upon the payment in full of the Secured Obligations.

(c)            Authorization of Issuers. Each Grantor hereby expressly irrevocably authorizes and instructs, without any further instructions from such Grantor, each issuer of any Pledged Collateral pledged hereunder by such Grantor to (i) comply with any instruction received by it from the Secured Party in writing that states that an Event of Default is continuing and is otherwise in accordance with the terms of this Agreement and each Grantor agrees that such issuer shall be fully protected from Liabilities to such Grantor in so complying and (ii) unless otherwise expressly permitted hereby, pay any dividend or make any other payment with respect to the Pledged Collateral directly to the Secured Party.

5.4            Proceeds to be Turned over to and Held by Secured Party. Upon the occurrence and during the continuance of an Event of Default, all proceeds of any Collateral received by any Grantor hereunder in cash or cash equivalents shall be held by such Grantor in trust for the Secured Party, segregated from other funds of such Grantor, and shall, promptly upon receipt by any Grantor, be turned over to the Secured Party in the exact form received (with any necessary endorsement). All proceeds shall be applied or held by the Secured Party in accordance with Section 5.1(d).

5.5            Registration Rights.

(a)            If, in the opinion of the Secured Party, it is necessary or advisable to sell, transfer or otherwise dispose any portion of the Pledged Collateral by registering such Pledged Collateral under the provisions of the Securities Act of 1933 (the “Securities Act”), each relevant Grantor shall cause the issuer thereof to do or cause to be done all acts as may be, in the opinion of the Secured Party, necessary or advisable to register such Pledged Collateral or that portion thereof to be Sold under the provisions of the Securities Act, all as directed by the Secured Party in conformity with the requirements of the Securities Act and the rules and regulations of the Securities and Exchange Commission applicable thereto and in compliance with the securities or “Blue Sky” laws of any jurisdiction that the Secured Party shall designate.

(b)            Each Grantor recognizes that the Secured Party may be unable to effect a public sale of any Pledged Collateral by reason of certain prohibitions contained in the Securities Act and applicable state or foreign securities laws or otherwise or may determine that a public sale is impracticable, not desirable or not commercially reasonable and, accordingly, may resort to one or more private sales thereof to a restricted group of purchasers that shall be obliged to agree, among other things, to acquire such securities for their own account for investment and not with a view to the distribution or resale thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and other terms less favorable than if such sale were a public sale and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable manner. The Secured Party shall be under no obligation to delay a sale of any Pledged Collateral for the period of time necessary to permit the issuer thereof to register such securities for public sale under the Securities Act or under applicable state securities laws even if such issuer would agree to do so.

(c)            Each Grantor agrees to use its best efforts to do or cause to be done all such other acts as may be necessary to make such sale or sales of any portion of the Pledged Collateral pursuant to this Section 5.5 valid and binding and in compliance with all applicable Requirements of Law. Each Grantor further agrees that a breach of any covenant contained in this Section 5.5 will cause irreparable injury to the Secured Party, that the Secured Party has no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 5.5 shall be specifically enforceable against such Grantor, and such Grantor hereby waives and agrees not to assert any defense against an action for specific performance of such covenants except for a defense that no Event of Default has occurred under the Note.

5.6            Deficiency. Each Grantor shall remain liable for any deficiency if the proceeds of any sale or other disposition of any Collateral are insufficient to pay the Secured Obligations and the fees and disbursements of any attorney employed by the Secured Party to collect such deficiency.

ARTICLE VI
Miscellaneous

6.1            Reinstatement. Each Grantor agrees that, if any payment made by any Grantor or other Person and applied to the Secured Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by the Secured Party to such Grantor, its estate, trustee, receiver or any other party, including any Grantor, under any bankruptcy law, state or federal law, common law or equitable cause, then, to the extent of such payment or repayment, any Lien or other Collateral securing such liability shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of the foregoing, any Lien or other Collateral securing such Grantor’s liability hereunder shall have been released or terminated by virtue of the foregoing, such Lien or other Collateral shall be reinstated in full force and effect and such prior release, termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of any such Grantor in respect of any Lien or other Collateral securing such obligation or the amount of such payment.

6.2            Independent Obligations. The obligations of each Grantor hereunder are independent of and separate from the Secured Obligations. If any Secured Obligation is not paid when due, or upon any Event of Default, the Secured Party may, at its sole election, proceed directly and at once, without notice, against any Grantor and any Collateral to collect and recover the full amount of any Secured Obligation then due, without first proceeding against any other Grantor or any other Collateral and without first joining any other Grantor in any proceeding.

6.3            Additional Grantors; Additional Pledged Collateral.

(a)            Joinder Agreements. If any Borrower is required to cause any Subsidiary that is not a Grantor to become a Grantor hereunder, such Subsidiary shall execute and deliver to the Secured Party a Joinder Agreement substantially in the form of Exhibit 2 and shall thereafter for all purposes be a party hereto and have the same rights, benefits and obligations as a Grantor party hereto as of the date hereof.

(b)            Pledge Amendments. To the extent any Pledged Collateral has not been delivered as of the date hereof, such Grantor shall deliver a pledge amendment duly executed by such Grantor in substantially the form of Exhibit 1 (each, a “Pledge Amendment”). Such Grantor authorizes the Secured Party to attach each Pledge Amendment to this Agreement.

6.4            Rules of Construction. The meanings given to terms defined herein shall be equally applicable to both the singular and plural forms of such terms. The terms “herein”, “hereof” and similar terms refer to this Agreement as a whole and not to any particular Article, Section or clause in this Agreement. References herein to an Exhibit, Schedule, Article, Section or clause refer to the appropriate Exhibit or Schedule to, or Article, Section or clause in this Agreement. Where the context requires, provisions relating to any Collateral when used in relation to a Grantor shall refer to such Grantor’s Collateral or any relevant part thereof.

6.5            Complete Agreement; Modification of Agreement. This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements, commitments, understandings or inducements (oral or written, expressed or implied), and this Agreement may not modified, altered or amended except by a written agreement signed by the Secured Party and each Grantor; provided, however, that Exhibits to this Agreement may be supplemented (but no existing provisions may be modified and no Collateral may be released) through Pledge Amendments and Joinder Agreements, in substantially the form of Exhibit 1 and Exhibit 2, respectively, in each case duly executed by the Secured Party and each Grantor directly affected thereby.

6.6            No Waiver. Neither the Secured Party’s failure, at any time or times, to require strict performance by any Grantor of any provision of this Agreement, nor the Secured Party’s failure to exercise, nor any delay in exercising, any right, power or privilege hereunder, (a) shall waive, affect or diminish any right of the Secured Party thereafter to demand strict compliance and performance therewith, or (b) shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or future exercise thereof or the exercise of any other right, power or privilege. Any suspension or waiver of a Default or other provision under this Agreement shall not suspend, waive or affect any other Default under this Agreement, whether the same is prior or subsequent thereto and whether of the same or of a different type, and shall not be construed as a bar to any right or remedy that the Secured Party would otherwise have had on any future occasion. None of the undertakings, indemnities, agreements, warranties, covenants and representations of any Grantor to the Secured Party contained in this Agreement and no Default by any Grantor under this Agreement shall be deemed to have been suspended or waived by the Secured Party, unless such waiver or suspension is by an instrument in writing signed by an officer or other authorized employee of the Secured Party and directed to such Grantor specifying such suspension or waiver (and then such waiver shall be effective only to the extent therein expressly set forth), and the Secured Party shall not, by any act (other than execution of a formal written waiver), delay, omission or otherwise, be deemed to have waived any of its rights or remedies hereunder.

6.7            Severability; Section Titles. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. The Section titles contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

6.8            Notices. All notices, requests and demands to or upon the Secured Party or any Grantor hereunder shall be effected in the manner provided for the Note; provided, however, that any such notice, request or demand to or upon any Grantor shall be addressed to the Borrower’s notice address set forth in the Note.

6.9            Counterparts. This Agreement may be authenticated in any number of separate counterparts by any one or more of the parties thereto, and all of said counterparts taken together shall constitute one and the same instrument. This Agreement may be authenticated by manual signature, facsimile or, if approved in writing by the Secured Party, electronic means, all of which shall be equally valid.

6.10           Successors and Assigns. This Agreement shall be binding upon the successors and assigns of each Grantor and shall inure to the benefit of the Secured Party and its successors and assigns; provided, however, that no Grantor may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the Secured Party.

6.11            GOVERNING LAW. THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.

6.12            SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.

(a)            EACH GRANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN SUCH GRANTOR AND THE SECURED PARTY PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT; PROVIDED, THAT THE SECURED PARTY AND SUCH GRANTOR ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE SECURED PARTY FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE SECURED OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE SECURED PARTY. EACH GRANTOR EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND SUCH GRANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH GRANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREE THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH GRANTOR AT THE ADDRESS SET FORTH IN THE NOTE AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH GRANTOR’S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER POSTAGE PREPAID.

(b)            THE PARTIES HERETO DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE SECURED PARTY AND ANY GRANTOR ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS RELATED HERETO.

6.13            Advice of Counsel. Each of the parties represents to each other party hereto that it has discussed this Agreement and, specifically, the provisions of Sections 6.12 and 6.13, with its counsel.

6.14            No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.

Signature Page Follows

IN WITNESS WHEREOF, the parties hereto has caused this Security Agreement to be duly executed and delivered as of the date first above written.

	ATLASCLEAR HOLDINGS, INC. (F/K/A CALCULATOR NEW PUBCO, INC.)

	By:	/s/ Craig Ridenhour
		Name: Craig Ridenhour
		Title: CBDO

	ATLASCLEAR, INC.

	By:	/s/ Craig Ridenhour
		Name: Craig Ridenhour
		Title: CBDO

	WILSON-DAVIS & CO, INC.

	By:	/s/ Lyle W. Davis
		Name: Lyle W. Davis
		Title: Chairman

	QUANTUM FINTECH ACQUISITION CORPORATION

	By:	/s/ John Schaible
		Name: John Schaible
		Title: Chief Executive Officer

	FUNICULAR FUNDS, LP, a Delaware limited partnership

	By:	/s/ Jacob Ma-Weaver
		Name: Jacob Ma-Weaver
		Title: Managing Member of the General Partner

EXHIBIT 1

FORM OF PLEDGE AMENDMENT

This PLEDGE AMENDMENT, dated as of ____________, 20__, is delivered pursuant to Section 6.3 of the Security Agreement, dated as of ________________ (as amended, restated, modified and/or supplemented from time to time, the “Security Agreement”), 20__, by the undersigned Grantor and certain other Persons from time to time party thereto as Grantors in favor of Funicular Funds, LP. Capitalized terms used herein without definition are used as defined in the Security Agreement.

The undersigned hereby agrees that this Pledge Amendment may be attached to the Security Agreement and that the Pledged Collateral listed on Schedule A to this Pledge Amendment shall be and become part of the Collateral referred to in the Security Agreement and shall secure all of the Secured Obligations.

The undersigned hereby represents and warrants that each of the representations and warranties contained in Sections 3.1, 3.2, 3.5 and 3.10 of the Security Agreement is true and correct and as of the date hereof as if made on and as of such date.

	[NAME OF GRANTOR]

	By:
		Name:
		Title:

ACKNOWLEDGED AND AGREED as of the date first above written:

FUNICULAR FUNDS, LP

By:
	Name:
	Title:

Schedule A to Pledge Amendment

PLEDGED STOCK

Issuer		Class		Certificate No(s).		Par Value		Number of Shares, Units or Interests

PLEDGED DEBT INSTRUMENTS

Issuer		DESCRIPTION OF DEBT		Certificate No(s).		FINAL MATURITY		Principal Amount

EXHIBIT 2

FORM OF JOINDER AGREEMENT

This JOINDER AGREEMENT, dated as of ____________, 20__, is delivered pursuant to Section 6.3 of the Security Agreement, dated as of ________________, 20__ (as amended, restated, modified and/or supplemented from time to time, the “Security Agreement”), by the undersigned Grantor and certain other Persons from time to time party thereto as Grantors in favor of Funicular Funds, LP (the “Secured Party”). Capitalized terms used herein without definition are used as defined in the Security Agreement.

By executing and delivering this Joinder Agreement, the undersigned, as provided in Section 6.3 of the Security Agreement, hereby becomes a party to the Security Agreement as a Grantor thereunder with the same force and effect as if originally named as a Grantor therein and, without limiting the generality of the foregoing, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations, hereby mortgages, pledges and hypothecates to the Secured Party, and grants to the Secured Party a lien on and security interest in, all of its right, title and interest in, to and under the Collateral of the undersigned and expressly assumes all obligations and liabilities of a Grantor thereunder. The undersigned hereby agrees to be bound as a Grantor for the purposes of the Security Agreement.

The information set forth in Schedule A is hereby added to the information set forth in Schedules 1 through 6 to the Guaranty and Security Agreement. By acknowledging and agreeing to this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement may be attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Schedule A to this Joinder Amendment shall be and become part of the Collateral referred to in the Security Agreement and shall secure all of the Secured Obligations.

The undersigned hereby represents and warrants that each of the representations and warranties contained in Article III of the Security Agreement applicable to it is true and correct on and as the date hereof as if made on and as of such date.

Signature Page to Follow

IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and delivered as of the date first above written.

	[ADDITIONAL GRANTOR]

	By:
		Name:
		Title:

ACKNOWLEDGED AND AGREED as of the date first above written:

[EACH GRANTOR PLEDGING ADDITIONAL COLLATERAL]

By:
	Name:
	Title:

FUNICULAR FUNDS, LP

By:
	Name:
	Title:

EXHIBIT 3

FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT

THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of ___________, 20__ (this “Agreement”), is made by each of the entities listed on the signature pages hereof (each a “Grantor” and, collectively, the “Grantors”), in favor of Funicular Funds, LP, as secured party.

W I T N E S S E T H:

A.            Pursuant to the Promissory Note, dated as of ________________, 20__ (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Note”), made by AtlasClear Holdings, Inc. f/k/a Calculator New Pubco, Inc., a Delaware corporation (the “Borrower”) in favor of the Secured Party, the Secured Party has agreed to make extensions of credit to the Borrower upon the terms and subject to the conditions set forth therein.

C.            All of the Grantors are party to the Security Agreement pursuant to which the Grantors are required to execute and deliver this Agreement.

Each Grantor accordingly agrees as follows:

Section 1. Defined Terms. All capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Security Agreement.

Section 2. Grant of Security Interest in Intellectual Property Collateral. Each Grantor, as collateral security for the prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Secured Obligations of such Grantor, hereby mortgages, pledges and hypothecates to the Secured Party, and grants to the Secured Party a Lien on and security interest in, all of its right, title and interest in, to and under the following Collateral of such Grantor (the “IP Collateral”):

(a)            all of its Copyrights and Copyright Licenses including, without limitation, those referred to on Schedule 1 hereto;

(b)            all renewals, reversions and extensions of the Copyrights and Copyright Licenses;

(c)            all of its Patents and Patent Licenses including, without limitation, those referred to on Schedule 1 hereto;

(d)            all reissues, reexaminations, continuations, continuations-in-part, divisionals, renewals and extensions with respect to any of the Patents and Patent Licenses;

(e)            all of its Trademarks and Trademark Licenses including, without limitation, those referred to on Schedule 1 hereto;

(f)            all renewals and extensions of the Trademarks and Trademark Licenses;

(g)            all goodwill of the business connected with the use of, and symbolized by, each Trademark and Trademark License; and

(h)            all income, royalties, proceeds and liabilities at any time due or payable or asserted under and with respect to any of the foregoing including, without limitation, all rights to sue and recover at law or in equity for any past, present and future infringement, misappropriation, dilution, violation or other impairment thereof.

Section 3.          Security Agreement. The security interest granted pursuant to this Agreement is granted in conjunction with the security interest granted to the Secured Party pursuant to the Security Agreement and each Grantor hereby acknowledges and agrees that the rights and remedies of the Secured Party with respect to the security interest in the IP Collateral made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein.

Section 4.          Grantors Remain Liable. Each Grantor hereby agrees that, anything herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility for the prosecution, defense, enforcement or any other necessary or desirable actions in connection with the IP Collateral.

Section 5.          Counterparts. This Agreement may be authenticated in any number of separate counterparts by any one or more of the parties thereto, and all of said counterparts taken together shall constitute one and the same instrument. This Agreement may be authenticated by manual signature, facsimile or, if approved in writing by the Secured Party, electronic means, all of which shall be equally valid.

Section 6.          GOVERNING LAW. THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICTS OF LAWS, AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.

Signature Page Follows

IN WITNESS WHEREOF, each Grantor has caused this Intellectual Property Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.

	Very truly yours,

	[NAME OF GRANTOR]

	By:
		Name:
		Title:

	[NAME OF GRANTOR]

	By:
		Name:
		Title:

ACCEPTED AND AGREED as of the date first above written:

FUNICULAR FUNDS, LP

By:
	Name:
	Title:

Exhibit 10.5

REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of February 9, 2024, is by and among Calculator New Pubco, Inc., a Delaware corporation (the “Company”), and the undersigned buyers (each, a “Buyer,” and collectively, the “Buyers”).

RECITALS

A.           In connection with the Securities Purchase Agreement by and among the parties hereto, dated as of February 9, 2024 (the “Securities Purchase Agreement”), the Company has agreed, upon the terms and subject to the conditions of the Securities Purchase Agreement, to issue and sell to each Buyer the Notes (as defined in the Securities Purchase Agreement) which will be convertible into Underlying Shares (as defined in the Securities Purchase Agreement) in accordance with the terms of the Notes.

B.           To induce the Buyers to consummate the transactions contemplated by the Securities Purchase Agreement, the Company has agreed to provide certain registration rights under the Securities Act of 1933, as amended, and the rules and regulations thereunder, or any similar successor statute (collectively, the “1933 Act”), and applicable state securities laws.

AGREEMENT

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

1.              Definitions.

Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Securities Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:

(a)           “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.

(b)           “Closing Date” shall have the meaning set forth in the Securities Purchase Agreement.

(c)           “Effective Date” means the date that the applicable Registration Statement has been declared effective by the SEC.

(d)           “Effectiveness Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a), the earlier of the (A) 60^th calendar day after the Closing Date and (B) 2^nd Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewed or will not be subject to further review and (ii) with respect to any additional Registration Statements that may be required to be filed by the Company pursuant to this Agreement, the earlier of the (A) 60^th calendar day following the date on which the Company was required to file such additional Registration Statement and (B) 2^nd Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by the SEC that such Registration Statement will not be reviewed or will not be subject to further review.

(e)           “Filing Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(a), the 15^th calendar day after the Closing Date and (ii) with respect to any additional Registration Statements that may be required to be filed by the Company pursuant to this Agreement, the date on which the Company was required to file such additional Registration Statement pursuant to the terms of this Agreement.

(f)           “Investor” means a Purchaser or any transferee or assignee of any Registrable Securities or Notes, as applicable, to whom a Purchaser assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9 and any transferee or assignee thereof to whom a transferee or assignee of any Registrable Securities or Notes, as applicable, assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 9.

(g)           “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization or a government or any department or agency thereof.

(h)           “register,” “registered,” and “registration” refer to a registration effected by preparing and filing one or more Registration Statements in compliance with the 1933 Act and pursuant to Rule 415 and the declaration of effectiveness of such Registration Statement(s) by the SEC.

(i)           “Registrable Securities” means (i) the Underlying Shares, and (ii) any capital stock of the Company issued or issuable with respect to the Underlying Shares, the Notes or the Warrants, including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise, (2) any Common Shares issued as a result of any “make whole,” penalty or damages provisions, of the Securities Purchase Agreement or the Notes and (3) shares of capital stock of the Company into which the Common Shares (as defined in the Notes) are converted or exchanged and shares of capital stock of a Successor Entity (as defined in the Notes) into which the Common Shares are converted or exchanged, in each case, without regard to any limitations on conversion of the Notes.

(j)           “Registration Statement” means a registration statement or registration statements of the Company filed under the 1933 Act covering Registrable Securities.

(k)           “Required Holders” shall mean the Buyer or its permitted assigns.

(l)           “Required Registration Amount” means, as of any time of determination, 300% of the maximum number of Underlying Shares issuable upon conversion of the Notes (assuming for purposes hereof that any such conversion shall not take into account any limitations on the conversion of the Notes set forth in the Notes), all subject to adjustment as provided in Section 2(d) and/or Section 2(f).

(m)           “Rule 144” means Rule 144 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any other similar or successor rule or regulation of the SEC that may at any time permit the Investors to sell securities of the Company to the public without registration.

(n)           “Rule 415” means Rule 415 promulgated by the SEC under the 1933 Act, as such rule may be amended from time to time, or any other similar or successor rule or regulation of the SEC providing for offering securities on a continuous or delayed basis.

(0)           “SEC” means the United States Securities and Exchange Commission or any successor thereto.

2.              Registration.

(a)           Mandatory Registration. The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with the SEC an initial Registration Statement on Form S-3 covering the resale of all of the Registrable Securities, provided that such initial Registration Statement shall register for resale at least the number of Common Shares equal to the Required Registration Amount as of the date such Registration Statement is initially filed with the SEC; provided further that if Form S-3 is unavailable for such a registration, the Company shall use such other form as is required by Section 2(c). Such initial Registration Statement, and each other Registration Statement required to be filed pursuant to the terms of this Agreement, shall contain (except if otherwise directed by the Required Holders) the “Selling Stockholders” and “Plan of Distribution” sections in substantially the form attached hereto as Exhibit B. The Company shall use its best efforts to have such initial Registration Statement, and each other Registration Statement required to be filed pursuant to the terms of this Agreement, declared effective by the SEC as soon as practicable, but in no event later than the applicable Effectiveness Deadline for such Registration Statement.

(b)           Legal Counsel. Subject to Section 5 hereof, Loeb & Loeb LLP, counsel solely to the Buyers (“Legal Counsel”) shall review and oversee any registration, solely on behalf of the Buyers, pursuant to this Section 2.

(c)           Ineligibility to Use Form S-3. In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable Securities on Form S-1 or another appropriate form reasonably acceptable to the Required Holders and (ii) undertake to register the resale of the Registrable Securities on Form S-3 as soon as such form is available, provided that the Company shall maintain the effectiveness of all Registration Statements then in effect until such time as a Registration Statement on Form S-3 covering the resale of all the Registrable Securities has been declared effective by the SEC and the prospectus contained therein is available for use.

(d)           Sufficient Number of Shares Registered. In the event the number of shares available under any Registration Statement is insufficient to cover all of the Registrable Securities required to be covered by such Registration Statement or an Investor’s allocated portion of the Registrable Securities pursuant to Section 2(h), the Company shall amend such Registration Statement (if permissible), or file with the SEC a new Registration Statement (on the short form available therefor, if applicable), or both, so as to cover at least the Required Registration Amount as of the Trading Day immediately preceding the date of the filing of such amendment or new Registration Statement, in each case, as soon as practicable, but in any event not later than fifteen (15) days after the necessity therefor arises (but taking account of any Staff position with respect to the date on which the Staff will permit such amendment to the Registration Statement and/or such new Registration Statement (as the case may be) to be filed with the SEC). The Company shall use its best efforts to cause such amendment to such Registration Statement and/or such new Registration Statement (as the case may be) to become effective as soon as practicable following the filing thereof with the SEC, but in no event later than the applicable Effectiveness Deadline for such Registration Statement. For purposes of the foregoing provision, the number of shares available under a Registration Statement shall be deemed “insufficient to cover all of the Registrable Securities” if at any time the number of Common Shares available for resale under the applicable Registration Statement is less than the product determined by multiplying (i) the Required Registration Amount as of such time by (ii) 0.90. The calculation set forth in the foregoing sentence shall be made without regard to any limitations on conversion, amortization and/or redemption of the Notes (and such calculation shall assume (A) that the Notes are then convertible in full into Common Shares at the then prevailing Conversion Rate (as defined in the Notes) and (B) the initial outstanding principal amount of the Notes remains outstanding through the scheduled Maturity Date (as defined in the Notes) and no redemptions of the Notes occur prior to the scheduled Maturity Date).

(e)           Effect of Failure to File and Obtain and Maintain Effectiveness of any Registration Statement. If (i) a Registration Statement covering the resale of all of the Registrable Securities required to be covered thereby (disregarding any reduction pursuant to Section 2(f)) and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the Filing Deadline for such Registration Statement (a “Filing Failure”) (it being understood that if the Company files a Registration Statement without affording each Investor and Legal Counsel the opportunity to review and comment on the same as required by Section 3(c) hereof, the Company shall be deemed to not have satisfied this clause (i)(A) and such event shall be deemed to be a Filing Failure) or (B) not declared effective by the SEC on or before the Effectiveness Deadline for such Registration Statement (an “Effectiveness Failure”) (it being understood that if on the Business Day immediately following the Effective Date for such Registration Statement the Company shall not have filed a “final” prospectus for such Registration Statement with the SEC under Rule 424(b) in accordance with Section 3(b) (whether or not such a prospectus is technically required by such rule), the Company shall be deemed to not have satisfied this clause (i)(B) and such event shall be deemed to be an Effectiveness Failure), (ii) other than during an Allowable Grace Period (as defined below), on any day after the Effective Date of a Registration Statement sales of all of the Registrable Securities required to be included on such Registration Statement (disregarding any reduction pursuant to Section 2(f)) cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, a failure to disclose such information as is necessary for sales to be made pursuant to such Registration Statement, a suspension or delisting of (or a failure to timely list) the Common Shares on the Principal Market (as defined in the Securities Purchase Agreement) or any other limitations imposed by the Principal Market, or a failure to register a sufficient number of Common Shares or by reason of a stop order) or the prospectus contained therein is not available for use for any reason (a “Maintenance Failure”), or (iii) if a Registration Statement is not effective for any reason or the prospectus contained therein is not available for use for any reason, and either (x) the Company fails for any reason to satisfy the requirements of Rule 144(c)(1), including, without limitation, the failure to satisfy the current public information requirement under Rule 144(c) or (y) the Company has ever been an issuer described in Rule 144(i)(1)(i) or becomes such an issuer in the future, and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Current Public Information Failure”) as a result of which any of the Investors are unable to sell Registrable Securities without restriction under Rule 144 (including, without limitation, volume restrictions), then, as partial relief for the damages to any holder by reason of any such delay in, or reduction of, its ability to sell the underlying Common Shares (which remedy shall not be exclusive of any other remedies available at law or in equity, including, without limitation, specific performance), the Company shall pay to each holder of Registrable Securities relating to such Registration Statement an amount in cash equal to five percent (5%) of such Investor’s original principal amount stated in such Investor’s Note on the Closing Date (1) on the date of such Filing Failure, Effectiveness Failure, Maintenance Failure or Current Public Information Failure, as applicable, and (2) on every thirty (30) day anniversary of (I) a Filing Failure until such Filing Failure is cured; (II) an Effectiveness Failure until such Effectiveness Failure is cured; (III) a Maintenance Failure until such Maintenance Failure is cured; and (IV) a Current Public Information Failure until the earlier of (i) the date such Current Public Information Failure is cured and (ii) such time that such public information is no longer required pursuant to Rule 144 (in each case, prorated for periods totaling less than thirty (30) days). The payments to which a holder of Registrable Securities shall be entitled pursuant to this Section 2(e) are referred to herein as “Registration Delay Payments.” Following the initial Registration Delay Payment for any particular event or failure (which shall be paid on the date of such event or failure, as set forth above), without limiting the foregoing, if an event or failure giving rise to the Registration Delay Payments is cured prior to any thirty (30) day anniversary of such event or failure, then such Registration Delay Payment shall be made on the third (3^rd) Business Day after such cure. In the event the Company fails to make Registration Delay Payments in a timely manner in accordance with the foregoing, such Registration Delay Payments shall bear interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full. Notwithstanding the foregoing, no Registration Delay Payments shall be owed to an Investor (other than with respect to a Maintenance Failure resulting from a suspension or delisting of (or a failure to timely list) the Common Shares on the Principal Market) with respect to any period during which all of such Investor’s Registrable Securities may be sold by such Investor without restriction under Rule 144 (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable), if such failure is solely due to objections from the Staff with respect to the amount or nature of the Underlying Shares being registered thereunder provided, however, that the Company shall promptly register the balance of the Required Registered Amount in accordance with Section 2(d) of this Agreement.

(f)           Offering. Notwithstanding anything to the contrary contained in this Agreement, but subject to the payment of the Registration Delay Payments pursuant to Section 2(e), in the event the staff of the SEC (the “Staff”) or the SEC seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement as constituting an offering of securities by, or on behalf of, the Company, or in any other manner, such that the Staff or the SEC do not permit such Registration Statement to become effective and used for resales in a manner that does not constitute such an offering and that permits the continuous resale at the market by the Investors participating therein (or as otherwise may be acceptable to each Investor) without being named therein as an “underwriter,” then the Company shall reduce the number of shares to be included in such Registration Statement by all Investors until such time as the Staff and the SEC shall so permit such Registration Statement to become effective as aforesaid. In making such reduction, the Company shall reduce the number of shares to be included by all Investors on a pro rata basis (based upon the number of Registrable Securities otherwise required to be included for each Investor) unless the inclusion of shares by a particular Investor or a particular set of Investors are resulting in the Staff or the SEC’s “by or on behalf of the Company” offering position, in which event the shares held by such Investor or set of Investors shall be the only shares subject to reduction (and if by a set of Investors on a pro rata basis by such Investors or on such other basis as would result in the exclusion of the least number of shares by all such Investors); provided, that, with respect to such pro rata portion allocated to any Investor, such Investor may elect the allocation of such pro rata portion among the Registrable Securities of such Investor. In addition, in the event that the Staff or the SEC requires any Investor seeking to sell securities under a Registration Statement filed pursuant to this Agreement to be specifically identified as an “underwriter” in order to permit such Registration Statement to become effective, and such Investor does not consent to being so named as an underwriter in such Registration Statement, then, in each such case, the Company shall reduce the total number of Registrable Securities to be registered on behalf of such Investor, until such time as the Staff or the SEC does not require such identification or until such Investor accepts such identification and the manner thereof. Any reduction pursuant to this paragraph will first reduce all Registrable Securities other than those issued pursuant to the Securities Purchase Agreement. In the event of any reduction in Registrable Securities pursuant to this paragraph, an affected Investor shall have the right to require, upon delivery of a written request to the Company signed by such Investor, the Company to file a registration statement within twenty (20) days of such request (subject to any restrictions imposed by Rule 415 or required by the Staff or the SEC) for resale by such Investor in a manner acceptable to such Investor, and the Company shall following such request cause to be and keep effective such registration statement in the same manner as otherwise contemplated in this Agreement for registration statements hereunder, in each case until such time as: (i) all Registrable Securities held by such Investor have been registered and sold pursuant to an effective Registration Statement in a manner acceptable to such Investor or (ii) all Registrable Securities may be resold by such Investor without restriction (including, without limitation, volume limitations) pursuant to Rule 144 (taking account of any Staff position with respect to “affiliate” status) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (iii) such Investor agrees to be named as an underwriter in any such Registration Statement in a manner acceptable to such Investor as to all Registrable Securities held by such Investor and that have not theretofore been included in a Registration Statement under this Agreement (it being understood that the special demand right under this sentence may be exercised by an Investor multiple times and with respect to limited amounts of Registrable Securities in order to permit the resale thereof by such Investor as contemplated above).

(g)           Piggyback Registrations. Without limiting any obligation of the Company hereunder or under the Securities Purchase Agreement, if there is not an effective Registration Statement covering all of the Registrable Securities or the prospectus contained therein is not available for use and the Company shall determine to prepare and file with the SEC a registration statement or offering statement relating to an offering for its own account or the account of others under the 1933 Act of any of its equity securities (other than on Form S-4 or Form S-8 (each as promulgated under the 1933 Act) or their then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with the Company’s stock option or other employee benefit plans), then the Company shall deliver to each Investor a written notice of such determination and, if within fifteen (15) days after the date of the delivery of such notice, any such Investor shall so request in writing, the Company shall include in such registration statement or offering statement all or any part of such Registrable Securities such Investor requests to be registered; provided, however, the Company shall not be required to register any Registrable Securities pursuant to this Section 2(g) that are eligible for resale pursuant to Rule 144 without restriction (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or that are the subject of a then-effective Registration Statement.

(h)           Allocation of Registrable Securities. The initial number of Registrable Securities included in any Registration Statement and any increase in the number of Registrable Securities included therein shall be allocated pro rata among the Investors based on the number of Registrable Securities held by each Investor at the time such Registration Statement covering such initial number of Registrable Securities or increase thereof is declared effective by the SEC. In the event that an Investor sells or otherwise transfers any of such Investor’s Registrable Securities, each transferee or assignee (as the case may be) that becomes an Investor shall be allocated a pro rata portion of the then-remaining number of Registrable Securities included in such Registration Statement for such transferor or assignee (as the case may be). Any Common Shares included in a Registration Statement and which remain allocated to any Person which ceases to hold any Registrable Securities covered by such Registration Statement shall be allocated to the remaining Investors, pro rata based on the number of Registrable Securities then held by such Investors which are covered by such Registration Statement.

(i)           No Inclusion of Other Securities. The Company shall in no event include any securities other than Registrable Securities on any Registration Statement filed in accordance herewith without the prior written consent of the Required Holders (which consent shall not be unreasonably withheld, delayed or conditioned). Until all the Registrable Securities have been registered pursuant to a Registration Statement or sold by the Holder, the Company shall not enter into any agreement providing any registration rights to any of its security holders.

3.              Related Obligations.

The Company shall use its best efforts to effect the registration of the Registrable Securities in accordance with the intended method of disposition thereof, and, pursuant thereto, the Company shall have the following obligations:

(a)           The Company shall promptly prepare and file with the SEC a Registration Statement with respect to all the Registrable Securities (but in no event later than the applicable Filing Deadline) and use its best efforts to cause such Registration Statement to become effective as soon as practicable after such filing (but in no event later than the Effectiveness Deadline). Subject to Allowable Grace Periods, the Company shall keep each Registration Statement effective (and the prospectus contained therein available for use) pursuant to Rule 415 for resales by the Investors on a delayed or continuous basis at then-prevailing market prices (and not fixed prices) at all times until the earlier of (i) the date as of which all of the Investors may sell all of the Registrable Securities required to be covered by such Registration Statement (disregarding any reduction pursuant to Section 2(f)) without restriction pursuant to Rule 144 (including, without limitation, volume restrictions) and without the need for current public information required by Rule 144(c)(1) (or Rule 144(i)(2), if applicable) or (ii) the date on which the Investors shall have sold all of the Registrable Securities covered by such Registration Statement (the “Registration Period”). Notwithstanding anything to the contrary contained in this Agreement, the Company shall ensure that, when filed and at all times while effective, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the prospectus (including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement (1) shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make the statements therein (in the case of prospectuses, in the light of the circumstances in which they were made) not misleading and (2) will disclose (whether directly or through incorporation by reference to other SEC filings to the extent permitted) all material information regarding the Company and its securities. The Company shall submit to the SEC, within one (1) Business Day after the later of the date that (i) the Company learns that no review of a particular Registration Statement will be made by the Staff or that the Staff has no further comments on a particular Registration Statement (as the case may be) and (ii) the consent of Legal Counsel is obtained pursuant to Section 3(c) (which consent shall be immediately sought), a request for acceleration of effectiveness of such Registration Statement to a time and date not later than twenty-four (24) hours after the submission of such request. The Company shall respond in writing to comments made by the SEC in respect of a Registration Statement as soon as practicable, but in no event later than fifteen (15) days after the receipt of comments by or notice from the SEC that an amendment is required in order for a Registration Statement to be declared effective.

(b)           Subject to Section 3(r) of this Agreement, the Company shall prepare and file with the SEC such amendments (including, without limitation, post-effective amendments) and supplements to each Registration Statement and the prospectus used in connection with each such Registration Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may be necessary to keep each such Registration Statement effective at all times during the Registration Period for such Registration Statement, and, during such period, comply with the provisions of the 1933 Act with respect to the disposition of all Registrable Securities of the Company required to be covered by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the intended methods of disposition by the seller or sellers thereof as set forth in such Registration Statement; provided, however, by 8:30 a.m. (New York time) on the Business Day immediately following each Effective Date, the Company shall file with the SEC in accordance with Rule 424(b) under the 1933 Act the final prospectus to be used in connection with sales pursuant to the applicable Registration Statement (whether or not such a prospectus is technically required by such rule). In the case of amendments and supplements to any Registration Statement which are required to be filed pursuant to this Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company filing a report on Form 8-K, Form 10-Q or Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended (the “1934 Act”), the Company shall, if permitted under the applicable rules and regulations of the SEC, have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the SEC on the same day on which the 1934 Act report is filed which created the requirement for the Company to amend or supplement such Registration Statement.

(c)           The Company shall (A) permit Legal Counsel and legal counsel for each other Investor to review and comment upon (i) each Registration Statement at least five (5) Business Days prior to its filing with the SEC and (ii) all amendments and supplements to each Registration Statement (including, without limitation, the prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and any similar or successor reports) within a reasonable number of days prior to their filing with the SEC, and (B) not file any Registration Statement or amendment or supplement thereto in a form to which Legal Counsel or any legal counsel for any other Investor reasonably objects. The Company shall not submit a request for acceleration of the effectiveness of a Registration Statement or any amendment or supplement thereto or to any prospectus contained therein without the prior consent of Legal Counsel, which consent shall not be unreasonably withheld. The Company shall promptly furnish to Legal Counsel and legal counsel for each other Investor, without charge, (i) copies of any correspondence from the SEC or the Staff to the Company or its representatives relating to each Registration Statement, provided that such correspondence shall not contain any material, non-public information regarding the Company or any of its Subsidiaries (as defined in the Securities Purchase Agreement), (ii) after the same is prepared and filed with the SEC, one (1) copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, and all exhibits and (iii) upon the effectiveness of each Registration Statement, one (1) copy of the prospectus included in such Registration Statement and all amendments and supplements thereto. The Company shall reasonably cooperate with Legal Counsel and legal counsel for each other Investor in performing the Company’s obligations pursuant to this Section 3.

(d)           The Company shall promptly furnish to each Investor whose Registrable Securities are included in any Registration Statement, without charge, (i) after the same is prepared and filed with the SEC, at least one (1) copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules, all documents incorporated therein by reference, if requested by an Investor, all exhibits and each preliminary prospectus, (ii) upon the effectiveness of each Registration Statement, ten (10) copies of the prospectus included in such Registration Statement and all amendments and supplements thereto (or such other number of copies as such Investor may reasonably request from time to time) and (iii) such other documents, including, without limitation, copies of any preliminary or final prospectus, as such Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by such Investor.

(e)           The Company shall use its best efforts to (i) register and qualify, unless an exemption from registration and qualification applies, the resale by Investors of the Registrable Securities covered by a Registration Statement under such other securities or “blue sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such amendments (including, without limitation, post-effective amendments) and supplements to such registrations and qualifications as may be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided, however, the Company shall not be required in connection therewith or as a condition thereto to (x) qualify to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(e), (y) subject itself to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify Legal Counsel, legal counsel for each other Investor and each Investor who holds Registrable Securities of the receipt by the Company of any notification with respect to the suspension of the registration or qualification of any of the Registrable Securities for sale under the securities or “blue sky” laws of any jurisdiction in the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.

(f)           The Company shall notify Legal Counsel, legal counsel for each other Investor and each Investor in writing of the happening of any event, as promptly as practicable after becoming aware of such event, as a result of which the prospectus included in a Registration Statement, as then in effect, may include an untrue statement of a material fact or omission to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain any material, non-public information regarding the Company or any of its Subsidiaries), and, subject to Section 3(r), promptly prepare a supplement or amendment to such Registration Statement and such prospectus contained therein to correct such untrue statement or omission and deliver ten (10) copies of such supplement or amendment to Legal Counsel, legal counsel for each other Investor and each Investor (or such other number of copies as Legal Counsel, legal counsel for each other Investor or such Investor may reasonably request). The Company shall also promptly notify Legal Counsel, legal counsel for each other Investor and each Investor in writing (i) when a prospectus or any prospectus supplement or post-effective amendment has been filed, when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be delivered to Legal Counsel, legal counsel for each other Investor and each Investor by e-mail on the same day of such effectiveness and by overnight mail), and when the Company receives written notice from the SEC that a Registration Statement or any post-effective amendment will be reviewed by the SEC, (ii) of any request by the SEC for amendments or supplements to a Registration Statement or related prospectus or related information, (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement would be appropriate; and (iv) of the receipt of any request by the SEC or any other federal or state governmental authority for any additional information relating to the Registration Statement or any amendment or supplement thereto or any related prospectus. The Company shall respond as promptly as practicable to any comments received from the SEC with respect to each Registration Statement or any amendment thereto (it being understood and agreed that the Company’s response to any such comments shall be delivered to the SEC no later than fifteen (15) Business Days after the receipt thereof).

(g)           The Company shall (i) use its best efforts to prevent the issuance of any stop order or other suspension of effectiveness of each Registration Statement or the use of any prospectus contained therein, or the suspension of the qualification, or the loss of an exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is issued, to obtain the withdrawal of such order or suspension at the earliest possible moment and (ii) notify Legal Counsel, legal counsel for each other Investor and each Investor who holds Registrable Securities of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding for such purpose.

(h)           If any Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and such Investor consents to so being named an underwriter, at the request of any Investor, the Company shall furnish to such Investor, on the date of the effectiveness of such Registration Statement and thereafter from time to time on such dates as an Investor may reasonably request (i) a letter, dated such date, from the Company’s independent certified public accountants in form and substance as is customarily given by independent certified public accountants to underwriters in an underwritten public offering, addressed to the Investors, and (ii) an opinion, dated as of such date, of counsel representing the Company for purposes of such Registration Statement, in form, scope and substance as is customarily given in an underwritten public offering, addressed to the Investors.

(i)            If any Investor may be required under applicable securities law to be described in any Registration Statement as an underwriter and such Investor consents to so being named an underwriter, upon the written request of such Investor, the Company shall make available for inspection by (i) such Investor, (ii) legal counsel for such Investor and (iii) one (1) firm of accountants or other agents retained by such Investor (collectively, the “Inspectors”), all pertinent financial and other records, and pertinent corporate documents and properties of the Company (collectively, the “Records”), as shall be reasonably deemed necessary by each Inspector, and cause the Company’s officers, directors and employees to supply all information which any Inspector may reasonably request; provided, however, each Inspector shall agree in writing to hold in strict confidence and not to make any disclosure (except to such Investor) or use of any Record or other information which the Company’s board of directors determines in good faith to be confidential, and of which determination the Inspectors are so notified, unless (1) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required under the 1933 Act, (2) the release of such Records is ordered pursuant to a final, non-appealable subpoena or order from a court or government body of competent jurisdiction, or (3) the information in such Records has been made generally available to the public other than by disclosure in violation of this Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement). Such Investor agrees that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement between the Company and such Investor, if any) shall be deemed to limit any Investor’s ability to sell Registrable Securities in a manner which is otherwise consistent with applicable laws and regulations.

(j)           The Company shall hold in confidence and not make any disclosure of information concerning an Investor provided to the Company unless (i) disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be disclosed in such Registration Statement pursuant to the 1933 Act, (iii) the release of such information is ordered pursuant to a subpoena or other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made generally available to the public other than by disclosure in violation of this Agreement or any other Transaction Document. The Company agrees that it shall, upon learning that disclosure of such information concerning an Investor is sought in or by a court or governmental body of competent jurisdiction or through other means, give prompt written notice to such Investor and allow such Investor, at such Investor’s expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.

(k)           Without limiting any obligation of the Company under the Securities Purchase Agreement, the Company shall use its best efforts either to (i) cause all of the Registrable Securities covered by each Registration Statement to be listed on each securities exchange on which securities of the same class or series issued by the Company are then listed, if any, if the listing of such Registrable Securities is then permitted under the rules of such exchange, (ii) secure designation and quotation of all of the Registrable Securities covered by each Registration Statement on an Eligible Market (as defined in the Securities Purchase Agreement), or (iii) if, despite the Company’s best efforts to satisfy the preceding clauses (i) or (ii) the Company is unsuccessful in satisfying the preceding clauses (i) or (ii), without limiting the generality of the foregoing, to use its best efforts to arrange for at least two market makers to register with the Financial Industry Regulatory Authority (“FINRA”) as such with respect to such Registrable Securities. In addition, the Company shall cooperate with each Investor and any broker or dealer through which any such Investor proposes to sell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by such Investor. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 3(k).

(l)           The Company shall cooperate with the Investors who hold Registrable Securities being offered and, to the extent applicable, facilitate the timely preparation and delivery of certificates (not bearing any restrictive legend) representing the Registrable Securities to be offered pursuant to a Registration Statement and enable such certificates to be in such denominations or amounts (as the case may be) as the Investors may reasonably request from time to time and registered in such names as the Investors may request.

(m)           If requested by an Investor, the Company shall as soon as practicable after receipt of notice from such Investor and subject to Section 3(r) hereof, (i) incorporate in a prospectus supplement or post-effective amendment such information as an Investor reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such prospectus supplement or post-effective amendment after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment; and (iii) supplement or make amendments to any Registration Statement or prospectus contained therein if reasonably requested by an Investor holding any Registrable Securities.

(n)           The Company shall use its best efforts to cause the Registrable Securities covered by a Registration Statement to be registered with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable Securities.

(o)           The Company shall make generally available to its security holders as soon as practical, but not later than ninety (90) days after the close of the period covered thereby, an earnings statement (in form complying with, and in the manner provided by, the provisions of Rule 158 under the 1933 Act) covering a twelve-month period beginning not later than the first day of the Company’s fiscal quarter next following the applicable Effective Date of each Registration Statement.

(p)           The Company shall otherwise use its best efforts to comply with all applicable rules and regulations of the SEC in connection with any registration hereunder.

(q)           Within one (1) Business Day after a Registration Statement which covers Registrable Securities is declared effective by the SEC, the Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities (with copies to the Investors whose Registrable Securities are included in such Registration Statement) confirmation that such Registration Statement has been declared effective by the SEC in the form attached hereto as Exhibit A.

(r)           Notwithstanding anything to the contrary herein (but subject to the last sentence of this Section 3(r)), at any time after the Effective Date of a particular Registration Statement, the Company may delay the disclosure of material, non-public information concerning the Company or any of its Subsidiaries the disclosure of which at the time is not, in the good faith opinion of the board of directors of the Company, in the best interest of the Company and, in the opinion of counsel to the Company, otherwise required (a “Grace Period”), provided that the Company shall promptly notify the Investors in writing of the (i) existence of material, non-public information giving rise to a Grace Period (provided that in each such notice the Company shall not disclose the content of such material, non-public information to any of the Investors) and the date on which such Grace Period will begin and (ii) date on which such Grace Period ends, provided further that (I) no Grace Period shall exceed ten (10) consecutive days and during any three hundred sixty five (365) day period all such Grace Periods shall not exceed an aggregate of thirty (30) days, (II) the first day of any Grace Period must be at least five (5) Trading Days after the last day of any prior Grace Period and (III) no Grace Period may exist during the sixty (60) Trading Day period immediately following the Effective Date of such Registration Statement (provided that such sixty (60) Trading Day period shall be extended by the number of Trading Days during such period and any extension thereof contemplated by this proviso during which such Registration Statement is not effective or the prospectus contained therein is not available for use) (each, an “Allowable Grace Period”). For purposes of determining the length of a Grace Period above, such Grace Period shall begin on and include the date the Investors receive the notice referred to in clause (i) above and shall end on and include the later of the date the Investors receive the notice referred to in clause (ii) above and the date referred to in such notice. The provisions of Section 3(g) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of each Grace Period, the Company shall again be bound by the first sentence of Section 3(f) with respect to the information giving rise thereto unless such material, non-public information is no longer applicable. Notwithstanding anything to the contrary contained in this Section 3(r), the Company shall cause its transfer agent to deliver unlegended Common Shares to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale, and delivered a copy of the prospectus included as part of the particular Registration Statement to the extent applicable, prior to such Investor’s receipt of the notice of a Grace Period and for which the Investor has not yet settled.

(s)           The Company shall take all other reasonable actions necessary to expedite and facilitate disposition by each Investors of its Registrable Securities pursuant to each Registration Statement.

(t)           Neither the Company nor any Subsidiary or affiliate thereof shall identify any Investor as an underwriter in any public disclosure or filing with the SEC, the Principal Market or any Eligible Market and any Buyer being deemed an underwriter by the SEC shall not relieve the Company of any obligations it has under this Agreement or any other Transaction Document (as defined in the Securities Purchase Agreement); provided, however, that the foregoing shall not prohibit the Company from including the disclosure found in the "Plan of Distribution" section attached hereto as Exhibit B in the Registration Statement.

(u)           Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Buyers in this Agreement or otherwise conflicts with the provisions hereof.

4.              Obligations of the Investors.

(a)           At least five (5) Business Days prior to the first anticipated filing date of each Registration Statement, the Company shall notify each Investor in writing of the information the Company requires from each such Investor with respect to such Registration Statement. It shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this Agreement with respect to the Registrable Securities of a particular Investor that such Investor shall furnish to the Company such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect and maintain the effectiveness of the registration of such Registrable Securities and shall execute such documents in connection with such registration as the Company may reasonably request.

(b)           Each Investor, by such Investor’s acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of each Registration Statement hereunder, unless such Investor has notified the Company in writing of such Investor’s election to exclude all of such Investor’s Registrable Securities from such Registration Statement.

(c)           Each Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(g) or the first sentence of 3(f), such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement(s) covering such Registrable Securities until such Investor’s receipt of the copies of the supplemented or amended prospectus contemplated by Section 3(g) or the first sentence of Section 3(f) or receipt of notice that no supplement or amendment is required. Notwithstanding anything to the contrary in this Section 4(c), the Company shall cause its transfer agent to deliver unlegended Common Shares to a transferee of an Investor in accordance with the terms of the Securities Purchase Agreement in connection with any sale of Registrable Securities with respect to which such Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company of the happening of any event of the kind described in Section 3(g) or the first sentence of Section 3(f) and for which such Investor has not yet settled.

5.              Expenses of Registration.

All reasonable expenses, other than underwriting discounts and commissions, incurred in connection with registrations, filings or qualifications pursuant to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees, FINRA filing fees (if any) and fees and disbursements of counsel for the Company shall be paid by the Company. The Company shall reimburse Legal Counsel for its fees and disbursements in connection with registration, filing or qualification pursuant to Sections 2 and 3 of this Agreement which amount shall be limited to $25,000 for each such registration, filing or qualification.

6.              Indemnification.

(a)           To the fullest extent permitted by law, the Company will, and hereby does, indemnify, hold harmless and defend each Investor and each of its directors, officers, shareholders, members, partners, employees, agents, advisors, representatives (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) and each Person, if any, who controls such Investor within the meaning of the 1933 Act or the 1934 Act and each of the directors, officers, shareholders, members, partners, employees, agents, advisors, representatives (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Indemnified Person”), against any losses, obligations, claims, damages, liabilities, contingencies, judgments, fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’ fees and costs of defense and investigation), amounts paid in settlement or expenses, joint or several, (collectively, “Claims”) incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the foregoing by or before any court or governmental, administrative or other regulatory agency, body or the SEC, whether pending or threatened, whether or not an Indemnified Person is or may be a party thereto (“Indemnified Damages”), to which any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities or other “blue sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”), or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus if used prior to the effective date of such Registration Statement, or contained in the final prospectus (as amended or supplemented, if the Company files any amendment thereof or supplement thereto with the SEC) or the omission or alleged omission to state therein any material fact necessary to make the statements made therein, in light of the circumstances under which the statements therein were made, not misleading or (iii) any violation or alleged violation by the Company of the 1933 Act, the 1934 Act, any other law, including, without limitation, any state securities law, or any rule or regulation thereunder relating to the offer or sale of the Registrable Securities pursuant to a Registration Statement or (iv) any violation of this Agreement (the matters in the foregoing clauses (i) through (iv) being, collectively, “Violations”). Subject to Section 6(c), the Company shall reimburse the Indemnified Persons, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Indemnified Person arising out of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by such Indemnified Person for such Indemnified Person expressly for use in connection with the preparation of such Registration Statement or any such amendment thereof or supplement thereto, if such prospectus was timely made available by the Company pursuant to Section 3(d); and (ii) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of the Indemnified Person and shall survive the transfer of any of the Registrable Securities by any of the Investors pursuant to Section 9.

(b)           In connection with any Registration Statement in which an Investor is participating, such Investor agrees to severally and not jointly indemnify, hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors, each of its officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act (each, an “Indemnified Party”), against any Claim or Indemnified Damages to which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such Claim or Indemnified Damages arise out of or are based upon any Violation, in each case, to the extent, and only to the extent, that such Violation occurs in reliance upon and in conformity with written information furnished to the Company by such Investor expressly for use in connection with such Registration Statement; and, subject to Section 6(c) and the below provisos in this Section 6(b), such Investor will reimburse an Indemnified Party any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such Claim; provided, however, the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of such Investor, which consent shall not be unreasonably withheld or delayed, provided further that such Investor shall be liable under this Section 6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to such Investor as a result of the applicable sale of Registrable Securities pursuant to such Registration Statement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such Indemnified Party and shall survive the transfer of any of the Registrable Securities by any of the Investors pursuant to Section 9.

(c)           Promptly after receipt by an Indemnified Person or Indemnified Party (as the case may be) under this Section 6 of notice of the commencement of any action or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Indemnified Person or Indemnified Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Indemnified Person or the Indemnified Party (as the case may be); provided, however, an Indemnified Person or Indemnified Party (as the case may be) shall have the right to retain its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if: (i) the indemnifying party has agreed in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly to assume the defense of such Claim and to employ counsel reasonably satisfactory to such Indemnified Person or Indemnified Party (as the case may be) in any such Claim; or (iii) the named parties to any such Claim (including, without limitation, any impleaded parties) include both such Indemnified Person or Indemnified Party (as the case may be) and the indemnifying party, and such Indemnified Person or such Indemnified Party (as the case may be) shall have been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Indemnified Person or such Indemnified Party and the indemnifying party (in which case, if such Indemnified Person or such Indemnified Party (as the case may be) notifies the indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then the indemnifying party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the indemnifying party), provided further that in the case of clause (iii) above the indemnifying party shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for such Indemnified Person or Indemnified Party (as the case may be). The Indemnified Party or Indemnified Person (as the case may be) shall reasonably cooperate with the indemnifying party in connection with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all information reasonably available to the Indemnified Party or Indemnified Person (as the case may be) which relates to such action or Claim. The indemnifying party shall keep the Indemnified Party or Indemnified Person (as the case may be) reasonably apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action, claim or proceeding effected without its prior written consent; provided, however, the indemnifying party shall not unreasonably withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Indemnified Party or Indemnified Person (as the case may be), consent to entry of any judgment or enter into any settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party or Indemnified Person (as the case may be) of a release from all liability in respect to such Claim or litigation, and such settlement shall not include any admission as to fault on the part of the Indemnified Party. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Indemnified Party or Indemnified Person (as the case may be) with respect to all third parties, firms or corporations relating to the matter for which indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action shall not relieve such indemnifying party of any liability to the Indemnified Person or Indemnified Party (as the case may be) under this Section 6, except to the extent that the indemnifying party is materially and adversely prejudiced in its ability to defend such action.

(d)           The indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received or Indemnified Damages are incurred.

(e)           The indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the Indemnified Party or Indemnified Person against the indemnifying party or others, and (ii) any liabilities the indemnifying party may be subject to pursuant to the law.

7.              Contribution.

To the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law; provided, however: (i) no contribution shall be made under circumstances where the maker would not have been liable for indemnification under the fault standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in connection with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount of net proceeds received by such seller from the applicable sale of such Registrable Securities pursuant to such Registration Statement. Notwithstanding the provisions of this Section 7, no Investor shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Investor from the applicable sale of the Registrable Securities subject to the Claim exceeds the amount of any damages that such Investor has otherwise been required to pay, or would otherwise be required to pay under Section 6(b), by reason of such untrue or alleged untrue statement or omission or alleged omission.

8.              Reports Under the 1934 Act.

With a view to making available to the Investors the benefits of Rule 144, the Company agrees to:

(a)           make and keep public information available, as those terms are understood and defined in Rule 144;

(b)           file with the SEC in a timely manner all reports and other documents required of the Company under the 1933 Act and the 1934 Act so long as the Company remains subject to such requirements (it being understood and agreed that nothing herein shall limit any obligations of the Company under the Securities Purchase Agreement) and the filing of such reports and other documents is required for the applicable provisions of Rule 144; and

(c)           furnish to each Investor so long as such Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if true, that it has complied with the reporting, submission and posting requirements of Rule 144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company with the SEC if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonably requested to permit the Investors to sell such securities pursuant to Rule 144 without registration.

9.              Assignment of Registration Rights.

All or any portion of the rights under this Agreement shall be automatically assignable by each Investor to any transferee or assignee (as the case may be) of all or any portion of such Investor’s Registrable Securities or Notes if: (i) such Investor agrees in writing with such transferee or assignee (as the case may be) to assign all or any portion of such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such transfer or assignment (as the case may be); (ii) the Company is, within a reasonable time after such transfer or assignment (as the case may be), furnished with written notice of (a) the name and address of such transferee or assignee (as the case may be), and (b) the securities with respect to which such registration rights are being transferred or assigned (as the case may be); (iii) immediately following such transfer or assignment (as the case may be) the further disposition of such securities by such transferee or assignee (as the case may be) is restricted under the 1933 Act or applicable state securities laws if so required; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence such transferee or assignee (as the case may be) agrees in writing with the Company to be bound by all of the provisions contained herein; (v) such transfer or assignment (as the case may be) shall have been made in accordance with the applicable requirements of the Securities Purchase Agreement and the Notes (as the case may be); and (vi) such transfer or assignment (as the case may be) shall have been conducted in accordance with all applicable federal and state securities laws.

10.            Amendment of Registration Rights.

Provisions of this Agreement may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and the Required Holders; provided that any such amendment or waiver that complies with the foregoing, but that disproportionately, materially and adversely affects the rights and obligations of any Investor relative to the comparable rights and obligations of the other Investors shall require the prior written consent of such adversely affected Investor. Any amendment or waiver effected in accordance with this Section 10 shall be binding upon each Investor and the Company, provided that no such amendment shall be effective to the extent that it (1) applies to less than all of the holders of Registrable Securities or (2) imposes any obligation or liability on any Investor without such Investor’s prior written consent (which may be granted or withheld in such Investor’s sole discretion). No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration (other than the reimbursement of legal fees) also is offered to all of the parties to this Agreement.

11.            Miscellaneous.

(a)           Solely for purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns, or is deemed to own, of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from such record owner of such Registrable Securities.

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

If to the Company:

AtlasClear Holdings, Inc.

4030 Henderson Blvd., Ste 712

Tampa, FL 33629

Attention: Craig Ridenhour

E-Mail: cridenhour@atlasclear.com

With a copy (for informational purposes only) to:

Greenberg Traurig, LLP

1750 Tysons Boulevard, Suite 1000

McLean, VA 22102

Attention: Jason Simon

E-Mail: jason.simon@gtlaw.com

If to the Transfer Agent:

Continental Stock Transfer & Trust Company

1 State Street, 30th floor

New York, NY 10004

Telephone: (212) 509-4000

Attention:

E-Mail:

If to Legal Counsel:

Loeb & Loeb LLP

345 Park Avenue

New York, NY 10154

Attention: Mitchell S. Nussbaum

Email: mnussbaum@loeb.com

If to a Buyer, to its mailing address and/or email address set forth on the Schedule of Buyers attached to the Securities Purchase Agreement, with copies to such Buyer’s representatives as set forth on the Schedule of Buyers, or to such other mailing address and/or email address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C) provided by a courier or overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from a nationally recognized overnight delivery service in accordance with clause (i), (ii) or (iii) above, respectively.

(c)           Any Investor may deliver a written notice (an “Opt-Out Notice”) to the Company requesting that such Investor not receive notices from the Company otherwise required by the last sentence of Section 3(e), the first sentence of Section 3(f) or Section 3(g)(ii); provided, however, that the Investor may later revoke any such Opt-Out Notice in writing. Following receipt of an Opt-Out Notice from the Investor (unless subsequently revoked), (i) the Company shall not deliver any such notices to the Investor and the Investor shall no longer be entitled to the rights associated with any such notice and (ii) each time prior to the Investor’s intended use of an effective Registration Statement, the Investor will notify the Company in writing at least two (2) Business Days in advance of such intended use, and if a notice of an event contemplated by Section 3 was previously delivered (or would have been delivered but for the provisions of this Section 11(c)) and a related suspension period remains in effect, the Company will so notify the Investor within one (1) Business Day of the Investor’s notification to the Company by delivering to the Investor a copy of such previous notice provided to the other Investors.

(d)           Failure of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof. The Company and each Investor acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each party hereto shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement by any other party hereto and to enforce specifically the terms and provisions hereof (without the necessity of showing economic loss and without any bond or other security being required), this being in addition to any other remedy to which any party may be entitled by law or equity.

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

(f)           If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).

(g)           This Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein constitute the entire agreement among the parties hereto and thereto solely with respect to the subject matter hereof and thereof. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein and therein. This Agreement, the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein supersede all prior agreements and understandings among the parties hereto solely with respect to the subject matter hereof and thereof; provided, however, nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any Investor has entered into with the Company or any of its Subsidiaries prior to the date hereof with respect to any prior investment made by such Investor in the Company, (ii) waive, alter, modify or amend in any respect any obligations of the Company or any of its Subsidiaries or any rights of or benefits to any Investor or any other Person in any agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries and any Investor and all such agreements shall continue in full force and effect or (iii) limit any obligations of the Company under any of the other Transaction Documents.

(h)           Subject to compliance with Section 9 (if applicable), this Agreement shall inure to the benefit of and be binding upon the permitted successors and assigns of each of the parties hereto. This Agreement is not for the benefit of, nor may any provision hereof be enforced by, any Person, other than the parties hereto, their respective permitted successors and assigns and the Persons referred to in Sections 6 and 7 hereof.

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

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

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

(l)           The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against any party. Notwithstanding anything to the contrary set forth in Section 10, terms used in this Agreement but defined in the other Transaction Documents shall have the meanings ascribed to such terms on the Closing Date in such other Transaction Documents unless otherwise consented to in writing by each Investor.

(m)           All consents and other determinations required to be made by the Investors pursuant to this Agreement shall be made, unless otherwise specified in this Agreement, by the Required Holders, determined as if all of the outstanding Notes then held by the Investors have been converted for Registrable Securities without regard to any limitations on redemption, amortization and/or conversion of the Notes then held by Investors.

(n)           This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.

(o)           The obligations of each Investor under this Agreement and the other Transaction Documents are several and not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations of any other Investor under this Agreement or any other Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Investor pursuant hereto or thereto, shall be deemed to constitute the Investors as, and the Company acknowledges that the Investors do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Investors are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Investors are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated by this Agreement or any of the other the Transaction Documents. Each Investor shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose. The use of a single agreement with respect to the obligations of the Company contained herein was solely in the control of the Company, not the action or decision of any Investor, and was done solely for the convenience of the Company and not because it was required or requested to do so by any Investor. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and an Investor, solely, and not between the Company and the Investors collectively and not between and among Investors.

[signature page follows]

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

	COMPANY:

	ATLASCLEAR HOLDINGS, INC. (F/K/A CALCULATOR NEW PUBCO, INC.)

	By:	/s/ Craig Ridenhour
		Name: Craig Ridenhour
		Title: CBDO

	BUYER:

	FUNICULAR FUNDS, LP
	A Delaware limited partnership


	By:	/s/ Jacob Ma-Weaver
		Name: Jacob Ma-Weaver
		Title: Managing Member of the General Partner

EXHIBIT A

FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT

______________________
______________________
______________________
Attention: _____________

Re:           [COMPANY]

Ladies and Gentlemen:

[We are][I am] counsel to [COMPANY], a [JURISDICTION] corporation (the “Company”), and have represented the Company in connection with that certain Securities Purchase Agreement (the “Securities Purchase Agreement”) entered into by and among the Company and the buyers named therein (collectively, the “Holders”) pursuant to which the Company issued to the Holders senior secured convertible notes (the “Notes”) convertible into the Company’s Common Shares (the “Common Shares”). Pursuant to the Securities Purchase Agreement, the Company also has entered into a Registration Rights Agreement with the Holders (the “Registration Rights Agreement”) pursuant to which the Company agreed, among other things, to register the Registrable Securities (as defined in the Registration Rights Agreement), including the Common Shares issuable upon conversion of the Notes under the Securities Act of 1933, as amended (the “1933 Act”). In connection with the Company’s obligations under the Registration Rights Agreement, on ____________ ___, 20__, the Company filed a Registration Statement on Form [S-1][S-3] (File No. 333-_____________) (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) relating to the Registrable Securities which names each of the Holders as a selling stockholder thereunder.

In connection with the foregoing, [we][I] advise you that [a member of the SEC’s staff has advised [us][me] by telephone that [the SEC has entered an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS]] [an order declaring the Registration Statement effective under the 1933 Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS]] has been posted on the web site of the SEC at www.sec.gov] and [we][I] have no knowledge, after a review of information posted on the website of the SEC at http://www.sec.gov/litigation/stoporders.shtml, that any stop order suspending its effectiveness has been issued or that any proceedings for that purpose are pending before, or threatened by, the SEC and the Registrable Securities are available for resale under the 1933 Act pursuant to the Registration Statement.

This letter shall serve as our standing opinion to you that the Common Shares underlying the Notes are freely transferable by the Holders pursuant to the Registration Statement. You need not require further letters from us to effect any future legend-free issuance or reissuance of such Common Shares to the Holders as contemplated by the Company’s Irrevocable Transfer Agent Instructions dated _________ __, 20__.

	Very truly yours,

	[ISSUER’S COUNSEL]

	By:

EXHIBIT B

SELLING STOCKHOLDERS

The Common Shares being offered by the selling stockholders are those issuable to the selling stockholders upon conversion of the notes. For additional information regarding the issuance of the notes, see “Private Placement of Notes” above. We are registering the Common Shares in order to permit the selling stockholders to offer the shares for resale from time to time. Except for the ownership of the notes issued pursuant to the Securities Purchase Agreement, the selling stockholders have not had any material relationship with us within the past three years.

The table below lists the selling stockholders and other information regarding the beneficial ownership (as determined under Section 13(d) of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder) of the Common Shares held by each of the selling stockholders. The second column lists the number of Common Shares beneficially owned by the selling stockholders, based on their respective ownership of Common Shares and notes, as of ________, 20__, assuming conversion of the notes held by each such selling stockholder on that date but taking account of any limitations on conversion set forth therein.

The third column lists the Common Shares being offered by this prospectus by the selling stockholders and does not take in account any limitations on conversion of the notes set forth therein.

In accordance with the terms of a registration rights agreement with the holders of the notes, this prospectus generally covers the resale of 300% of the maximum number of Common Shares issued or issuable pursuant to the Notes, including payment of interest on the notes through [DATE], determined as if the outstanding notes (including interest on the notes through [DATE]) were converted in full (without regard to any limitations on conversion contained therein solely for the purpose of such calculation) at an alternate conversion price calculated as of the trading day immediately preceding the date this registration statement was initially filed with the SEC. Because the conversion price and alternate conversion price of the notes may be adjusted, the number of shares that will actually be issued may be more or less than the number of shares being offered by this prospectus. The fourth column assumes the sale of all of the shares offered by the selling stockholders pursuant to this prospectus.

Under the terms of the notes, a selling stockholder may not convert the notes to the extent (but only to the extent) such selling stockholder or any of its affiliates would beneficially own a number of shares of our Common Shares which would exceed 4.9% of the outstanding shares of the Company. The number of shares in the second column reflects these limitations. The selling stockholders may sell all, some or none of their shares in this offering. See “Plan of Distribution.”

Name of Selling Stockholder	Number of Common Shares Owned Prior to Offering	Maximum Number of Common Shares to be Sold Pursuant to this Prospectus	Number of Common Shares of Owned After Offering

PLAN OF DISTRIBUTION

We are registering the Common Shares issuable upon conversion of the notes to permit the resale of these Common Shares by the holders of the notes from time to time after the date of this prospectus. We will not receive any of the proceeds from the sale by the selling stockholders of the Common Shares. We will bear all fees and expenses incident to our obligation to register the Common Shares.

The selling stockholders may sell all or a portion of the Common Shares held by them and offered hereby from time to time directly or through one or more underwriters, broker-dealers or agents. If the Common Shares are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent’s commissions. The Common Shares may be sold in one or more transactions at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale or at negotiated prices. These sales may be effected in transactions, which may involve crosses or block transactions, pursuant to one or more of the following methods:

●

on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;

●

in the over-the-counter market;

●

in transactions otherwise than on these exchanges or systems or in the over-the-counter market;

●

through the writing or settlement of options, whether such options are listed on an options exchange or otherwise;

●

ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;

●

block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;

●

purchases by a broker-dealer as principal and resale by the broker-dealer for its account;

●

distributions to such selling stockholder’s limited partners or members;

●

an exchange distribution in accordance with the rules of the applicable exchange;

●

in “at-the-market” offerings, as defined in Rule 415 under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), at negotiated prices, at prices prevailing at the time of sale or at prices related to such prevailing market prices, including sales made directly on a national securities exchange or sale made through a market maker other than on an exchange or other similar offerings through sales agents;

●

privately negotiated transactions;

●

short sales made after the date the Registration Statement is declared effective by the SEC;

●

broker-dealers may agree with a selling security holder to sell a specified number of such shares at a stipulated price per share;

●

a combination of any of the above methods of sale; and

●

any other method permitted pursuant to applicable law.

The selling stockholders may also sell Common Shares under Rule 144 promulgated under the Securities Act, if available, rather than under this prospectus. In addition, the selling stockholders may transfer the Common Shares by other means not described in this prospectus. If the selling stockholders effect such transactions by selling Common Shares to or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may receive commissions in the form of discounts, concessions or commissions from the selling stockholders or commissions from purchasers of the Common Shares for whom they may act as agent or to whom they may sell as principal (which discounts, concessions or commissions as to particular underwriters, broker-dealers or agents may be in excess of those customary in the types of transactions involved). In connection with sales of the Common Shares or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the Common Shares in the course of hedging in positions they assume. The selling stockholders may also sell Common Shares short and deliver Common Shares covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge Common Shares to broker-dealers that in turn may sell such shares.

The selling stockholders may pledge or grant a security interest in some or all of the notes or Common Shares owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the Common Shares from time to time pursuant to this prospectus or any amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the Common Shares in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.

To the extent required by the Securities Act and the rules and regulations thereunder, the selling stockholders and any broker-dealer participating in the distribution of the Common Shares may be deemed to be “underwriters” within the meaning of the Securities Act, and any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be deemed to be underwriting commissions or discounts under the Securities Act. At the time a particular offering of the Common Shares is made, a prospectus supplement, if required, will be distributed, which will set forth the aggregate amount of Common Shares being offered and the terms of the offering, including the name or names of any broker-dealers or agents, any discounts, commissions and other terms constituting compensation from the selling stockholders and any discounts, commissions or concessions allowed or re-allowed or paid to broker-dealers.

Under the securities laws of some states, the Common Shares may be sold in such states only through registered or licensed brokers or dealers. In addition, in some states the Common Shares may not be sold unless such shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available and is complied with.

There can be no assurance that any selling stockholder will sell any or all of the Common Shares registered pursuant to the registration statement, of which this prospectus forms a part.

The selling stockholders and any other person participating in such distribution will be subject to applicable provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder, including, without limitation, to the extent applicable, Regulation M of the Exchange Act, which may limit the timing of purchases and sales of any of the Common Shares by the selling stockholders and any other participating person. To the extent applicable, Regulation M may also restrict the ability of any person engaged in the distribution of the Common Shares to engage in market-making activities with respect to the Common Shares. All of the foregoing may affect the marketability of the Common Shares and the ability of any person or entity to engage in market-making activities with respect to the Common Shares.

We will pay all expenses of the registration of the Common Shares pursuant to the registration rights agreement, estimated to be $[ ] in total, including, without limitation, Securities and Exchange Commission filing fees and expenses of compliance with state securities or “blue sky” laws; provided, however, a selling stockholder will pay all underwriting discounts and selling commissions, if any. We will indemnify the selling stockholders against liabilities, including some liabilities under the Securities Act in accordance with the registration rights agreements or the selling stockholders will be entitled to contribution. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act that may arise from any written information furnished to us by the selling stockholder specifically for use in this prospectus, in accordance with the related registration rights agreements or we may be entitled to contribution.

Once sold under the registration statement, of which this prospectus forms a part, the Common Shares will be freely tradable in the hands of persons other than our affiliates.

Exhibit 10.6

NEITHER THIS CONVERTIBLE PROMISSORY NOTE NOR THE SHARES OF COMMON STOCK INTO WHICH THIS NOTE ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.

CONVERTIBLE PROMISSORY NOTE

February 9, 2024

$4,150,000.00

Tampa, FL

No. LTCN-1

FOR VALUE RECEIVED, AtlasClear Holdings, Inc., a Delaware corporation (the “Issuer” and collectively with any affiliates or parties that are joined hereto, the “Issuers”), hereby jointly and severally, and unconditionally, promise to pay to Chardan Capital Markets, LLC (“Holder”) at the office of the Holder at 17 State Street, 21^st Floor, New York, NY 10004, or at such other place as Holder may from time to time designate in writing to Issuer, in lawful money of the United States of America and in immediately available funds or securities (according with the terms herein), the principal sum of Four Million One Hundred Fifty Thousand Dollars ($4,150,000.00).

Subject to the provisions of Section 3 hereof relating to the conversion of this Note, the entire principal sum hereof shall be due and payable on February 9, 2028 (the “Maturity Date”). Additionally, accrued and unpaid interest shall be due and payable upon any of the following: (i) the payment of the entire principal sum hereof in cash; or (ii) conversion of this Note pursuant to the provisions of Section 3 hereof as to that portion of the principal amount so converted.

Section 1. Definitions.

“Beneficial Ownership Limitation” shall have the meaning set forth in Section 3(d).

“Buy-In” shall have the meaning set forth in Section 3(c)(v).

“Conversion” shall have the meaning ascribed to such term in Section 3(a).

“Conversion Date” shall have the meaning set forth in Section 3(a).

“Conversion Price” shall have the meaning set forth in Section 3(b).

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

“Dilutive Issuance” shall have the meaning set forth in Section 4(b).

“Dilutive Issuance Notice” shall have the meaning set forth in Section 4(b).

“Equity Conditions” means, each of the days during the period in question, (a) the Issuer shall have duly honored all conversions and redemptions scheduled to occur or occurring by virtue of one or more Notices of Conversion of the Holder, if any, (b) the Issuer shall have paid all liquidated damages and other amounts owing to the Holder in respect of this Note, (c)(i) there is an effective Registration Statement pursuant to which the Holder is permitted to utilize the prospectus thereunder to resell all of the shares of Common Stock issuable pursuant to the Transaction Documents (and the Issuer believes, in good faith, that such effectiveness will continue uninterrupted for the foreseeable future) or (ii) all of the Conversion Shares issuable pursuant to the Transaction Documents (and shares issuable in lieu of cash payments of interest) may be resold pursuant to Rule 144 without volume or manner-of-sale restrictions or current public information requirements as determined by counsel to the Issuer, (d) the Common Stock is trading on a Trading Market and all of the shares issuable pursuant to the Transaction Documents are listed or quoted for trading on such Trading Market (and the Issuer believes, in good faith, that trading of the Common Stock on a Trading Market will continue uninterrupted for the next five (5) Trading Days), (e) there is a sufficient number of authorized but unissued and otherwise unreserved shares of Common Stock for the issuance of all of the shares then issuable pursuant to the Transaction Documents, (f) the issuance of the shares in question to the Holder would not violate the limitations set forth in Section 3(d) and Section 3(e) herein, (g) there has been no public announcement of a pending or proposed Fundamental Transaction or Change of Control Transaction that has not been consummated, (h) the Holder is not in possession of any information provided by the Issuer, any of its Subsidiaries, or any of their officers, directors, employees, agents or Affiliates, that constitutes, or may constitute, material non-public information, (i) there shall not have occurred any Volume Failure as of such applicable date of determination and (j) there shall not have occurred any Event of Default, unless the Holder consents thereto.

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

“Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Issuer pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Issuer, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement (including, for the avoidance of doubt, upon the conversion of that certain Secured Convertible Promissory Note of even date herewith issued by the Issuer to Funicular Funds, LP); provided that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Issuer; provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating Issuer or an owner of an asset and shall provide to the Issuer additional benefits in addition to the investment of funds, but shall not include a transaction in which the Issuer is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) any shares of Common Stock or securities exercisable or exchangeable for or convertible into shares of Common Stock in an aggregate amount not to exceed $10,000,000 (excluding any convertible notes, including this Note (the “Notes”) or the Warrants issued under the Purchase Agreement) after the date of the Purchase Agreement; provided that, with respect to this clause (d), the issuance, conversion or exercise (as applicable) price per share at the time of issuance of such Common Stock or security (as applicable) is greater than $1.00 per share of Common Stock (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions occurring after the date hereof), and (e) the issuance of the Notes and Warrants under the Purchase Agreement and the shares of Common Stock underlying such Notes and Warrants.

“Fundamental Transaction” shall have the meaning set forth in Section 4(d).

“Interest Conversion Rate” means 85% of the VWAP for the Trading Day that is immediately prior to the date on which interest is paid in shares of Common Stock.

“Interest Conversion Shares” shall have the meaning set forth in Section 2(a).

“Interest Notice Period” shall have the meaning set forth in Section 2(a).

“Interest Payment Date” shall have the meaning set forth in Section 2(a).

“Interest Share Amount” shall have the meaning set forth in Section 2(a).

“Issuable Maximum” shall have the meaning set forth in Section 3(e).

“Make-Whole Amount” shall have the meaning set forth in Section 3(c)(i).

“Note Register” shall have the meaning set forth in Section 2(c).

“Notice of Conversion” shall have the meaning set forth in Section 3(a).

“Person” or “person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or other agency or political subdivision thereof.

“Registration Statement” means a registration statement covering the resale of the Underlying Shares by each Holder.

“Share Delivery Date” shall have the meaning set forth in Section 3(c)(ii).

“Trading Day” means any day on which the Common Stock is traded for any period on the principal securities exchange or other securities market or over-the-counter bulletin board on which the Common Stock is then being traded.

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

“Volume Failure” means, with respect to a particular date of determination, the average dollar trading volume (as reported on Bloomberg, LP) of the Common Stock on the principal Trading Market of the Common Stock during the seven (7) Trading Day period ending on the Trading Day immediately preceding such date of determination, is less than $1,500,000 (as adjusted for any stock splits, stock dividends, stock combinations, recapitalizations or other similar transactions occurring after the date hereof).

“VWAP” means, for any Trading Day, the per share volume-weighted average price of the Common Stock as reported by Bloomberg through its “VAP” function in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day determined using a volume weighted average method by a nationally recognized independent investment banking firm retained for this purpose by Company), determined without regard to after-hours trading or any other trading outside of the regular trading session.

Section 2. Interest.

(a)

The Issuer shall pay interest to the Holder on the aggregate unconverted and then outstanding principal amount of this Note (including any Make-Whole Amount payable upon conversion of this Note) at the rate of 13% per annum, payable quarterly on January 1, April 1, July 1 and October 1, beginning on the first such date after the Closing Date, on each Conversion Date, and on the Maturity Date (each such date, an “Interest Payment Date”) (if any Interest Payment Date is not a Business Day, then the applicable payment shall be due on the next succeeding Business Day), in cash or, at the Issuer’s option, in duly authorized, validly issued, fully paid and non-assessable shares of Common Stock (the “Interest Conversion Shares”) at the Interest Conversion Rate (the dollar amount to be paid in shares, the “Interest Share Amount”) or a combination thereof; provided, however, that payment in shares of Common Stock may only occur if (i) all of the Equity Conditions have been met (unless waived by the Holder in writing) on the applicable Interest Payment Date (the “Interest Notice Period”) and through and including the date such shares of Common Stock are actually issued to the Holder and subject to Section 3(d), and (ii) the Issuer shall have given the Holder notice in accordance with the notice requirements set forth below.

(b)

Subject to the terms and conditions herein, the decision whether to pay interest hereunder in cash, shares of Common Stock or a combination thereof shall be at the sole discretion of the Issuer. Prior to the commencement of any Interest Notice Period, the Issuer shall deliver to the Holder a written notice of its election to pay interest hereunder on the applicable Interest Payment Date either in cash, shares of Common Stock or a combination thereof. During any Interest Notice Period, the Issuer’s election (whether specific to an Interest Payment Date or continuous) shall be irrevocable as to such Interest Payment Date. Subject to the aforementioned conditions, failure to timely deliver such written notice to the Holder shall be deemed an election by the Issuer to pay the interest on such Interest Payment Date in cash.

(c)

Interest shall be calculated on the basis of a 360-day year, consisting of twelve 30 calendar day periods, and shall accrue daily commencing on the Closing Date until payment in full of the outstanding principal, together with all accrued and unpaid interest, liquidated damages and other amounts which may become due hereunder, has been made. Payment of interest in shares of Common Stock (other than the Interest Conversion Shares issued prior to an Interest Notice Period) shall otherwise occur pursuant to Section 3 herein and, solely for purposes of the payment of interest in shares, the Interest Payment Date shall be deemed the Conversion Date. Interest shall cease to accrue with respect to any principal amount converted; provided that, the Issuer actually delivers the Conversion Shares within the time period required by Section 3(c) herein. Interest hereunder will be paid to the Person in whose name this Note is registered on the records of the Issuer regarding registration and transfers of this Note (the “Note Register”).

(d)

All overdue accrued and unpaid interest to be paid hereunder shall entail a late fee at an interest rate equal to the lesser of 20% per annum or the maximum rate permitted by applicable law (the “Late Fees”), which shall accrue daily from the date such interest is due hereunder through and including the date of actual payment in full. Notwithstanding anything to the contrary contained herein, if, on any Interest Payment Date the Issuer has elected to pay accrued interest in the form of Common Stock but the Issuer is not permitted to pay accrued interest in Common Stock because it fails to satisfy the conditions for payment in Common Stock set forth in Section 2(a) herein, then, at the option of the Holder, the Issuer, in lieu of delivering either shares of Common Stock pursuant to this Section 2 or paying the regularly scheduled interest payment in cash, shall deliver, within three (3) Trading Days of each applicable Interest Payment Date, an amount in cash equal to the product of (x) the number of shares of Common Stock otherwise deliverable to the Holder in connection with the payment of interest due on such Interest Payment Date multiplied by (y) the highest VWAP during the period commencing on the Interest Payment Date and ending on the Trading Day prior to the date such payment is actually made.

Section 3. Conversion.

(a)

Voluntary Conversion. At any time after the date that hereof until this Note is no longer outstanding, this Note shall be convertible, in whole or in part, into shares of Common Stock at the option of the Holder, at any time and from time to time (subject to the conversion limitations set forth in Section 3(d) and Section 3(e) hereof) (each a “Conversion”). The Holder shall effect conversions by delivering to the Issuer a Notice of Conversion, the form of which is attached hereto as Annex A (each, a “Notice of Conversion”), specifying therein the principal amount of this Note to be converted, the Make-Whole Amount and the date on which such conversion shall be effected (such date, the “Conversion Date”). If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the date that such Notice of Conversion is deemed delivered hereunder. No ink-original Notice of Conversion shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Conversion form be required. To effect conversions hereunder, the Holder shall not be required to physically surrender this Note to the Issuer unless the entire principal amount of this Note, plus all accrued and unpaid interest thereon, has been so converted in which case the Holder shall surrender this Note as promptly as is reasonably practicable after such conversion without delaying the Issuer’s obligation to deliver the shares on the Share Delivery Date. Conversions hereunder shall have the effect of lowering the outstanding principal amount of this Note in an amount equal to the applicable conversion. The Holder and the Issuer shall maintain records showing the principal amount(s) converted and the date of such conversion(s). The Issuer may deliver an objection to any Notice of Conversion within one (1) Business Day of delivery of such Notice of Conversion. The Holder, and any assignee by acceptance of this Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of a portion of this Note, the unpaid and unconverted principal amount of this Note may be less than the amount stated on the face hereof.

(b)

Conversion Price Calculation. The conversion price in effect on any Conversion Date (including for any accrued and unpaid interest) shall be an amount equal to 90% of the VWAP of the Common Stock for the Trading Day immediately preceding the applicable Conversion Date, subject to adjustment as set forth herein, including for the Make-Whole-Amount as set forth in Section 3(c) (the “Conversion Price”).

(c)

Mechanics of Conversion.

Conversion Shares Issuable Upon Conversion of Principal Amount. The number of Conversion Shares issuable upon a conversion hereunder shall be determined by the quotient obtained by dividing the outstanding principal amount of this Note to be converted by the Conversion Price. Additionally, on each Conversion Date, the Issuer shall pay to the Holder, in cash, the sum of (A) all accrued interest on this Note to date plus (B) all interest that would otherwise accrue on the amount of the Note being converted if such converted amount would be held to three years after the date of conversion (the amount in clause (B), the “Make-Whole Amount”); provided, however, at the election of the Issuer, such interest and Make-Whole Amount may be paid in a combination of cash and Common Stock, otherwise pursuant to the terms of Section 2.

ii.

Delivery of Conversion Shares Upon Conversion. Not later than two (2) Trading Days after each Conversion Date (the “Share Delivery Date”), the Issuer shall deliver, or cause to be delivered, to the Holder (A) the Conversion Shares which, on or after the earlier of (i) the three-month anniversary of the Closing Date to the extent permitted under the Securities Act, including pursuant to an effective registration statement or (ii) the date hereof, shall be free of restrictive legends and trading restrictions (other than those which may then be required by applicable securities laws) representing the number of Conversion Shares being acquired upon the conversion of this Note and (B) a bank check in the amount of accrued and unpaid interest (if the Issuer has elected or is required to pay accrued interest in cash). On or after the earlier of (i) the three-month anniversary of the Closing Date to the extent permitted under the Securities Act or (ii) the Effective Date, the Issuer shall deliver any Conversion Shares required to be delivered by the Issuer under this Section 3 electronically through the Depository Trust Company or another established clearing corporation performing similar functions.

iii.

Rescission Rights on Failure to Deliver Conversion Shares. If, in the case of any Notice of Conversion, such Conversion Shares are not delivered to or as directed by the Holder by the 3^rd Trading Day following the Share Delivery Date, the Holder shall be entitled to elect by written notice to the Issuer at any time on or before its receipt of such Conversion Shares, to rescind such Conversion, in which event the Issuer shall promptly return to the Holder any original Note delivered to the Issuer and the Holder shall promptly return to the Issuer any Conversion Shares issued to such Holder pursuant to the rescinded Conversion Notice.

iv.

Obligation Absolute; Partial Liquidated Damages. The Issuer’s obligations to issue and deliver the Conversion Shares upon conversion of this Note in accordance with the terms hereof are absolute and unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver or consent with respect to any provision hereof, the recovery of any judgment against any Person or any action to enforce the same, or any setoff, counterclaim, recoupment, limitation or termination, or any breach or alleged breach by the Holder or any other Person of any obligation to the Issuer other than the terms hereof, and irrespective of any other circumstance (other than a violation of law) which might otherwise limit such obligation of the Issuer to the Holder in connection with the issuance of such Conversion Shares; provided, however, that such delivery shall not operate as a waiver by the Issuer of any such action the Issuer may have against the Holder. In the event the Holder of this Note shall elect to convert any or all of the outstanding principal amount hereof in accordance with the terms hereof, the Issuer may not refuse conversion based on any claim that the Holder or anyone associated or affiliated with the Holder has been engaged in any violation of any other agreement or for any other reason (other than a violation of law), unless an injunction from a court, on notice to Holder, restraining and or enjoining conversion of all or part of this Note shall have been sought and obtained. In the absence of such injunction, the Issuer shall issue Conversion Shares or, if applicable, cash, upon a properly noticed conversion. If the Issuer fails for any reason to deliver to the Holder such Conversion Shares pursuant to Section 3(c)(ii) by the 3^rd Trading Day following the Share Delivery Date, the Issuer shall pay to the Holder, in cash, as liquidated damages and not as a penalty, for each $1,000 of principal amount being converted, $50 per Trading Day for each Trading Day after such 3^rdTrading Day following the Share Delivery Date until such Conversion Shares are delivered or Holder rescinds such conversion; provided, for the avoidance of doubt, that nothing under this Section 3(c)(iv) shall supersede or be in place of the compensation provided for Buy-In as set forth in Section 3(c)(v).

Compensation for Buy-In on Failure to Timely Deliver Conversion Shares Upon Conversion. In addition to any other rights available to the Holder, if the Issuer fails for any reason to deliver to the Holder such Conversion Shares by the 3^rd Trading Day following the Share Delivery Date pursuant to Section 3(c)(ii), and if after such 3^rd Trading Day following the Share Delivery Date the Holder is required by its brokerage firm to purchase (in an open market transaction or otherwise), or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction of a sale by the Holder of the Conversion Shares which the Holder was entitled to receive upon the conversion relating to such 3^rd Trading Day following the Share Delivery Date (a “Buy-In”), then the Issuer shall (A) pay in cash to the Holder (in addition to any other remedies available to or elected by the Holder) the amount, if any, by which (x) the Holder’s total purchase price (including any brokerage commissions) for the Common Stock so purchased exceeds (y) the product of (1) the aggregate number of shares of Common Stock that the Holder was entitled to receive from the conversion at issue multiplied by (2) the actual sale price at which the sell order giving rise to such purchase obligation was executed and (B) at the option of the Holder, either reissue (if surrendered) this Note in a principal amount equal to the principal amount of the attempted conversion (in which case such conversion shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have been issued if the Issuer had timely complied with its delivery requirements under Section 4(c)(ii). For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted conversion of this Note with respect to which the actual sale price of the Conversion Shares (including any brokerage commissions) giving rise to such purchase obligation was a total of $10,000 under clause (A) of the immediately preceding sentence, the Issuer shall be required to pay the Holder $1,000. The Holder shall provide the Issuer written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Issuer, evidence of the amount of such loss.

vi.

Reservation of Shares Issuable Upon Conversion. The Issuer covenants that it will at all times (after receipt of necessary shareholder approval) reserve and keep available out of its authorized and unissued shares of Common Stock for the sole purpose of issuance upon conversion of this Note and payment of interest on this Note, each as herein provided, free from preemptive rights or any other actual contingent purchase rights of Persons other than the Holder, not less than such aggregate number of shares of the Common Stock as shall (subject to the terms and conditions set forth in the Purchase Agreement) be issuable (taking into account the adjustments and restrictions of Sections 3(d) and (e)) upon the conversion of the then outstanding principal amount of this Note and payment of interest hereunder. The Issuer covenants that all shares of Common Stock that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable and, if the Registration Statement is then effective under the Securities Act, shall be registered for public resale in accordance with such Registration Statement.

vii.

Fractional Shares. No fractional shares or scrip representing fractional shares shall be issued upon the conversion of this Note. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such conversion, the Issuer shall at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Conversion Price or round up to the next whole share.

viii.

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

(d)

Holder’s Conversion Limitations. The Issuer shall not effect any conversion of this Note (including any payment of interest thereon), and a Holder shall not have the right to convert any portion of this Note, to the extent that after giving effect to the conversion set forth on the applicable Notice of Conversion, the Holder (together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution Parties”)) would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of this Note with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) conversion of the remaining, unconverted principal amount of this Note beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Issuer subject to a limitation on conversion or exercise analogous to the limitation contained herein (including, without limitation, any other Notes or the Warrants) beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 3(d), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. To the extent that the limitation contained in this Section 3(d) applies, the determination of whether this Note is convertible (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which principal amount of this Note is convertible shall be in the reasonable discretion of the Holder, and the submission of a Notice of Conversion shall be deemed to be the Holder’s determination of whether this Note may be converted (in relation to other securities owned by the Holder together with any Affiliates or Attribution Parties) and which principal amount of this Note is convertible, in each case subject to the Beneficial Ownership Limitation, and the Issuer shall have no obligation to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 3(d), in determining the number of outstanding shares of Common Stock, the Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Issuer’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Issuer, or (C) a more recent written notice by the Issuer or the Issuer’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Issuer shall within two (2) Trading Days confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Issuer, including this Note, by the Holder or its Affiliates since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock issuable upon conversion of this Note. The Holder, upon notice to the Issuer, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 3(d); provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note held by the Holder and the Beneficial Ownership Limitation provisions of this Section 3(d) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered to the Issuer. The Beneficial Ownership Limitation provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 3(d) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation contained herein or to make changes or supplements necessary or desirable to properly give effect to such limitation. The preceding limitations contained in this paragraph shall apply to a successor holder of this Note. Holder shall not vote or control the vote of shares of Common Stock of the Issuer in excess of 9.99% of the number of shares of Common Stock of the Issuer outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of this Note (the “Vote Threshold”); provided that Issuer acknowledges and agrees that Holder may own in excess of the Vote Threshold; provided that Holder has irrevocably transferred to a non-affiliated U.S. entity voting rights of all shares of Common Stock of Issuer in excess of such Vote Threshold.

(e)

Issuance Limitations. Notwithstanding anything herein to the contrary, if the Issuer has not obtained the necessary shareholder approval or any other viable exception pursuant to Sections 312 and 314 and any other applicable rules regarding the issuance of securities pursuant to the New York Stock Exchange Listed Company Manual (the “Applicable Exchange Rules”) for the issuance of the Common Stock underlying the Notes and Warrants, then the Issuer may not issue, upon conversion of this Note, a number of shares of Common Stock which, when aggregated with any shares of Common Stock issued on or after the Closing Date and prior to such Conversion Date (i) in connection with the conversion of this Note issued pursuant to the Purchase Agreement, and (ii) in connection with the exercise of any Warrants issued pursuant to the Purchase Agreement, would exceed [_________]¹shares of Common Stock (subject to adjustment for forward and reverse stock splits, recapitalizations and the like) (such number of shares, the “Issuable Maximum”). However, for the avoidance of doubt, the Issuer shall, use it’s reasonable best efforts to obtain any such shareholder approval or obtain any other viable exception pursuant to the Applicable Exchange Rules. The Holder and the holders of any other Notes issued pursuant to the Purchase Agreement shall be entitled to a portion of the Issuable Maximum pro rata in accordance with such Notes issued to such holders pursuant to the Purchase Agreement; provided, however, the Holder may re-allocate its pro rata portion of the Issuable Maximum among Notes and Warrants held by it in its sole discretion; provided that such re-allocation will not change the aggregate portion of the Issuable Maximum within any category above. Such portion shall be adjusted upward ratably in the event a Purchaser no longer holds any Notes or Warrants issued after the date of the Purchase Agreement and the amount of shares issued to such Purchaser pursuant to such Notes and Warrants was less than such Purchaser’s pro rata share of the Issuable Maximum. The Issuer shall not issue to any Holder any portion of the Issuable Maximum other than in compliance with this Section 3(e).

¹ NTD: To be equal to 19.99% of the outstanding Common Stock as of the date hereof.

(f)

Transfer Restriction. Notwithstanding anything to the contrary in this Note, until the date that is thirty (30) calendar days after the date hereof, the shares of Common Stock issued upon conversion of this Note may not be directly or indirectly transferred, sold or otherwise disposed of without the prior written consent of the Issuer (which written consent shall not be unreasonably withheld).For the avoidance of doubt, nothing in this Section 3(f) shall restrict the ability of the Holder to pledge shares of Common Stock issued upon conversion of this Note.

Section 4. Certain Adjustments.

(a)

Stock Dividends and Stock Splits. If the Issuer, at any time while this Note is outstanding: (i) pays a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock on shares of Common Stock or any Common Stock Equivalents (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Issuer upon conversion of, or payment of interest on, the Note), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues, in the event of a reclassification of shares of the Common Stock, any shares of capital stock of the Issuer, then the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding any treasury shares of the Issuer) outstanding immediately before such event, and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event. Any adjustment made pursuant to this Section shall become effective immediately after the record date for the determination of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or re-classification.

(b)

Subsequent Equity Sales. If, at any time while this Note is outstanding, the Issuer or any Subsidiary, as applicable, sells or grants any option to purchase or sells or grants any right to reprice, or otherwise disposes of or issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or Common Stock Equivalents entitling any Person to acquire shares of Common Stock at an effective price per share that is lower than the then Conversion Price (such issuances, collectively, a “Dilutive Issuance” and such effective price, the “Base Price”)) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on such date of the Dilutive Issuance), then simultaneously with the consummation (or, if earlier, the announcement) of each Dilutive Issuance the Conversion Price shall be reduced to equal the Base Price. Notwithstanding the foregoing, no adjustment will be made under this Section 4(b) in respect of an Exempt Issuance or an adjustment under Section 4(a). The Issuer shall notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject to this Section 4(b), indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not the Issuer provides a Dilutive Issuance Notice pursuant to this Section 4(b), upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a number of Conversion Shares based upon the adjusted Conversion Price on or after the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the adjusted Conversion Price in the Notice of Conversion.

(c)

Voluntary Adjustment. Subject to the rules and regulations of the principal Trading Market of the Common Stock, the Issuer may at any time during the term of this Note, with the prior written consent of the Holder, reduce the then current Conversion Price of this Note to any amount and for any period of time deemed appropriate by the board of directors of the Issuer.

(d)

Fundamental Transaction. If, at any time while this Note is outstanding, (i) the Issuer, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Issuer with or into another Person, (ii) the Issuer (and all of its Subsidiaries, taken as a whole), directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Issuer or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of more than 50% of the outstanding Common Stock, (iv) the Issuer, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or (v) the Issuer, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase agreement or other business combination) (each a “Fundamental Transaction”), then, upon any subsequent conversion of this Note, the Holder shall have the right to receive, for each Conversion Share that would have been issuable upon such conversion immediately prior to the occurrence of such Fundamental Transaction (without regard to any limitation in Section 3(d) or Section 3(e) on the conversion of this Note), the consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Note is convertible immediately prior to such Fundamental Transaction (without regard to any limitation in Section 3(d) or Section 3(e) on the conversion of this Note). For purposes of any such conversion, the determination of the Conversion Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one (1) share of Common Stock in such Fundamental Transaction, and the Issuer shall apportion the Conversion Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives upon any conversion of this Note following such Fundamental Transaction.

(e)

Calculations. All calculations under this Section 4 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes of this Section 4, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of the number of shares of Common Stock (excluding any treasury shares of the Issuer) issued and outstanding.

(f)

Notice to the Holder.

Adjustment to Conversion Price. Whenever the Conversion Price is adjusted pursuant to any provision of this Section 4, the Issuer shall promptly deliver to each Holder a notice setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.

ii.

Notice to Allow Conversion by Holder. If (A) the Issuer shall declare a dividend (or any other distribution in whatever form) on the Common Stock, (B) the Issuer shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the Issuer shall authorize the granting to all holders of the Common Stock of rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Issuer shall be required in connection with any reclassification of the Common Stock, any consolidation or merger to which the Issuer(and all of its Subsidiaries, taken as a whole) is a party, any sale or transfer of all or substantially all of the assets of the Issuer, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property or (E) the Issuer shall authorize the voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Issuer, then, in each case, the Issuer shall cause to be filed at each office or agency maintained for the purpose of conversion of this Note, and shall cause to be delivered to the Holder at its last address as it shall appear upon the Note Register, at least fifteen (15) calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the Common Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. The Holder shall remain entitled to convert this Note during the 15-day period commencing on the date of such notice through the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.

6. Events of Default.

(a)

Definitions and Effect. In case one or more of the following “Events of Default” shall have occurred and be continuing:

(i)

default in the payment of any amount due under this Note, and continuance of such default for a period of five (5) days;

(ii)

default in the performance of any covenant or agreement contained in this Note (other than as set forth in clause (i) of this Section 5.1) or any other of the Issuers’ debt or equity instruments, and such default is not fully cured within seven (7) days after the Holder delivers written notice to the Company of the occurrence thereof;

(iii)

material breach of either the Convertible Promissory Note executed as of the date hereof by the Issuer in in favor of Chardan Capital Markets LLC or of the letter agreement also executed as of the date hereof by the Issuer, Quantum Fintech Acquisition Corporation, Chardan Capital Markets LLC and Chardan Quantum, LLC that is not fully cured within seven (7) days after the Holder delivers written notice to the Company of the occurrence thereof;

(iv)

the Company shall have admitted its inability to pay its debts as they mature, or upon a review of the Company’s financials a reasonable investor could conclude that the Company had an inability to pay its debts;

(v)

the Company shall have made an assignment for the benefit of creditors, or shall have been adjudicated bankrupt;

(vi)

a trustee or receiver of the Company, or of any substantial part of the assets of the Company, shall have been appointed and, if appointed in a proceeding brought against the Company, the Company by any action or failure to act shall have indicated its approval of, consent to or acquiescence in such appointment, or, within sixty (60) days after such appointment, such appointment shall not have been vacated, or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect;

(vii)

proceedings involving the Company shall have been commenced by or against the Company under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of the federal government, or any state government, and, if such proceedings shall have been instituted against the Company, or the Company by any action or failure to act shall have indicated its approval of, consent to, or acquiescence therein, or an order shall have been entered approving the petition in such proceedings, and within sixty (60) days after the entry thereof, such order shall not have been vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect; or

(viii)

a Fundamental Transaction shall have occurred and the terms of Section 4(d) were not met;

then and in each and every such case, the Holders of a majority in aggregate principal amount of this Note may declare the principal and accrued but unpaid interest of all the Notes to be due and payable immediately, by written notice to the Company, and upon any such declaration the same shall become and shall be immediately due and payable in cash, unless so the Holder alternatively gives consent to a receipt of Common Stock. At any time after such declaration of acceleration has been made, and before a judgment or decree for payment of money due has been obtained, the holders of a majority in aggregate principal amount of this Note may, by written notice to the Company, rescind and annul such declaration.

(b)

Waiver. At any time before the date of any declaration accelerating the maturity of this Note, the holders of a majority in aggregate principal amount of then-outstanding Notes may waive any Event of Default hereunder. Such waivers shall be evidenced by written notice or other document specifying the Event(s) of Default being waived and shall be binding on all existing or subsequent holders of outstanding Notes.

Presentment, demand, protest and notice of presentment, demand, nonpayment and protest are each hereby waived by each Issuer.

Notwithstanding anything to the contrary, at no time shall Holder (a) be given rights that would allow it to control Issuer; (b) have access to any material nonpublic technical information in the possession of Issuer; (c) have the right to appoint any member or observer to the board of directors of Issuer; or (d) be involved, other than through voting of shares, in the Issuer’s substantive decision-making regarding (i) the use, development, acquisition, safekeeping, or release of sensitive personal data of U.S. citizens that the Issuer maintains or collects; (ii) the use, development, acquisition, or release of critical technologies; or (iii) the management, operation, manufacture, or supply of covered investment critical infrastructure, to the extent Issuer at any time owns, operates, provides goods or service, or otherwise becomes involved in covered investment critical infrastructure. The terms in this paragraph are defined as they are defined in Section 721 of the U.S. Defense Production Act of 1950, as amended, and the regulations at 31 C.F.R Part 800, as they may be amended from time to time.

THIS NOTE SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES. Whenever possible each provision of this Note shall be interpreted in such manner as to be effective and valid under applicable law, but in case any provision of or obligation under this Note shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. Whenever in this Note reference is made to Holder or an Issuer, such reference shall be deemed to include, as applicable, a reference to their respective successors and assigns. The provisions of this Note shall be binding upon each Issuer and its successors and assigns, and shall inure to the benefit of Holder and its successors and assigns.

In addition to and without limitation of any of the foregoing, this Note shall be deemed to be a Transaction Document and shall otherwise be subject to all of general terms and conditions contained in the Purchase Agreement, mutatis mutandis.

[signature page follows]

IN WITNESS WHEREOF, the undersigned have executed this Note the day and year first written above written intending to be legally bound hereby.

	ISSUER:

	ATLASCLEAR HOLDINGS, INC.

	/s/ Craig Ridenhour
	Name: Craig Ridenhour
	Title: CBDO

[Signature Page to Convertible Senior Promissory Note]

ANNEX A

NOTICE OF CONVERSION

The undersigned hereby elects to convert principal under the Convertible Senior Promissory Note due 2028 of AtlasClear Holdings, Inc., a Delaware corporation (the “Issuer”) (or any successor corporation resulting from any merger or consolidation or reorganization), into shares of common stock (the “Common Stock”), of the Issuer according to the conditions hereof, as of the date written below. If shares of Common Stock are to be issued in the name of a person other than the undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is delivering herewith such certificates and opinions as reasonably requested by the Issuer in accordance therewith. No fee will be charged to the holder for any conversion, except for such transfer taxes, if any.

By the delivery of this Notice of Conversion the undersigned represents and warrants to the Issuer that its ownership of the Common Stock does not exceed the amounts specified under Section 4 of this Note, as determined in accordance with Section 13(d) of the Exchange Act.

The undersigned agrees to comply with the prospectus delivery requirements under the applicable securities laws in connection with any transfer of the aforesaid shares of Common Stock.

Conversion calculations:

	Date to Effect Conversion:

	Principal Amount of Note to be Converted:

	Payment of Interest in Common Stock ¨ yes ¨ no

	If yes, $_____ of Interest Accrued on Account of Conversion at Issue.

	Number of shares of Common Stock to be issued:

	Signature:

	Name:

	Address for Delivery of Common Stock Certificates:

	Or

	DWAC Instructions:

	Broker No:

	Account No:

Annex A

- 13 -

Exhibit 10.7

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”) is made and entered into and effective as of February 9, 2024 by and among AtlasClear Holdings, Inc. (f/k/a Calculator New Pubco, Inc.), a Delaware corporation (the “Company”), and Chardan Capital Markets, LLC (the “Holder”). Any capitalized term used but not defined herein will have the meaning ascribed to such term in the Note (as defined below).

RECITALS

WHEREAS, the Company is party to that certain Convertible Promissory Note, dated as of the date hereof (the “Note”) and payable to the Holder;

WHEREAS, the Note gives the Holder the right to convert the Note into shares of the Company’s Common Stock at a conversion ratio and on terms as set forth therein; and

WHEREAS, in connection with the Note, the Company and the Holder desire to enter into this Agreement, pursuant to which the Company shall grant the Holder certain registration rights with respect to certain securities of the Company, as set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. For purposes of this Agreement, the following terms and variations thereof have the meanings set forth below:

“Adverse Disclosure” shall mean any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Chief Executive Officer or Chief Financial Officer of the Company, after consultation with outside counsel to the Company, (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose for not making such information public.

“Agreement” shall have the meaning given in the Preamble.

“Board” shall mean the Board of Directors of the Company.

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

“Change in Control” means the transfer (whether by tender offer, merger, stock purchase, consolidation or other similar transaction), in one transaction or a series of related transactions, to a person or group of affiliated persons of the Company’s voting securities if, after such transfer, such person or group of affiliated persons would hold more than 50% of outstanding voting securities of the Company (or surviving entity) or would otherwise have the power to control the Board or to direct the operations of the Company.

“Commission” shall mean the Securities and Exchange Commission.

“Common Stock” shall mean the Company’s common stock, par value $0.0001 per share.

“Company” shall have the meaning given in the Preamble.

“Company Shelf Takedown Notice” shall have the meaning given in subsection 2.1.4.

“Demand Registration” shall have the meaning given in subsection 2.2.1.

“Demand Requesting Holder” shall have the meaning given in subsection 2.2.1.

“Effectiveness Deadline” shall have the meaning given in subsection 2.1.1.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as it may be amended from time to time.

“Form S-1” means a Registration Statement on Form S-1.

“Form S-3” means a Registration Statement on Form S-3.

“Holder” shall have the meaning given in the Preamble.

“Maximum Number of Securities” shall have the meaning given in subsection 2.2.4.

“Minimum Amount” shall have the meaning given in subsection 2.1.4.

“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus in the light of the circumstances under which they were made not misleading.

“New Registration Statement” shall have the meaning given in subsection 2.1.5.

“Note” shall have the meaning given in the Recitals hereto.

“Piggyback Registration” shall have the meaning given in subsection 2.3.1.

“Pro Rata” shall have the meaning given in subsection 2.2.4.

“Prospectus” shall mean the prospectus included in any Registration Statement, as supplemented by any and all prospectus supplements and as amended by any and all post-effective amendments and including all material incorporated by reference in such prospectus.

“Registrable Security” or “Registrable Securities” shall mean any outstanding share of Common Stock or any other equity security (including the shares of Common Stock issued or issuable upon the exercise of any other equity security or the conversion of the Note) of the Company held by a Holder as of the date hereof, and any other equity security of the Company issued or issuable with respect to any such security described above by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or reorganization; provided, however, that, as to any particular Registrable Security, such securities shall cease to be Registrable Securities when: (A) a Registration Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (B) such securities shall have been otherwise transferred, new certificates for such securities not bearing a legend restricting further transfer shall have been delivered by the Company and subsequent public distribution of such securities shall not require registration under the Securities Act; (C) such securities shall have ceased to be outstanding; (D) such securities may be sold without registration pursuant to Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission) (but with no volume or other restrictions or limitations); or (E) such securities have been sold to, or through, a broker, dealer or underwriter in a public distribution or other public securities transaction.

“Registration” shall mean a registration effected by preparing and filing a Registration Statement in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder, and such Registration Statement becoming effective.

“Registration Expenses” shall mean the out-of-pocket expenses of a Registration, including, without limitation, the following:

(A) all registration and filing fees (including fees with respect to filings required to be made with the Financial Industry Regulatory Authority, Inc.) and any securities exchange on which the Common Stock is then listed;

(B) fees and expenses of compliance with securities or blue sky laws (including reasonable and documented fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of Registrable Securities);

(D) reasonable and documented fees and disbursements of counsel for the Company;

(E) reasonable and documented fees and disbursements of all independent registered public accountants of the Company incurred specifically in connection with such Registration; and

(F) reasonable and documented fees and expenses of one (1) legal counsel selected by (i) the majority-in-interest of the Demanding Holders initiating a Demand Registration to be registered for offer and sale in the applicable Registration, (ii) the majority-in-interest of the Demanding Holders initiating a Shelf Underwritten Offering, or (iii) the majority-in-interest of participating Holders under Section 2.1 if the Registration was initiated by the Company for its own account or that of a Company stockholder other than pursuant to rights under this Agreement, in each case to be registered for offer and sale in the applicable Registration.

“Registration Statement” shall mean any registration statement that covers the Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus included in such registration statement, amendments (including post-effective amendments) and supplements to such registration statement, and all exhibits to and all material incorporated by reference in such registration statement.

“Resale Shelf Registration Statement” shall have the meaning given in subsection 2.1.1.

“Securities Act” shall mean the Securities Act of 1933, as amended from time to time.

“SEC Guidance” shall have the meaning given in subsection 2.1.5.

“Shelf Takedown Notice” shall have the meaning given in subsection 2.1.4.

“Shelf Underwritten Offering” shall have the meaning given in subsection 2.1.4.

“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any interest owned by a person or any interest (including a beneficial interest) in, or the ownership, control or possession of, any interest owned by a person.

“Underwriter” shall mean a securities dealer who purchases any Registrable Securities as principal in an Underwritten Offering and not as part of such dealer’s market-making activities.

“Underwritten Registration” or “Underwritten Offering” shall mean a Registration in which securities of the Company are sold to an Underwriter in a firm commitment underwriting for distribution to the public.

ARTICLE II

REGISTRATION

Section 2.1 Resale Shelf Registration Rights

2.1.1 Registration Statement Covering Resale of Registrable Securities. The Company shall prepare and file or cause to be prepared and filed with the Commission, no later than forty-five (45) days following the date hereof (or such sooner date on which the Company files a registration statement for any outstanding securities of the Company), a Registration Statement to permit the public resale of all the Registrable Securities held by the Holder from time to time as permitted by Rule 415 of the Securities Act or any successor thereto on the terms and conditions specified in this subsection 2.1.1 (the “Resale Shelf Registration Statement”). The Resale Shelf Registration Statement shall be on Form S-1 (or such other form of registration statement as is then available to permit Registration of such Registrable Securities for resale). The Company shall use reasonable best efforts to cause the Resale Shelf Registration Statement to be declared effective as soon as possible after filing, but in no event later than thirty (30) days following the filing deadline specified in the first sentence of this subsection 2.1.1 (the “Effectiveness Deadline”); provided, that the Effectiveness Deadline shall be extended to ninety (90) days after the filing deadline specified in the first sentence of this subsection 2.1.1 (but in no event beyond one hundred twenty (120) days of the date hereof) if the Registration Statement is reviewed by, and receives comments from, the Commission. Once effective, the Company shall use reasonable best efforts to cause the Resale Shelf Registration Statement to remain effective and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, to ensure that another Registration Statement is available, under the Securities Act at all times until all Registrable Securities have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or have ceased to be Registrable Securities. The Registration Statement filed with the Commission pursuant to this subsection 2.1.1 shall contain a prospectus in such form as to permit any Holder to sell such Registrable Securities pursuant to Rule 415 under the Securities Act (or any successor or similar provision adopted by the Commission then in effect) at any time beginning on the effective date for such Registration Statement, and shall provide that such Registrable Securities may be sold pursuant to any method or combination of methods legally available to, and requested by, Holder. The Company shall use reasonable best efforts to convert the Resale Shelf Registration Statement on Form S-1 to a Resale Shelf Registration Statement on Form S-3 as promptly as practicable after the Company is eligible to use a Resale Shelf Registration Statement on Form S-3 and have the Resale Shelf Registration Statement on Form S-3 declared effective as promptly as practicable and to cause such Resale Shelf Registration Statement on Form S-3 to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Registration Statement is available or, if not available, to ensure that another Registration Statement is available, under the Securities Act at all times until all Registrable Securities have been disposed of in accordance with the intended method(s) of distribution set forth in such Registration Statement or have ceased to be Registrable Securities.

2.1.2 Notification and Distribution of Materials. The Company shall notify the Holder in writing of the effectiveness of the Resale Shelf Registration Statement as soon as practicable, and in any event within one (1) Business Day after the Resale Shelf Registration Statement becomes effective, and shall furnish to them, without charge, such number of copies of the Resale Shelf Registration Statement (including any amendments, supplements and exhibits), the Prospectus contained therein (including each preliminary prospectus and all related amendments and supplements) and any documents incorporated by reference in the Resale Shelf Registration Statement or such other documents as the Holder may reasonably request in order to facilitate the sale of the Registrable Securities in the manner described in the Resale Shelf Registration Statement.

2.1.3 Amendments and Supplements. Subject to the provisions of Section 2.1.1 above, the Company shall promptly prepare and file with the Commission from time to time such amendments and supplements to the Resale Shelf Registration Statement and Prospectus used in connection therewith as may be necessary to keep the Resale Shelf Registration Statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all the Registrable Securities. If any Resale Shelf Registration Statement filed pursuant to Section 2.1.1 is filed on Form S-3 and thereafter the Company becomes ineligible to use Form S-3 for secondary sales, the Company shall promptly notify the Holder of such ineligibility and use its reasonable best efforts to file a shelf registration on an appropriate form as promptly as practicable to replace the shelf registration statement on Form S-3 and have such replacement Resale Shelf Registration Statement declared effective as promptly as practicable and to cause such replacement Resale Shelf Registration Statement to remain effective, and to be supplemented and amended to the extent necessary to ensure that such Resale Shelf Registration Statement is available or, if not available, that another Resale Shelf Registration Statement is available, for the resale of all the Registrable Securities held by the Holder until all such Registrable Securities have ceased to be Registrable Securities; provided, however, that at any time the Company once again becomes eligible to use Form S-3, the Company shall cause such replacement Resale Shelf Registration Statement to be amended, or shall file a new replacement Resale Shelf Registration Statement, such that the Resale Shelf Registration Statement is once again on Form S-3.

2.1.4 At any time and from time to time following the effectiveness of the shelf registration statement required by subsection 2.1.1 or subsection 2.1.2, the Holder may request to sell all or a portion of their Registrable Securities in an underwritten offering that is registered pursuant to such shelf registration statement (a “Shelf Underwritten Offering”); provided that the Holder reasonably expects to sell Registrable Securities yielding aggregate gross proceeds in excess of $15,000,000 from such Shelf Underwritten Offering (such amount of Registrable Securities, as applicable, the “Minimum Amount”). All requests for a Shelf Underwritten Offering shall be made by giving written notice to the Company (the “Shelf Takedown Notice”). Each Shelf Takedown Notice shall specify the approximate number of Registrable Securities proposed to be sold in the Shelf Underwritten Offering and the expected price range (net of underwriting discounts and commissions) of such Shelf Underwritten Offering. The Company shall, together with the Holder, enter into an underwriting agreement in customary form for such Shelf Underwritten Offering with the managing Underwriter or Underwriters selected by the Holder after consultation with the Company and shall take all such other reasonable actions as are reasonably requested by the managing Underwriter or Underwriters in order to facilitate the disposition of such Registrable Securities. In connection with any Shelf Underwritten Offering contemplated by this subsection 2.1.4, subject to Section 3.3 and Article IV, the underwriting agreement into which the Holder and the Company shall enter shall contain representations, covenants, indemnities and other rights and obligations in customary form for such Shelf Underwritten Offering by the Company.

2.1.5 Notwithstanding the registration obligations set forth in this Section 2.1, in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single Registration Statement, the Company agrees to promptly (i) inform the Holder and use its reasonable best efforts to file amendments to the Resale Shelf Registration Statement as required by the Commission and/or (ii) withdraw the Resale Shelf Registration Statement and file a new registration statement (a “New Registration Statement”) on Form S-1 (or such other form of registration statement as is then available to permit Registration of such Registrable Securities for resale); provided, however, that prior to filing such amendment or New Registration Statement, the Company shall use its reasonable best efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with any publicly-available written or oral guidance, comments, requirements or requests of the Commission staff (the “SEC Guidance”). Notwithstanding any other provision of this Agreement, if any SEC Guidance sets forth a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used its reasonable best efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by the Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will be reduced, subject to a determination by the Commission that certain Holder must be reduced first based on the number of Registrable Securities held by such Holder. In the event the Company amends the Resale Shelf Registration Statement or files a New Registration Statement, as the case may be, under clause (i) or (ii) above, the Company will use its reasonable best efforts to file with the Commission, as promptly as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Resale Shelf Registration Statement, as amended, or the New Registration Statement.

2.1.6 Registrations effected pursuant to this Section 2.1 shall not be counted as Demand Registrations effected pursuant to Section 2.2.

2.1.7 In the event that no Resale Shelf Registration Statement is filed within forty-five days following the date hereof pursuant to this section 2.1, then the Company shall increase the interest on the Note Agreement by 2.0% each week after such date that such Resale Shelf Registration Statement is not filed, until the date of such filing. Such increase shall also apply for each week after the Effectiveness Deadline when a Resale Shelf Registration Statement has not been declared effective, until the date of effectiveness, or during any period after which the effectiveness of such Resale Shelf Registration Statement is suspended or terminated for at least 15 days, other than in accordance with this Agreement.

Section 2.2 Demand Registration.

2.2.1 Request for Registration. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof and provided that the Company does not have an effective Registration Statement pursuant to subsection 2.1.1 or subsection 2.1.2 covering Registrable Securities, at any time and from time to time on or after the Effectiveness Deadline, the Holder may make a written demand for Registration of all or part of their Registrable Securities on Form S-1 (or such other form of registration statement as is then available to permit Registration of such Registrable Securities for resale by the Holder), which written demand shall describe the amount and type of securities to be included in such Registration and the intended method(s) of distribution thereof (such written demand, a “Demand Registration”). Upon receipt by the Company of such demand, the Company shall (i) file a Registration Statement in respect of all Registrable Securities requested by the Holder pursuant to such Demand Registration, not more than forty five (45) days immediately after the Company’s receipt of the Demand Registration, and (ii) effect the Registration thereunder as soon thereafter as practicable. Under no circumstances shall the Company be obligated to effect more than an aggregate of five (5) Demand Registrations under this subsection 2.2.1.

2.2.2 Effective Registration. Notwithstanding the provisions of subsection 2.2.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) the Company has complied with all of its obligations under this Agreement with respect thereto; provided that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop order or injunction of the Commission, federal or state court or any other governmental agency, the Registration Statement with respect to such Registration shall be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) the Holder thereafter affirmatively elect to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days after such stop order or injunction is removed, rescinded or otherwise terminated, of such election; provided, further, that the Company shall not be obligated or required to file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.

2.2.3 Underwritten Offering. Subject to the provisions of subsection 2.2.4 and Section 2.4 hereof, if the Holder advises the Company as part of their Demand Registration that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of the Holder to include its Registrable Securities in such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein. The Holder proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.3 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Holder.

2.2.4 Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises the Company and the Holder in writing that the dollar amount or number of Registrable Securities that the Holder desire to sell, taken together with all other Common Stock or other equity securities that the Company desires to sell and the Common Stock, if any, as to which a Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other stockholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Holder that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (i), Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), Common Stock or other equity securities of other persons or entities that the Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.

2.2.5 Demand Registration Withdrawal. The Holder, pursuant to a Registration under subsection 2.2.1, shall have the right to withdraw from a Registration pursuant to such Demand Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of their intention to withdraw from such Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration. If the Holder withdraws from a proposed offering pursuant to this Section 2.2.5, then such registration shall not count as a Demand Registration provided for in Section 2.2. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration prior to its withdrawal under this subsection 2.2.5.

Section 2.3 Piggyback Registration.

2.3.1 Piggyback Rights. If the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable for, or convertible into equity securities, for its own account or for the account of stockholders of the Company, other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) for an offering of debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment plan, or (v) filed in connection with any business combination or acquisition involving the Company, then the Company shall give written notice of such proposed filing to the Holder as soon as practicable but not less than ten (10) days before the anticipated filing date of such Registration Statement, which notice shall (A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such Registration a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its reasonable best efforts to cause the managing Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holder pursuant to this subsection 2.3.1 to be included in a Piggyback Registration on the same terms and conditions as any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. If the Holder proposes to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.3.1, it shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the Company.

2.3.2 Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the Piggyback Registration in writing that the dollar amount or number of shares of Common Stock or other equity securities that the Company desires to sell, taken together with (i) the shares of Common Stock or other equity securities, if any, as to which Registration has been demanded pursuant to separate written contractual arrangements with persons or entities other than the Holder, (ii) the Registrable Securities as to which registration has been requested pursuant to this Section 2.3, and (iii) the shares of Common Stock or other equity securities, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other stockholders of the Company, exceeds the Maximum Number of Securities, then:

(i) If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; and (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), Common Stock, if any, as to which Registration has been requested pursuant to written contractual piggy-back registration rights of other stockholders of the Company, which can be sold without exceeding the Maximum Number of Securities; and

(ii) If the Registration is pursuant to a request by persons or entities other than the Holder, then the Company shall include in any such Registration (A) first, Common Stock or other equity securities, if any, of such requesting persons or entities, other than the Holder, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of the Holder (if the Holder exercises its rights to register their Registrable Securities pursuant to subsection 2.3.1), which can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B) and (C), Common Stock or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which can be sold without exceeding the Maximum Number of Securities.

2.3.3 Piggyback Registration Withdrawal. The Holder shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any) of its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. The Company (whether on its own good faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback Registration prior to its withdrawal under this subsection 2.3.3.

2.3.4 Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.3 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.2 hereof.

Section 2.4 Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date of, the Company initiated Registration and provided that the Company has delivered written notice to the Holder prior to receipt of a Demand Registration pursuant to subsection 2.2.1 and it continues to actively employ, in good faith, all reasonable efforts to cause the applicable Registration Statement to become effective; (B) the Holder have requested an Underwritten Registration and the Company and the Holder is unable to obtain the commitment of underwriters to firmly underwrite the offer; or (C) in the good faith judgment of the Board such Registration would be materially detrimental to the Company and the Board concludes as a result that it is essential to defer the filing of such Registration Statement at such time, then in each case the Company shall furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be materially detrimental to the Company for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing for a period of not more than thirty (30) days; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12 month period.

ARTICLE III
COMPANY PROCEDURES

Section 3.1 General Procedures. If at any time on or after the Effective Time the Company is required to effect the Registration of Registrable Securities, the Company shall use its reasonable best efforts to effect such Registration to permit the sale of such Registrable Securities in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:

3.1.1 prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain effective until all Registrable Securities covered by such Registration Statement have been sold;

3.1.2 prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the Holder or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth in such Registration Statement or supplement to the Prospectus;

3.1.3 prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holder (if included in such Registration), and the Holder’s legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal counsel for the Holder may request in order to facilitate the disposition of the Registrable Securities owned by the Holder;

3.1.4 prior to any public offering of Registrable Securities, use its reasonable best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the Holder (if included in such Registration Statement (in light of their intended plan of distribution)) may request and (ii) take such action reasonably necessary to cause such Registrable Securities covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be reasonably necessary, following opinion of Company legal counsel, by virtue of the business and operations of the Company and do any and all other acts and things that may be reasonably necessary or advisable, following opinion of Company legal counsel, to enable the Holder (if included in such Registration Statement) to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where it is not then otherwise so subject;

3.1.5 cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;

3.1.6 provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;

3.1.7 advise each Holder of such Registrable Securities covered by such Registration Statement, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;

3.1.8 advise the Holder (if covered by such Registration Statement), promptly after the Company receives notice thereof, of the time when such registration statement has been declared effective or a supplement to any Prospectus forming a part of such registration statement has been filed;

3.1.9 at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus, furnish a copy thereof to the Holder or its counsel;

3.1.10 notify the Holder at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;

3.1.11 permit a representative of the Holder, the Underwriters, if any, and any attorney or accountant retained by the Holder or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement, and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;

3.1.12 obtain a “cold comfort” letter from the Company’s independent registered public accountants (and the independent accountant of any other entity whose financial statements are included in (or incorporated by reference in) a Registration Statement) in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort” letters as the managing Underwriter may reasonably request, and reasonably satisfactory to the Holder and such managing Underwriter;

3.1.13 on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holder, the placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holder, placement agent, sales agent, or Underwriter may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory the Holder;

3.1.14 in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;

3.1.15 make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);

3.1.16 if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $20,000,000, use its reasonable best efforts to make available senior executives of the Company to participate in customary “road show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and

3.1.17 otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holder, in connection with such Registration.

Section 3.2 Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holder that the Holder shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the Holder.

Section 3.3 Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents as may be reasonably required under the terms of such underwriting arrangements.

Section 3.4 Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, the Holder shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Holder, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than thirty (30) days, determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holder agrees to suspend, immediately upon their receipt of the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holder of the expiration of any period during which it exercised its rights under this Section 3.4.

Section 3.5 Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holder with true and complete copies of all such filings upon request. The Company further covenants that it shall take such further action as the Holder may reasonably request, all to the extent required from time to time to enable the Holder to sell Registrable Securities held by the Holder without registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal opinions. Upon the request of the Holder, the Company shall deliver to the Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.

Section 3.6 Limitations on Registration Rights. The Company shall not hereafter enter into any agreement with respect to its securities which is inconsistent with or violates the rights granted to the Holder and in the event of any conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.

ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION

Section 4.1 Indemnification

4.1.1 The Company agrees to indemnify, to the extent permitted by law, the Holder, its officers and directors and agents and each person who controls the Holder (within the meaning of the Securities Act) against all losses, claims, damages, liabilities and expenses (including reasonable and documented attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by the Holder expressly for use therein.

4.1.2 In connection with any Registration Statement in which the Holder is participating, the Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue statement or omission is contained in any information or affidavit so furnished in writing by the Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among the Holder, and the liability of the Holder shall be in proportion to and limited to the net proceeds received by the Holder from the sale of securities pursuant to such Registration Statement.

4.1.3 Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.

4.1.4 The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified party and shall survive the transfer of Registrable Securities. The Company and the Holder, when participating in an offering, also agree to make such provisions as are reasonably requested by any indemnified party for contribution to such party in the event the Company’s or the Holder’s indemnification is unavailable for any reason.

4.1.5 If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided, however, that the liability of the Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by the Holder in such offering giving rise to such liability. The amount paid or payable by a party as a result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any reasonable and documented legal or other fees, charges or expenses reasonably incurred by such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.

ARTICLE V
GENERAL PROVISIONS

Section 5.1 Entire Agreement. This Agreement (including Schedule A hereto) constitutes the entire understanding and agreement between the parties as to the matters covered herein and supersedes and replaces any prior understanding, agreement or statement of intent, in each case, written or oral, of any and every nature with respect thereto.

Section 5.2 Notices. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing and shall be deemed properly delivered, given and received (a) upon receipt when delivered by hand, (b) upon transmission, if sent by facsimile or electronic transmission (in each case with receipt verified by electronic confirmation), or (c) one (1) Business Day after being sent by courier or express delivery service, specifying next day delivery, with proof of receipt. The addresses, email addresses and facsimile numbers for such notices and communications are those set forth on the signature pages hereof, or such other address, email address or facsimile numbers as may be designated in writing hereafter, in the same manner, by any such person.

Section 5.3 Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the Holder may be freely assigned or delegated by the Holder in conjunction with and to the extent of any transfer of Registrable Securities by the Holder. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and the permitted assigns of the Holder or of any assignee of the Holder. This Agreement is not intended to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Article IV and this Section 6.4. No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of joinder to this Agreement).

Section 5.4 Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that all parties need not sign the same counterpart and such counterparts may be delivered by the parties hereto via facsimile or electronic transmission.

Section 5.5 Amendment; Waiver. This Agreement may be amended or modified, and any provision hereof may be waived, in whole or in part, at any time pursuant to an agreement in writing executed by the Company and the Holder;. Any failure by any party at any time to enforce any of the provisions of this Agreement shall not be construed a waiver of such provision or any other provisions hereof.

Section 5.6 Severability. In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto.

Section 5.7 Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All legal actions and proceedings arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court; provided, that if jurisdiction is not then available in the Delaware Chancery Court, then any such legal action may be brought in any federal court located in the State of Delaware or any other Delaware state court. The parties hereto hereby (a) irrevocably submit to the exclusive jurisdiction of the aforesaid courts for themselves and with respect to their respective properties for the purpose of any action arising out of or relating to this Agreement brought by any party hereto, and (b) agree not to commence any action relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the action in any such court is brought in an inconvenient forum, (ii) the venue of such action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

Section 5.8 Specific Performance. Each party acknowledges and agrees that the other parties hereto would be irreparably harmed and would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed by such first party in accordance with their specific terms or were otherwise breached by such first party. Accordingly, each party agrees that the other parties hereto shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which such parties are entitled at law or in equity.

Section 5.9 Term. This Agreement shall terminate (a) with respect to the Holder on the date on which the Holder ceases to hold Registrable Securities and (b) otherwise upon the date as of which all of the Registrable Securities have been sold pursuant to a Registration Statement (but in each case in no event prior to the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)). The provisions of Article IV shall survive any termination.

[Signature Page to Follow]

IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

	ATLASCLEAR HOLDINGS, INC.

	By	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	CBDO

	Address for Notice:

	4030 Henderson Blvd., Suite 712
	Tampa, FL 33629
	Attn: Craig Ridenhour
	Email: cridenhour@atlasclear.com

	CHARDAN CAPITAL MARKETS, LLC

	By	/s/ Steven Urbach
	Name:	Steven Urbach
	Title:	Chief Executive Officer

	Address for Notice:
	17 State Street, 21st Floor
	New York, NY 10004
	Attn: Erik Luchs
	Email: eluchs@chardan.com

Exhibit 10.9

EXECUTION VERSION

ASSIGNMENT AND ASSUMPTION AGREEMENT AND BILL OF SALE

This ASSIGNMENT AND ASSUMPTION AGREEMENT AND BILL OF SALE (this “Agreement”), dated as of November 16, 2022, is entered into by and among ATLAS FINTECH HOLDINGS CORP., a Delaware corporation (“Atlas Fintech”), Atlas Financial Technologies Corp., a Delaware corporation (“AFTC”, together with the Atlas Fintech, the “Transferors”, and each a “Transferor”), and ATLASCLEAR, INC., a Wyoming corporation (“Transferee”) (each of Transferor and Transferee, a “Party” and collectively, the “Parties”).

RECITALS

WHEREAS, Transferor desires to assign, transfer, convey and deliver (“Convey”) to Transferee all of Transferor’s right, title and interest in and to the Software Products (as defined below) and all worldwide intellectual property rights associated therewith, including all (i) patents, patent applications, patent disclosures, and priority rights, utility models, design registrations, certificates of invention and other governmental grants for the protection of inventions or industrial designs (including additions, provisional applications, national, regional, and international applications, substitutions, continuations, continuations-in-part, divisionals, continued prosecution applications, renewals, extensions, revivals, reissues, and reexaminations), (ii) any registered or common law trademarks, service marks, trade dress, trade names, logos, network or web site domain names or other universal resource locators (URL), and Facebook, Twitter, Instagram, Snapchat, LinkedIn, and other social networking names, corporate names, doing business as designations (DBAs), fictitious names, together with all of the goodwill associated therewith, and any applications for registration of the foregoing, (iii) copyrights (registered or unregistered), works of authorship and copyright registrations and applications for registration thereof, (iv) rights in any computer software (including source code, object code, macros, scripts, objects, routines, modules, header files, and other components), data, databases, and documentation thereof, (v) trade secrets, confidential business information, and proprietary know-how, including concepts, ideas, designs, plans, research or development information and results, processes, procedures, techniques, technical information, specifications, operating and maintenance manuals, engineering drawings, methods, data (including business, marketing and technical data and customer, prospect and supplier lists), inventions (whether or not patentable and whether or not reduced to practice), and modifications, extensions, and/or improvements of any of the foregoing; and (vi) other intellectual property rights (including inventors’ rights and moral rights) throughout the world, relating to the foregoing (including remedies against infringement thereof and rights of protection of interest thereunder under the any law, statute, legislation, principle of common law, ordinance, code, edict, decree, proclamation, treaty, convention, rule, regulation, directive, requirement, writ, injunction, settlement, order, or consent of all jurisdictions) and the rights to sue and collect damages for past, present or future infringements or other violations of any of the foregoing, in each case owned or purported to be owned by Transferor (collectively, the “Transferred Intellectual Property”), including the following: (a) software known as RUBICON, which shall include the parts and functionality set forth on Annex A hereto, in object code and source code form and all related documentation, (b) software known as ATLASFX , which shall include the parts and functionality set forth on Annex B hereto, in object code and source code form and all related documentation, (c) software known as BOND QUANTUM, which shall include the parts and functionality set forth on Annex C hereto, in object code and source code form and all related documentation,(d) software known as THE SURFACE EXCHANGE, which shall include the parts and functionality set forth on Annex D, in object code and source code form and all related documentation ((a) through (d), collectively, the “Software Products”), and (e) the other intellectual property set forth on Annex E;

WHEREAS, Transferee desires to accept and assume from Transferor all of Transferor’s obligations and liabilities arising out of, relating to or otherwise in respect of, the ownership of the Transferred Intellectual Property;

ACTIVE 682187286v4

WHEREAS, Transferor (i) holds 40 Class A Units in Quantum Ventures (the “Units”) and (ii) desires to Convey to Transferee all of Transferor’s right, title and interest in and to the Units; and

WHEREAS, Transferees desires to accept and assume from Transferor all of Transferor’s rights, remedies, obligations and liabilities in the Units and agrees to become a member of, and to be bound by, the Limited Liability Company Agreement of Quantum Ventures, dated as of September 24, 2020 (the “LLC Agreement”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

1.              Transfer of Transferred Intellectual Property. Transferor hereby irrevocably Conveys to Transferee and its successors and assigns, and Transferee hereby acquires and accepts, all of Transferor’s right, title, and interest in, to and under the Transferred Intellectual Property.

2.              Assignment and Assumption of Liabilities. Transferee hereby assumes and agrees to pay, perform, satisfy or otherwise discharge when due, all of the obligations and liabilities arising out of, relating to or otherwise in respect of, the ownership of the Transferred Intellectual Property (the “Assumed Liabilities”).

3.              Authorization. Transferor authorizes and requests the Commissioner of Patents and Trademarks of the United States, the Register of Copyrights of the United States, and the corresponding entities, agencies or registrars in the United States or any applicable foreign jurisdictions, whose duty is to issue patents, trademarks, copyrights or other evidence or forms of industrial property protection on applications as aforesaid, to issue the same to Transferee and to record Transferee as owner of the Transferred Intellectual Property, as assignee of the entire right, title and interest in, to and under the same, for the sole use and enjoyment of Transferee its successors, assigns or other legal representatives

4.              Representations & Warranties.

(a)

Transferor. Transferor (a) represents and warrants that (i) it is the legal and beneficial owner of the Transferred Intellectual Property, (ii) such Transferred Intellectual Property is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and (iv) the Assumed Liabilities are comprised only of liabilities that have arisen in the ordinary course of the operation of the business of the Transferor.

(b)

Transferee. Transferee represents and warrants that it has full power and authority, and has taken all action necessary, to execute and deliver this Agreement and to consummate the transactions contemplated hereby.

5.              Amendments. This Agreement may be amended, modified or supplemented only by a written mutual agreement executed and delivered by Transferor and Transferee.

6.              Successors and Assigns. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to confer upon any person, other than Transferor or Transferee, and their respective successors and permitted assigns, any rights, benefits or remedies under or by reason of this Agreement.

7.              Headings and Interpretation. The section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and will not in any way affect the meaning or interpretation of this Agreement. As used herein, the word “including” or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.

8.              Governing Law; Jurisdiction; Waiver of Jury Trial. The validity, interpretation and enforcement of this Agreement will be governed by the laws of the State of Delaware without regard to the conflict of laws provisions thereof that would cause the laws of another state to apply. Each Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery (or, only if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, the United States District Court for the Southern District of New York located in New York, New York or, if such court declines to accept jurisdiction, then any court of the State of New York sitting in the borough of Manhattan), and any appellate courts thereof, in any action or proceeding based hereon, or arising out of, under, or in connection with, or relating to this Agreement. Each Party hereby knowingly, voluntarily, and intentionally irrevocably waives the right to a trial by jury in respect to any litigation, dispute, claim, legal action or other legal proceeding based hereon, or arising out of, under, or in connection with, this Agreement.

9.              Counterparts. This Agreement may be executed in counterparts, each of which, including those received via facsimile transmission or email (including in PDF format), will be deemed an original, and all of which will constitute one and the same Instrument.

10.            Further Assurances. Each of the Parties will execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated hereby. Transferor shall provide Transferee, its successors and assigns with all such assistance as it may reasonably request for the full utilization of the rights granted in Section 1, above, including, upon request by Transferee to execute and cause its current or former employees or contractors to execute, as applicable, all applications and any further assignments or other documents or instruments, sign all lawful papers, and make all rightful oaths necessary or desirable to carry out the purposes or intent of this Agreement and to aid Transferee or its successors, assigns or other legal representatives to obtain and enforce proper protection for the Transferred Intellectual Property in all jurisdictions and to record Transferee as owner of the Transferred Intellectual Property, as assignee of the entire right, title and interest in, to and under the same, for the sole use and enjoyment of Transferee, its successors, assigns or other legal representatives. Without limiting the foregoing, Transferor will do all things necessary, proper or advisable to reasonably assist Transferee in transferring all domain names that are Transferred Intellectual Property, including as applicable, placing each of the domain names in “unlocked” status and provide Transferee the Internet domain name registrars’ transfer authorization codes for each of the domain names and any other information required to effectuate the transfer of Transferor’s right, title and interest in the domain names to Transferee. Transferor shall not assert any right, title or interest in or to any of the Transferred Intellectual Property and shall not use any of the Transferred Intellectual Property except as may be expressly authorized by Transferee in writing.

11.            Intended Tax Treatment. The Parties intend that each of the transfer of the Transferred Intellectual Property and the transfer of the Units will constitute a “contribution to the capital of” Transferee within the meaning of Section 118(a) of the Internal Revenue Code of 1986, as amended (the “Code”), and hereby agree to report consistently therewith for all tax purposes unless otherwise required by a “determination” within the meaning of Section 1313 of the Code.

[Signature page follows]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

	Transferors:

	ATLAS FINTECH HOLDINGS CORP.


	By:	/s/ Craig Ridenhour
		Name: Craig Ridenhour
		Title: Chief Business Development Officer


	ATLAS FINANCIAL TECHNOLOGIES CORP.


	By:	/s/ Craig Ridenhour
		Name: Craig Ridenhour
		Title: EVP of Business Development

	Transferee:

	ATLASCLEAR, INC.


	By:	/s/ Craig Ridenhour
		Name: Craig Ridenhour
		Title: Chief Business Development Officer

[Signature Page to Assignment and Assumption Agreement and Bill of Sale]

ANNEX A

RUBICON

Description of RUBICON Parts and Functionality to be used and applied to Transferee’s systems and computers (Please refer to the Rubicon Manual as a display of this Annex A)

RUBICON Modules: Terminal Features and Functionalities : Rubicon GUI

Panel

Components

Quotes

Compensation

Stp

Commercial blotting paper

Notifications

Reports

Home page

STP Requests

CO Orders

Orders settled

Externally administered

Orders rejected by PE

Mistaken executions

Customer Statistics

Consistency check

Volume Report

Account Transactions

Street exposure

Compensation

State of the market

Customer market statistics

Foreign exchange market statistics

Currency clearing statistics

Customer Subscriptions

State Guards

Bank Execution Statistics

Execution statistics of THE BUYER

Mapping compensation baskets

Implementation report

Commercial customers

Client Connectors

Liquidity providers

Strategies

Execution statistics

Graphics

Banks

Clients

Instruments

Compensation

Compensation control

Customer Subscriptions

Report completed / rejected

State of guards

State of the market

Street exposure

Disseminate statistics

Symbols

Suppliers

Administration: Rubicon Users

Links

Manual execution

Run Template

Manage templates

Upload risk settings

Implementation report

Execution of orders through the quote board

Order templates

Admin Console

Clients

Subscription

Hubs

Users

Roles

Interchange fees

Manual negotiation

Runtime

Internalization of the flow by

Client ID

Instrument

Order size

Alpha Customer Group

Destination basket

Autocompletar

Late response

Execution TTL control

TTL control of orders on the street

Forward order support

Supported order types

Market

Limit FOK

Limitar IOC

Limit IOC orders with slide control

Fast mode processing

Fast market

News mode

Manual controls

Real-time system management

Execution policies:

Clearance allowed

Execution TTL

Street Order TTL

Clear the threshold

Minimum order size

Reprogramación interval

Maximum attempts

Execution delay

Limit swipe control

Max requests

Externally administered

Partial fill enabled

Market price compensation

Autofill new allowed orders

Automatic filling override threshold

Automatic filling threshold USD

Rubicon Compensation

Book B

Autocompletar

Preferred autocomplete

Preferred rejection

Automatic selection (default)

Exposure Manager and Monitor

Monitor the profit and loss exposure of the internalized flow / B-Book

Balance the compensation baskets by generating hedging orders when the parameters of the basket exceed the specified thresholds.

Send notifications and alert operators to abnormal conditions.

Hedging orders by:

Instrument

Maximum profit

Maximum loss

Maximum open exposure (USD)

Overflow limit

Hermes Communications Component

Connectors

FIX

ITCH

Message Handler / Translator

Correct dialect

Changes to runtime settings

Comp tags

FIX parameters

Network Properties

Quick installation/uninstallation of any existing dialect connector

FIX connection runtime control:

Connect / Disconnect

Changing sequences

Changing comp ids

Updating dialect settings

Implemented client FIX dialects:

Common Alpha

Fastmatch

Currenex

Bloomberg

Flex

First derivatives

FXAll

Win

Hotspot

Integral

IOWorks

LP FIX dialects implemented:

Barclays

Bloomberg

Broadway

Citadel

Citi

Agricultural Credit

Credit Suisse

Currenex

German bank

EBS

Fastmatch

First derivatives

Flextrade

FXAll

FXCM

Hotspot

HSBC

Integral

IOWorks

LMAX

Morgan Stanley

Oanda

Prime XM

RBS

Solid FX

Tower research

UBS

ITCH dialects implemented:

Hotspot

Email Notifications

Completed/Rejected Operations

Execution issues

Execution recovery

Quick mode on/off

Flattening baskets

Alerts:

Rejection Monitor

Exposure Monitor

Component Monitor

Customer Order Number Monitor

User notifications and registration

Informative

Warning

Errors

Fatal

Strategy module:

Strategy Server

Strategy Broker

BUYER'S Strategy

Tarifas Top of the Book

LP Rates

Statistics updates for selected customers/baskets

Business events for selected clients

Commercial strategy

Count of operations per minute

Total count of operations

Maximum exposure

Maximum profit / loss

Custom metrics provided by strategy

Institutional Backoffice which Allows Control of Margin Risk and Institutional Clients by Atlas Bank

Margin limit control

Automatic closing of trades on margin calls

Automatic settlement of positions on margin calls

Account Routing from the Banking System to the corresponding FX subsystem: Corporate, Institutional or Individual.

Customer Reports

Foreign Exchange Transaction Reports

SWAP Rate Editor

Notifications of non-compliance with margin levels

API for Integration of the 3^rd party NOP Panel that Allows Prime Banking Control of Aggregate Credit Levels and by Liquidity Provider (LP) and NOP of Liquidity Provider (LP)

API to enable credit control by PB from an external system

Closure of operations by PB

Report of transactions to PB for NOP control.

Notifications of non-compliance with credit levels

Automatic closing of operations when the credit limit is reached

ANNEX B

ATLASFX

Description of Parts and Functionalities of ATLASFX to be used and applied to the systems and computers of the Transferee

ATLASFX Modules: Terminal Features & Functionality:

Client Management for Corporate and White Label (Master) accounts

Reset passwords, update client details, change Class Configuration

Trade Management

View all Open and Pending trade orders

View End of Date Rates

View Historic Tick Date

Credit/Risk Management

Account Statement

Margin Warning

Mark-to-Market Summary

Risk Hub

Margin Monitoring

Client Exposure

System Management

Class Configuration

Symbol (currency pairs) creation/edit

Edit Symbols Rollover

User Administration

Access Groups

Send News (proactive push alert functionality)

FX Server Info

Pending Changes (Maker/Checker two admin approval process)

Liquidity provider administration

Reports

Over 20 different reports for admins to select

Trading Platform Terminal

Ability to trade currencies with available margin

View currency pair live charts + historic data

Depth of Market

Automatic app push updates

Trade History/Reports/Reconciliation

Trade Window highlighting all open trades

ANNEX C

BOND QUANTUM

Description of BondQuantum Parts and Functionality to be used and applied to the Transferee's systems and computers

BondQuantum Features & Functionality:

Muni Ratings Report Generator

Reports Storage and Management

Data Extraction

Historical Data

Demographics Data

Financial Data

Reference Data

Issuer Information

Data Management

Reference Data

Historical Data

Remote Data Access

Bloomberg Integration

Web GUI for Whitelabel

Client Access Management

ANNEX D

THE SURFACE EXCHANGE

Description of The Surface Exchange Parts and Functionality to be used and applied to the Transferee's systems and computers

The Surface Exchange Features & Functionality:

GUI Screens

Liquid Market View

Each window displays Standard Tenor Orders in a selected (via dropdowns) Currency Pair, Tradable Strategy and Cut.

Tradable products on LMV screen are ATM Straddle, 10Δ BF and RR, 25Δ BF and RR, Forward.

Following can be invoked from LMV:

Market depth

ii.

Standard single or 2-way Buy/sell ticket

iii.

Standard single or 2-way Order Amend ticket

iv.

LMV Economic Details

Pricer

Surface

Tradable products on Surface screen are ATM Straddle, 10Δ BF and RR, 25Δ BF and RR.

Following can be invoked from LMV:

Market depth

ii.

Standard single or 2-way Buy/sell ticket

iii.

Standard single or 2-way Order Amend ticket

iv.

Economic Details

New Surface

vi.

Amend Surface

vii.

Cancel Surface

viii.

Pricer

Order Book

Trade Blotter

Market Blotter

Pricer for Options/Strategies:

Call

Put

Strangle

Straddle

Risk Reversal

Calendar Spread

Expiry Screen with support for 2 cuts.

Reports

Spot Quotes/Trading

10.

Credit Management

11.

Audit Log

12.

Chat

13.

Company Management

14.

Interest Rates

15.

User Activity

16.

Waves – Screen Layout Manager

Modules and Components

Order Management

Trade Management

Matching

Market View

Expirations Processing

User Messaging

Security Management

Credit Management

Trading Calendar

10.

Static Data

11.

Market Data

12.

Pricer

13.

Web GUI

ANNEX E

OTHER TRANSFERRED INTELLECTUAL PROPERTY

Title	Registration No.	Registration Date	Copyright Claimant
Rubicon	TX0008254807	4/12/2016	Atlas Financial Technologies Corp.

Unregistered Trademarks:

RUBICON

ATLASFX

Wilson-Davis logo

BOND QUANTUM

Bond Quantum logo

SURFACE EXCHANGE

FARMERS STATE BANK

Farmers State Bank logo

Domain Names:

Domain Name	Expiration Date
Atlasclear.com	12/18/2024
Bondquantum.com	03/11/2025
Wdco.com	11/02/2024
Wilson-davis.com	11/02/2023
Bankinwyo.com	02/14/2023

Exhibit 10.10

Strictly Confidential

April 15, 2022

STOCK PURCHASE AGREEMENT

by and among

WILSON-DAVIS & CO., INC.,

ALL OF ITS STOCKHOLDERS

and

ATLAS CLEAR CORP.

April 15, 2022

This STOCK purchase Agreement, dated as of April 11, 2022(this “Agreement”), by and between WILSON-DAVIS & CO., INC. a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A attached hereto (collectively, the “Sellers,” and individually, a “Seller”) and ATLAS CLEAR CORP., a Delaware registered corporation (“Purchaser” and together with Sellers and the Company, the “Parties,” each a “Party”).

W I T N E S S E T H:

WHEREAS, the Sellers own one hundred percent (100%) of the issued and outstanding equity of the Company which, as of the date hereof and immediately prior to the Initial Closing, consists solely of 410,000 shares and any other security, instrument, obligation or option, call, warrant or other right (whether or not immediately exercisable) to acquire, convert into or otherwise receive any of the foregoing, in any such case, whether owned or held beneficially, of record or legally, exists. (the “Equity Interests”);

WHEREAS, the Company is engaged in the business of self-clearing securities under a broker dealer license from the Financial Industry Regulatory Authority (“FINRA”) and sponsoring, as a member, securities registration with the Depository Trust and Clearing Corporation (“DTCC”) (the “Business”);

WHEREAS, Purchaser is a Wyoming registered corporation.

WHEREAS, upon the terms and subject to the conditions set forth herein, Sellers desire to sell, assign, transfer, convey and deliver to Purchaser, and Purchaser desires to purchase, acquire and accept from Sellers, the Equity Interests of the Company on the terms set forth herein;

WHEREAS, Purchaser proposes to combine the transaction contemplated by this Agreement with the acquisition of a federally chartered bank and software and systems to support an international securities business in an enterprise to be funded by Broad Capital Acquisition Corp (the “SPAC”), all subject to obtaining necessary regulatory and stockholder approval to terminate the SPAC’s status and release cash and marketable securities held in a trust account to fund such transactions, all in accordance with Rule 419 under the Securities Act.

WHEREAS, on the date hereof at the Initial Closing, the Parties agree to work cooperatively to effect the transactions contemplated hereby and prepare for the Final Closing.

WHEREAS, at the Final Closing, Purchaser will acquire directly from the Sellers all of the issued and outstanding Equity Interests of the Company, with the result that Purchaser will own all of the issued and outstanding Equity Interests of the Company outstanding immediately prior to the Final Closing.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 1 of 61

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and upon the terms and subject to the conditions of this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

Article I

DEFINITIONS

Section 1.1.    Certain Definitions. For purposes of this Agreement, unless the context requires otherwise, the following terms will have the following meanings:

“Accounting Principles” will mean the accounting principles, practices, procedures, policies, and methods (with consistent classifications, judgments, elections, inclusions, exclusions and valuation and estimation methodologies) that are required for compliance with the Net Capital Rule.

“Action” will mean any claim, action, suit, arbitration, mediation, litigation, inquiry, investigation, or other proceeding of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial, or otherwise) including by or before any Governmental Authority.

“Affiliate” will mean, with respect to any Person, any Person that directly or indirectly controls, is controlled by, or is under common control with such Person.

“ATS” will mean an alternative trading system, as defined in SEC Regulation ATS, including all SEC interpretations and guidance relating thereto.

“Board” will mean the board of directors or board committee of the Company.

“Business Day” will mean any day except Saturday, Sunday, or any other day on which commercial banks located in New York, New York or Salt Lake City, Utah, are authorized or required by Law to be closed for business. Days not specifically denominated as Business Days will refer to calendar days.

“Closing Statement” will mean, as may be applicable and required by the context, for the purposes of Article II the Final Closing Statement.

“CMA” will mean the Continuing Membership Application prepared by the Company and filed with FINRA in accordance with its Rule 1017 in connection with the transaction contemplated by this Agreement.

“Company Equity” will have the meaning set forth in Section 3.2(a).

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

“Company Bank Accounts” will mean the accounts with the BMO Harris Bank, N.A., and the Company’s other commercial banks, which the Company reported as holding $58,740,252.11 on March 31, 2022, and any other bank account or accounts in the United States to be designated by the Company in a written notice to Purchaser prior to the Final Closing Date.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 2 of 61

“Company Employee” will mean any employee of the Company. A list of Company Employees as of the date hereof is set forth on Section 1.1(c) of the Company Disclosure Schedule.

“Company Software” will mean all Software owned or licensed by the Company.

“Confidentiality Agreement” will mean the Mutual Non-Disclosure Agreement dated April 7, 2022, between Purchaser and the Company.

“Contract” will mean, with respect to any Person, any written agreement, contract, subcontract, settlement agreement, lease, sublease, instrument, note, option, bond, mortgage, indenture, trust document, guarantee, loan or credit agreement, purchase order, sales order, license, sublicense, or other commitment, undertaking, obligation or arrangement that is legally binding upon such Person.

“Control” (including the terms “controlled by” and “under common control with”) will mean, with respect to the relationship between or among two (2) or more Persons, the possession, directly or indirectly or as trustee, personal representative or executor, of the power to direct or cause the direction of the affairs, management or policies of a Person, whether through the ownership of voting securities, as trustee, personal representative or executor, by Contract or otherwise.

“Director(s)” will mean a director(s) on the Board.

“DTCC Stock” will mean the equity interests in Depository Trust and Clearing Corporation owned by the Company.

“DTCC Stock Value” will mean the value ascribed to the DTCC Stock by DTCC in its regular updated valuation process as reported by DTCC on Notice of Common Share Allocation Amount within not more than five (5) Business Days preceding the date of the Final Closing.

“Early Warning Thresholds” will mean (a) the prescription of any capital or net worth requirements by FINRA pursuant to Rule 4110(a); (b) a direction by FINRA pursuant to Rule 4130(c) or (d); or (c) any threshold or limit found at SEC Rule 17a-11, or FINRA Rules 4110(d), 4120, 4130(c) or (d) or 4521(c).

“Employment Taxes” will mean any employer-paid employment Taxes (including, without limitation, the Taxes imposed by Sections 3111(a) and 3111(b) of the Code), calculated, with respect to each Company Employee, as if, prior to the payment of any transaction bonus, change-of-control payment or phantom equity payout arising as a result of the execution of this Agreement or in connection with the transactions contemplated hereby, the applicable Company Employee had previously received compensation from the Company equal to such Company Employee’s annual base salary.

“Encumbrance” will mean any lien, pledge, mortgage, security interest, claim, charge, easement, restriction, or other encumbrance of any kind, whether voluntarily incurred or arising by operation of Law.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 3 of 61

“Enforceability Exceptions” will mean (a) any applicable bankruptcy, insolvency (including Laws relating to fraudulent transfers), reorganization, moratorium or other similar Laws affecting creditors’ rights generally, and (b) general principles of equity (regardless of whether considered in a proceeding at law or in equity).

“ERISA” will mean the Employee Retirement Income Security Act of 1974, as amended, and the rules, regulations, and class exemptions of the Department of Labor thereunder.

“Exchange Act” will mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder.

“Final Closing Cash” will mean the aggregate amount of Unrestricted Cash as of 11:59 p.m., New York City time, on the date immediately preceding the Final Closing Date.

“Final Closing Obligations” will mean any obligations of the Company, Sellers or Purchaser that occur at or that are dependent on the Final Closing. For the avoidance of doubt, any obligations that occur at the Initial Closing will not constitute “Final Closing Obligations.”

“FINRA” will mean the Financial Industry Regulatory Authority, Inc.

“Financial Statements” will mean the Company Financial Statements.

“FINRA Application” will mean a written notice and continuing membership application on Form CMA for a change in equity ownership or any other change in control of the Company filed with FINRA by the Company pursuant to NASD Rule 1017 with respect to the consummation of the transactions contemplated by this Agreement.

“FINRA Approval” will mean a written confirmation from FINRA that it has approved the change in equity ownership or control of the Company as requested pursuant to the FINRA Application, subject to such membership conditions, business limitations, and other restrictions as it may deem appropriate.

“FOCUS Report” will means the Financial and Operational Combined Uniform Single Report required to be filed by the Company under the Exchange Act.

Fundamental Representations” will mean, collectively, the Sellers Fundamental Representations, the Company Fundamental Representations and the Purchaser Fundamental Representations.

“GAAP” will mean generally accepted accounting principles as used in the United States as in effect at the time any applicable financial statements were or are prepared, consistently applied.

“Goodwill Amount” will mean eighteen million dollars ($18,000,000).

“Governing Documents” will mean articles or certificate of incorporation and bylaws or operating agreement, or the comparable legal organizational document(s) by which any Person (other than an individual) establishes its legal existence or that govern(s) its internal affairs, in each case, as has been amended or restated and as in effect on the date hereof.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 4 of 61

“Governmental Authority” will mean any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administration functions of or pertaining to government, or any government authority, agency, department, board, tribunal, commission or instrumentality of the United States of America, any foreign government, any state of the United States of America, or any municipality or other political subdivision thereof, and any court, tribunal or arbitrator(s) of competent jurisdiction, and any governmental or non-governmental, self-regulatory organization, including FINRA, agency or authority (including any national securities exchanges).

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

“Indebtedness” will mean, without duplication (a) any indebtedness or other obligation of the Company for borrowed money, whether current, short-term or long-term and whether secured or unsecured or indebtedness issued or incurred in substitution or exchange for money borrowed; (b) any indebtedness of the Company evidenced by any note, bond, debenture, mortgage or other security (whether or not convertible into any other security) or similar instrument the payment of which the Company is responsible or liable for; (c) any obligations or liabilities of the Company in respect of any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations or liabilities are required to be classified as capitalized lease obligations under GAAP; (d) any Indebtedness referred to in the foregoing clauses (a) through (c) of any Person that is either (I) guaranteed (including under any “keep well” or similar arrangement) by, or (II) secured by any Encumbrance upon any property or asset owned by, the Company (provided that the amount of such Indebtedness described in this clause (II) will be the lesser of (A) the fair market value (as determined in good faith by the Company) of such asset as of the date of determination and (B) the amount of such Indebtedness of such other Persons).

“Indemnifying Party” will mean Sellers pursuant to Section 11.2 or Purchaser pursuant to Section 11.3, as the case may be.

“Intellectual Property” will mean Trademarks, Internet domain names, patents, copyrights (including in Software), trade secrets, inventions and know-how, and all registrations and applications for any of the foregoing.

“Knowledge” with respect to the Company, will mean the actual knowledge of those individuals set forth in Section 1.1(k) of the Company Disclosure Schedule.

“Law” will mean any U.S. or non-U.S. federal, state, local, national, municipal, supranational, administrative statute, law, ordinance, resolution, award, regulation, rule, requirement, code, edict, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law or other governmental restriction issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 5 of 61

“Liability” will mean any liability, indebtedness, obligation, loss, damage, claim, cost or expense (including costs of investigation and defense and attorneys’ fees, costs and expenses), in each case, whether absolute, accrued, matured, contingent (or based upon any contingency), known or unknown, fixed or otherwise, or whether due or to become due, including any fines, penalties, judgments, awards or settlements respecting any judicial, administrative or arbitration proceedings or any damages, losses, assessments, deficiencies, claims or demands, including those arising under any applicable Law, Action or Governmental Order and those arising under any Contract, regardless of whether any such amount is immediately due and payable or would be required to be disclosed on a balance sheet prepared in accordance with GAAP.

“License Agreements” will mean all licenses of, or covenants not to sue related to, Intellectual Property (a) from the Company to any other Person, or (ii) to the Company from any other Person.

“Material Adverse Effect” will mean any change, event, development, occurrence, state of facts, effect or circumstance that, individually or in the aggregate with any other changes, events, developments, occurrences, state of facts, effects or circumstances, (a) has had a material adverse effect, or would reasonably be expected to have a material adverse effect, on the business, assets, liabilities, results of operations or financial condition of the Company taken as a whole or (b) prevents, materially impairs or materially delays the ability of Sellers and the Company to consummate the transactions contemplated by this Agreement; provided that, in the case of clause (a) only, any change, event, development, occurrence, state of facts, effect or circumstance to the extent resulting from, relating to or arising out of the following will not constitute, or contribute or be taken into account in determining the existence of, a Material Adverse Effect: (i) any change in international, national or local political, social, regulatory, economic or financial market or business conditions (including any change in interest rates) generally affecting the industry, markets or geographical areas in which the Company operates; (ii) conditions generally affecting any of the industries in which the Company operates; (iii) any outbreak or substantial worsening of any military conflict, declared or undeclared war, hostilities or terrorist act, (iv) any hurricane, flood, tornado, earthquake, natural disaster, acts of God or other calamities; (v) changes in applicable Law or in GAAP; (vi) the entering into of this Agreement or public announcement, pendency or consummation of the transactions contemplated hereby or the identity of Purchaser (including the impact thereof on employees, customers, vendors or other persons with whom the Company has business relationships); (vii) any failure by the Company to meet any internal or external projections, budgets or forecasts (but not the underlying causes of such failure unless such underlying causes would otherwise be excepted from this definition); (viii) any communications (other than to Sellers or the Company by Purchaser or any of its Affiliates of its plans or intentions (including in respect of employees) with respect to the Company and its Business; (ix) any action expressly required by this Agreement to be taken or not taken by a Party or any action taken by Sellers or the Company with Purchaser’s prior written consent or at the written direction of Purchaser or its Affiliates; or (x) any matter set forth in the Company Disclosure Schedule or the Sellers Disclosure Schedule; and except, in the cases of clauses (i), (ii), (iii) (iv), and (v) to the extent such change, event, development, occurrence, state of facts, effect or circumstance, individually or in the aggregate, has a materially adverse and disproportionate effect on the Company, taken as a whole, relative to other companies operating in the industries in which the Company operates; provided, however, that, to the extent any change, event, development, occurrence, state of facts, effect or circumstance, individually or in the aggregate, may be reflected or taken into account as a Liability in the Financial Statements or the Final Closing Statement, such change, event, development, occurrence, state of facts, effect or circumstance will not constitute, or contribute or be taken into account in determining the existence of, a “Material Adverse Effect”.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 6 of 61

“Net Capital Rule” will mean SEC Rule 15c3-1, including all Appendices and all SEC and FINRA interpretive guidance thereto.

“Net Regulatory Capital” will mean the amount of net capital (computed in accordance with the Net Capital Rule as of 11:59 p.m. New York City time on the date immediately preceding the Final Closing Date.

“Permit” will mean any license, permit, certificate, approval, consent, franchise, exemption, order, registration, or similar authorization issued or granted by any Governmental Authority.

“Permitted Encumbrances” will mean: (a) statutory Encumbrances arising by operation of law with respect to a liability incurred in the ordinary course of business and that is not delinquent or that the Company is contesting in good faith by appropriate proceedings; (b) requirements and restrictions of zoning, building and other Laws; (c) Encumbrances for Taxes not yet due and payable or which are being contested in good faith by appropriate proceedings; (d) mechanics’, materialmen’s, carriers’, workmen’s, warehousemen’s, repairmen’s, landlords’ or other like Encumbrances and security obligations that are not delinquent; (e) Encumbrances set forth in any title policy or title report or survey with respect to Leases and other Encumbrances of record; (f) non-exclusive licenses of Intellectual Property granted in the ordinary course of business in a manner consistent with past practice; (g) such Encumbrances that are not, individually or in the aggregate, material to the Company, taken as a whole; and (h) Encumbrances granted pursuant to or securing obligations under the Existing Debt Agreements and any agreements related thereto.

“Person” will mean any natural person, corporation (including any not for profit corporation), company (including any limited liability company or joint stock company), partnership (general or limited), association or other form of business organization (whether or not regarded as a legal entity under applicable Law), labor union, limited partnership, limited liability partnership, joint venture, business enterprise, trust, firm or other entity or organization, including any Governmental Authority, as well as any syndicate or group that would be deemed to be a person or group under Section 13(d)(3) of the Exchange Act.

“Post-Final Closing Tax Period” will mean any taxable period, or portion of a Straddle Period, beginning after the Final Closing Date.

“Pre-Final Closing Tax Period” will mean any taxable period, or portion of a Straddle Period, ending on or before the Final Closing Date.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 7 of 61

“Purchase Price” will mean cash in amount equal to:

(a)            the Market Value of DTCC Stock as of the last day on which information is available from DTCC during the week prior to the Final Closing Date.

(b)            plus, the cash, cash equivalents and other liquid assets of the Company, provided they are marketable in accordance with FINRA rules, shown as net ownership equity for the regulatory capital of Company at the time of the Final Closing

less, any adjustments to the above to meet any regulatory capital requirements or other rules or regulations of any governmental, regulatory or other governing body for which Company is a member “Regulatory Documents” will mean, with respect to a Person, all forms, reports, registration statements, registrations, declarations, notices, schedules and other documents filed, or required to be filed, by such Person pursuant to applicable Securities Laws or the applicable rules and regulations of any United States or foreign governmental or non-governmental self-regulatory organization, agency or authority, including the SEC and FINRA.

“Restricted Cash” will mean all cash held in restricted Company accounts that, as of March 31, 2022, included $51,200,000 held at ”BMO Harris Bank, N.A., Special Reserve” and $3,500,000 held as “NSCC Deposit”.

“SEC” will mean the Securities and Exchange Commission and any successor thereto.

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

“Securities Laws” will mean the Securities Act, the Exchange Act, state “blue sky” securities laws, all similar foreign securities laws, and the rules and regulations promulgated thereunder.

“Sellers’ Bank Account” will mean one or more bank accounts in the United States to be designated by Sellers in a written notice to the Purchaser no less than five (5) days prior to the Final Closing Date.

“Software” will mean all (a) computer programs, applications, systems and code, including software implementations of algorithms, models and methodologies, program interfaces, source code and object code, (b) Internet and intranet websites, databases and compilations, including data and collections of data, whether machine-readable or otherwise, (c) development and design tools, library functions and compilers, (d) technology supporting websites, and the contents and audiovisual displays of websites and (e) media, documentation and other works of authorship, including user manuals and training materials, relating to or embodying any of the foregoing or on which any of the foregoing is recorded.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 8 of 61

“Straddle Period” will mean any period beginning on or before the Final Closing Date (as applicable) and ending after such date.

“Subordinated Loans” will mean loans to the Company that have been satisfactorily subordinated pursuant to agreements meeting the requirements of Rule 15c4-1d under the Exchange Act.

“Tax Benefit” will mean any actual reduction in cash Taxes paid or required to be paid (and any actual increase in a cash Tax refund or credit in lieu of a cash tax refund, and including any interest paid by a Taxing Authority with respect thereto and any interest that would have been payable to the relevant Taxing Authority but for such Tax Benefit) arising from any item of income, gain, loss, deduction, credit, recapture of credit or any other item that increases or decreases Taxes paid or required to be paid, determined on a “with and without basis”.

“Tax Returns” will mean any return (including United States Internal Revenue Service Forms K-1, any analogous forms required by state or local law, and any other information returns), statement, election, schedule, estimate, declaration, claim for refund, report, form, or any other document, including in each case any schedules, supplements, amendments or attachments thereto, filed or required to be filed with any taxing authority with respect to Taxes.

“Taxes” will mean (a) all taxes, however denominated, including all income, profits, capital gains, payroll, unemployment, value added, customs duties, premium, compensation, franchise, gross receipts, capital, net worth, sales, use, withholding, social security, disability, real property, personal property (tangible and intangible), stamp, transfer (including real property transfer or gains), excise, duties, levies, imposts, estimated, ad valorem and any other taxes of any kind whatsoever (including any and all fines, penalties and additions attributable to or otherwise imposed on or with respect to any such taxes and interest thereon) imposed by or on behalf of any Taxing Authority and (b) any liability for or in respect of any amounts described in clause (a) as a transferee or successor, by contract, or as a result of having filed any Tax Return on a combined, consolidated, unitary, affiliated or similar basis with any other Person.

“Taxing Authority” will mean any Governmental Authority having jurisdiction over the assessment, determination, collection, or other imposition of any Tax.

“Trademarks” will mean Company-used names, trademarks, service marks, trade names, business names, corporate names, domain names, logos, trade dress, designations, symbols, emblems, designs, logos, slogans, or other source indicators, whether registered or unregistered, including the goodwill symbolized thereby or associated therewith.

“Trading Account Positions” will mean third-party issued securities owned by the Company it its proprietary trading account as part of its regular course of business as a securities broker-dealer of buying and selling securities as principal.

“Transaction Expenses” will mean all fees, costs or expenses or other payments incurred or subject to reimbursement by the Parties in connection with the negotiation, documentation, implementation and/or consummation of the transactions contemplated by this Agreement, including any financial advisor, broker, legal or accounting or other professional fees, costs, and disbursements.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 9 of 61

“Treasury Regulations” will mean the United States Treasury regulations promulgated under the Code.

“Unrestricted Cash” will mean the sum of all cash, cash equivalents and liquid investments plus all deposited and uncleared bank deposits held in Company Bank Accounts (other than any such deposits that are not cleared as of the date of the Final Closing Statement (for the purposes of Article II hereunder) or the Final Closing Statement (for the purposes of Article III hereunder)), and less all outstanding checks of the Company (other than checks that have not been cleared as of the date of the Final Closing Statement (for the purposes of Article III hereunder)) and less Restricted Cash.

Article II

INITIAL CLOSING

Section 2.1.    Transactions to be Effected at the Initial Closing. At the Initial Closing and on the basis of the representations, warranties, covenants and agreements contained herein the Company will deliver, or cause to be delivered to Purchaser, a good standing certificate (or equivalent thereof, to the extent applicable) for the Company from the Department of Commerce, Division of Corporations and Commercial Code, of Utah dated as of a date not earlier than three (3) days prior to the Initial Closing.

Section 2.2.    Initial Closing. The consummation of the transactions contemplated by Section 2.1 (the “Initial Closing”) will take place concurrently with the execution and delivery of this Agreement on the date hereof (the “Initial Closing Date”). For all purposes under this Agreement and each action taken at the Initial Closing, and all documents to be executed and delivered by the Parties at the Initial Closing, will be deemed to have been made, taken, executed, and delivered simultaneously.

Article III

FINAL CLOSING

Section 3.1.    Transactions to be Effected at the Final Closing. At the Final Closing, on the basis of the representations, warranties, covenants and agreements contained herein and subject to the satisfaction or waiver (to the extent permitted by applicable Law) of the conditions set forth in Article VIII, the Parties will effect, or cause to be effected, the following transactions:

(a)            At the Final Closing, Sellers will sell, assign, transfer and deliver to Purchaser, and Purchaser will purchase and acquire from Sellers, free and clear of all Encumbrances (other than transfer restrictions under applicable Securities Laws and any Encumbrances imposed by Purchaser), all of the Equity Interests held by the Sellers (such sale and purchase, the “Share Purchase”). The consideration payable to Sellers will be the Purchase Price. Immediately following the Share Purchase, Purchaser will own one hundred percent (100%) of the issued and outstanding Equity Interests of the Company. Each Seller will be separately, severally, and solely responsible to deliver to Purchaser the Shares Purchased.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 10 of 61

Section 3.2.    Company Final Closing Estimate.

(a)            Not fewer than five (5) Business Days prior to the anticipated Final Closing Date, the Company will deliver to Purchaser a written statement (the “Pre-Final Closing Statement”), together with reasonably detailed supporting information, setting forth the Company’s good faith estimates, calculated in accordance with the Accounting Principles and the terms hereof, in each case without duplication, of:

(i)             the Restricted Cash;

(ii)            the Unrestricted Cash;

(iii)           the Net Regulatory Capital; and

(iv)           the Net Debt.

(v)            the amount due to repay the Subordinated Loans in full;

(vi)           the DTCC Stock Value; and

(vii)          the amount of any adjustments to the above to meet any regulatory capital requirements or other rules or regulations of any governmental, regulatory, or other governing body for which Company is a member.

The total of the foregoing is hereinafter referred to as the “Company Equity”

(b)            During the period between the delivery of the Pre-Final Closing Statement and two (2) Business Days prior to the Final Closing Date, (A) to the extent reasonably requested by Purchaser, the Company will promptly give Purchaser and its representatives access to or copies of the books, records and work papers of the Company to the extent such materials directly relate to and were used in preparing the Pre-Final Closing Statement, and (B) the Company will review and consider in good faith any revisions to the Pre-Final Closing Statement proposed by Purchaser.

Section 3.3.    Final Closing Deliverables. At or prior to the Final Closing:

(a)            Purchaser will:

(i)             deliver, or cause to be delivered, to the Sellers the duly executed certificate required to be delivered pursuant to Section 8.3(c);

(ii)            pay, or cause to be deposited with the duly constituted escrow agent in accordance with Section 3.5 the Holdback Amount;

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 11 of 61

(iii)           pay, or cause to be paid to, the Sellers, in proportion to such Seller’s proportionate ownership in the Company, the balance of the Purchase Price, less the Holdback amount, as set forth on the Pre-Final Closing Statement in cash; and

(iv)           cause the Company to repay to the principal of, and accrued interest and other amounts due on, the Subordinated Loans.

(b)            The Company will:

(i)             deliver, or cause to be delivered, to Purchaser a copy of the FINRA Approval;

(ii)            deliver, or cause to be delivered, to Purchaser the duly executed certificate required to be delivered pursuant to Section 8.2(d);

(iii)           deliver, or cause to be delivered, to Purchaser a good standing certificate (or equivalent thereof, to the extent applicable) for Company from the Department of Commerce, Division of Corporations and Commercial Code, of Utah dated as of a date not earlier than three (3) days prior to the Final Closing;

(iv)           pay, or cause to be paid, to the lenders of the Subordinated Loans the unpaid balances due thereon; and

(v)            deliver, or cause to be delivered, to Purchaser the resignations of all Directors from the Board of the Company.

(c)            Each Seller will deliver, or cause to be delivered, to Purchaser, the Shares to be transferred by it hereunder, duly endorsed in blank or accompanied by stock powers in proper form for transfer, and with any required stock transfer stamps affixed thereto.

(d)            Each Party will deliver or cause to be delivered to each other Party all such other documents, agreements, instruments, writings, and certificates as may be reasonably requested and as are necessary for the Parties to satisfy their respective obligations hereunder.

Section 3.4.    Final Closing.

(a)            Upon the terms and subject to the conditions set forth in this Agreement, the consummation of the transactions contemplated by Section 3.1 (the “Final Closing”) will take place on the date that is the later of (i) five (5) Business Days after the satisfaction or written waiver (to the extent permitted by applicable Law) of all of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Final Closing, but subject to the satisfaction or waiver (to the extent permitted by applicable Law) of those conditions at such time), and (ii) the earlier of (x) the first (1st) Business Day that is no less than thirty (30) days after the date of Company’s receipt of the FINRA Approval, and (y) the Business Day immediately preceding the Termination Date, or on such other date or at such other time as the Purchaser and Sellers may agree in writing (the “Final Closing Date”).

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 12 of 61

(b)            For the purposes of this Agreement and unless otherwise agreed, the Purchase Price will be paid to the separate Sellers by wire transfer of immediately available funds to each Sellers’ Bank Account on the Final Closing Date.

Section 3.5.    Holdback Amount in Escrow

(a)            Purchaser will deposit into escrow with a mutually satisfactory escrow agent $750,000 of the Purchase Price (the “Holdback Amount”) as a reserve for the payment of any amounts that the Sellers owe to Purchaser for post-Closing claims per this Agreement and subject to any limitations set forth herein. For clarity, the Holdback Amount is intended as a source of payment, but not as a limitation of damages, that may be claimed by Purchaser. Except as to any amounts claimed by Purchaser to be owed by the Sellers to Purchaser, which amounts are specifically reflected in a lawsuit commenced against the Sellers within twelve (12) months after the Closing for damages based upon a post-Closing claim or regulatory action, Escrow Agent will disburse the balance of the Holdback Amount to Sellers immediately following the expiration of the twelve (12) month period. Prior to institution of any such lawsuit, Purchaser will provide at least ten (10) days’ prior written notice to Sellers, specifying the exact amount and nature of any such claim asserted by Purchaser against the Holdback Amount. Any lawsuit commenced against the Sellers must specifically set forth the exact amount that is claimed to be owed by the Sellers to Purchaser, and absent such specific amount being identified, Escrow Agent is authorized to release the entire Holdback Amount to Sellers immediately following the expiration of the twelve-month (12) month period post-Closing. Any portion of the Holdback Amount that Escrow Agent is entitled to retain pursuant to this Section 3.5 after the passage of the twelve (12) month period, will continue to be held in escrow pending final and unappealable dismissal or judgment in the action or actions timely commenced by Purchaser or settled pursuant to a written agreement between Seller and Purchaser. If Purchaser obtains a final and unappealable judgment in any such action, Escrow Agent is directed to disburse to Purchaser from the Holdback Amount retained in escrow in the amount of the judgment plus any interest, attorney’s fees, and costs to which it is entitled thereon upon presentation to Escrow Agent and Sellers of the court order or other evidence of such final and unappealable judgment. Once all such actions are either finally or non-appealably dismissed or a final and non-appealable judgment is entered therein or settled pursuant to a written agreement between Seller and Purchaser, and the amount of damages due to Purchaser is paid, whether from the Holdback Amount or otherwise, Escrow Agent is directed to disburse to Sellers any remaining balance of the Holdback Amount. The parties will execute any additional escrow instructions not inconsistent with the foregoing reasonably required by Escrow Agent or either party relating to the Holdback Amount. Escrow Agent’s fees and costs for holding and disbursing the Holdback Amount will be shared equally by Sellers and Purchaser.

Section 3.6.    Post Final Closing Sellers Equity Adjustments. Not later than twenty (20) days after the Final Closing. the parties will retain Sorensen Vance, Salt Lake City, Utah to complete an updated determination of the Company Equity based on the Company’s actual financial condition and net capital calculation as of the Final Closing Date and advise the Sellers of such final determination (the “Adjustment Certificate”), including the details of the calculation. If the Purchaser agrees with the Adjustment Certificate, this will be considered a final determination, and the Adjustment Certificate will be accepted by all Parties in the absence of manifest error. The cost of Sorensen Vance will be shared equally by the Purchaser and the Sellers. If the Purchaser does not agree with the Adjustment Certificate, the parties will retain Haynie & CO as an independent PCAOB qualified firm to conduct a final determination. The cost of Haynie & Co will be shared equally by the Purchaser and the Sellers

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 13 of 61

Article IV

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLERS RESPECTING THE COMPANY

Except as set forth in a correspondingly labeled section of the written disclosure schedule delivered by the Company to Purchaser on or prior to the date of this Agreement (the “Company Disclosure Schedule”) (it being agreed that any matter disclosed in any section or subsection of the Company Disclosure Schedule will be deemed disclosed in any other section or subsection to the extent that such information is reasonably apparent on the face of such disclosure to be so applicable to such other section or subsection), the Company hereby represents and warrants to Purchaser as follows:

Section 4.1.    Organization. The Company is a corporation duly formed, validly existing and in good standing under the laws of Utah. The Company has the requisite corporate power and authority necessary to carry on its business as it is now being conducted and to own, lease and operate its material properties and assets. The Company is duly licensed or qualified to do business and in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned, leased, or operated by it makes such qualification or licensing necessary under applicable Law, except where the failure to be so licensed, qualified or in good standing would not have a Material Adverse Effect. The Company has made available to Purchaser true and complete copies of the Governing Documents of the Company as currently in effect.

Section 4.2.    Authority.

(a)            The execution and delivery by the Company of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly approved by all requisite corporate action and shareholder action on the part of the Company and its shareholders, and no additional corporate proceedings on the part of the Company or any of its shareholders are necessary to approve or authorize, as applicable, this Agreement, the performance of the Company’s obligations hereunder or the consummation of the transactions contemplated hereby.

(b)            Assuming the due authorization, execution, and delivery by the other Parties thereto, this Agreement constitutes, the valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 14 of 61

Section 4.3.    No Violation. Subject to the making of the filings, notifications and registrations and receipt of the consents, authorizations, approvals and waivers referred to in Section 4.4 and the expiration of related waiting periods, the execution, delivery and performance of this Agreement by the Company and the consummation of the transactions contemplated hereby do not and will not (a) conflict with, constitute a breach or violation of, or a default under, or result in or constitute a circumstance which, with or without notice or lapse of time or both would constitute any of the foregoing under any Material Contract to which the Company or any of its Subsidiaries is a party, or give rise to any Encumbrance (other than Permitted Encumbrances) on any of the assets of the Company, (b) violate any Law or Governmental Order applicable to the Company or its assets or properties or (c) constitute a breach or violation of, or a default under, the Governing Documents of the Company, except, in the case of clauses (a) and (b) above, as would not be reasonably expected to have a Material Adverse Effect.

Section 4.4.    Consents and Approvals. Except (a) as set forth in Section 4.4 of the Company Disclosure Schedule, (b) the FINRA Approval, and any other required approval of any Governmental Authority of which the Company is a member, and (c) for those consents, authorizations, approvals, waivers, filings, notifications and registrations the failure to obtain or make would not be materially adverse to the Company, the Company is not required at or prior to (i) the Initial Closing or (ii) the Final Closing to obtain any consent, approval, authorization or waiver of, or make any filing, notification or registration with, any Governmental Authority in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

Section 4.5.    Title; Capital Structure.

(a)            The authorized equity of the Company consists of a total of 1,000,000 shares of common stock, par value $0.10 per share, of which 410,000 Shares are issued and outstanding, all of which are validly issued, fully paid and nonassessable. Equity Interests of the Company were not issued in violation of applicable Law or the Governing Documents of the Company. Purchaser will acquire the Equity Interests of the Company at the Final Closing free and clear of any Encumbrances (other than transfer restrictions under applicable Securities Laws and any Encumbrances imposed by Purchaser).

(b)            Except for this Agreement and the transactions contemplated hereby, and as set forth in Section 4.5(b)(i) of the Company Disclosure Schedule, there are no outstanding options, warrants, calls, conversion rights, preemptive rights, rights of first refusal, redemption rights, repurchase rights, “tag-along” or “drag-along” or other similar rights (“Equity Rights”) (i) obligating the Company to issue, deliver, redeem (or establish a sinking fund with respect to redemptions), purchase or sell, any equity or voting interest of the Company or any securities convertible or exchangeable into or exercisable for any equity or voting interest of the Company, (ii) giving any Person a right to subscribe for or acquire any equity or voting interests of the Company or (iii) obligating the Company to issue, grant, adopt or enter into any such Equity Rights. There are no outstanding securities convertible or exchangeable into or exercisable for any equity or voting interests of the Company. Except for this Agreement and the transactions contemplated hereby, and as set forth in Section 4.5(b)(ii) of the Company Disclosure Schedule, there are no voting trusts, irrevocable proxies or other Contracts to which the Company is a party or is bound with respect to the voting or consent of any Equity Interest of the Company. There are no outstanding or authorized compensatory or service-linked equity or equity-based awards or interests with respect to any equity or voting interests in the Company, including any profits, interests, options, appreciation rights, phantom equity, profit participation or other compensatory or service-linked equity or equity-based rights.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 15 of 61

Section 4.6.    Subsidiaries.

(a)            The Company has no Subsidiaries and, other than the DTCC Stock and Trading Account Positions, (ii) does not own, of record or beneficially, any direct or indirect Equity Interest, or any right (contingent or otherwise) to acquire any Equity Interest, in any other Person. Other than DTCC Stock, the Company is not a member of (nor is any part of the Business conducted through) any partnership nor is the Company a participant in any joint venture or similar arrangement.

Section 4.7.    Financial Statements; No Undisclosed Liabilities.

(a)            Schedule 4.7(a) of the Company Schedules includes true and complete copies of (i) the audited statement of financial condition, balance sheet, of the Company as of June 30, 2019, 2020 and 2021 and the related audited income statements and statements of cash flows for the fiscal year ending on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon by a firm of certified public accountants registered with the Public Company Accounting Oversight Board (collectively referred to herein as the “Company Audited Financial Statements”), and (ii) the unaudited statement of financial condition, or balance sheet, of the Company as of February 28, 2022, and the related unaudited income statements and statements of cash flows for year ended on such date, without related notes and schedules thereto (referred to herein as the “Interim Company Financial Statements”). The Company Audited Financial Statements and the Interim Company Audited Financial Statements (i) were prepared in accordance with the books of account and other financial records of the Company, and (ii) present fairly, in all material respects, the financial position of the Company, and the results of its operations and its cash flows, as of the dates thereof or for the respective periods covered thereby, subject, in the case of the Interim Company Financial Statements, to normal year-end adjustments and related footnote disclosures.

(b)            The Company has no Liabilities of any nature required to be presented or reserved on a balance sheet prepared in accordance with GAAP, except (i) Liabilities contemplated by or in connection with this Agreement or the transactions contemplated hereby or set forth in Section 4.7(b) of the Company Disclosure Schedule, (ii) Liabilities reserved or reflected against the February 28, 2022, balance sheet of the Company included in the Interim Company Financial Statements, (iii) Liabilities for performance under Material Contracts listed on Section 4.9 of the Company Disclosure Schedule that are expressly set forth in and identifiable by reference to the text of such Material Contracts (excluding any Liability for breach), (iv) Liabilities incurred in the ordinary course of business of the Company since October 31, 2021, or (v) Liabilities that are not, individually or in the aggregate, material to the Company, taken as a whole.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 16 of 61

Section 4.8.    Absence of Certain Changes. Since October 31, 2021 through the date hereof, (a) the Company has conducted its business in the ordinary course in all material respects; (b) has not taken any action that would have required consent pursuant to Section 7.1(a), (b), (c), (g), (h), (i), (j) or (o); and (c) there has not occurred a Material Adverse Effect that is not set forth in the Company Disclosure Schedules.

Section 4.9.    Material Contracts.

(a)            Section 4.9(a) of the Company Disclosure Schedule contains a true and complete list of all Contracts (excluding any Benefit Arrangement) in effect on the date hereof to which the Company is a party or by which the Company or any of its properties or assets is bound that meet any of the following criteria (“Material Contracts”):

(i)             to the extent not otherwise defined as a Material Contract pursuant to the other subparts of this definition, any Contract involving consideration or other expenditure in excess of $25,000, other than Contracts made in the ordinary course of business, consistent with past practice;

(ii)            any Contract under which payments by or obligations of the Company will be increased, accelerated or vested by the occurrence (whether alone or in conjunction with any other event) of any of the transactions contemplated by this Agreement, or under which the value of the payments by or obligations of the Company will be calculated on the basis of any of the transactions contemplated by this Agreement, whether pursuant to a change in control or otherwise;

(iii)           all Contracts with independent contractors or consultants (or similar arrangements) to which the Company is a party and that cannot be cancelled by the Company without penalty or further payment and without more than thirty (30) days’ notice;

(iv)           all Contracts with any Governmental Authority to which the Company is a party;

(v)            any material License Agreement;

(vi)           any Lease pursuant to which the annualized rent or lease payments are in excess of $25,000;

(vii)          any Contract relating to any Indebtedness, granting any Encumbrance in the property of the Company or providing any guarantee by the Company of the Liabilities or Indebtedness of another Person;

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 17 of 61

(viii)         strategic partnership, joint venture, or similar agreements;

(ix)            any stock purchase agreement, asset purchase agreement or other acquisition or divestiture agreement under which there remain any material unperformed obligations or material indemnification obligations;

(x)             any Contract with any securities exchanges, commodities exchanges, boards of trade, clearing corporations, self-regulatory organizations (including Company’s Membership Agreement with FINRA) and similar organizations in which any of the Company holds memberships or has been granted trading privileges;

(xi)            any Contract with any ATS;

(xii)           any Contract with any inter-dealer broker; and

(xiii)          any Contract that currently limits or purports to limit the ability of the Company to compete in any line of business or with any Person or in any geographic area or during any period, or that grants the other party or any third person “most favored nation” or similar status.

(b)            Each Material Contract is valid, binding and in full force and effect, and is enforceable against the Company, and, to the Knowledge of the Company, each other party thereto, in accordance with its terms, subject to the Enforceability Exceptions. The Company is not (whether upon notice or the passage of time) in default or breach under (or, to the Knowledge of the Company, is alleged to be in default or breach under) any Material Contract, nor, to the Knowledge of the Company, is any other party to any Material Contract in default thereunder, except in either case, where such breach or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has made available to Purchaser true and complete copies of all Material Contracts.

Section 4.10.    Compliance with Applicable Law.

(a)            The Company has, since June 30, 2019, complied and is in compliance with all applicable Law in all material respects and none of the Company, Sellers or any of their respective Affiliates (insofar as it relates to the business of the Company) has received any written notice from any Governmental Authority asserting any violation by the Company of any applicable Law, that is, individually or in the aggregate, material to the Company.

(b)            The Company holds and has, since June 30, 2019, held, all material Permits necessary for the conduct of its business under and pursuant to applicable Law. A true and complete list of all such material Permits in effect on the date hereof is set forth in Section 4.10(b) of the Company Disclosure Schedule. All such material Permits are valid and in full force and effect and are not subject to any suspension, cancellation, modification or revocation or any Actions related thereto, and, to the Knowledge of the Company, no such suspension, cancellation, modification or revocation or Actions is threatened, except for any failure to be in full force and effect or suspension, cancellation, modification or revocation or any Actions that would not, individually or in the aggregate, be material to the Company.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 18 of 61

(c)            To the Knowledge of the Company, except as set forth in Section 4.10(c) of the Company Disclosure Schedule, there is no investigation pending by a Governmental Authority of, and no Governmental Authority has initiated or provided written notice to the Company of, any investigation into the business or operations of the Company. There is no material deficiency, violation or exception claimed or asserted by any Governmental Authority in writing with respect to any examination of the Company that has not been resolved in all material respects.

(d)            The Company has implemented an anti-money laundering policy and a customer identification program to the extent required by applicable Law, each of which is designed to comply in all material respects with the requirements of applicable Law.

Section 4.11.    Regulatory Documents; Broker-Dealer Registrations.

(a)            Since June 30, 2019, the Company has timely filed (after giving effect to any extensions) all material Regulatory Documents that were required to be filed by it with any Governmental Authority, including any amendments or supplements thereto.

(b)            The Company is, and at all times required by the Exchange Act since June 30, 2019, has been, duly registered as a broker-dealer with the SEC, as a broker-dealer under the Exchange Act, as a member of SIPC and admitted to membership with FINRA. The Company is, and at all times required by applicable Law (other than the Exchange Act) since June 30, 2019, has been, duly registered, licensed or qualified as a broker-dealer in each state or any other jurisdiction where the conduct of its business requires such registration, licensing or qualification, except where the failure to be so qualified would not be materially adverse to the Company. The Company is a member in good standing with FINRA and any other Governmental Authority of which it is a member and has complied in all material respects with their rules and regulations. The Company has made available to Purchaser (i) all material correspondence by the SEC and/or FINRA relating to the Company since June 30, 2019, and (ii) true and complete copies of the Uniform Application for Broker-Dealer Registration on Form BD and the FINRA Membership Agreement of the Company, as in effect on the date hereof, in each case. Section 4.11(b) of the Company Disclosure Schedule sets forth as of the date hereof a true and complete list of the federal, state and foreign jurisdictions in which the Company is registered as a broker-dealer and each jurisdiction in which the Company otherwise operates an office or other location of convenience.

(c)            At all times since June 30, 2019, the Company has maintained “net capital” (as such term is defined in the Net Capital Rule) equal to or in excess of the minimum “net capital” required to be maintained by it under the Exchange Act, has not been required to file an early warning notification pursuant to Rule 17a-11 under the Exchange Act or a notification pursuant to FINRA Rule 4120 since June 30, 2019, and has not exceeded any of the Early Warning Thresholds.

(d)            Since June 30, 2019, the Company has not been (i) required to be registered, licensed or qualified as an investment advisor, exchange, alternative trading system, transfer agent, clearing agency, commodity trading advisor, commodity pool operator, futures commission merchant or in any similar capacity under any applicable Law or (ii) subject to any liability or disability by reason of any failure to be so registered, licensed or qualified, except in each case, as would not be materially adverse to the Company.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 19 of 61

(e)            Each employee of the Company who is required to be registered, licensed or qualified with any Governmental Authority to perform his or her job functions is duly registered, licensed and/or qualified as such and such registrations, licenses and/or qualifications are in full force and effect, except where the failure to be so registered, licensed and/or qualified or to have such registrations, licenses and/or qualifications in full force and effect would not, individually or in the aggregate, have a Material Adverse Effect.

Section 4.12.    Ineligible Persons. Except as set forth on Schedule 4.12 of the Company Disclosure Schedule, neither the Company nor any of its “associated persons” are subject to a “statutory disqualification” (as such terms are defined in the Exchange Act or its equivalent under any applicable state or foreign Law), or are subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of the Company or suspension or revocation of the Company’s registration as a broker-dealer under Section 15 of the Exchange Act, except as would not be materially adverse to the Company.

Section 4.13.    Litigation.

(a)            Except as set forth on Section 4.13 of the Company Disclosure Schedule, as of the date hereof, there are no Actions that are pending or, to the Knowledge of the Company, threatened against the Company, that (i) seek any injunction or equitable relief, including the imposition of any material limitation on the business of the Company, (ii) involve any criminal allegations, including fraud, (iii) individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of the Company to perform its obligations hereunder or (iv) challenge the validity of the transactions contemplated by this Agreement.

(b)            Except as disclosed on the Company’s Form BD or Except as set forth on Section 4.13 of the Company Disclosure Schedule, since June 30, 2019, through the Business Day immediately prior to the date of this Agreement, the Company has not, nor has any “person associated with” the Company (as defined in the Exchange Act), nor any member of any board of directors (or comparable governing body) of the Company, and during which time any such person was such a “person associated with” or “associated person” of the Company been, (i) ineligible to serve as a broker-dealer or associated person of a broker-dealer under Section 15(b) of the Exchange Act, (ii) subject to “statutory disqualification” (as defined in the Exchange Act) or (iii) subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of, or suspension or revocation of the registration of the Company as a broker-dealer, except as would not be materially adverse to the Company.

Section 4.14.    Employee Benefit Arrangements; Employee Matters.

(a)            Section 4.14(a)(i) of the Company Disclosure Schedule lists all material Benefit Arrangements. For purposes of this Agreement, “Benefit Arrangements” means all (i) “employee benefit plans” (as defined in Section 3(3) of ERISA); (ii) bonus, equity option, equity purchase, restricted equity, other equity, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, vacation, fringe benefit or other material benefit plans or programs; and (iii) employment, termination and severance agreements that, in each case, are sponsored, maintained or contributed to by the Company and in effect on the date hereof, excluding, in each case, any “multiemployer plan” (within the meaning of Section 3(37) of ERISA).

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 20 of 61

(b)            The Company has provided to Purchaser a true and complete copy of each material Benefit Arrangement. With respect to each material Benefit Arrangement, the Company has provided to Purchaser a copy of the following documents, if applicable: (i) the most recent summary plan description; (ii) the most recent Form 5500 report, together with all schedules thereto; and (iii) the applicable trust or custodial agreement.

(c)            Each Benefit Arrangement has been operated in all material respects in accordance with all provisions of applicable Law and administered in accordance with its Governing Documents.

(d)            No Benefit Arrangement is subject to Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code. The Company has not, since June 30, 2019, sponsored, maintained, or contributed to a “multiemployer plan” (within the meaning of Section 3(37) of ERISA).

(e)            Except as would not be expected to result in a material liability to the Company, each Benefit Arrangement that is intended to be a “qualified plan” within the meaning of Section 401(a) of the Code is so qualified, and, to the Company’s Knowledge, nothing has occurred that would be expected to adversely affect the qualified status of such Benefit Arrangement.

(f)            No Benefit Arrangement provides for life, health, medical or other welfare benefits to former employees of the Company or beneficiaries or dependents thereof, except for health continuation coverage as required by Section 4980B of the Code or Part 6 of Title I of ERISA.

(g)            As of the date hereof, there are no Actions (other than Actions for benefits in the ordinary course) that are pending or threatened against any Benefit Arrangement or any fiduciaries thereof with respect to their duties to such Benefit Arrangement.

(h)            The Company has complied in all material respects with all applicable Laws respecting employment and employment practices, including wages and hours of work, child labor, occupational health and safety, equal employment opportunity, nondiscrimination, immigration, benefits, employee leave issues, collective bargaining, labor relations, affirmative action, workers’ compensation, unemployment insurance, the payment of social security and similar Taxes and plant closings and layoffs.

(i)             Except as would not reasonably be expected to result in a material liability to the Company, (i) the Company has not, nor has been, engaged in any unfair labor practice and no unfair labor practice complaint, grievance or arbitration proceeding is pending or threatened against the Company; (ii) there are no pending or, to the Company’s Knowledge, threatened union organizing activities involving the Company Employees; and (iii) there is no labor strike, dispute, work slowdown or stoppage pending or, to the Company’s Knowledge, threatened against the Company. The Company is not a party to or bound by any labor agreement, collective bargaining agreement, work rules or practices or any other labor-related agreements or arrangements with any labor union, labor organization or works council in respect of the Company Employees.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 21 of 61

(k)            Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or together with any other event or events, will (i) result in any payment (including severance, forgiveness of indebtedness or otherwise) becoming due under any Benefit Arrangement, whether or not such payment is contingent; (ii) increase any payments or benefits otherwise payable under any Benefit Arrangement; (iii) result in the acceleration of the time of payment, vesting or funding of any benefits, including the acceleration of the vesting and exercisability of any equity awards, whether or not contingent; (iv) require the funding of any trust or other funding vehicle; or (v) result in any “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any Company Employee. No Benefit Arrangement provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code.

Section 4.15.    Intellectual Property.

(a)            Section 4.15(a)(i) of the Company Disclosure Schedule sets forth a true and complete list of all Intellectual Property that on the date hereof is registered with or subject to an application for registration with any Governmental Authority or Internet domain name registrar by the Company. Each item of material Intellectual Property that is owned by the Company is (i) subsisting, valid and enforceable, and (ii) free and clear of any (A) Encumbrances (other than Permitted Encumbrances), (B) exclusive licenses, (C) non-exclusive licenses not granted in the ordinary course of business consistent with past practice and (D) obligations to grant any of (A)-(C).

(b)            To the Knowledge of the Company, the conduct of the business of the Company does not infringe, misappropriate, or otherwise violate, and has not, since June 30, 2019, infringed, misappropriated, or otherwise violated, the Intellectual Property of any other Person. To the Knowledge of the Company, no Person is infringing, misappropriating, or otherwise violating, and has not, since June 30, 2019, infringed, misappropriated, or otherwise violated, the Intellectual Property owned by the Company.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 22 of 61

(c)            There are no Actions that are pending or threatened in writing (i) against the Company alleging that the conduct of the business of the Company infringes, misappropriates, or otherwise violates the Intellectual Property of any other Person, or (ii) concerning the ownership, validity, registrability or enforceability of any Intellectual Property owned by the Company. The Company has not received any notification that a license under any other Person’s Intellectual Property is or may be required to operate the businesses of the Company.

(d)            The Company has taken all commercially reasonable measures to maintain the confidentiality and value of all confidential Intellectual Property used or held for use in the operation of its businesses, including source code for any Company Software.

Section 4.16.    Taxes.

(a)            The Company has (i) duly and timely filed (or caused to be duly and timely filed) with the appropriate Taxing Authority all material Tax Returns required to be filed by it (taking into account any applicable extensions or waivers) and all such Tax Returns were true, correct and complete in all material respects as of their respective dates, (ii) duly and timely paid (or caused to be duly and timely paid) in full all material Taxes required to be paid by it, and (iii) complied in all material respects with applicable Laws with respect to the withholding and payment over of Taxes and has duly and timely withheld and paid over to the respective proper Taxing Authorities all material amounts required to be so withheld and paid over, except in each case for Taxes or Tax Returns with respect to which the Company has established or reflected an adequate reserve under GAAP or for Taxes or Tax Returns that are being defended in good faith through appropriate proceedings.

(b)            Within the preceding three (3) years, no claim or nexus inquiry has been made in writing by a Taxing Authority in a jurisdiction where the Company does not file Tax Returns claiming that the Company is subject to taxation by, or is required to file any Tax Return in, such jurisdiction.

(c)            As of the date hereof, there (i) is no material deficiency, claim, audit, suit or proceeding outstanding or threatened in writing against or with respect to the Company in respect of any Taxes or Tax Returns, (ii) are no material outstanding “closing agreements” (as described in Section 7121 of the Code (or any corresponding or similar provision of state, local or foreign Tax Law)), ruling requests or requests to consent to change a method of accounting with respect to the Taxes of the Company, and (iii) are no material agreements, waivers or similar consents extending the statutory period of limitation applicable to any Taxes of the Company for any period.

(d)            There are no Encumbrances for Taxes upon any property or assets of the Company, except for Permitted Encumbrances.

(e)            The Company is not the subject of, nor is it bound by, any material private letter ruling, technical advice memorandum or similar ruling, memorandum, or agreement with any Taxing Authority.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 23 of 61

(f)            The Company is not a party to, nor is it bound by, any material Tax indemnification, allocation or sharing agreement that will be in existence after the Final Closing, other than any customary Tax indemnity, allocation or sharing in any agreement whose primary subject is not Taxes.

(g)            The Company has never been a member of any affiliated group, within the meaning of Section 1504(a) of the Code, or a member of a combined, consolidated, or unitary group for state, local or foreign Tax purposes (in each case other than any such group of which the Company is the parent) nor has the Company had any liability for material Taxes of any other Person as a result of having been a member of any affiliated, combined, consolidated, or unitary group for U.S. federal, state, local or foreign Tax purposes (including Treasury Regulations Section 1.1502-6) or as a transferee or successor.

(h)            Within the past three (3) years, the Company has not distributed the stock of another Person in a transaction that was purported or intended to be governed in whole or in part by Section 355(a) of the Code.

(i)             The Company will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Final Closing Date, as a result of any (i) change in method of accounting for a taxable period ending on or prior to the Final Closing Date, (ii) installment sale or open transaction disposition made on or prior to the Final Closing Date, (iii) prepaid amount received on or prior to the Final Closing Date, or (iv) cancellation of indebtedness income deferred pursuant to Section 108(i) of the Code.

(j)             The Company has not been a party to any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2).

(k)            Notwithstanding any other provision of this Agreement, it is agreed and understood that no representation or warranty is made by the Company in this Agreement or any of the Transaction Agreements in respect of Tax matters, other than the representations in this Section 4.16.

Section 4.17.    Insurance. Section 4.17 of the Company Disclosure Schedule contains a complete and correct summary, as of the date hereof, of all current insurance policies and contracts and all other forms of insurance owned or held by the Company as well as all outstanding claims under each insurance policy or contract. Each material insurance policy or contract covering the Company on the date hereof has been made available to Purchaser and is in full force and effect with reputable insurance carriers in all material respects. All material premiums, audits, adjustments or collateralization requirements due under the material insurance policies or contracts as of the date hereof have been paid in a timely manner, and the Company has complied in all material respects with the terms and provisions of the insurance policies and contracts. Since June 30, 2019, the Company has not received any written notice regarding any actual or possible: (i) cancellation, non-renewal or invalidation of any insurance policy or contract; (ii) refusal of any coverage or rejection of any claim under any insurance policy or contract; or (iii) material adjustment in the amount of the premiums payable with respect to any insurance policy or contract. There are no self-insurance arrangements by the Company.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 24 of 61

Section 4.18.    Real Estate. The Company does not own any real property.

Section 4.19.    Affiliate Transactions. Except as set forth in Section 4.19 of the Company Disclosure Schedule, this Agreement and any Transaction Agreement, the Company is not a party to any Contract with Sellers or any of his respective controlled Affiliates. Except for Subordinated Loans, neither the Sellers nor any of his respective controlled Affiliates owns, directly or indirectly, in whole or in part, or has any other interest in, any assets, tangible or intangible property or rights of the Company that is material to the Company.

Section 4.20.    Investment Securities. The Company owns 22.36312 shares of DTCC Stock, all of which are validly issued, fully paid and nonassessable. The Company has good and valid title to the DTCC Stock held by it free and clear of any Encumbrances (other than Permitted Encumbrances). Such securities are valued on the Company Audited Financial Statements and the Interim Company Financial Statements in accordance with the Accounting Principles.

Section 4.21.    Derivatives. Except as would not have a Material Adverse Effect, all swaps, caps, floors, option agreements, futures and forward Contracts and other similar derivative transactions, whether entered for the Company’s own account, or for the account of one or more of the Company’s customers, were entered into (a) in accordance with prudent business practices and all applicable Laws and (b) with counterparties believed to have adequate financial resources for such transaction at the time.

Section 4.22.    Loans. Section 4.22 of the Company Disclosure Schedule lists all of the customer loans outstanding in excess of $10,000 extended by the Company. Each such loan has been secured by valid liens on and security interests in invested assets. Such liens and security interests have been perfected and have first priority, and such invested assets are (a) fully transferable and (b) held in non-physical form.

Section 4.23.    Company Guarantees. Except as set forth on Section 4.23 of the Company Disclosure Schedule, the Company has not guaranteed or provided any credit support (including under any “keep well” or similar arrangement) for any material Liability of the Sellers.

Section 4.24.    No Additional Representations. Except for the representations and warranties expressly set forth in Article VI, (a) the Company has not relied on any representation or warranty from Purchaser or any of its Affiliates or representatives in determining to enter into this Agreement and (b) the Company acknowledges and agrees that none of Purchaser or its Affiliates or representatives has made any representation or warranty whatsoever, express or implied, with regard to any information Purchaser or any of its Affiliates or representatives made available to the Company and their respective Affiliates or representatives (including any estimates, projections and predictions contained therein).

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 25 of 61

Article V

REPRESENTATIONS AND WARRANTIES OF SELLERS

Except as set forth in a correspondingly labeled section of the written disclosure schedule delivered by Sellers to Purchaser on or prior to the date of this Agreement (the “Seller Disclosure Schedule”), (it being agreed that any matter disclosed in any section or subsection of the Seller Disclosure Schedule will be deemed disclosed in any other section or subsection to the extent that such information is reasonably apparent on the face of such disclosure to be so applicable to such other section or subsection), each Seller, separately and severally and not jointly with any other Seller, hereby represents and warrants to Purchaser as follows:

Section 5.1.    Authority of Seller.

(a)            Seller has the necessary legal capacity to enter into this Agreement, to perform his or its obligations hereunder and to consummate the transactions contemplated hereby.

(b)            Assuming the due authorization, execution and delivery by Purchaser and the Company, this Agreement constitutes the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the Enforceability Exceptions.

Section 5.2.    No Violation. Subject to the making of the filings, notifications and registrations and receipt of the consents, authorizations, approvals and waivers referred to in Section 5.3 and the expiration of related waiting periods, the execution, delivery and performance of this Agreement by Seller and the consummation by Seller of the transactions contemplated hereby do not and will not (a) conflict with, constitute a breach or violation of, or a default under, or give rise to any Encumbrance (other than Permitted Encumbrances) or result in or constitute a circumstance that, with or without notice or lapse of time or both, would constitute any of the foregoing under any Material Contract, or (b) violate any Law or Governmental Order applicable to Seller.

Section 5.3.    Consents and Approvals. Except (a) as set forth in Section 5.3 of the Seller Disclosure Schedule, (b) FINRA Approval, and any other required approval of any Governmental Authority of which such Seller is a member, and (c) for those consents, authorizations, approvals, waivers, filings, notifications and registrations the failure to obtain or make would not prevent or materially delay the ability of such Seller to perform his or its obligations under this Agreement, Seller is not required, at or prior to the Final Closing, to obtain any consent, approval, authorization or waiver of, or make any filing, notification or registration with, any Governmental Authority in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 26 of 61

Section 5.4.    Ownership of Shares. Seller owns, of record and beneficially, the Equity Interests of the Company, free and clear of all Encumbrances (other than transfer restrictions under applicable Securities Laws) and upon the sale of any of such Equity Interests to Purchaser hereunder, Purchaser will acquire such Equity Interests free and clear of all Encumbrances (other than transfer restrictions under applicable Securities Laws and any Encumbrances imposed by Purchaser). Except for this Agreement and the transactions contemplated hereby, and as set forth in Section 5.4 of the Seller Disclosure Schedule, there are no voting trusts, irrevocable proxies or other Contracts to which Seller is a party or is bound with respect to the voting or consent of any of the Equity Interests of the Company.

Section 5.5.    Litigation. As of the date hereof, there is no Action pending or, to the knowledge of Seller, threatened against or relating to Seller, except as would not be reasonably expected to prevent or materially delay the ability of Seller to perform his obligations under this Agreement.

Section 5.6.    Sufficient Funds. At the time of Final Closing, Purchaser will have sufficient funds available as and when needed to consummate the transactions contemplated hereby and to perform its obligations hereunder. Purchaser is solvent on the date hereof will not be rendered insolvent by performance of its obligations under any agreement to which it is a party or by which it is bound. The transactions contemplated hereby and thereby will not be render Purchaser undercapitalized upon consummation of the transactions contemplated by this Agreement and any agreement to which it is a party or by which it is bound, and will not, as a result of the consummation of the transactions contemplated hereby and thereby, incur debts beyond its ability to pay as such debts mature.

Section 5.7.    No Additional Representations. Except for the representations and warranties expressly set forth in Article VI, (a) Seller has not relied on any representation or warranty from Purchaser or any of its respective Affiliates or representatives in determining to enter into this Agreement and (b) Seller acknowledges and agrees that none of Purchaser or any of its Affiliates or representatives has made any representation or warranty whatsoever, express or implied, with regard to any information Purchaser or any of its respective Affiliates or representatives made available to Seller (including any estimates, projections and predictions contained therein).

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 27 of 61

Article VI

REPRESENTATIONS AND WARRANTIES OF PURCHASER

Except as set forth in a correspondingly labeled section of the written disclosure schedule delivered by Purchaser to the Company on or prior to the date of this Agreement (the “Purchaser Disclosure Schedule”), (it being agreed that any matter disclosed in any section or subsection of the Purchaser Disclosure Schedule will be deemed disclosed in any other section or subsection to the extent that such information is reasonably apparent on the face of such disclosure to be so applicable to such other section or subsection), Purchaser hereby represents and warrants to Sellers and the Company as follows:

Section 6.1.    Organization. Purchaser is a corporation duly formed, validly existing and in good standing under the laws of Delaware State. Purchaser has the requisite corporate power and authority necessary to carry on its business as it is now being conducted and to own, lease and operate its properties and assets. Purchaser is duly licensed or qualified to do business and in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned, leased, or operated by it makes such qualification or licensing necessary under applicable Law.

Section 6.2.    Authority.

(a)            The execution and delivery by Purchaser of this Agreement , the performance of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly and validly approved by all requisite corporate action and shareholder action on the part of Purchaser and its shareholder and no additional corporate proceedings on the part of Purchaser or its shareholder are necessary to approve or authorize this Agreement , the performance of Purchaser’s obligations hereunder or thereunder or the consummation of the transactions contemplated hereby.

(b)            Assuming the due authorization, execution, and delivery by the other parties thereto, this Agreement constitutes the valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, subject to the Enforceability Exceptions.

Section 6.3.    No Violation. Subject to the making of the filings, notifications and registrations and receipt of the consents, authorizations, approvals and waivers referred to in Section 6.4 and the expiration of related waiting periods, the execution, delivery and performance of this Agreement by Purchaser , and the consummation of the transactions contemplated hereby do not and will not (a) conflict with, constitute a breach or violation of, or a default under, or give rise to any Encumbrance (other than Permitted Encumbrances) or result in or constitute a circumstance that, with or without notice or lapse of time or both would constitute any of the foregoing under any material Contract to which Purchaser is a party or by which Purchaser or any of its assets may be bound, (b) violate any Law or Governmental Order applicable to Purchaser or any other Affiliate of Purchaser or their respective assets or properties or (c) constitute a breach or violation of, or a default under, the Governing Documents of Purchaser or any other Affiliate of Purchaser, except, in the case of clause (a) above, as would not be reasonably expected to prevent or materially delay the ability of Purchaser or any other Affiliate of Purchaser to perform its obligations under this Agreement .

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 28 of 61

Section 6.4.    Consents and Approvals. Except (a) as set forth in Section 6.4 of the Purchaser Disclosure Schedule, (b) FINRA Approval and any other required approval of any Governmental Authority of which Purchaser is a member, and (c) for those consents, authorizations, approvals, waivers, filings, notifications and registrations the failure to obtain or make would not prevent or materially delay the ability of Purchaser or its Affiliates to perform their respective obligations under this Agreement, none of Purchaser or any Affiliate of Purchaser is required, at or prior to the Final Closing, to obtain any consent, approval, authorization or waiver of, or make any filing, notification or registration with, any Governmental Authority in connection with the execution, delivery and performance of this Agreement , or the consummation of the transactions contemplated hereby.

Section 6.5.    Litigation; Regulatory. As of the date hereof, there is no Action pending or, to the knowledge of Purchaser, threatened against or relating to Purchaser, except that would not be reasonably expected to prevent or materially delay the ability of Purchaser or any Affiliate of Purchaser to perform its obligations under this Agreement. Neither Purchaser nor any of its Affiliates is subject to any cease-and-desist or other order or enforcement action issued by, or is a party to any written agreement, consent agreement or memorandum of understanding with, or is a party to any commitment letter or similar undertaking to, or is subject to any order or directive that would reasonably be expected to prevent or materially delay the ability of Purchaser or any Affiliate of Purchaser to perform its obligations under this Agreement.

Section 6.6.    Investment Purpose. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of its investment pursuant to this Agreement and protecting its interests in connection with the transactions contemplated hereby. Purchaser is acquiring the Equity Interests of the Company solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Purchaser acknowledges that the Equity Interests of the Company are not registered under the Securities Act, or any state securities laws, and that they may not be transferred, sold, offered for sale, pledged, hypothecated, or otherwise disposed of except pursuant to the registration provisions of the Securities Act or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.

Section 6.7.    Brokers and Finders. No broker, finder or similar intermediary has acted for or on behalf of, or is entitled to any broker’s, finder’s or similar fee or other commission from, Purchaser or any of its Affiliates in connection with this Agreement or the transactions contemplated hereby.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 29 of 61

Section 6.8.    Investigation. Purchaser confirms that it has made its own inquiry and investigation into, and based thereon has formed an independent judgment concerning, the Company and its Business.

Section 6.9.    Compliance with Applicable Law.

(a)            The Purchaser has, since the latter of January 1, 2019, and its inception, complied and is in compliance with all applicable Law in all material respects and none of the Purchaser or any of its respective Affiliates (insofar as it relates to the business of the Purchaser) has received any written notice from any Governmental Authority asserting any violation by the Purchaser of any applicable Law, that is, individually or in the aggregate, material to the Purchaser.

(b)            The Purchaser holds and has since the latter of January 1, 2019, and its inception, held, all material Permits necessary for the conduct of its business under and pursuant to applicable Law. A true and complete list of all such material Permits in effect on the date hereof is set forth in Section 6.9(b) of the Purchaser Disclosure Schedule. All such material Permits are valid and in full force and effect and are not subject to any suspension, cancellation, modification or revocation or any Actions related thereto, and, to the Knowledge of the Purchaser, no such suspension, cancellation, modification or revocation or Actions is threatened, except for any failure to be in full force and effect or suspension, cancellation, modification or revocation or any Actions that would not, individually or in the aggregate, be material to the Purchaser.

(c)            To the Knowledge of the Purchaser, except as set forth in Section 6.9(c) of the Purchaser Disclosure Schedule, there is no investigation pending by a Governmental Authority of, and no Governmental Authority has initiated or provided written notice to the Purchaser of, any investigation into the business or operations of the Purchaser. There is no material deficiency, violation or exception claimed or asserted by any Governmental Authority in writing with respect to any examination of the Purchaser that has not been resolved in all material respects.

(d)            The Purchaser has implemented an anti-money laundering policy and a customer identification program to the extent required by applicable Law, each of which is designed to comply in all material respects with the requirements of applicable Law.

Section 6.10.    Ineligible Persons. Except as set forth on Schedule 6.10 of the Purchaser Disclosure Schedule, neither the Purchaser nor any of its “associated persons” are subject to a “statutory disqualification” (as such terms are defined in the Exchange Act or its equivalent under any applicable state or foreign Law), or are subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of the Purchaser or suspension or revocation of the Purchaser’s registration as a broker-dealer under Section 15 of the Exchange Act, except as would not be materially adverse to the Purchaser.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 30 of 61

Section 6.11.    No Additional Representations. Except for the representations and warranties expressly set forth in Article IV and Article V (a) Purchaser has not relied on any representation or warranty from the Sellers or the Purchaser or any of their respective Affiliates or representatives in determining to enter into this Agreement and (b) Purchaser acknowledges and agrees that neither the Sellers nor the Purchaser nor any of their respective Affiliates or representatives has made any representation or warranty whatsoever, oral or written, express or implied, including with regard to any information the Sellers, the Purchaser or any of their respective Affiliates or representatives made available to Purchaser or its Affiliates or representatives (including with respect to (i) the business, financial condition, results of operations, future operating or financial results, any projections, estimates or budgets for the Purchaser or its businesses, forecasts, plans or prospects (including the reasonableness of the assumptions underlying such projections, estimates, budgets, forecasts, plans or prospects), (ii) any materials, documents or information relating to the Purchaser or its businesses made available to Purchaser or its counsel, accountants or advisors in the Purchaser data room or otherwise or (iii) the information contained in any management presentation, confidential information memorandum or in any other form provided to Purchaser in connection with the transactions contemplated hereby (and as to all such information described in the foregoing clauses (i)-(iii) Purchaser expressly agrees and acknowledges, on behalf of itself and its Affiliates, that none of Sellers, the Purchaser or any of their respective Affiliates will have or be subject to any liability to Purchaser or any of its Affiliates or representatives resulting from the distribution to Purchaser or its Affiliates or representatives, or Purchaser’s or its Affiliates’ or representatives’ use of, any such information).

Article VII

COVENANTS

Section 7.1.    Conduct of Business by the Company. During the period from the date of this Agreement until the Final Closing or earlier termination of the Final Closing Obligations, except (A) as required or expressly permitted by the provisions of this Agreement, (B) as set forth in Section 7.1 of the Company Disclosure Schedule, (C) as may be required under applicable Law or (D) with the prior written consent of Purchaser (such consent not to be unreasonably conditioned, withheld or delayed), Sellers will cause the Company to use commercially reasonable efforts to (v) conduct its business in the ordinary course consistent with past practice, (w) preserve intact its business organization, (x) keep available in all material respects the services of its current officers and employees, and (y) preserve the present relationships with those Persons having significant business relationships with it in all material respects. Without limiting the generality of the foregoing, except (A) as required or expressly permitted by the provisions of this Agreement, (B) as set forth in Section 7.1 of the Company Disclosure Schedule, (C) as may be required under applicable Law or (D) with the prior written consent of Purchaser (such consent not to be unreasonably conditioned, withheld or delayed), Sellers will not permit the Company to:

(a)            amend its Governing Documents;

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 31 of 61

(b)            merge with or into or consolidate with any other Person or liquidate or dissolve;

(c)            make any distribution or declare, pay or set aside any dividend with respect to, or issue, split, combine, redeem, reclassify, purchase or otherwise acquire, any Equity Interest of the Company, other than as set forth in Article II and Article III;

(d)            incur any Indebtedness of the Company or guarantee the Indebtedness of any other Person;

(e)            repay any Indebtedness of the Company that is not contemplated to be repaid by this Agreement other than as required by the terms of such Indebtedness and other than in the ordinary course of business;

(f)            sell, transfer, assign, license, lease, abandon or otherwise dispose of or pledge (other than Permitted Encumbrances) any of its material assets to any Person, except (i) in the ordinary course of business consistent with past practice or (ii) as expressly required by Contracts in force as of the date hereof;

(g)            settle or compromise any (excluding any Action relating to Taxes) Action unless such settlement or compromise: (i) relates solely to money damages (A) that the Company will pay or cause to be paid concurrently with the effectiveness of such settlement or compromise to the extent required by such settlement or compromise, or (B) that do not exceed $50,000 individually, or $250,000, in the aggregate, for all such amounts under this Section 7.1(g), in excess of the amounts of (1) any proceeds received from any insurance policies in connection with such settlement or compromise and (2) the amount of such settlement or compromise specifically reserved for in the Financial Statements (including the notes thereto) of the applicable Company; or (ii) does not contain any restrictions upon the Company that would have a material effect on the business or reputation of the Company;

(h)            make any material change to its financial accounting policies or Accounting Principles, other than as required by GAAP or applicable Law, including to the methodology used to calculate Net Regulatory Capital;

(i)             allow Net Regulatory Capital to fall below the Early Warning Thresholds;

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 32 of 61

(j)             make, change or revoke any material Tax election (including an election to change the U.S. federal income tax classification of the Company); adopt or change (or make a request to any Taxing Authority to change) any material Tax accounting method or any material annual Tax accounting period; file (other than payroll Tax Returns) or amend any material Tax Returns; enter into any material Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement (excluding, for the avoidance of doubt, any Tax indemnity, allocation or sharing in any agreement whose primary subject is not Taxes); settle or compromise any material claim, notice, audit report or assessment in respect of Taxes; surrender any right to claim a material Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; in each case to the extent doing so would reasonably be expected to have a material adverse impact on Purchaser and its Affiliates after the Initial Closing for a Post-Initial Closing Tax Period;

(k)            enter into any Contract that would be a Material Contract, or amend in any material respect any Material Contract, in each case other than in the ordinary course of business;

(l)             except in the ordinary course of business, enter into or modify any non-compete or exclusivity arrangements;

(m)           except as required by the terms of a Benefit Arrangement, (i) adopt, enter into, terminate or materially amend any Benefit Arrangement (or any plan that would be an Benefit Arrangement if in effect on the date hereof), other than amendments in the ordinary course of business, (ii) accelerate the vesting or payment of any rights, compensation or benefits to any Company Employee under any Benefit Arrangement, (iii) make any material increase to any salaries or other form of compensation or benefits payable to any Company Employee whose annual base salary exceeds $150,000, or (iv) grant any equity or equity-linked awards or any other severance, retention, bonus, incentive, performance or other incentive compensation to any Company Employee whose annual base salary exceeds $150,000 (other than in the case of this subsection (iv) as contemplated by this Agreement);

(o)            acquire any business or Person, by merger, consolidation, or otherwise, in a single transaction or a series of related transactions;

(p)            make or commit to make any capital expenditures requiring payments over the life of such expenditures, individually or in the aggregate, in excess of $250,000, other than as disclosed in Company’s capital expenditure budget set forth in Section 7.1(p) of the Company Disclosure Schedule; or

(q)            enter any Contract or otherwise agree to do anything prohibited by this Section 7.1.

Nothing contained in this Agreement will give Purchaser, directly or indirectly, the right to control or direct the operations of the Company or the business of the Company prior to the Final Closing. Prior to the Final Closing, the Company will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their operations.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 33 of 61

Section 7.2.    Confidentiality.

(a)            From the date hereof until the Final Closing or earlier termination of the Final Closing Obligations, all proprietary or confidential information that pertains to the Company (“Confidential Information”) provided to or obtained by Purchaser or its representatives in relation to the negotiation and entering into of this Agreement and the transactions contemplated hereby, will be kept confidential by Purchaser pursuant to the Confidentiality Agreement, which will terminate automatically upon the Final Closing.

Section 7.3.    Access.

(a)            From and after the Initial Closing and until the Final Closing or earlier termination of the Final Closing Obligations, to the extent not prohibited by applicable Law or the Company’s privacy policies, the Company will permit Purchaser, during regular business hours and upon reasonable advance notice to the Company, through their representatives, the right to examine and make copies of the Company’s books and records in connection with this Agreement and the transactions contemplated hereby, including any regulatory books and records, and otherwise reasonably cooperate with Purchaser, including by making employees of the Company with relevant knowledge of the applicable matter available upon reasonable request; provided that any of the Company’s books and records or other information that is subject to an attorney-client or other legal privilege or obligation of confidentiality or non-disclosure will not be made so accessible (provided, further that, in each case Purchaser and the Company will use commercially reasonable efforts to cooperate with one another to permit disclosure of such information in a manner consistent with such confidentiality obligations and the preservation of such legal privilege (including by seeking consent of the applicable party to whom the duty of confidentiality is owed) or waive such privilege).

(b)            The Purchaser hereby grants to the Company, the Sellers, and their respective representatives, the right, during regular business hours, to contact the SPAC and its representatives to make such inquiries and conduct such investigation as the Company, the Sellers, or their respective representatives may deem warranted respecting the completion and funding of the transactions contemplated by this Agreement.

(c)            Each Party will (and will cause its representatives to) conduct any of the activities contemplated by this Section 7.3 in such a manner as not to interfere unreasonably with the business or operations of the other Party and not to otherwise cause any unreasonable interference with the prompt and timely discharge by the employees of the other Party of their normal duties.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 34 of 61

Section 7.4.     Efforts to Close; Regulatory Matters; Third-Party Consents; Other Costs.

(a)            Upon the terms and subject to the conditions of this Agreement, each of the Sellers, the Company, and Purchaser agrees to use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective, as soon as practicable after the date hereto, the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, upon the terms and subject to the conditions of this Agreement and from the date hereto until the Final Closing or the earlier termination of the Final Closing Obligations, the Sellers, the Company and Purchaser will: (i) use reasonable best efforts to obtain all necessary actions or nonactions, waivers, permits, consents, authorizations, orders, clearances, and approvals from Governmental Authorities and the making of all necessary or advisable registrations, notifications and filings (including notifications and filings with Governmental Authorities), and take all reasonable steps as may be necessary to obtain a waiver, approval or consent from, or to avoid an Action by any Governmental Authority; (ii) use reasonable best efforts to obtain (and assist and cooperate with the other Party in obtaining) all necessary consents, approvals or waivers from third parties under any Contract (provided that no party will be obligated to make a payment to such third parties in connection therewith); and (iii) defend any Action, challenging this Agreement or the consummation of the transactions contemplated hereby, including having a stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, subject to the other limitations of this Agreement. Each of the Parties agrees that none of the information regarding it or any of its Affiliates supplied or to be supplied by it, or to be supplied on its behalf, in writing specifically for inclusion in any documents to be filed with any Governmental Authority in connection with the transactions contemplated hereby will, at the respective times such documents are filed with any Governmental Authority, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(b)            As promptly as practicable after the Initial Closing, the Company will, with diligence and dispatch and with the assistance and collaboration of Purchaser, prepare and file with the Department of Member Regulation of FINRA (the “Department”) a CMA, including all attachments, exhibits, schedules, appendices, amendments, or supplements thereto, and thereafter use its best efforts to take all actions necessary in accordance with FINRA rules, particularly including Rule 1017, to complete the CMA and related information so that it is deemed “substantially complete” within the requirements of FINRA Rule 1017(d) and thereafter to obtain FINRA Approval. If the Department notifies the Company of deficiencies, comments, questions, or other matters to be addressed to make the CMA Substantially Complete or to otherwise advance consideration of the CMA, the Company, again with the collaboration of Purchaser, will use its reasonable best efforts to respond to such comments or questions promptly. Each of the Company and Purchaser will: (i) use its best efforts to cause the CMA, as amended and supplemented, to obtain FINRA Approval as promptly as practicable without the imposition of restrictions, limitation, or conditions that would have a Material Adverse Effect on Company’s business and operations, consistent with past practice; (ii) take any action reasonably required to satisfy applicable restrictions, limitations, or conditions proposed by the Department in order to obtain its approval; and (iii) not perform any act or fail or refrain from any action that would materially impair or prevent such Department approval from being obtained. The cost of any filing fees in respect of any applications required to be filed with FINRA, and the respective reasonable fees associated with the filing, amending (if necessary) and completion of such applications to the Company incurred following the date hereof in connection with the matters addressed in this Section 7.4, will be borne by Party incurring such fees.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 35 of 61

(c)            In connection with the filings with Governmental Authorities contemplated by this Section 7.4, each of the Company and Purchaser will, subject to applicable Law: (i) cooperate fully with each other and will promptly furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of any such filings; (ii) keep the other Party reasonably informed of any communication received by such Party from, or given by such Party to any Governmental Authority, and in the case of the FINRA Application, the Company will promptly provide to Purchaser a copy of all communication received from FINRA and its proposed responses to FINRA, in each case regarding the transactions contemplated by this Agreement and in a manner that protects attorney-client or attorney-work-product privilege; (iii) give the other Party a reasonable opportunity to review, and to the extent practicable, incorporate the other Party’s reasonable comments in, any communication given by it to any Governmental Authority, in each case regarding the transactions contemplated by this Agreement and in a manner that protects attorney-client or attorney-work-product privilege; and (iv) promptly comply with any reasonable information or other document requests from any Governmental Authority in each case regarding the transactions contemplated by this Agreement. In particular and as a condition to the Company’s obligations hereunder, Purchaser will furnish to the Company all information concerning: (i) it and its stockholders, officers, and directors; the persons designated by Purchaser to be officers, directors, affiliates, or licensed persons of the Company following the Final Closing as set forth in the CMA; and its other affiliates; (ii) the proposed business, operations, activities, management, supervision, relationships, contracts, and other relevant matters relating to Purchaser or the Company following the Final Closing; and (iii) the source of additional capital as may be required, all as the Company or FINRA may reasonably request in connection with the preparation, filing, and review of the CMA and the issuance of a Department Approval. No person designated by Purchaser to be officers, directors, affiliates, or licensed persons of the Company following the Final Closing as set forth in the CMA will be subject to a “statutory disqualification” (as such terms are defined in the Exchange Act or its equivalent under any applicable state or foreign Law), or are subject to a disqualification that would be a basis for censure, limitations on the activities, functions or operations of the Purchaser or suspension or revocation of the Purchaser’s registration as a broker-dealer under Section 15 of the Exchange Act, except as would not be materially adverse to the Purchaser.

(d)            As of the date of this Agreement through the Final Closing or earlier termination of the Final Closing Obligations, the Company will promptly provide Purchaser in the event that the Company or any of its Subsidiaries, (i) enters into any letter of acceptance, waiver or consent with FINRA or any other Governmental Authority or (ii) takes any action that would require notice to FINRA or the SEC, including in accordance with FINRA Rule 4110 or SEC Rule 15c3-1(e), in each case, that (x) is material to the Company, or (y) would reasonably be expected to prohibit, materially restrict, materially impair or materially delay the consummation of the transactions contemplated hereby or materially restrict or materially impair the operations of the Company.

Section 7.5.    Public Announcements. Unless otherwise required by applicable Law, none of the Sellers, the Company, or Purchaser will make any public announcements in respect of this Agreement or the transactions contemplated hereby, or otherwise communicate with any news media without the prior written consent of the Company, Purchaser, and Sellers, and the Parties will cooperate as to the timing and contents of any such announcement; provided that, in the event a Party is required by applicable Law to make a public statement in respect of this Agreement or the transactions contemplated hereby, the Party issuing such public statement will use its commercially reasonable efforts to consult with, and provide a copy of such public statement to, the Company, Purchaser, and the Sellers prior to such Party making the required public statement. Notwithstanding the foregoing, the restrictions sets forth in this Section 7.5 will not apply to any disclosure of information concerning this Agreement or the transactions contemplated hereby in connection with any dispute between the Parties regarding this Agreement or the transactions contemplated hereby. The Parties agree that the initial press release to be issued with respect to the transactions contemplated by this Agreement will be in the form heretofore agreed to by the Company, Purchaser, and the Sellers.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 36 of 61

Section 7.6.    Further Assurances. Each of the Parties will, and will cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances and assurances, and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement.

Section 7.7.    Exclusivity. Unless or until this Agreement is Terminated in accordance with Article IX, no party will enter into any binding agreement, arrangement, or understanding, written or oral, that would preclude, prevent, or frustrate the consummation of the transaction contemplated by this Agreement.

Section 7.8.    Executive Arrangements. Executive arrangements will be set forth in the Company Disclosure Schedules and must include the arrangement for the CEO, Robert McBey.

Section 7.9.    Non-Solicitation. For a period of twelve (12) months from the Final Closing Date, the Sellers will not directly or indirectly, without the consent of Purchaser, hire or solicit, for employment any Person employed by the Company immediately prior to the Final Closing; provided, that Sellers will not be precluded from soliciting or hiring, or taking any other action with respect to, any such Person who (a) has been terminated by Purchaser or its Affiliates (including the Company) prior to commencement of employment discussions between the Sellers and such Person, (b) responds to a general or public solicitation (including by a bona fide search firm) not targeted at individual employees, consultants or independent contractors of Purchaser or any of its Affiliates (including the Company) or (c) initiates discussions regarding such employment without any solicitation by Sellers in violation of this Agreement.

Section 7.10.    Notifications. From the date hereof until the Final Closing, each Party will promptly notify the other Parties in writing of any fact, circumstance, event or action of which it has knowledge, the existence, occurrence or taking of which has resulted or would reasonably be expected to result in any of the conditions set forth in Article VIII of this Agreement becoming incapable of being satisfied. Any notification made pursuant to this Section 7.10 will not have the effect of satisfying any condition set forth in Article VIII nor will any such notification have any effect for the purposes of determining the right of any Party to claim or obtain indemnification under Article XI or otherwise enforce its rights and remedies under this Agreement.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 37 of 61

Section 7.11.    Affiliate Agreements. Except as set forth in Section 7.11 of the Company Disclosure Schedule, Sellers will cause the Company and their respective Affiliates to, take such actions as are necessary so that, effective as of immediately prior to the Final Closing, the Company will no longer be a party to, or bound by, any Company Affiliate agreement (other than this Agreement) and the Company will have no further right, obligation or Liability under any such Company Affiliate agreement.

Section 7.12.    Bank Accounts. Prior to the Final Closing, the Company will change, effective as of the Final Closing, the individuals authorized to draw on or have access to the bank, savings, deposit or custodial accounts and safe deposit boxes maintained by the Company to the individuals designated reasonably in advance in writing by Purchaser.

Section 7.13.    Sellers’ Rights in the Trademarks. Sellers acknowledge that from and after the Final Closing, (i) all right, title and interest in and to the Trademarks will be owned by the Company, (ii) the Sellers will not contest the ownership or validity of any rights of Purchaser or the Company in or to any Trademarks.

Section 7.14.    Board Representation. From the date of this Agreement and until the Final Closing or the earlier termination of the Final Closing Obligations, Sellers, as shareholders of the Company, will vote, or cause to be voted, all of his or her shares, or execute a written consent in lieu thereof, and take all other necessary or desirable actions, and the Company will take all necessary or desirable actions, as are reasonably necessary or requested by the Board to ensure that:

(a)            Number of Directors and Board Composition. The size of the Board will remain at five Directors until the Final Closing.

(b)            Terms; Vacancies. In the event that a director ceases for any reason to be a director (whether by death, resignation or removal), the resulting vacancy on the Board will be filled by the remaining Directors, after consulting with the Purchaser.

(c)            Board Minutes and Materials. Purchaser will be provided with timely reports of the substance of any proposed and actual meeting of the Board and Purchaser will be furnished with copies of any written materials provided to such Board meeting at, or in advance of, any board meeting; provided, however, that Purchaser will agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; provided, further, that the Company reserves the right to withhold any information from the Purchase if such information specifically relates to Purchaser, or if access to such information could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 38 of 61

Section 7.15.    Interim Reports. Within five (5) Business Days after the completion of the Company’s annual audited financial statements as of and for the fiscal year ended June 30, 2021, the Company will provide to Purchaser a copy of such financial statements. Within twenty (20) Business Days after the end of each calendar month, the Company will provide to Purchaser a copy of the Company’s FOCUS Report for the last preceding month in the form filed with the SEC, and within forty-five (45) days after the end of each calendar quarter during the period from the date of this Agreement through the Final Closing or the earlier termination of the Final Closing Obligations, the Company will provide to Purchaser the unaudited Company balance sheet as of the end of such month or quarter, as applicable, and the related combined unaudited Company statement of operations for such period then ended. Such reports will be prepared on the same basis as the Financial Statements, except that disclosure footnotes may be omitted.

Section 7.16.     Third-Party Consents. Prior to the Final Closing, the Company will use reasonable best efforts to obtain the consents with respect to the Contracts listed on Section 7.17 of the Company Disclosure Schedule.

Section 7.17.    Indemnification; Directors’ and Officers’ Insurance.

(a)            From and after the Final Closing, the Company will (and Purchaser will cause the Company to), indemnify and hold harmless each person who is now, or who has been at any time before the date of this Agreement, or who becomes before the Final Closing, an officer or director of the Company or who is or was serving at the request of the Company as a director or officer of another Person (each, a “D&O Indemnified Party”) against all losses, claims, damages, costs, expenses (including attorneys’ fees), liabilities or judgments or amounts that are paid in settlement of or in connection with any claim, action, suit, proceeding, investigation or other legal proceeding, whether civil, criminal, administrative or investigative or investigation (each, a “Claim”), in which a D&O Indemnified Party is, or is threatened to be made, a party or witness or arising out of the fact that such person is or was a director or officer of the Company if such Claim pertains to any matter of fact arising, existing or occurring at or before the Final Closing (including the transactions contemplated hereby), regardless of whether such Claim is asserted or claimed before or after the Final Closing, to the fullest extent permitted by applicable Law. All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Final Closing now existing in favor of any D&O Indemnified Party as provided in certificates or articles of incorporation or bylaws or operating agreements (or comparable organizational documents), and any existing indemnification agreements, will continue in full force and effect in accordance with their terms, and will not be amended, repealed or otherwise modified for a period of six (6) years after the Final Closing in any manner that would adversely affect the rights thereunder of such individuals for acts or omissions occurring at or prior to the Final Closing or taken at the request the Company.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 39 of 61

(b)            The Company will (and Purchaser will cause the Company to), maintain in effect for a period of six (6) years after the Final Closing, the Company’s existing directors’ and officers’ liability insurance policy (provided the Company may substitute therefor policies of at least the same coverage and amounts containing terms and conditions that are substantially no less advantageous with respect to claims arising from facts or events that occurred prior to the Final Closing and covering persons who are currently covered by such insurance; provided that the Company will not be obligated to make aggregate annual premium payments for such six (6)-year period in respect of such policy (or coverage replacing such policy) that exceed, for the portion related to Company’s directors and officers, three hundred percent (300%) of the annual premium payments on Company’s policy in effect as of the date of this Agreement (the “Maximum Amount”). If the amount of the premiums necessary to maintain or procure such insurance coverage exceeds the Maximum Amount, the Company will (and Purchaser will cause the Company to) maintain the most advantageous policies of directors’ and officers’ liability insurance obtainable for a premium equal to the Maximum Amount. In lieu of the foregoing, the Company may obtain on or prior to the Final Closing, a six (6)-year “tail” prepaid policy providing equivalent coverage to that described in this Section 7.17(b).

(c)            In the event the Company (i) consolidates with or merges into any other Person and will not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then the Company will (and Purchaser will cause the Company to) make proper provision so that such continuing or surviving corporation or entity or transferee of such assets, as the case may be, will assume the obligations set forth in this Section 7.17.

(d)            The provisions of this Section 7.17 are intended to be for the benefit of and will be enforceable by, each D&O Indemnified Party and their respective heirs and representatives.

Article VIII

CONDITIONS TO FINAL CLOSING

Section 8.1.    Mutual Conditions. The obligation of each Party to this Agreement to consummate the transactions contemplated to occur at the Final Closing will be subject to the satisfaction (or waiver (to the extent permitted by applicable Law) by each Party), at or prior to the Final Closing, of each of the following conditions:

(a)            No Injunction or Prohibition. (i) No order, injunction or decree issued by any Governmental Authority of competent jurisdiction preventing the consummation of the transactions contemplated to occur at the Final Closing will be in effect and (ii) no statute, rule, regulation, order, injunction, or decree will have been enacted or entered by any Governmental Authority that prohibits or makes illegal the consummation of the transactions contemplated to occur at the Final Closing; and

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 40 of 61

(b)            Required Regulatory Approvals. The FINRA Approval will have been obtained and remain in effect without a materially adverse reduction or change to permissible lines of business.

Section 8.2.    Conditions to the Obligation of Purchaser. The obligation of Purchaser to consummate the transactions contemplated to occur at the Final Closing will be subject to the satisfaction (or waiver (to the extent permitted by applicable Law) by Purchaser), at or prior to the Final Closing, of each of the following conditions:

(a)            Representations and Warranties. The (i) representations and warranties of the Company, contained in Section 4.1, Section 4.2, and Section 4.5 (the “Company Fundamental Representations”), and of the Sellers, contained in, Section 5.1, Section 5.2 and Section 5.4 (the “Sellers Fundamental Representations”), will be true and correct in all respects (except for any failure(s) to be so true and correct that are de minimis) as of the Final Closing Date (except for any representation or warranty made as of a specific date, which will be so true and correct only as of such specific date), and (ii) all other representations and warranties set forth in Article IV and Article V of this Agreement of the Company and the Sellers will be true and correct (without giving effect to any qualifications or limitations as to materiality or Material Adverse Effect set forth therein) as of the Final Closing Date (except for any representation or warranty made as of a specific date, which will be so true and correct only as of such specific date), except, in the case of this clause (ii), for such failures to be true and correct that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(b)            Covenants. The Sellers and the Company will have performed and complied with its covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Final Closing in all material respects;

(c)            No Material Adverse Effect. Since the date of this Agreement, there will not have occurred a Material Adverse Effect that is continuing as of the Final Closing;

(d)            Officer’s Certificate. An officer of the Company will have delivered to Purchaser a certificate dated as of the Final Closing Date signed on behalf of the Company confirming the satisfaction of the conditions contained in subsections (a), (b) and (c) of this Section 8.2; and

(e)            Sellers’ Certificate. The Sellers will have delivered to Purchaser a signed certificate dated as of the Final Closing Date confirming the satisfaction of the conditions contained in subsections (a) and (b) of this Section 8.2.

Section 8.3.    Conditions to Obligations of Sellers. The obligation of the Sellers to consummate the transactions contemplated to occur at the Final Closing will be subject to the satisfaction (or waiver (to the extent permitted by applicable Law) by Sellers), at or prior to the Final Closing, of each of the following conditions:

(a)            Representations and Warranties. (i) The representations and warranties of Purchaser contained in Section 6.1, Section 6.2 and Section 6.3(c) (the “Purchaser Fundamental Representations”) will be true and correct in all respects (except for any failure(s) to be so true and correct that are de minimis) as of the Final Closing Date (except for any representation or warranty made as of a specific date, which will be so true and correct only as of such specific date) and (ii) Purchaser’s representations and warranties set forth in Article VI that are not Purchaser Fundamental Representations will be true and correct in all material respects (except for such representations and warranties that are qualified by their terms as to materiality, which representations and warranties as so qualified will be true in all respects) as of the Final Closing Date (except for any representation or warranty made as of a specific date, which will be so true and correct only as of such specific date);

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 41 of 61

(b)            Covenants. Purchaser will have performed and complied with its covenants and agreements required by this Agreement to be performed or complied with by it at or prior to the Final Closing in all material respects; and

(c)            Officer’s Certificate. An officer of Purchaser will have delivered to the Sellers a signed certificate, dated as of the Final Closing Date, confirming the satisfaction of the conditions contained in subsections (a) and (b) of this Section 8.3.

Section 8.4.    Frustration of Closing Conditions. None of the Sellers or Purchaser may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was caused by, or was the result of, its breach of this Agreement.

Article IX

TERMINATION

Section 9.1.    Termination.

(a)            The Final Closing Obligations may be terminated, and the transactions contemplated to occur at the Final Closing abandoned, at any time prior to the Final Closing as follows (each a “Termination Date”):

(i)             by the written consent of a majority in interest of the Sellers and Purchaser;

(ii)            by a majority in interest of the Sellers or the Purchaser, if:

(A)           after due consideration, the Department will have made a final, non-appealable denial of the FINRA Application, requests that the CMA be withdrawn, fails to approve the CMA, or imposes interim or permanent conditions, limitations, or restrictions applicable to the operation of the Company following the Final Closing that Purchaser determines in good faith would have a Material Adverse Effect on the Company, or

(B)            a Governmental Authority of competent jurisdiction will have enacted, enforced or entered any Law, or a final non-appealable Governmental Order will be in effect, that permanently prohibits the consummation of the transactions contemplated by the Final Closing;

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 42 of 61

(iii)            by a majority in interest of the Sellers if there will be a breach or a violation by Purchaser of any representation or warranty or any covenant or agreement contained in this Agreement that would result in a failure of a condition set forth in Section 8.3 that has not been cured (to the extent necessary to avoid a failure of such a condition) prior to the earlier of (A) the Business Day immediately prior to the Termination Date or (B) the date that is thirty (30) days from the date that Purchaser is notified in writing by the a majority in interest of Sellers of such breach; provided that the Sellers will not have a right to terminate the Final Closing Obligations pursuant to this Section 9.1(a)(iii) if Sellers or the Company have breached or violated any of their representations, warranties, covenants or agreements contained in this Agreement and such breach or violation would have resulted in a failure of a condition set forth in Section 8.2;

(iv)            by Purchaser, if there will be a breach or a violation by the Sellers or the Company of any representation or warranty or any covenant or agreement contained in this Agreement that would result in a failure of a condition set forth in Section 8.2 and which breach has not been cured (to the extent necessary to avoid a failure of such a condition) prior to the earlier of (A) the Business Day immediately prior to the Termination Date or (B) the date that is thirty (30) days from the date that the Sellers and the Company are notified in writing by Purchaser of such breach; provided that Purchaser will not have a right to terminate the Final Closing Obligations pursuant to this Section 9.1(a)(iv) if Purchaser has breached or violated its representations, warranties, covenants or other agreements contained in this Agreement and such breach or violation would have resulted in a failure of a condition set forth in Section 8.3; or

(v)            to reflect and accommodate the Parties purpose and intent to include the transaction contemplated by this Agreement in a de-SPAC transaction as referred to in the premises above, this Agreement may be terminated:

(A)           by Purchaser, in its sole and absolute discretion on or before May 31, 2022, unless extended to June 15, 2022, by prior written notice of Purchaser to the Company; and

(B)            by a majority in interest of the Sellers if they and the Company have not received from Purchaser, on or before June 15, 2022, complete and executed copies of the definitive operative agreements and related transactional documents providing for the SPAC’s termination of its SPAC status and the release of cash and marketable securities of $101.000.000 held in a trust account as of January 13, 2022, as reported in https://www.sec.gov/Archives/edgar/data/0001865120/000149315222005522/ex99-1.htm, to fund the transactions contemplated by this Agreement, all in accordance with Rule 419 under the Securities Act; and

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 43 of 61

(vi)            by a majority in interest of the Sellers or Purchaser if the Final Closing does not occur by the ten (10) months anniversary of the Initial Closing; provided that such Termination Date may be extended with the agreement of a majority in interest of the Sellers and Purchaser.

(b)            The termination of the Final Closing Obligations will be effectuated by the delivery by the Party terminating the Final Closing Obligations to each other of the Company, Sellers, or Purchaser of a written notice of such termination.

Section 9.2.    Effect of Termination.

(a)            If the Final Closing Obligations are terminated in accordance with Section 9.1 and the transactions contemplated in relation to the Final Closing are not consummated, this Agreement will terminate without further obligation of any Party to any other and no right or remedy will be based thereon, except the provision of the Confidentiality Agreement will continue in full force and effect. In the event termination, the parties will bear their own costs incurred in connection with the preparation and execution of this Agreement and the negotiation of the transactions contemplated hereby, except for any breach of any representation, warranty, or covenant in this Agreement by a party before such termination, in which case such party will reimburse the nonbreaching party for its or his reasonable third-party costs incurred in connection with the preparation and execution of this Agreement.

(b)            The foregoing provisions of Section 9.2(a) will be the exclusive remedy for any nonbreaching party termination pursuant to this Article IX, unless such termination results from the willful breach of, or fraud in connection with, this Agreement by a party, in which case the nonbreaching party will also be entitled to actual damages.

Article X

TAX MATTERS

Section 10.1.    Indemnification for Taxes.

(a)            From and after the Initial Closing Date, the Sellers will indemnify the Purchaser Indemnified Parties from and against any and all Losses arising out of or resulting from (i) income Taxes imposed on the Company for a Pre-Initial Closing Tax Period; (ii) Taxes of another Person imposed on the Company (A) under Treasury Regulations Section 1.1502-6 (and any similar provision of state, local, or foreign Law) as a result of the Company being a member of any consolidated, unitary, combined or similar group at any time prior to the Initial Closing or (B) as a transferee or successor as a result of a transaction occurring prior to the Initial Closing or by contract entered into prior to the Initial Closing (other than as a result of any customary Tax indemnity, sharing or allocation agreement pursuant to an agreement whose primary subject is not Taxes); (iii) any Taxes of the Sellers imposed on Purchaser as a result of any transactions occurring on the Initial Closing Date; (iv) Taxes imposed on the Company arising from, related to or attributable to the breach or nonperformance of the covenants provided in Section 7.1(j) prior to the Initial Closing; and (v) Taxes imposed on the Company arising from any breach of any representation or warranty, as of the Initial Closing, made by the Company contained in Section 4.16; provided, however, that the Sellers will not be liable under this Section 10.1(a) for any (w) Losses relating to Taxes to the extent that such Taxes were reflected in the Transaction Expenses; (x) Losses arising out of or resulting from any Taxes arising in a Post-Initial Closing Tax Period; (y) Losses relating to Taxes arising from an election made by Purchaser or any of its Affiliates under Section 338 of the Code with respect to the transactions contemplated by this Agreement or any other transaction occurring after the Initial Closing at the direction of Purchaser and not expressly provided for and permitted by this Agreement; or (z) Taxes for which Purchaser is responsible under Section 10.1(c). Except with respect to the Losses relating to Taxes described in clause (iii) of this Section 10.1(a), which will be the sole responsibility of the Sellers, the Sellers’ indemnification obligations under this Section 10.1(a) will be limited to Sellers Loss.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 44 of 61

(b)            From and after the Final Closing Date, the Sellers will indemnify the Purchaser Indemnified Parties from and against any and all Losses arising out of or resulting from (i) income Taxes imposed on the Company for a Pre-Final Closing Tax Period; (ii) Taxes of another Person imposed on the Company (A) under Treasury Regulations Section 1.1502-6 (and any similar provision of state, local, or foreign Law) as a result of the Company being a member of any consolidated, unitary, combined or similar group at any time prior to the Final Closing or (B) as a transferee or successor as a result of a transaction occurring prior to the Final Closing or by contract entered into prior to the Final Closing (other than as a result of any customary Tax indemnity, sharing or allocation agreement pursuant to an agreement whose primary subject is not Taxes); (iii) any Taxes of the respective Final Sellers imposed on Purchaser as a result of any transactions occurring on the Final Closing Date; (iv) Taxes imposed on the Company arising from, related to or attributable to the breach or nonperformance of the covenants provided in Section 7.1(j) prior to the Final Closing; and (v) Taxes imposed on the Company arising from any breach of any representation or warranty made by the Company contained in Section 4.16 as of the Final Closing; provided, however, that the Sellers will not be liable under this Section 10.1(b) for any (w) Losses relating to Taxes to the extent that such Taxes were reflected in the Transaction Expenses; (x) Losses arising out of or resulting from any Taxes arising in a Post-Final Closing Tax Period; (y) Losses relating to Taxes arising from an election made by Purchaser or any of its Affiliates under Section 338 of the Code with respect to the transactions contemplated by this Agreement or any other transaction occurring after the Final Closing at the direction of Purchaser and not expressly provided for and permitted by this Agreement; or (z) Taxes for which Purchaser is responsible under Section 10.1(c). Except with respect to the Losses relating to Taxes described in clause (iii) of this Section 10.1(b), which will be the sole responsibility of the Sellers, the Sellers’ indemnification obligations under this Section 10.1(b) will be limited to the Sellers’ Loss. For the avoidance of doubt, the Sellers will not have any obligation or liability to the Purchaser Indemnified Parties pursuant to this Section 10.1(b) if the Final Closing does not occur.

(c)            From and after the Initial Closing, Purchaser will pay or cause to be paid, and will indemnify and hold each Seller Indemnified Party harmless from and against (i) any Taxes resulting from any breach of any covenant or agreement of Purchaser contained in this Agreement or any breach of any covenant or agreement, occurring after the Final Closing, of the Company contained in any Transaction Agreement; (ii) any Transfer Taxes for which Purchaser is responsible under Section 10.3; and (iii) any Taxes or Losses described in any of clauses (w), (x), (y) or (z) of the proviso contained in Section 10.1(a) or any of clauses (w), (x), (y) or (z) of the proviso contained in Section 10.1(b).

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 45 of 61

Section 10.2.    Tax Returns.

(a)            The Company will prepare and timely file (or cause to be prepared and timely filed) all Tax Returns of the Company required to be filed on or before the Final Closing Date (taking into account any applicable extensions) (the “Company Prepared Tax Returns”); provided, that if any such Company Prepared Tax Return (i) relates to a Post-Initial Closing Tax Period or (ii) would reasonably be expected to materially increase the Taxes of Purchaser or the Company for a Post-Final Closing Tax Period, at least thirty (30) days prior to the due date for the filing of such Tax Return (taking into account any applicable extensions), the Company will deliver such Company Prepared Tax Return to Purchaser for Purchaser’s review. No more than ten (10) days after receiving any such Company Prepared Tax Return from the Company, Purchaser will notify the Company in writing if it disputes any item on any such Company Prepared Tax Return and the basis for its objection, and if Purchaser fails to deliver the written notification within such ten (10) day period, Purchaser will be deemed to have consented to the filing of such Company Prepared Tax Return. If Purchaser provides notification to the Company within such ten (10) day period, Purchaser and the Company will resolve any such disputes in accordance with the procedure set forth in Section 10.2(d). The Company will bear all fees and expenses of engaging an accounting firm to prepare any such Company Prepared Tax Returns. The Company will timely pay (or cause to be timely paid) all Taxes of the Company due on or before the Initial Closing Date.

(b)            Purchaser will prepare and timely file (or cause to be prepared and timely filed) all Tax Returns of the Company that are required to be filed by the Company after the Final Closing Date (taking into account any applicable extensions) (the “Purchaser Prepared Tax Returns”). With respect to a Purchaser Prepared Tax Return that relates to a Pre-Final Closing Tax Period, Purchaser will prepare or cause to be prepared and timely file such Tax Return in a manner consistent with past practices, elections and methods of the Company, except as otherwise required by applicable Law, and at least thirty (30) days prior to the due date for the filing of such Purchaser Prepared Tax Return (taking into account any applicable extensions), Purchaser will deliver such Purchaser Prepared Tax Return, together with a statement certifying the amount of Tax, if any, shown on such Purchaser Prepared Tax Return that is the responsibility of the Sellers pursuant to Section 10.1, to the Sellers for the Sellers’ review. No more than ten (10) days after receiving such Purchaser Prepared Tax Return, the Sellers will notify Purchaser in writing if the Sellers dispute any item on any such Purchaser Prepared Tax Return and the basis for its objection, and if the Sellers fail to deliver the written notification within such ten (10) day period, the Sellers will be deemed to have consented to the filing of such Purchaser Prepared Tax Return. If the Sellers provide notification to Purchaser within such ten (10) day period, Purchaser will cause to be reflected any changes to such Purchaser Prepared Tax Return requested by the Sellers; provided that if such changes would reasonably be expected to materially increase the Taxes of Purchaser or the Company for a Post-Final Closing Tax Period, then Purchaser and the Sellers will resolve any such disputes in accordance with the procedure set forth in Section 10.2(d). Purchaser will cause the Company to timely pay all Taxes due with respect to any such Purchaser Prepared Tax Returns. Except with respect to any item being disputed in accordance with the procedures set forth in Section 10.2(d) no later than five (5) Business Days prior to the due date for such Tax Returns, the Sellers will pay to Purchaser, on behalf of the Sellers, the portion of any Taxes that are the responsibility of the Sellers pursuant to Section 10.1. With respect to any item disputed in accordance with the procedures set forth in Section 10.2(d), upon the resolution of such dispute, no later than five (5) Business Days after the resolution of such disputed item, if any amount is owed to the Purchaser or Sellers, respectively, such Party will pay to such other Party the portion of any Taxes that relate to such disputed item as allocated pursuant to this Section 10.2(c). Purchaser will cause the Company to timely pay all Taxes due with respect to any such Purchaser Prepared Tax Returns. Purchaser or the Company will bear all fees and expenses of engaging an accounting firm to prepare any such Purchaser Prepared Tax Returns. Purchaser will file, or cause to be filed, amended Tax Returns for Pre-Final Closing Tax Periods with respect to the Company to obtain any cash Tax refund (or credit in lieu of a cash Tax refund) or other Tax Benefit that the Sellers is entitled to pursuant to this Agreement.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 46 of 61

(c)            For purposes of this Agreement, in the case of Taxes that are payable with respect to a Straddle Period, the portion of any such Tax that is allocable to the portion of such period ending on the Final Closing Date will be: (a) in the case of property Taxes or other Taxes imposed on a periodic basis, deemed to be the amount of such Taxes for the entire Straddle Period after giving effect to amounts that may be deducted from or offset against such Taxes (or, in the case of Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period), multiplied by a fraction (x) the numerator of which is the number of days in the period ending on the Final Closing Date, and (y) the denominator of which is the number of days in the entire Straddle Period; and (b) in the case of all other Taxes, determined as though the taxable period of the relevant entity terminated at the close of business on the Final Closing Date.

(d)            If the Sellers or Purchaser provides notification within the ten (10) day period described in Section 10.2(a) or Section 10.2(b), as the case may be, Purchaser and the Company or Purchaser and the Sellers, as the case may be, will cooperate in good faith for ten (10) days following the Company’s or Purchaser’s receipt of such notice to resolve the objections therein, and any disputes that are not resolved within such ten (10) day period will be resolved by the Referee, who will be instructed to resolve any such remaining disputes in accordance with the terms of this Agreement within five (5) days after its appointment. The fees, costs and expenses of the Referee will be allocated equally between either Purchaser and the Company or Purchaser and the Sellers, as the case may be. If any objection with respect to a Company Prepared Tax Return or Purchaser Prepared Tax Return that is subject to this Section 10.2(d) is not resolved prior to the due date for the Company Prepared Tax Return or the Purchaser Prepared Tax Return (taking into account any applicable extensions), such Tax Return will be filed in the manner that the Company or Purchaser, respectively, deems correct without prejudice to the resolution of such dispute; provided, that an amended Tax Return will be filed (and additional Taxes paid if applicable) if necessary to give effect to the decision of a Referee.

(e)            Sellers and Purchaser will cause the Company to make any election available under applicable Law to treat the Final Closing Date as the end of a relevant taxable period of the Company. Purchaser will not amend or revoke (or cause to be amended or revoked) any Tax Return (or any notification or election relating thereto) concerning any Pre-Final Closing Tax Period without the prior written consent of Sellers.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 47 of 61

Section 10.3.    Transfer Taxes. Notwithstanding anything in this Agreement to the contrary, Purchaser will pay, when due, and be responsible for all transfer, stamp, sales, value added, and use Taxes, and any similar Taxes (collectively, “Transfer Taxes”) applicable to, or resulting from, the transactions contemplated by this Agreement. The Parties will cooperate to file all necessary Tax Returns and other documentation with respect to such Transfer Taxes as required by applicable Law, and Purchaser will pay such Transfer Taxes when due. Purchaser and the Sellers further agree, upon request, to use commercially reasonable efforts to cooperate to obtain any certificate or other document from any Taxing Authority or any other Person as may be necessary to mitigate, reduce or eliminate any Transfer Tax.

Section 10.4.    Cooperation and Retention of Records. The Parties will provide each other with and will cause their respective Affiliates, officers, employees, agents, auditors and representatives to provide each other with such cooperation and information relating to the Company as any of them reasonably may request in connection with any Tax matter governed by this Agreement, including: (a) the preparation and filing of any Tax Return or form; (b) examinations of Tax Returns; (c) participation in or conduct of any Tax Proceeding; and (d) furnishing each other with copies of all correspondence received from any Taxing Authority in connection with any audit or information request. Each such Party will make employees available on a mutually convenient basis to provide explanations of any documents or information provided hereunder. Such cooperation will include the retention and (upon the other Party’s request) the provision of records and information that are reasonably relevant to any such Tax Proceeding. Notwithstanding anything to the contrary in this Agreement, each Party will retain all Tax Returns, work papers and all material records or other documents in its possession (or in the possession of its Affiliates) relating to Tax matters of the Company for any taxable period, or portion of a Straddle Period, ending on or before the Final Closing Date until the later of (i) the expiration of the statute of limitations of the taxable periods to which such Tax Returns and other documents relate or (ii) six (6) years following the due date (without extension) for such Tax Returns. Any information or documents provided under this Section 10.4 will be kept confidential by the Party receiving the information or documents, except as may otherwise be necessary in connection with the filing of Tax Returns or any administrative or judicial proceedings relating to Taxes, or as required by applicable Law. Notwithstanding anything in this Section 10.4 to the contrary, no Party will be required to disclose to the other Party its consolidated, combined or unitary or similar federal, state, local, or foreign Tax Returns or any information with respect thereto (other than information with respect to the Company).

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 48 of 61

Section 10.5.    Tax Proceedings.

(a)            Purchaser and the Sellers will promptly notify each other (or will cause their respective Affiliates to notify the other Person) in writing of the receipt from a Governmental Authority of any proposed assessment or the commencement of any audit, examination, contest, suit, litigation, appeal, settlement discussion or other proceeding in respect of the Taxes of the Company (each, a “Tax Proceeding”) that could be grounds for indemnification under Section 10.1; provided, that the failure to so notify will not relieve any Party of its obligations under Section 10.1, except to the extent that such Party is actually prejudiced by such failure.

(b)            The Sellers will, subject to Section 10.5(d), have the right to control, at the Sellers expense, any Tax Proceeding for any taxable period that ends on or before the Final Closing Date; provided, that (i) the Sellers will elect to control such Tax Proceeding reasonably promptly after the receipt of the notification described in Section 10.5(a); (ii) if the resolution of any such Tax Proceeding would reasonably be expected to have a material adverse impact on Purchaser and its Affiliates, then (A) the Sellers will provide Purchaser with a timely and reasonably detailed account of each phase of such Tax Proceeding and (B) the Sellers will not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Purchaser, which consent will not be unreasonably withheld, conditioned or delayed (provided that any costs or expenses incurred by Purchaser in exercising its rights pursuant to clauses (A) or (B) above will be paid by Purchaser without reimbursement from the Sellers, notwithstanding Section 10.1).

(c)            Purchaser will, subject to Section 10.5(d), have the right to control, at Purchaser’s expense, any Tax Proceeding for any taxable period ending after the Final Closing Date; provided, however, that in the case of any Tax Proceeding for any taxable period that begins on or before, and ends after, the Final Closing Date (i) Purchaser will provide the Sellers with a timely and reasonably detailed account of each phase of such Tax Proceeding, (ii) Purchaser will consult with the Sellers before taking any significant action in connection with such Tax Proceeding, (iii) Purchaser will consult with the Sellers and offer the Sellers an opportunity to comment reasonably in advance of submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Sellers will be entitled to participate in such Tax Proceeding and receive copies of any written materials relating to such Tax Proceeding received from the relevant Taxing Authority, and (v) Purchaser will not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Sellers, which consent will not be unreasonably withheld, conditioned, or delayed.

(d)            Notwithstanding anything in this Agreement to the contrary, Purchaser will have the exclusive right to control any Tax Proceeding described in Section 10.5(b) or Section 10.5(c) if (i) such Tax Proceeding could not reasonably be expected to give rise to any indemnification obligation pursuant to Section 10.1(a) or Section 10.1(b) or (ii) Purchaser notifies the Sellers in writing that Purchaser is waiving its right to indemnification pursuant to Section 10.1(a) or Section 10.1(b) with respect to Taxes imposed as a result of the resolution of such Tax Proceeding, which waiver will be conclusive and binding on the Parties.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 49 of 61

Section 10.6.    Tax Refunds & Tax Benefits.

(a)            The amount of any Losses that are indemnifiable pursuant to Section 10.1 will be reduced by the amount of any Tax Benefit arising as a result of the accrual, incurrence or payment of any such Losses that are actually recognized by the relevant Indemnified Party or any of its Affiliates in the taxable year that the indemnification payment with respect to such Loss is paid or any preceding taxable year; provided, that if a Tax Benefit for which an indemnification payment was reduced pursuant to this Section 10.6(a) is subsequently reduced or disallowed by a Taxing Authority, each relevant indemnifying Party will promptly (after receiving appropriate written evidence of such reduction or disallowance) pay to the Indemnified Party the portion of the Tax Benefit reduced or disallowed (in the case of such a payment by a Seller, in accordance with its Pro Rata Portion immediately before the Initial Closing or Final Closing (as applicable)).

(b)            Tax Refunds.

(i)            Any refund of Taxes or credit received in lieu thereof, including any interest paid or credited by a Taxing Authority with respect thereto and net of any Taxes or other out-of-pocket costs or expenses actually incurred by the Indemnified Parties in connection with the receipt of any such refund or credit (a “Refund”) that relates to Taxes that are indemnifiable by the Sellers pursuant to Section 10.1(a) or Section 10.1(b) will be for the account of the Sellers, but only to the extent that such Refund is not attributable to, and does not result from, a carry back or other use of any item of loss, deduction, credit or other similar item (A) with respect to the Sellers’ obligation pursuant to Section 10.1(a), arising in a Post-Initial Closing Tax Period or (B) with respect to the Sellers’ obligation pursuant to Section 10.1(b), arising in a Post-Final Closing Tax Period. No more than ten (10) days after the receipt of any such Refund, Purchaser will pay the amount of such Refund to the Sellers.

(ii)            The amount of any other Refund of Taxes of the Company not described in Section 10.6(b)(i) will be solely for the account of the Company, and if any such Refund is received by any Party (or its respective Affiliates), such Party will pay the amount of such Refund to the Company no more than ten (10) days after the receipt of any such Refund.

Section 10.7.    Withholding. The Parties and any other applicable withholding agent will be entitled to deduct and withhold from the consideration otherwise payable pursuant to or contemplated by this Agreement such amounts as any Party or the withholding agent is required to deduct and withhold with respect to the making of any payment under the Code, or any provision of state, local or foreign Tax Law. To the extent that such amounts are so withheld and paid over to the proper Taxing Authority by a Party or the withholding agent, such withheld and deducted amounts will be treated for all purposes of this Agreement as having been paid to the applicable payee in respect of which such deduction and withholding was made by such Party or the withholding agent. The Parties will reasonably cooperate to reduce or eliminate any such deduction or withholding. To the knowledge of Purchaser, no such deduction or withholding will apply to payments under Article II or Article III.

Section 10.8.    Tax Treatment of Indemnity Payments. The Parties agree to treat any payment made pursuant to Article X or Article XI as an adjustment to the Purchase Price for all Tax purposes, except to the extent otherwise required by applicable Law.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 50 of 61

Section 10.9.    Survival Period. The indemnification obligations provided in this Article X will survive until thirty (30) days after the expiration of the applicable statute of limitations without giving effect to any extensions thereof; provided, that, if notice of indemnification is provided to the applicable indemnifying Party prior to any such expiration date, any obligation to indemnify for any claim described in such notice will continue indefinitely until such claim is finally resolved.

Section 10.10.    Exclusivity. Indemnification for Losses arising out of or resulting from Taxes will be governed exclusively by the provisions of this Article X and not by Article XI, except that the indemnification obligations under this Article X will be subject to Section 11.4 and Section 11.6(c).

Article XI

INDEMNIFICATION

Section 11.1.    Survival of Representations, Warranties and Covenants. The representations and warranties of (a) the Company contained in Article IV and all claims and causes of action with respect thereto will terminate on the date that is twelve (12) months from the Final Closing Date, (b) the Sellers contained in Article V and all claims and causes of action with respect thereto will terminate on the date that is twelve (12) months from the Final Closing Date, and (c) the Purchaser contained in Article VI and all claims and causes of action with respect thereto will terminate on the date that is twelve (12) months from the Final Closing Date, except that the Company Fundamental Representations, the Sellers Fundamental Representations and the Purchaser Fundamental Representations will survive for a period determined by replacing the foregoing references to twelve (12) months with three (3) years. No covenant or agreement contained herein that is to be performed on or prior to the Final Closing Date will survive the Final Closing Date; provided, however, that the foregoing will in no respect limit the rights of the Parties to seek indemnification for any breach of such covenant or agreement occurring before the Final Closing if a claim for indemnification hereunder is brought within six (6) months of the Final Closing Date. Any covenant and agreement to be performed, in whole or in part, after the Final Closing Date will survive the Final Closing in accordance with its terms. Notwithstanding the foregoing, if a Claim Notice meeting the requirements of Section 11.5(a) with respect to indemnification under Section 11.2 or 11.3 will have been given pursuant to Section 12.6 within the applicable survival period, the representations, warranties, covenants and agreements that are the subject of such indemnification claim will survive with respect to such Claim Notice until it is finally and fully resolved. Notwithstanding the foregoing, in the event that the Final Closing Obligations terminate and the Final Closing does not take place, the representations and warranties in described clauses (a) through (c) above will terminate twelve (12) months after the Initial Closing Date.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 51 of 61

Section 11.2.    Indemnification by Sellers. From and after the Final Closing Date, Sellers will indemnify the Purchaser Indemnified Parties from and against any and all Losses, excluding Losses with respect to Taxes, which will be indemnifiable solely pursuant to Article X, to the extent actually suffered or incurred by any of the Purchaser Indemnified Parties and arising out of or resulting from (a) any breach by the Company of any representation or warranty set forth in Article IV or by Sellers of any representation or warranty set forth in Article V, in each case as of the date hereof and as of the Final Closing Date (unless made as of a specific date, in which case as of such specific date), or (b) any breach of any covenant or agreement of the Sellers contained in this Agreement. Solely for purposes of calculating the amount of any Loss under this Section 11.2 (and not, for the avoidance of doubt, determining a breach of a representation or warranty hereunder), any qualification as to “materiality,” “material,” “Material Adverse Effect” in the applicable representation or warranty will be disregarded (except in Section 4.8(c), or any references to “Material Contracts”).

Section 11.3.    Indemnification by Purchaser. Purchaser will indemnify Sellers’ successors and assigns (the “Sellers Indemnified Parties” and together with the Purchaser Indemnified Parties, the “Indemnified Parties”) from and against any and all Losses to the extent actually suffered or incurred by the Sellers Indemnified Parties and arising out of or resulting from (a) any breach by Purchaser of any representation or warranty set forth in Article VI, in each case as of the date hereof and as of the Final Closing Date (unless made as of a specific date, in which case as of such specific date), or (b) any breach of any covenant or agreement of Purchaser contained in this Agreement. Solely for purposes of calculating the amount of any Loss under this Section 11.3 (and not, for the avoidance of doubt, determining a breach of a representation or warranty hereunder), any qualification as to “materiality” or “material,” in the applicable representation or warranty will be disregarded.

Section 11.4.    Limits on Indemnification.

(a)            Notwithstanding anything to the contrary contained in this Agreement: (i) Sellers will not be liable for any claim for indemnification pursuant to Section 10.1(a)(v), Section 10.1(b)(v) or Section 11.2(a) unless and until the aggregate amount of indemnifiable Losses that may be recovered from Sellers in respect of an individual claim or series of related claims under any of the foregoing sections equals or exceeds $5,000 (the “Per Claim Minimum”); (ii) Sellers will not be liable for any claim for indemnification pursuant to Section 10.1(a)(v), Section 10.1(b)(v) or Section 11.2(a) (other than, in each case with respect to a breach of a Fundamental Representation or fraud) unless and until the aggregate amount of indemnifiable Losses (disregarding any claims for Losses that do not equal or exceed the Per Claim Minimum) that may be recovered from Sellers under the foregoing sections equals or exceeds $20,000 (the “Basket”) whereupon the Purchaser Indemnified Party will be entitled to indemnification for only such amount of Losses in excess of the Basket; and (iii) the maximum amount of indemnifiable Losses that may be recovered from Sellers under Section 10.1 and this Article XI arising out of or resulting from the matters set forth in Section 10.1(a)(v), Section 10.1(b)(v) or Section 11.2(a) (other than, in each case with respect to a breach of a Fundamental Representation or fraud) as the case may be, will be an amount equal to $50,000 (the “Cap”). Notwithstanding anything to the contrary herein, (i) Seller will not be liable hereunder (other than for any claim for fraud) for an amount in excess of the Purchase Price (ii) no Sellers will have any indemnification obligation hereunder unless and until the Final Closing occurs; and (iii) except with respect to a breach of any representation or warranty in Article V or in respect of a breach of any covenant or agreement by the Sellers, Sellers indemnification obligations under Section 11.2 will be limited to such Initial Sellers Loss.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 52 of 61

(b)            Notwithstanding anything to the contrary contained in this Agreement: (i) Purchaser will not be liable for any claim for indemnification pursuant to Section 11.3(a) unless and until the aggregate amount of indemnifiable Losses that may be recovered from Purchaser in respect of an individual claim or series of related claims equals or exceeds the Per Claim Minimum; (ii) Purchaser will not be liable for any claim for indemnification pursuant to Section 11.3(a) (other than, in each case with respect to a breach of a Fundamental Representation or fraud) unless and until the aggregate amount of indemnifiable Losses (disregarding any claims for Losses that do not equal or exceed the Per Claim Minimum) that may be recovered from Purchaser equals or exceeds the Basket whereupon the Sellers Indemnified Parties will be entitled to indemnification for only such amount of Losses in excess of the Basket; and (iii) the maximum amount of indemnifiable Losses that may be recovered from Purchaser arising out of or resulting from the matters set forth in Section 11.3(a) (other than, in each case with respect to a breach of a Fundamental Representation or fraud) as the case may be, will be an amount equal to the Cap.

Section 11.5.    Notice of Loss; Third Party Claims.

(a)            An Indemnified Party will promptly give the Indemnifying Party a written claim notice (a “Claim Notice”) of any matter that an Indemnified Party has determined has given or could give rise to a right of indemnification under this Article XI, stating the amount of the Loss, if known, and method of computation thereof, and containing a reference to the provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The failure of any Indemnified Party to give a prompt Claim Notice will not release the Indemnifying Party from any of its indemnification obligations under this Article XI, except to the extent that the Indemnifying Party is prejudiced by such failure.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 53 of 61

(b)            If an Indemnified Party will receive notice of any Action, audit, demand or assessment against it or has knowledge of any event or circumstance, including any pending or threatened Action, audit, demand or assessment (each, a “Third Party Claim”), that may give rise to a claim for Loss under this Article XI, the Indemnified Party will promptly give the Indemnifying Party a Claim Notice in accordance with Section 11.5(a). The Indemnifying Party may, at its option, assume and control the defense of such Third Party Claim at its expense and through counsel of its choice if it gives notice of its intention to do so to the Indemnified Party within twenty (20) days of the receipt of notice from the Indemnified Party of such Third Party Claim; provided, however, that the Indemnified Party will be entitled to participate in the defense of any such Third Party Claim and to employ separate counsel of its choice at the Indemnified Party’s own expense (provided, that the fees and expenses of one separate counsel for all Indemnified Parties will be paid by the Indemnifying Party if there exists a material conflict of interest between the Indemnified Party and the Indemnifying Party in the conduct of such defense). In the event that the Indemnifying Party exercises the right to undertake any such defense against any such Third Party Claim as provided above, the Indemnified Party will cooperate in good faith with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, pertinent records, materials and information in the Indemnified Party’s possession or under the Indemnified Party’s control relating thereto as is reasonably required by the Indemnifying Party. Similarly, in the event the Indemnified Party is, directly or indirectly, conducting the defense against any such Third Party Claim in accordance with the terms hereof, the Indemnifying Party will cooperate in good faith with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all such witnesses, records, materials and information in the Indemnifying Party’s possession or under the Indemnifying Party’s control relating thereto as is reasonably required by the Indemnified Party. Except with the prior written consent of the Indemnified Party (which consent will not to be unreasonably withheld, conditioned or delayed), no Indemnifying Party will settle or compromise or consent to an entry of judgment with respect to a Third Party Claim unless such settlement, compromise or judgment (i) relates solely to money damages, (ii) provides for a full, unconditional and irrevocable release by such third party of the Indemnified Party and any applicable Affiliate thereof and (iii) does not contain any admission or finding of wrongdoing on behalf of the Indemnified Party. Except with the prior written consent of the Indemnifying Party (which consent will not to be unreasonably withheld, conditioned, or delayed), no Indemnified Party will settle or compromise or consent to an entry of judgment with respect to a Third-Party Claim.

Section 11.6.    Certain Indemnification Matters.

(a)            Notwithstanding anything to the contrary contained in this Agreement, none of the Parties and none of their respective Affiliates will have any liability under any provision of this Agreement for any consequential, special, exemplary, treble, incidental, indirect or punitive damages, lost profits, or diminution of value or similar items, except in each case to the extent any such Losses that are finally awarded by a court of competent jurisdiction in connection with a Third Party Claim.

(b)            Any liability for indemnification under this Agreement will be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant, or agreement.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 54 of 61

(c)            The amount of any Losses sustained by an Indemnified Party will be reduced (i) by any amount actually received by such Indemnified Party or its Affiliates with respect thereto under any insurance coverage relating thereto (other than insurance coverage provided by an Affiliate of such Indemnified Party), (ii) by any amount actually received by such Indemnified Party or its Affiliates with respect thereto from any Person alleged to be responsible for any Losses, (iii) by the amount of any Tax Benefit realized by such Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of with respect to such Loss that is actually recognized by the Indemnified Party or any of its Affiliates in the taxable year that the indemnification payment with respect to such Loss is paid or any preceding taxable year; provided, that if any such Tax Benefit is subsequently reduced or disallowed by a Taxing Authority, the Indemnifying Party will promptly (after receiving appropriate written evidence of such reduction or disallowance) pay to the Indemnified Party the portion of the Tax Benefit reduced or disallowed or (iv) to the extent such Loss is reflected or taken into account in the Financial Statements or the Final Closing Statement (as finally determined in accordance with Section 3.4). The Indemnified Parties will use commercially reasonable efforts to collect any amounts recoverable from non-affiliated Persons relating to Losses sustained by such Indemnified Party but will not be required to commence any Action against any such Person. If the Indemnified Party or its Affiliates actually receive any amounts under applicable third party insurance policies, or from any Person alleged to be responsible for any Losses, then such Indemnified Party will promptly reimburse the Indemnifying Party for any indemnification payment made by such Indemnifying Party to the Indemnified Party with respect to the applicable Loss up to the amount actually received or realized (net of deductibles, co-payments or other costs actually and reasonably incurred by the Indemnified Party in connection therewith (including increased premiums on such third party insurance policies to the extent attributable to the payment of such claims)) by the Indemnified Party or its Affiliates under such third party insurance policies, or from such Person alleged to be responsible for any Losses.

(d)            In the event of payment by or on behalf of any Indemnifying Party to any Indemnified Party pursuant to a claim or demand in a Claim Notice, such Indemnifying Party will be subrogated to and will stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right, defense or claim relating to such claim or demand against any claimant or plaintiff asserting such claim or demand. Such Indemnified Party will cooperate with such Indemnifying Party in a reasonable manner, and at the cost of such Indemnifying Party, in presenting any subrogated right, defense or claim.

(e)            In the event any Action for indemnification under this Article XI has been finally determined, the amount of such final determination will be paid promptly upon demand by wire transfer of immediately available funds, to an account or accounts designated by the applicable Indemnified Party in writing.

(f)            An Indemnified Party will take, or cause its Affiliates to take, in consultation with the Indemnifying Party, all necessary or appropriate actions (or cease taking actions) to mitigate any Losses upon becoming aware of any event or facts that would or would reasonably be expected to give rise to a claim of indemnification under this Article XI.

(g)            Each Indemnified Party will use commercially reasonable efforts to mitigate any Loss for which such Indemnified Party seeks indemnification. If any Indemnified Party receives insurance proceeds or indemnity, contribution or similar payments after the settlement of any indemnification claim under Section 11.2 (Indemnification by Sellers) or Section 11.3 (Indemnification by Purchaser), as applicable, such Indemnified Party will refund to the Indemnifying Party the amount of such insurance proceeds or indemnity, contribution or similar payments (net of all out-of-pocket costs and expenses relating to collection of such amounts from such insurers, or against any third party with respect to such Loss), up to the amount received in connection with such indemnification claim. Each Indemnified Party will use commercially reasonable efforts to seek full recovery under all insurance policies or other such indemnity, contribution or similar agreements or sources of payment covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder; provided, however, no Indemnified Party will be required to pursue recovery under an insurance policy or otherwise if it is reasonably likely that pursuing such recovery would result in the cancelation of such insurance or agreement. Each Party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 55 of 61

Article XII

MISCELLANEOUS

Section 12.1.    Amendments; Waiver. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by the Company, Purchaser, and the Sellers. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party will operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Section 12.2.    Entire Agreement. This Agreement, together with all exhibits, annexes, and schedules hereto, the Seller Disclosure Schedule, the Company Disclosure Schedule, and the Purchaser Disclosure Schedule, and the Confidentiality Agreement, constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements and undertakings, both written and oral, among the Parties with respect to the subject matter hereof.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 56 of 61

Section 12.3.    Interpretation. For purposes of this Agreement, the words “hereof,” “herein,” “hereby” and other words of similar import refer to this Agreement as a whole, unless otherwise indicated. When a reference is made in this Agreement to Articles, Sections, Annexes, Schedules, or Exhibits, such reference will be to an Article of, Section of, Annex to, Schedule to or Exhibit to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” will not be exclusive. All pronouns and any variations thereof refer to the masculine, feminine or neuter, singular or plural, as the context may require. All capitalized terms defined in this Agreement will be equally applicable to the singular and plural forms thereof. All references to any period of days will be deemed to be to the relevant number of calendar days unless otherwise specified. The dollar thresholds contained in Article XI, including the Per Claim Minimum, Basket, Cap, or elsewhere in this Agreement are not an indication of materiality for any purposes under this Agreement. All references to “dollars” or “$” will be to U.S. dollars. Any reference herein to any statute, agreement or document, or any section thereof, will, unless otherwise expressly provided herein, be a reference to such statute, agreement document or section as amended, modified, or supplemented (including any successor section) and in effect from time to time. Any agreement referred to herein will include reference to all exhibits, schedules and other documents or agreements attached thereto, including waivers or consents, and references to all attachments thereto and instruments incorporated therein. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event any ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by all Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. References to any Person include the successors and permitted assigns of that Person. Whenever the last day for the exercise of any right or the discharge of any duty under this Agreement falls on a day other than a Business Day, the Party having such right or duty will have until the next Business Day to exercise such right or discharge such duty.

Section 12.4.    Disclosure Schedules. The Company Disclosure Schedule, the Seller Disclosure Schedule and the Purchaser Disclosure Schedule referred to herein will be construed with and as an integral part of this Agreement to the same extent as if they were set forth verbatim herein. The disclosure of any item or matter in the Company Disclosure Schedule, the Sellers, Disclosure Schedule and the Purchaser Disclosure Schedule will not be construed as an admission that such item or information (or any non-disclosed item or information of comparable or greater significance) is “material” or relates to matters outside of the ordinary course of business or would have a Material Adverse Effect, or is otherwise required to be scheduled as an exception to any representation, warranty or covenant contained in this Agreement, nor will the inclusion of such item constitute evidence of the foregoing or establish a standard of materiality for any purpose whatsoever. It is expressly understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the Company Disclosure Schedule, the Sellers, Disclosure Schedule or the Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts are or are not material, and no Party will use the fact of the setting of such amounts in any dispute or controversy between the Parties as to whether any obligation, item or matter not described in this Agreement or included in the Company Disclosure Schedule, the Sellers, Disclosure Schedule or the Purchaser Disclosure Schedule is or is not material for purposes of this Agreement. The disclosure of any item or matter relating to any possible breach or violation of any Law or Contract will not be construed as an admission or indication that any such breach or violation exists or has occurred. Certain matters may be listed in the Company Disclosure Schedule, the Seller Disclosure Schedule and the Purchaser Disclosure Schedule for informational purposes only and may not be required to be listed therein by the terms of this Agreement.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 57 of 61

Section 12.5.    Severability. Any term or provision of this Agreement that is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason will, as to that jurisdiction, be ineffective solely to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or provision is invalid or unenforceable, the Company, the Sellers, and Purchaser will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible. If any provision of this Agreement is determined by a court of competent jurisdiction to be so broad as to be unenforceable, that provision will be interpreted to be only so broad as is enforceable.

Section 12.6.    Notices. Unless otherwise provided herein, all notices and other communications hereunder will be in writing and will be deemed given and received (a) if delivered in person, on the date delivered, (b) if transmitted by facsimile (provided receipt is confirmed by telephone), on the date sent, (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient, or (d) if delivered by an express courier, on the second (2nd) Business Day after mailing. Such communications must be sent to the respective Parties at the following addresses (or at such other address for a Party as will be specified in a notice given in accordance with this Section 12.6:

If to the Company:

Wilson-Davis & Co., Inc.
236 South Main Street

Salt Lake City, Utah 84101

Attention: William Walker
Email: BWalker@wdco.com

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 58 of 61

If to the Sellers, at their respective addresses set for on Exhibit A:

In each of the foregoing cases, with a courtesy copy (which will not constitute notice) to:

Michael Best & Friedrich

Attn: Betsy T. Voter

170 South Main Street, Suite 1000

Salk Lake City, UT 84101

Email: btvoter@micahelbest.com

If to Purchaser:

John M Schaible
4221 W. Boy Scout Blvd Suite 300
Tampa, FL 33607
Email: Jschaible@AtlasBanc.com

Section 12.7.    No Assignment; Binding Effect; Third-Party Beneficiaries. Except for any assignment by Purchaser to Affiliates of the Purchaser, and unless otherwise provided herein, neither this Agreement nor any right or obligation hereunder, may be assigned in whole or in part, by operation of law or otherwise, without the prior written consent of the other Parties. This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Except to the extent provided in Article XI (the provisions of which will inure to the benefit of the Purchaser Indemnified Parties and Sellers Indemnified Parties) and as specifically provided in Section 7.17 (the provisions of which will inure to the benefit of the D&O Indemnified Parties), this Agreement (including the documents and instruments referred to herein) is not intended to confer upon any Person other than the Parties any rights or remedies hereunder.

Section 12.8.    Specific Performance. The Parties agree that irreparable damage would occur, and no adequate remedy at law would exist and damages would not be able to be determined, in the event that any provision of this Agreement was not performed in accordance with its specific terms or was otherwise breached. Accordingly, each of the Parties agrees that the other Parties will be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which such Party is entitled at law or in equity. The Parties hereby waive, in any action for specific performance, the defense of adequacy of a remedy at law and the posting of any bond or other undertaking or security in connection therewith. Each Party further agrees that (a) by seeking any remedy provided in this Section 12.8, a Party will not in any respect waive its right to seek any other form of relief that may be available to a Party under this Agreement and (b) nothing contained in this Section 12.8 will require any Party to institute any action for (or limit any Party’s right to institute any action for) specific performance under this Section 12.8 before exercising any other right under this Agreement.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 59 of 61

Section 12.9.    Counterparts and Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Agreement transmitted by facsimile, email or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Agreement for all purposes. This Agreement will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

Section 12.10.    Governing Law. This Agreement, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Agreement, will in all respects be governed by, and construed in accordance with, the laws of the State of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

Section 12.11.    Submission to Jurisdiction. EXCEPT AS PROVIDED IN SECTION 3.5, ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH HEREIN WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Section 12.12.    Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) MAKES THIS WAIVER VOLUNTARILY AND UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (C) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.12.

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 60 of 61

Section 12.13.    No Recourse. No past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, agent, attorney or representative of the Company, Sellers, or Purchaser or any of their respective Affiliates that is not an express party hereto will have any liability (whether in contract or in tort) for any obligations or liabilities of the Sellers, the Company, or Purchaser arising under, in connection with or related to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby, including the sale of the Equity Interests of the Company, including any alleged non-disclosure or misrepresentations made by any such Persons.

Section 12.14.    Expenses. Except as otherwise expressly set forth in this Agreement (including with respect to Transaction Expenses), each Party will bear the fees, costs and expenses incurred by it in connection with the negotiation, preparation, execution and performance of this Agreement and the consummation of the transactions contemplated hereby (including legal, accounting and financial advisors and other representatives).

[Signature Pages Follow]

Stock Purchase Agreement
Wilson-Davis & Co., Inc.	Page 61 of 61

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first above written.

	WILSON-DAVIS & CO., INC. (the Company)

	By:	/s/ Robert McBey
	Name: Robert McBey
	Title: CEO

	[ATLAS CLEAR CORP.] (the Purchaser)

	By:	/s/ John M. Schaible
	Name: John M. Schaible
	Title: CEO

	SELLERS:

	/s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By	/s/ Byron B. Barkley
	BYRON B. BARKLEY, trustee

	PAUL N. DAVIS ESTATE

	By	/s/ Brent Davis
	BRENT DAVIS, personal representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s James C. Snow
	JAMES C. SNOW, an individual

Signature Page to the Stock Purchase Agreement

	/s William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By	/s/ Eric Flesche
	ERIC FLESCHE, president

Signature Page to the Stock Purchase Agreement

Exhibit A to

STOCK PURCHASE AGREEMENT

Schedule of Sellers

Name	Number of Shares		Address and Email
Byron B Barkley		20,000
Byron B. Barkley Pension Profit Sharing Trust		50,000
Paul N. Davis Estate		93,500
Lyle W. Davis		122,500
James C. Snow		28,000
William Walker		14,000
Glen Holdings Corp.		82,000
Total		410,000

Exhibit 10.10(a)

AMENDMENT TO STOCK PURCHASE AGREEMENT

This AMENDMENT TO STOCK PURCHASE AGREEMENT, dated as of June 15, 2022 (this “Amendment”), is entered by and between WILSON-DAVIS & CO., INC., a Utah corporation (the “Company”), those individuals and entities listed in Exhibit A attached hereto (collectively, the “Sellers”), and ATLASCLEAR, INC., a Delaware registered corporation (“Purchaser”), and together with Sellers and the Company, the “Parties,” and each a “Party”), on the following:

Premises

The Parties entered into that certain Stock Purchase Agreement dated April 15, 2022 (the “SPA”), pursuant to which Purchaser agreed to buy from the Sellers the outstanding equity securities of the Company, all on the terms and conditions set forth therein. The SPA provides, inter alia, for: (a) the purchase price to include a Goodwill Amount of $18,000,000; and (b) the right of the Sellers to terminate the SPA if they and the Company do not receive specified definitive agreements by June 15, 2022. The Parties now desire to amend the referenced provisions of the SPA.

Agreement

NOW THEREFORE, upon these premises, which are incorporated herein by reference, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

1.            Section 1.1 Certain Definitions is hereby amended by replacing the $18,000,000 amount in the definition of Goodwill Amount with $20,000,000.

2.            Section 9.1. Termination, subsection (a)(v)(B), is hereby amended by striking the existing language and inserting in lieu thereof the following:

(B)            by a majority in interest of the Sellers if they and the Company have not received from Purchaser, on or before July 30, 2022, complete and executed copies of the definitive operative agreements and related transactional documents providing for the SPAC’s termination of its SPAC status and the release of cash and marketable securities of $101,000,000 held in a trust account as of January 13, 2022, as reported in https://www.sec.gov/Archives/edgar/data/0001865120/000149315222005522/ex99-1.htm, to fund the transactions contemplated by this Agreement, all in accordance with Rule 419 under the Securities Act; and

3.            Except as amended and modified as set forth above, the Parties ratify and confirm the SPA and agree that it remains in full force and effect and binding on the Parties.

(**signatures on following page**)

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written.


The Company

	WILSON-DAVIS & CO., INC.

	By:	/s/ Robert McBey
	Name: Robert McBey
	Title: President

The Purchaser

	ATLASCLEAR, INC.

	By:	/s/ John M. Schaible
	Name: John M. Schaible
	Title: CEO

Sellers

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Bryon B. Barkley
		Byron B. Barkley, Trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
		Brent Davis, Personal Representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Eric Flesche
		Eric Flesche, President

Exhibit 10.10(b)

AMENDMENT NO. 2 TO THE

STOCK PURCHASE AGREEMENT

This AMENDMENT NO. 2 (this “Amendment”), dated as of November 15, 2022, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser” and together with Sellers and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein.

WHEREAS as of the date hereof Purchaser and Quantum FinTech Acquisition Corp. (“QFTA”), Calculator New Pubco, Inc. (“New Pubco”), Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., Atlas FinTech Holdings Corp. and Robert McBey are entering into a Business Combination Agreement (the “Business Combination Agreement”) providing for the acquisition by New Pubco of Quantum and the Company;

WHEREAS it is a condition to the consummation of the transactions contemplated by the Business Combination Agreement that Purchaser acquire the Company immediately prior to its merger with Merger Sub 2, Inc. pursuant to the Business Combination Agreement;

WHEREAS as of the date hereof Purchaser is also entering into an Agreement and Plan of Merger with Commercial Bancorp (the “Bank Acquisition Agreement”);

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT TO THE STOCK PURCHASE AGREEMENT

1.            Amend and Restate the Definition “SPAC”. The definition “SPAC” set forth in the fifth Recital of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows: “Quantum FinTech Acquisition Corporation.”

2.            Amend Section 6.1. The words “Delaware State” in Section 6.1 of the Stock Purchase Agreement are hereby deleted and replaced with the word “Wyoming.”

3.            Amend and Restate the definition of “Purchase Price”. The definition of “Purchase Price” set forth in Section 1.1 of the Stock Purchase Agreement is amended and restated in its entirety to read as follows and the defined term “Goodwill Amount” previously used therein is deleted:

“Purchase Price” will mean cash in an amount equal to (a) the amount by which the DTCC Stock Value exceeds its reported book value; provided the DTCC Stock Value shall not exceed $1.2 million; (b) plus, without duplication, the Company’s “Total ownership equity qualified for net capital” calculated in accordance with FINRA rules pursuant to Exchange Act Rule 15c3-1 as reflected on the Company’s FOCUS report, page 8, item 3, cell number 3500, at the time of the Final Closing, provided such amount shall not exceed $11.0 million; and (c) plus $20 million, not to exceed an aggregate Purchase Price of $31.0 million.

4.            Updated Disclosure Schedules. As of the date hereof, the Company makes the representations and warranties to Purchaser set forth in Article IV of the Stock Purchase Agreement and the Sellers make the representations and warrants to Purchaser set forth in Article V of the Stock Purchase Agreement (in each case as modified by this Amendment), references such representations and warranties to “as of the date hereof” shall refer to the date of this Amendment and each of the Company and Seller is simultaneously with the execution of this Amendment, delivering to Purchaser updated and revised disclosure schedules as of the date hereof, which shall be the “Company Disclosure Schedule” and “Seller Disclosure Schedule” referenced in the Stock Purchase Agreement.

5.            Amendments to Article 3.

(a)            Section 3.2(a) of the Stock Purchase Agreement is amended and restated in its entirety to read as follow and the defined term “Company Equity” previously used therein is deleted:

(b)           Section 3.4(a) is amended and restated to read as follows:

(a) Upon the terms and subject to the conditions set forth in this Agreement, the consummation of the transactions contemplated by Section 3.1 (the “Final Closing”) will take place on the date that is the later of (i) five (5) Business Days after the satisfaction or written waiver (to the extent permitted by applicable Law) of all of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Final Closing, but subject to the satisfaction or waiver (to the extent permitted by applicable Law) of those conditions at such time), and (ii) the date of the closing of the transactions contemplated by the Business Combination Agreement and (iii) such other date or at such other time as the Purchaser and Sellers may agree in writing (the “Final Closing Date”).

6.            Amend and Restate Section 4.4(b): Section 4.4(b) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows :

“(b) the FINRA Approval;”

7.            Amend Section 4.7. The words “February 28” in Section 4.7 of the Stock Purchase Agreement are hereby deleted and replaced with the words “September 30.”

8.            Amend and Restate Section 4.14: Section 4.14 of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

“Section 4.14 Employee Benefit Arrangements; Employee Matters.

(a)            Section 4.14(a)(i) of the Company Disclosure Schedule lists all written and unwritten Benefit Arrangements. For purposes of this Agreement, “Benefit Arrangements” means all (i) “employee benefit plans” (as defined in Section 3(3) of ERISA); (ii) bonus, equity option, equity purchase, restricted equity, other equity, incentive, deferred compensation, retiree medical or life insurance, supplemental retirement, severance, vacation, fringe benefit or other material benefit plans or programs; and (iii) employment, individual consultant, individual independent contractor, termination and severance agreements that, in each case, are sponsored, maintained or contributed to by the Company and in effect on the date hereof, excluding, in each case, any “multiemployer plan” (within the meaning of Section 3(37) of ERISA).

(b)            The Company has provided to Purchaser a true and complete copy of each Benefit Arrangement (or a summary of the material terms, for any unwritten Benefit Arrangement). With respect to each Benefit Arrangement, the Company has provided to Purchaser a copy of the following documents, if applicable: (i) the most recent summary plan description; (ii) the most recent Form 5500 report, together with all schedules thereto; and (iii) the applicable trust or custodial agreement.

(d)            Except as disclosed in Section 4.14(a)(i) of the Company Disclosure Schedule, neither the Company nor any ERISA Affiliate thereof has ever sponsored, maintained, administered, or contributed to, or has had or could have any Liability with respect to any (i) plan subject to Title IV of ERISA, Section 302 of ERISA, or Section 412 of the Code, (ii) “multiemployer plan” (within the meaning of Section 3(37) of ERISA), (iii) any “multiple employer plan” (as defined in Section 413(c) of the Code), or (iv) any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA. For purposes of this Agreement, “ERISA Affiliate” means any Person treated as a single employer with the Company under Section 414(b), (c), (m), or (o) of the Code.

(h)            The Company has complied in all material respects with all applicable Laws respecting employment, labor and employment practices, including wages and hours of work, child labor, occupational health and safety, equal employment opportunity, nondiscrimination, immigration, benefits, employee leave issues, collective bargaining, labor relations, affirmative action, workers’ compensation, unemployment insurance, the payment of social security and similar Taxes and plant closings and layoffs.

(i)            Except as would not reasonably be expected to result in a material liability to the Company, (i) the Company has not, nor has been, engaged in any unfair labor practice and no unfair labor practice complaint, grievance or arbitration proceeding is pending or threatened against the Company; (ii) there are no pending or, to the Company’s Knowledge, threatened union organizing activities involving the Company Employees, nor have any such activities occurred within the last three years; and (iii) there is no labor strike, dispute, work slowdown or stoppage pending or, to the Company’s Knowledge, threatened against the Company, nor have any such activities occurred within the last three years. The Company is not a party to or bound by any labor agreement, collective bargaining agreement, work rules or practices or any other labor-related agreements or arrangements with any labor union, labor organization or works council in respect of the Company Employees.

(j)            Except as would not reasonably be expected to result in a material liability to the Company, the Company has not received (i) notice of any unfair labor practice charge or complaint pending or threatened before the National Labor Relations Board or any other Governmental Authority against it; nor (ii) notice of any complaint, lawsuit or other Action pending or threatened in any forum by or on behalf of any Company Employee or former employee of the Company, any applicant for employment or classes of the foregoing alleging breach of any express or implied contract of employment, any applicable Law governing employment or the termination thereof or other discriminatory, wrongful or tortious conduct in connection with their employment relationship. No claims or allegations have been made against the Company or any current or former employee or other individual service provider thereof, for discrimination, harassment, sexual misconduct or retaliation within the last three years, nor, to the Company’s Knowledge, are any such claims threatened or pending nor is there any reasonable basis for such a claim.

(k)            Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or together with any other event or events, will (i) result in any payment (including severance, forgiveness of indebtedness or otherwise) becoming due under any Benefit Arrangement, whether or not such payment is contingent; (ii) increase any payments or benefits otherwise payable under any Benefit Arrangement; (iii) result in the acceleration of the time of payment, vesting or funding of any benefits, including the acceleration of the vesting and exercisability of any equity awards, whether or not contingent; or (iv) require the funding of any trust or other funding vehicle; or result in any “excess parachute payment” (within the meaning of Section 280G of the Code) becoming due to any Company Employee. No Benefit Arrangement provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code.

(l)            Section 4.14(l) of the Company Disclosure Schedule sets forth a true and complete list of all employees (including temporary employees), individual consultants and individual independent contractors as of the date hereof, including in each case, as applicable, such individual’s name, job title or description of service provided, location, current annual salary, hourly wage rate, or fee rate, current bonus and/or commission opportunity, status as exempt or non-exempt under applicable Laws, and for individual consultants and individual independent contractors only, date of engagement and total fees paid in 2021 and to-date in 2022.”

9.            Amend and Restate Section 4.20: Section 4.20 of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(f) Schedule 4.20 sets forth (i) the number of shares and class of DTCC Stock owned by the Company and (ii) the Market Value of the DTCC Stock owned by the Company as of the last day prior to the date of this Amendment on which information is available from DTCC and the date and source of such information. To the Knowledge of the Company, no material change has occurred in the Market Value of DTCC Stock after such date. The Company has good and valid title to the DTCC Stock held by it free and clear of any Encumbrances (other than Permitted Encumbrances). Such securities are valued on the Company Audited Financial Statements and the Interim Company Financial Statements in accordance with the Accounting Principles and GAAP.

10.            Add Section 4.25. Section 4.25 is added to the Stock Purchase Agreement as follows:

Section 4.25           Certain Business Practices.

(a)            Neither the Company nor any of its Representatives acting on its behalf have (i) used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees, to foreign or domestic political parties or campaigns or violated any provision of the U.S. Foreign Corrupt Practices Act of 1977 or any other local or foreign anti-corruption or bribery Law or (iii) made any other unlawful payment. Neither the Company, nor any of its Representatives acting on its behalf, have directly or indirectly, given or agreed to give any unlawful gift or similar benefit in any material amount to any customer, supplier, governmental employee or other Person who is or may be in a position to help or hinder the Company or assist the Company in connection with any actual or proposed transaction.

(b)            To the Knowledge of the Company, except as set forth in Schedule 4.13 or the Company’s Broker-Dealer Report, CRD #3777 or that would not have a Material Adverse Effect on the Company, the operations of the Company are and have been conducted at all times in material compliance with money laundering statutes (including but not limited to the USA PATRIOT Act of 2011, the United States Bank Secrecy Act of 1970, the United States Money Laundering Control Act of 1986, and the International Money Laundering Abatement and Anti-Terrorist Financing Act of 2001, the laws and executive orders administered by state agencies, and any regulations promulgated thereunder (collectively, the “Anti-Money Laundering Laws”)) in all applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority, and no Action involving the Company with respect to any of the foregoing is pending or, to the Knowledge of the Company, threatened.

(c)            Neither the Company nor any of its shareholders, directors, or officers, nor, to the Knowledge of the Company, any other Representative acting on behalf of the Company, is currently identified on the specially designated nationals or other blocked person list or otherwise currently subject to any U.S. sanctions administered by OFAC, and the Company has not, since its incorporation, directly or indirectly, used any funds, or loaned, contributed or otherwise made available such funds to any Subsidiary, joint venture partner or other Person, in connection with any sales or operations in Cuba, Iran, North Korea, Syria, the Donetsk People’s Republic, Luhansk People’s Republic, and Crimea regions of Ukraine, or any other country sanctioned by OFAC or for the purpose of financing the activities of any Person currently subject to, or otherwise in violation of, any U.S. sanctions administered by OFAC.

(d)            Except as specifically authorized by a governmental license, license exception, or other permit or applicable authorization of a Governmental Authority, the Company has not exported, reexported, transferred, facilitated or brokered the sale of any goods, services, technology, or technical data to or from, or entered into any transaction or had any dealing with, any person or entity for whom a license or other authorization is required under the U.S. Export Administration Regulations (the “EAR,” 15 C.F.R. § 730 et seq.), the International Traffic in Arms Regulations (the “ITAR,” 22 C.F.R. § 120 et seq.) or any other U.S. or non-U.S. export control regime, nor has the Company entered into any transaction prohibited by such laws.

(e)            To the Knowledge of the Company, except as set forth in Schedule 4.13 or the Company’s Broker-Dealer Report, CRD #3777 or that would not have a Material Adverse Effect on the Company, during the past five (5) years, the Company has not received any written or oral communication from any Governmental Authority that alleges that the Company or any of its agents are in material violation of, or have, or may have any material liability under, any International Trade Laws or Anti-Money Laundering Laws. Further, the Company has not, during the past five (5) years, made any voluntary or involuntary disclosure to a Governmental Authority or conducted any internal investigation or audit concerning any actual or potential violation or wrongdoing related to International Trade Laws or Anti-Money Laundering Laws.

11.            Add Section 4.26. Section 4.26 is added to the Stock Purchase Agreement as follows:

“Section 4.26         Data Privacy.

(a)            The Company (i) is and has been in compliance in all material respects with applicable Privacy and Security Requirements; (ii) has not experienced any Security Breaches; and (iii) has implemented commercially reasonable safeguards designed to protect Protected Data. The Company has not received any written complaints regarding the unauthorized processing of Protected Data or non-compliance with applicable Privacy and Security Requirements. The execution or performance of this Agreement will not, in any material respect, affect the Company’s rights to process Protected Data in the same manner as prior to the closing or violate any applicable Privacy and Security Requirements.

(b)            As used in this Section 4.26, (i) “Protected Data” means any personal information or data that the Company is required by Contract or Law to keep confidential, (ii) “Privacy and Security Requirements” means, to the extent directly applicable to Company, (a) any provisions Laws that regulate the processing of Protected Data; (b) provisions of Contracts between the Company and any Person that directly apply to the processing of Protected Data; and (c) all written policies relating to the processing of Protected Data and (iii) “Security Breach” means any (a) material unauthorized use, disclosure, acquisition of, or access to, Protected Data; or (b) any breach of information technology security safeguards that had a material impact on the Company’s operations.”

12.           Delete Section 5.6. Section 5.6 is hereby deleted.

13.           Amend and Restate Section 9.1(a)(ii)(A). Section 9.1(a)(V) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

after due consideration, the Department will have made a final, non-appealable denial of the FINRA Application, requests that the CMA be withdrawn, fails to approve the CMA, or imposes interim or permanent conditions, limitations, or restrictions applicable to the operation of the Company such that condition in Section 8.1(b) cannot be satisfied, or

14.            Amend and Restate Section 9.1(a)(v). Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)

by a majority in interest of the Sellers and the Company if the Business Combination Agreement is not entered on or before the same day as this Agreement or if the Business Combination Agreement is terminated in accordance with its terms; and

(B)

by a majority in interest of the Sellers and the Company if the closing of the Definitive Acquisition Agreement and the Stock Purchase Agreement (and the payments required to the Sellers thereunder) do not occur on or before May 31, 2023

15.          Amend Section 7.2. Section 7.2 of the Stock Purchase Agreement is hereby amended by adding the following to the end thereof:

Notwithstanding the foregoing or anything to the contrary in this Agreement, Purchaser shall be permitted to disclose (and to permit QFTA and New Pubco (as such term is defined in the Business Combination Agreement) to disclose) any information regarding the Company and/or its business as may be necessary or appropriate to include in the Registration Statement / Proxy Statement (as such term is defined in the Business Combination Agreement), any other filings to be made with the SEC by QFTA or New Pubco in connection with the transactions contemplated by this Agreement and the Business Combination Agreement, and/or any materials that may be provided to potential investors in the Potential Financing (as such term is defined in the Business Combination Agreement).

16.            Amend Section 7.6. Section 7.6 of the Stock Purchase Agreement is hereby amended by adding the following to the end thereof:

Without limiting the generality of the foregoing, between the date hereof and the Final Closing, the Company shall (a) provide to Purchaser all financial statements of the Company required to be provided by Purchaser pursuant to, and at such times and in conformity with all applicable requirements set forth in, Section 6.4 of the Business Combination Agreement; (b) use its reasonable best efforts (i) to assist Purchaser in causing to be prepared in a timely manner any other financial information or statements (including customary pro forma financial statements) that are required to be included in the Registration Statement / Proxy Statement and any other filings to be made by QFTA or New Pubco with the SEC in connection with the transactions contemplated by this Agreement and the Definitive Acquisition Agreement and (ii) to obtain the consents of the Company’s auditors with respect thereto as may be required by applicable Law or requested by the SEC; and (c) notwithstanding anything to the contrary in this Agreement, reasonably cooperate with Purchaser, as may be requested by Purchaser from time to time, in assisting with the preparation of (i) the Registration Statement / Proxy Statement and any other filings to be made with the SEC by QFTA or New Pubco in connection with the transactions contemplated by this Agreement and the Definitive Acquisition Agreement and (ii) any materials that may be provided to potential investors in the Potential Financing.

17.            Amend and Restate Sections 7.1(m) and (n): Sections 7.1(m) and (n) of the Stock Purchase Agreement are hereby amended by adding the following to the end thereof:

(m)          except as required by the terms of an existing Benefit Arrangement, (i) adopt, enter into, terminate or materially amend any Benefit Arrangement (or any plan that would be an Benefit Arrangement if in effect on the date hereof), other than amendments in the ordinary course of business, (ii) accelerate the vesting or payment of any rights, compensation or benefits to any Company Employee under any Benefit Arrangement, (iii) make any material increase to any salaries or other form of compensation or benefits payable to any Company Employee outside the ordinary course of business, or (iv) grant any equity or equity-linked awards or any other severance, retention, bonus, incentive, performance or other incentive compensation to any Company Employee;

(n)           (i) hire or engage any Company Employee whose annual base salary exceeds $120,000, other than the hiring of an employee to replace a departed Company Employee with similar levels of compensation and benefits, (ii) terminate a salesperson, trader or other Company Employee, other than a termination for cause or similar misconduct, or (iii) enter into, amend, or terminate any collective bargaining agreement or other agreement with a union, works council or labor organization covering any Company Employees;

18.          Amend and Restate Section 12.7. Section 12.7 of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

Section 12.7. No Assignment; Binding Effect; Third-Party Beneficiaries. Except for any assignment by Purchaser to Affiliates of the Purchaser, and unless otherwise provided herein, neither this Agreement nor any right or obligation hereunder, may be assigned in whole or in part, by operation of law or otherwise, without the prior written consent of the other Parties. This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Except to the extent provided in Article XI (the provisions of which will inure to the benefit of the Purchaser Indemnified Parties and Sellers Indemnified Parties) and as specifically provided in Section 7.17 (the provisions of which will inure to the benefit of the D&O Indemnified Parties), this Agreement (including the documents and instruments referred to herein) is not intended to confer upon any Person other than the Parties any rights or remedies hereunder; provided, however, that the SPAC is an express third-party beneficiary of the representations and warranties of the (i) Company and the Sellers set forth in Article IV of the Stock Purchase Agreement and (ii) Sellers set forth in Article V of the Stock Purchase Agreement.

ARTICLE II

MISCELLANEOUS

1.            No Further Amendment. Except as expressly amended hereby, the Stock Purchase Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Stock Purchase Agreement or any of the documents referred to therein.

2.            Effect of Amendment. This Amendment shall form a part of the Stock Purchase Agreement for all purposes, and each Party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the Parties, any reference to the Stock Purchase Agreement shall be deemed a reference to the Stock Purchase Agreement as amended hereby.

3.            Governing Law. This Amendment, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

4.            Submission to Jurisdiction. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

5.            Severability. Any term or provision of this Amendment that is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason will, as to that jurisdiction, be ineffective solely to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or provision is invalid or unenforceable, the Company, the Sellers, and Purchaser will negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Amendment be consummated as originally contemplated to the greatest extent possible. If any provision of this Amendment is determined by a court of competent jurisdiction to be so broad as to be unenforceable, that provision will be interpreted to be only so broad as is enforceable.

6.            Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	WILSON-DAVIS & CO., INC. (the Company)

	By:	/s/ Robert McBey
	Name: Robert McBey
	Title: President

[Signature Page to Amendment No. 2 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	ATLASCLEAR, INC. (the Purchaser)

	By:	/s/ Craig Ridenhour
	Name: Craig Ridenhour
	Title: CBDO

[Signature Page to Amendment No. 2 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

SELLERS:

/s/ Byron B. Barkley
BYRON B. BARKLEY, an individual

BARKLEY PENSION TRUST/PROFIT SHARING PLAN

By:	/s/ Byron B. Barkley
		BYRON B. BARKLEY, trustee

PAUL N. DAVIS ESTATE

By:	/s/ Brent Davis
		BRENT DAVIS, personal representative

/s/ Lyle W. Davis
LYLE W. DAVIS, an individual

/s/ James C. Snow
JAMES C. SNOW, an individual

/s/ William Walker
WILLIAM WALKER, an individual

GLEN HOLDINGS CORP.

By:	/s/ Paul E. Flesche
		PAUL E. FLESCHE, President

[Signature Page to Amendment No. 2 to Stock Purchase Agreement]

Exhibit 10.10(c)

Execution Version

AMENDMENT NO. 3 TO THE

STOCK PURCHASE AGREEMENT

This AMENDMENT NO. 3 (this “Amendment”), dated as of May 30, 2023, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022 and November 15, 2022 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser” and together with Sellers and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein.

WHEREAS Purchaser and Quantum FinTech Acquisition Corp., Calculator New Pubco, Inc., Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., Atlas FinTech Holdings Corp. and Robert McBey entering into a Business Combination Agreement (the “Business Combination Agreement”) providing for the acquisition by New Pubco of Quantum and the Company.

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT TO THE STOCK PURCHASE AGREEMENT

1. Amend and Restate Section 9.1(a)(v). Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)

by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B)

by a majority in interest of the Sellers and the Company if the closing of the Business Combination Agreement and the Stock Purchase Agreement (and the payments required to the Sellers thereunder) do not occur on or before August 9, 2023.

ARTICLE II

MISCELLANEOUS

1. No Further Amendment. Except as expressly amended hereby, the Stock Purchase Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Stock Purchase Agreement or any of the documents referred to therein.

2. Effect of Amendment. This Amendment shall form a part of the Stock Purchase Agreement for all purposes, and each Party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the Parties, any reference to the Stock Purchase Agreement shall be deemed a reference to the Stock Purchase Agreement as amended hereby.

3. Governing Law. This Amendment, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

4. Submission to Jurisdiction. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

5. Severability. Any term or provision of this Amendment that is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason will, as to that jurisdiction, be ineffective solely to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or provision is invalid or unenforceable, the Company, the Sellers, and Purchaser will negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Amendment be consummated as originally contemplated to the greatest extent possible. If any provision of this Amendment is determined by a court of competent jurisdiction to be so broad as to be unenforceable, that provision will be interpreted to be only so broad as is enforceable.

6. Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	WILSON-DAVIS & CO., INC. (the Company)


	By:	/s/ Robert McBey
	Name:	Robert McBey
	Title:	CEO

[Signature Page to Amendment No. 3 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	ATLASCLEAR, INC. (the Purchaser)


	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	CBDO

[Signature Page to Amendment No. 3 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	SELLERS:


	/s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual


	BARKLEY PENSION TRUST/PROFIT SHARING PLAN


	By:	/s/ Byron B. Barkley
		BYRON B. BARKLEY, trustee


	PAUL N. DAVIS ESTATE


	By:	/s/ Brent Davis
		BRENT DAVIS, personal representative


	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual


	/s/ James C. Snow
	JAMES C. SNOW, an individual


	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.


	By:	/s/ Paul E. Flesche
		PAUL E. FLESCHE, President

[Signature Page to Amendment No. 3 to Stock Purchase Agreement]

Exhibit 10.10(d)

Execution Version

AMENDMENT NO. 4 TO THE

STOCK PURCHASE AGREEMENT

This AMENDMENT NO. 4 (this “Amendment”), dated as of August 8, 2023, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022, November 15, 2022 and May 30, 2023 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser” and together with Sellers and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein.

WHEREAS Purchaser and Quantum FinTech Acquisition Corp., Calculator New Pubco, Inc., Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., Atlas FinTech Holdings Corp. and Robert McBey entering into a Business Combination Agreement (the “Business Combination Agreement”) providing for the acquisition by New Pubco of Quantum and the Company.

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT TO THE STOCK PURCHASE AGREEMENT

1.             Amend and Restate Section 9.1(a)(v). Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)

by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B)

ARTICLE II

MISCELLANEOUS

1.             No Further Amendment. Except as expressly amended hereby, the Stock Purchase Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Stock Purchase Agreement or any of the documents referred to therein.

2.             Effect of Amendment. This Amendment shall form a part of the Stock Purchase Agreement for all purposes, and each Party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the Parties, any reference to the Stock Purchase Agreement shall be deemed a reference to the Stock Purchase Agreement as amended hereby.

3.             Governing Law. This Amendment, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

4.             Submission to Jurisdiction. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

5.             Severability. Any term or provision of this Amendment that is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason will, as to that jurisdiction, be ineffective solely to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or provision is invalid or unenforceable, the Company, the Sellers, and Purchaser will negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Amendment be consummated as originally contemplated to the greatest extent possible. If any provision of this Amendment is determined by a court of competent jurisdiction to be so broad as to be unenforceable, that provision will be interpreted to be only so broad as is enforceable.

6.            Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	WILSON-DAVIS & CO., INC. (the Company)

	By:	/s/ Robert McBey
	Name:	Robert McBey
	Title:	CEO

[Signature Page to Amendment No. 4 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	ATLASCLEAR, INC. (the Purchaser)

	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	CBDO

[Signature Page to Amendment No. 4 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	SELLERS:

	/s Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Byron B. Barkley
		BYRON B. BARKLEY, trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
		BRENT DAVIS, personal representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Paul E. Flesche
		PAUL E. FLESCHE, President

[Signature Page to Amendment No. 4 to Stock Purchase Agreement]

Exhibit 10.10(e)

Execution Version

AMENDMENT NO. 5 TO THE

STOCK PURCHASE AGREEMENT

This AMENDMENT NO. 5 (this “Amendment”), dated as of November 6, 2023, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022, November 15, 2022, May 30, 2023 and August 8, 2023 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser” and together with Sellers and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein.

WHEREAS Purchaser and Quantum FinTech Acquisition Corp., Calculator New Pubco, Inc., Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., Atlas FinTech Holdings Corp. and Robert McBey entering into a Business Combination Agreement (the “Business Combination Agreement”) providing for the acquisition by New Pubco of Quantum and the Company.

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT TO THE STOCK PURCHASE AGREEMENT

1.              Amend and Restate Section 9.1(a)(v). Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)

by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B)

ARTICLE II

MISCELLANEOUS

3.            Governing Law. This Amendment, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

4.            Submission to Jurisdiction. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

6.            Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	WILSON-DAVIS & CO., INC. (the Company)

	By:	/s/ Robert McBey
	Name: Robert McBey
	Title: CEO

[Signature Page to Amendment No. 5 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

ATLASCLEAR, INC. (the Purchaser)


	By:	/s/ Craig Ridenhour
	Name: Craig Ridenhour
	Title: CBDO

[Signature Page to Amendment No. 5 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	SELLERS:

	/s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Byron B. Barkley
		BYRON B. BARKLEY, trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
		BRENT DAVIS, personal representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Paul E. Flesche
		PAUL E. FLESCHE, President

[Signature Page to Amendment No. 5 to Stock Purchase Agreement]

Exhibit 10.10(f)

AMENDMENT NO. 6 TO THE

STOCK PURCHASE AGREEMENT

This AMENDMENT NO. 6 (this “Amendment”), dated as of November 22, 2023, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022, November 15, 2022, May 30, 2023, August 8, 2023 and November 6, 2023 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser” and together with Sellers and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein.

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT TO THE STOCK PURCHASE AGREEMENT

1.            Amend and Restate Section 9.1(a)(v). Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)

by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B)

ARTICLE II 

MISCELLANEOUS

3.            Governing Law. This Amendment, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

4.            Submission to Jurisdiction. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

6.            Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	WILSON-DAVIS & CO., INC. (the Company)

	By:	/s/ Robert McBey
	Name: Robert McBey
	Title: CEO

[Signature Page to Amendment No. 6 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	ATLASCLEAR, INC. (the Purchaser)

	By:	/s/ Craig Ridenhour
	Name: Craig Ridenhour
	Title: CBDO

[Signature Page to Amendment No. 6 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	SELLERS:

	/s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Byron B. Barkley
		BYRON B. BARKLEY, trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
		BRENT DAVIS, personal representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Paul E. Flesche
		PAUL E. FLESCHE, President

[Signature Page to Amendment No. 6 to Stock Purchase Agreement]

Exhibit 10.10(g)

AMENDMENT NO. 7 TO THE

STOCK PURCHASE AGREEMENT

This AMENDMENT NO. 7 (this “Amendment”), dated as of December 14, 2023, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022, November 15, 2022, May 30, 2023, August 8, 2023, November 6, 2023 and November 22, 2023 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser” and together with Sellers and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein.

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT TO THE STOCK PURCHASE AGREEMENT

1.             Amend and Restate Section 9.1(a)(v). Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)

by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B)

ARTICLE II

MISCELLANEOUS

1.             No Further Amendment. Except as expressly amended hereby, the Stock Purchase Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Stock Purchase Agreement or any of the documents referred to therein.

2.             Effect of Amendment. This Amendment shall form a part of the Stock Purchase Agreement for all purposes, and each Party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the Parties, any reference to the Stock Purchase Agreement shall be deemed a reference to the Stock Purchase Agreement as amended hereby.

3.             Governing Law. This Amendment, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

4.             Submission to Jurisdiction. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

5.             Severability. Any term or provision of this Amendment that is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason will, as to that jurisdiction, be ineffective solely to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or provision is invalid or unenforceable, the Company, the Sellers, and Purchaser will negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Amendment be consummated as originally contemplated to the greatest extent possible. If any provision of this Amendment is determined by a court of competent jurisdiction to be so broad as to be unenforceable, that provision will be interpreted to be only so broad as is enforceable.

6.             Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature Page Follows.]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	WILSON-DAVIS & CO., INC. (the Company)

	By:	/s/ Lyle W. Davis
	Name:	Lyle W. Davis
	Title:	Chairman

[Signature Page to Amendment No. 7 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	ATLASCLEAR, INC. (the Purchaser)

	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	CBDO

[Signature Page to Amendment No. 7 to Stock Purchase Agreement]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written:

	SELLERS:

	/s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Byron B. Barkley
		BYRON B. BARKLEY, trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
		BRENT DAVIS, personal representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Paul E. Flesche
		PAUL E. FLESCHE, President

[Signature Page to Amendment No. 7 to Stock Purchase Agreement]

Exhibit 10.10(h)

EXECUTION VERSION

AMENDMENT NO. 8 TO STOCK PURCHASE AGREEMENT

THIS AMENDMENT NO. 8 (this “Amendment”), dated as of January 9, 2024, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022, November 15, 2022, May 30, 2023, August 8, 2023, November 6, 2023, November 22, 2023 and December 14, 2023 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser”), is entered into by and among the Company, Sellers, Purchaser and ATLASCLEAR HOLDINGS, INC., a Delaware corporation f/k/a Calculator New Pubco, Inc., pursuant to terms set forth in Section 2 below (the “Parent”, and together with Sellers, Purchaser and the Company, the “Parties” and each a “Party”). Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

RECITALS

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein;

WHEREAS Purchaser, Parent, Quantum FinTech Acquisition Corp., Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., Atlas FinTech Holdings Corp. and Robert McBey entered into that certain Business Combination Agreement, dated as of November 16, 2022 (the “Business Combination Agreement”) providing for the acquisition by Parent of Quantum and the Company;

WHEREAS Purchaser, Sellers and Parent wish to renegotiate the principal terms of the Stock Purchase Agreement and the purchase and sale of the Company’s capital stock described therein;

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT

Amendment to Section 1.1 – Definitions.

Each of the definitions of “Goodwill Amount” and “Purchase Price” set forth in Section 1.1 of the Stock Purchase Agreement are hereby amended and restated in its entirety to read as follows:

“Goodwill Amount” will mean fifteen million dollars ($15,000,000).

“Purchase Price” will mean cash in amount equal to:

(a) the Market Value of DTCC Stock as of the last day on which information is available from DTCC during the week prior to the Final Closing Date;

(b) plus, the cash, cash equivalents and other liquid assets of the Company, provided they are marketable in accordance with FINRA rules, shown as net ownership equity for the regulatory capital of Company at the time of the Final Closing;

(d) less, any adjustments to the above to meet any regulatory capital requirements or other rules or regulations of any governmental, regulatory or other governing body for which Company is a member. “Regulatory Documents” will mean, with respect to a Person, all forms reports, registration statements, registrations, declarations, notices, schedules and other documents filed, or required to be filed, by such Person pursuant to applicable Securities Laws or the applicable rules and regulations of any United States or foreign governmental or non-governmental self-regulatory organization, agency or authority, including the SEC and FINRA.

(e)

For (i) the avoidance of doubt and (ii) illustrative purposes, showing the calculation as of November 30, 2023, based on the FOCUS report that the Company filed with the U.S. Securities and Exchange Commission as of such date, only, the Purchase Price would be calculated as follows:

EQUITY	As of 11/30/2023*
Common Stock	$	41,000.00
Paid in Capital	$	303,836.00
Retained Earnings	$	9,362,270.00
TOTAL	$	9,707,106.00
Subordinated Debt	$	1,950,000.00
Other Credits	$	287,416.00
Total Regulatory	$	11,944,522.00
Non Allowables	$	(1,211,466.00	)
NET CAPITAL	$	10,733,056.00
Value of DTCC Stock	$	1,138,029.59
Less Debt	$	(1,950,000.00	)
Total Value	$	9,921,085.59
Goodwill Amount	$	15,000,000.00
PURCHASE PRICE	$	24,921,085.59	**

*The table above uses the Company’s financial information as of November 30, 2023 for illustrative purposes only, but the Purchase Price shall be calculated using the Company’s financial information as reported on December 31, 2023.

**For the avoidance of doubt, each Seller shall receive a pro rata share of the Purchase Price via the convertible promissory notes described below based on the allocation methodology described by Schedule 1.1 attached hereto. Sellers shall have the right to modify Schedule 1.1 prior to the Final Closing Date.

	b.	The following definitions are added to Section 1.1 of the Stock Purchase Agreement:

		“Glen Holdings” will mean Glen Holdings Corp. a [●] corporation.

		“Parent” will mean AtlasClear Holdings, Inc., a Delaware corporation f/k/a Calculator New Pubco, Inc.

Amendment to Section 3.3 – Final Closing Deliverables.

Section 3.3(a)(ii) of the Stock Purchase Agreement is hereby deleted in its entirety.

Section 3.3(a)(iii) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(iii)

(A) Purchaser and Parent will pay, or cause to be paid, on a joint and several basis, to (1) the Sellers, on a pro rata basis based on their respective ownership percentage in the Company, an amount equal to twelve million dollars ($12,000,000) in immediately available funds and (2) Glen Holdings, an amount equal to three million dollars ($3,000,000) via the issuance of (a) a short-term convertible promissory note in the form attached hereto as Exhibit A (the “Short-Term Convertible Promissory Note”) for the principal amount of $2,000,0000 and (b) a long-term convertible promissory note in the form attached hereto as Exhibit B (the “Long-Term Convertible Promissory Note”) for the principal amount of $1,000,000.

(B) Purchaser will issue additional Short-Term Convertible Promissory Notes to all Sellers, including Glen Holdings, in an aggregate principal amount of $3,000,000, on a pro rata basis based on their respective ownership percentage of the Company.

In addition to the above, Purchaser will issue additional Long-Term Convertible Promissory Notes to all Sellers, including Glen Holdings, for payment of the remaining balance of the Purchase Price on a pro rata basis based on their ownership percentage in the Company.

As an additional inducement to the Sellers to execute this Amendment, Parent and each Seller (as a Holder) will enter into a Parent Guaranty and Registration Rights Agreement substantially in the form attached hereto as Exhibit C.

The principal balance of the Short-Term Convertible Promissory Note and each of the Long-Term Convertible Promissory Notes shall be calculated based on the methodology and note face amounts described by Schedule 1.1, as adjusted for the Company’s financial information as of December 31, 2023. The execution and delivery of the Short-Term Convertible Promissory Note and each of the Long-Term Convertible Promissory Notes based on the Company’s financial information as of December 31, 2023 shall be a condition of closing of the Business Combination Agreement and the Stock Purchase Agreement.

Amendment to Section 3.5 – Holdback Amount in Escrow. Section 3.5 of the Stock Purchase Agreement is hereby amended and restated in its entirety as follows:

Section 3.5 Indemnification Offset. To the extent required and determined in accordance with this paragraph, Purchaser shall be entitled to deduct and offset from amounts due and owing, first from the Short-Term Notes and thereafter from the Long-Term Notes, any amounts that the Sellers owe to Purchaser for post-Closing claims for which indemnification is required pursuant to Article XI of this Agreement, subject to any limitations set forth therein, that is determined within twelve (12) months after the Final Closing Date for damages based on a post-Closing claim or regulatory action. The right of offset shall terminate on the expiration of twelve (12) months after the Final Closing. Prior to asserting any claimed offset, Purchase must provide at least ten (10) days’ prior written notice to Sellers, specifying the exact amount and nature of any such claimed offset asserted by Purchaser. Such notice of proposed offset much specifically set forth the exact amount that is claimed to be owed by the Sellers to Purchase. Purchaser shall exercise the right to offset described in this Section 3.5 on a pro rata basis, in accordance with each Seller’s ownership interest in the Company prior to the Final Closing Date.

Amendment to Section 9.1(a)(v) – Termination. Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A) by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B) by a majority in interest of the Sellers and the Company if the closing of the Business Combination Agreement and the Stock Purchase Agreement (and the payments required to the Sellers thereunder) do not occur on or before January 26, 2024.

Amendment to Section 11.1 – Survival of Representations, Warranties and Covenants. Section 11.1 of the Stock Purchase Agreement is hereby amended and restated in its entirety as follows:

11.1 Survival of Representations, Warranties and Covenants. The representations and warranties of (a) the Company contained in Article IV and all claims and causes of action with respect thereto will terminate on the date that is twelve (12) months from the Final Closing Date, (b) the Sellers contained in Article V and all claims and causes of action with respect thereto will terminate on the date that is twelve (12) months from the Final Closing Date, and (c) the Purchaser contained in Article VI and all claims and causes of action with respect thereto will terminate on the date that is twelve (12) months from the Final Closing Date. No covenant or agreement contained herein that is to be performed on or prior to the Final Closing Date will survive the Final Closing Date; provided, however, that the foregoing will in no respect limit the rights of the Parties to seek indemnification for any breach of such covenant or agreement occurring before the Final Closing if a claim for indemnification hereunder is brought within six (6) months of the Final Closing Date. Any covenant and agreement to be performed, in whole or in part, after the Final Closing Date will survive the Final Closing in accordance with its terms. Notwithstanding the foregoing, if a Claim Notice meeting the requirements of Section 11.5(a) with respect to indemnification under Sections 11.2 or 11.3 will have been given pursuant to Section 12.6 within the applicable survival period, the representations, warranties, covenants and agreements that are the subject of such indemnification claim will survive with respect to such Claim Notice until it is finally and fully resolved. Notwithstanding the foregoing, in the event that the Final Closing Obligations terminate and the Final Closing does not take place, the representations and warranties in described clauses (a) through (c) above will terminate twelve (12) months after the Initial Closing Date.

Amendment to Section 11.4(a) – Limits on Indemnification. Section 11.4(a) of the Stock Purchase Agreement is hereby amended and restated in its entirety as follows:

(a)

Notwithstanding anything to the contrary contained in this Agreement: (i) Sellers will not be liable for any claim for indemnification pursuant to Section 10.1(a)(v), Section 10.1(b)(v) or Section 11.2(a) unless and until the aggregate amount of indemnifiable Losses that may be recovered from Sellers in respect of an individual claim or series of related claims under any of the foregoing sections equals or exceeds $5,000 (the “Per Claim Minimum”); (ii) Sellers will not be liable for any claim for indemnification pursuant to Section 10.1(a)(v), Section 10.1(b)(v) or Section 11.2(a) (other than, in each case with respect to a breach of a Fundamental Representation or fraud) unless and until the aggregate amount of indemnifiable Losses (disregarding any claims for Losses that do not equal or exceed the Per Claim Minimum) that may be recovered from Sellers under the foregoing sections equals or exceeds $20,000 (the “Basket”) whereupon the Purchaser Indemnified Party will be entitled to indemnification for only such amount of Losses in excess of the Basket; and (iii) the maximum amount of indemnifiable Losses that may be recovered from Sellers under Section 10.1 and this Article XI arising out of or resulting from the matters set forth in Section 10.1(a)(v), Section 10.1(b)(v) or Section 11.2(a) (other than, in each case with respect to a breach of a Fundamental Representation or fraud) as the case may be, will be an amount equal to $750,000 (the “Cap”). Notwithstanding anything to the contrary herein, (i) Seller will not be liable hereunder (other than for any claim for fraud) for an amount in excess of the Purchase Price (ii) no Sellers will have any indemnification obligation hereunder unless and until the Final Closing occurs; (iii) except with respect to a breach of any representation or warranty in Article V or in respect of a breach of any covenant or agreement by the Sellers, each Seller’s indemnification obligations under Section 11.2 will be limited to such Seller’s Losses and (iv) Purchaser may only collect and recover any and all Losses from Sellers to which it is entitled to be indemnified for under Section 11.2 solely by setting off such Losses in accordance with the terms of Section 3.5 hereof. Purchaser acknowledges that this right of offset is its sole and exclusive remedy for seeking indemnification under this Agreement.

Supplement to Disclosure Schedule. Except as set forth on Exhibit D attached hereto, all of the information included in each of the Company Disclosure Schedule, the Seller Disclosure Schedule and the Purchaser Disclosure Schedule is true and correct in all material respects.

ARTICLE II

MISCELLANEOUS

No Further Amendment. Except as expressly amended hereby, the Stock Purchase Agreement is in all respects ratified and confirmed and all the terms, conditions, and provisions thereof shall remain in full force and effect. This Amendment is limited precisely as written and shall not be deemed to be an amendment to any other term or condition of the Stock Purchase Agreement or any of the documents referred to therein.

Effect of Amendment. This Amendment shall form a part of the Stock Purchase Agreement for all purposes, and each Party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the Parties, any reference to the Stock Purchase Agreement shall be deemed a reference to the Stock Purchase Agreement as amended hereby.

Governing Law. This Amendment, including the formation, breach. termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Amendment, will in all respects be governed by, and construed in accordance with, the laws of the state of Utah, without giving effect to principles or rules of conflict of laws. to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

Submission to Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AMENDMENT OF THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING, SERVICE OF PROCESS, SUMMONS, NOTICE, OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH IN THE STOCK PURCHASE AGREEMENT WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION, OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION, OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Severability. Any term or provision of this Amendment that is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason will. as to that jurisdiction, be ineffective solely to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Amendment or affecting the validity or enforceability of any of the terms or provisions of this Amendment in any other jurisdiction, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party. Upon such determination that any term or provision is invalid or unenforceable, the Company, the Sellers, and Purchaser will negotiate in good faith to modify this Amendment so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Amendment be consummated as originally contemplated to the greatest extent possible. If any provision of this Amendment is determined by a court of competent jurisdiction to be so broad as to be unenforceable, that provision will be interpreted to be only so broad as is enforceable.

Counterparts and Electronic Signatures. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same agreement, it being understood that all of the Parties need not sign the same counterpart. A signed copy of this Amendment transmitted by facsimile, email, or other means of electronic transmission will be deemed to have the same legal effect as delivery of an original executed copy of this Amendment for all purposes. This Amendment will not be binding unless and until signature pages are executed and delivered by each of the Company, Purchaser, and the Sellers.

[Signature page follows]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written.

	COMPANY: WILSON-DAVIS & CO., INC., a Utah corporation

	By:	/s/ Lyle Davis
	Name: Lyle Davis
	Title: Chairman

	PURCHASER: ATLASCLEAR, INC., a Wyoming corporation

	By:	/s/ Craig Ridenhour
	Name: Craig Ridenhour
	Title: Chief Business Development Officer

	PARENT: ATLASCLEAR HOLDINGS, INC., a Delaware corporation f/k/a Calculator New Pubco, Inc.

	By:	/s/ John Schaible
	Name: John M. Schaible
	Title: Chairman

	SELLERS:

	s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Byron B. Barkley
	Name: Byron B. Barkley
	Title: Trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
	Name: Brent Davis
	Title: Personal Representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Eric Flesche
	Name: Eric Flesche
	Title: Personal Representative

Schedule 1.1

Purchase Price Methodology

[see attached]

EXHIBIT A

Form of Short-Term Convertible Promissory Note

[see attached]

CONVERTIBLE PROMISSORY NOTE

February __, 2024

$[●]

Tampa, FL

No. STCN-[●]

AtlasClear, Inc., a Wyoming corporation (the “Company”), for value received, hereby promises to pay to _____________________ or its registered assigns (“Holder”), the principal sum of _______________________ Dollars ($_____), together with interest thereon as provided herein.

This Convertible Promissory Note (this “Note”) is being issued pursuant to that certain Stock Purchase Agreement, dated as of April 11, 2022, by and among the Company, Wilson-Davis & Co., Inc., a Utah corporation (“WDCO”), and the shareholders of WDCO, as amended (the “Purchase Agreement”). Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreement. Additional Convertible Promissory Notes in substantially the same form as this Note are being issued by the Company on the date hereof in accordance with the provisions of the Purchase Agreement (the “Other Notes”). This Note and any Other Notes are sometimes referred to collectively as the “Notes”.

1.             Definitions. For purposes of this Note, the capitalized terms set forth below shall have the following meanings:

“Board” means the board of directors of the Company.

“Business Day” means each day, other than a Saturday or Sunday, on which banking institutions are not authorized or obligated by law, regulation or executive order to close in Tampa, Florida.

“Change of Control” means the occurrence of any of the following after the Issuance Date:

(a)             A Person or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) files any report with the SEC indicating that such Person or group has become the direct or indirect “beneficial owner” (as defined below) of shares of the Parent’s common equity representing more than fifty percent (50%) of the voting power of all of the Parent’s then outstanding shares of Common Stock;

(b)           The consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Parent and its subsidiaries, taken as a whole, to any Person, other than solely to the Parent or one or more of its subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the shares of Common Stock are exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Parent pursuant to which the Persons that directly or indirectly “beneficially owned” all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Change of Control; or

For purposes of this definition, whether a Person is a “beneficial owner,” whether shares are “beneficially owned,” and percentage beneficial ownership, will be determined in accordance with Rule 13d-3 and 13d-5 under the Exchange Act; and (z) the phrase Person or “group” is within the meaning of Section 13(d) or 14(d) of the Exchange Act, but excluding (i) any employee benefit plan of such Person or “group” or of its Subsidiaries and (ii) any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan (but solely to the extent such Person is acting in such capacity)

“Common Stock” means the common stock of Parent, par value $0.0001 per share.

“Conversion Price” means, with respect to the conversion of any portion of this Note (including accrued and unpaid interest) in accordance with its terms, an amount equal to 90% of the average VWAP of the Common Stock for the seven (7)-Trading Day period immediately preceding the applicable Conversion Date (as defined herein).

“Issuance Date” means February [●], 2024.

“Parent” means AtlasClear Holdings, Inc., a Delaware corporation f/k/a Calculator New Pubco, Inc.

“Parent Agreement” means that certain Parent Guaranty and Registration Rights Agreement being executed and delivered by the Parent on the date hereof pursuant to the terms of the Purchase Agreement.

“SEC” means the U.S. Securities and Exchange Commission.

2.             Payments.

2.1           Interest.

(a)           This Note shall bear interest at the rate of nine percent (9%) per annum, subject to adjustment as provided in Section 2.1(b) below. Accrued and unpaid interest shall be payable on March 31, 2024 and on the Maturity Date, until all principal and accrued and unpaid interest shall have been paid in full.

(b)           Notwithstanding anything to the contrary contained herein, on or after an Event of Default (defined below) resulting from the failure to timely pay principal of or interest on this Note or on or after another Event of Default for which the Holder has accelerated the maturity date (subject to any notice, grace and cure provisions provided herein), this Note shall bear interest at a rate per annum equal to thirteen percent (13%) per annum, retroactive from the date of this Note until the sooner of such time as such Event of Default is cured or this Note is paid in full.

(c)            Interest shall be computed on the basis of a 360-day year of twelve (12) 30-day months and shall accrue commencing on the Issuance Date. Each interest payment hereunder shall be paid by the issuance of shares of Common Stock, with the number of shares issuable to be determined by dividing the amount payable by the Conversion Price; provided that the Company may, at its option, make any interest payment hereunder in cash; provided, further, than in the case of each interest payment hereunder other than the payment due on March 31, 2024, the Company must make such interest payment in cash if, as of the applicable payment date, the Registration Statement (as defined in the Parent Agreement) has not yet been declared effective and the shares that would be issuable on such payment date would not be eligible for sale under Rule 144 promulgated under the Securities Act.

2.2           Maturity. Subject to the provisions of Section 4 hereof relating to the conversion of this Note, the entire principal sum hereof shall be due and payable on April [●], 2024¹ (the “Maturity Date”). Additionally, accrued and unpaid interest shall be due and payable upon any of the following: (i) the payment of the entire principal sum hereof; or (ii) conversion of this Note pursuant to the provisions of Section 4 hereof as to that portion of the principal amount so converted.

2.3           Payment Dates. If any day on which any amount is payable pursuant under this Note is not a Business Day, then the amount otherwise payable on that date will be made on the next succeeding day that is a Business Day (without any interest or other payment in respect of such delay).

2.4           Partial Payments. In the event of any partial payment of principal or accrued interest, for whatever reason, any such partial payment of principal and/or interest on the Notes shall be allocated among the respective Notes and holders thereof so that the amount of such payments to each holder shall bear as nearly as practicable the same ratio to the aggregate amount then to be paid as the principal amount of the Notes then held by such holder bears to the aggregate principal amount of Notes then outstanding.

¹ 90 days following the Issuance Date for short-term notes; 2 years for long-term notes.

3.             Subordination. The indebtedness evidenced by this Note is subordinate and junior to the prior payment in full of the principal, premium (if any) and interest on all Senior Indebtedness (as defined below) to the extent and in the manner hereinafter set forth. The Holder agrees, from time to time as reasonably requested by the Company, to execute any documents required by the Company’s or the Parent’s lenders reaffirming the subordination provisions contained in this Note; provided, however, that the existing rights of the Holder shall not be adversely affected thereby. For purposes of this Note, the term “Senior Indebtedness” shall mean all indebtedness of the Company or the Parent, whether outstanding on the date hereafter or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company or the Parent (including all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to, the foregoing), on account of indebtedness for money borrowed from banks, trust companies and other similar financial institutions pursuant to one or more senior credit facilities. “Senior Indebtedness” shall not include any debt owed to any affiliate of the Company or the Parent, or to any affiliate of any officer or director of the Company or the Parent.

In the event of any insolvency, bankruptcy, receivership, liquidation (voluntary or involuntary), reorganization or other similar proceeding involving the Company, the Parent or its respective property, the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal, premium (if any) and interest on all Senior Indebtedness before the holders of the Notes are entitled to receive any payment on account of principal or interest on the Notes.

During the continuance of any default in the payment of principal, premium (if any) or interest on any Senior Indebtedness, no payment of principal or interest shall be made with respect to the indebtedness evidenced by the Notes (or any renewals or extensions thereof) if written or telegraphic notice of such default has been given to the Company or the Parent by any holder or holders of any Senior Indebtedness.

4.             Conversion.

4.1.          Optional Conversion. At any time following the occurrence of an Event of Default, and for so long as such Event of Default is continuing, the unpaid principal amount of this Note (together with all accrued but unpaid interest thereon) shall be convertible, in whole or in part, at the option of the Holder at any time prior to the payment in full of the principal amount of this Note, into such number of shares of fully paid and non-assessable shares of Common Stock as is determined by dividing the principal amount of the Note so converted (together with all accrued but unpaid interest thereon) by the applicable Conversion Price (the “Holder Conversion Right”).

4.2.          Issuance of Certificates. The Holder Conversion Right may be exercised by the Holder at any time permitted pursuant to Section 4.1 by the surrender of this Note (or of any replacement Note issued hereunder) with the conversion notice attached hereto duly executed, at the principal office of the Company or the transfer agent of the Parent. Conversion shall be deemed to have been effected (a) in the case of the Holder Conversion Right, on the date that such delivery of the Note and conversion notice is actually made, or (b) in the case of any interest payment pursuant to Section 2.1(c) (other than an interest payment which the Company shall have elected to make in cash), on the date on which such interest payment is due (as applicable, the “Conversion Date”). As promptly as practicable, and in any event within five (5) Trading Days, after a Conversion Date and, in the case of the Holder Conversion Right, the Company’s receipt of the Note being converted and the conversion notice, the Company shall issue and deliver to the Holder a certificate or certificates for the number of full shares of Common Stock to which the Holder is entitled (or evidence of the issuance of such shares in book entry form) and a check or cash with respect to any fractional interest in a share of Common Stock as provided in Section 4.4. The Company shall not be obligated to issue Common Stock certificates in the name of any party other than the Holder of the Notes, absent full compliance with the provisions of Section 7 hereof. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the next succeeding day on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date. All rights with respect to the Notes (or any portion thereof) that are converted pursuant to this Note, including the rights to receive interest and notices, shall terminate upon the conversion pursuant to this Section 4.2. Upon conversion of only a portion of the principal amount of this Note in accordance with the terms hereof, the Company shall issue and deliver to the Holder hereof, at the expense of the Company, a new Note covering the principal amount of this Note not converted, which new Note shall entitle the holder thereof to interest on the principal amount thereof to the same extent as if the unconverted portion of this Note had not been surrendered for conversion.

4.3.          Reservation of Stock Issuable Upon Conversion. The Company covenants that, for so long as any Notes remain outstanding, the Company will at all times have authorized and reserved a sufficient number of shares of Common Stock to provide for the full issuance of shares pursuant to Section 2.1(c) and the full exercise of the Holder Conversion Right.

4.4.          Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of this Note. In lieu of any fractional shares to which the Holder would otherwise be entitled, the Company shall pay cash equal to the product of such fraction multiplied by the fair value of one share of the Parent’s Common Stock on the Conversion Date, as determined in good faith by the Board.

4.5.          Adjustment of Conversion Price. The Conversion Price and the number and kind of securities which may be received upon the exercise of the Holder Conversion Right or the Company Conversion Right shall be subject to the adjustment from time to time upon the happening of certain events, as follows:

(a)           Adjustment for Stock Splits and Combinations. If the Company shall at any time or from time to time after the date hereof effect a subdivision of the outstanding Common Stock, the Conversion Price then in effect immediately before that subdivision shall be proportionately decreased, and conversely, if the Company shall at any time or from time to time after the date hereof combine the outstanding shares of Common Stock, the Conversion Price then in effect immediately before the combination shall be proportionately increased. Any adjustment under this Section 4.5(a) shall become effective at the close of business on the date the subdivision or combination becomes effective.

(b)           Adjustment for Reclassification, Exchange or Substitution. If the Common Stock issuable upon the conversion of the Notes shall be changed into the same or different number of shares of any class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares or stock dividend provided for above, or a reorganization, merger, consolidation or sale of assets provided for in Section 4.5(c) below), then and in each such event the holder of each Note shall have the right thereafter to convert each Note into the kind and amount of shares of stock and other securities and property receivable upon such reorganization, reclassification or other change, as holders of the number of shares of Common Stock into which such Note might have been converted immediately prior to such reorganization, reclassification or change, all subject to further adjustment as provided herein.

(c)            Reorganization, Merger, Consolidation or Sale of Assets. If at any time or from time to time there shall be a capital reorganization of the Common Stock (other than a subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Section 4.5) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company’s properties and assets to any other person, then, as a part of such reorganization, merger, consolidation or sale, provision shall be made so that the holders of the Notes shall thereafter be entitled to receive upon conversion of the Notes, the number of shares of stock or other securities or property of the Company, or of the successor corporation resulting from such merger or consolidation or sale, to which a holder of Common Stock deliverable upon conversion would have been entitled on such capital reorganization, merger, consolidation, or sale. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 4.5 with respect to the rights of the holders of the Notes after the reorganization, merger, consolidation or sale to the end that the provisions of this Section 4.5 (including adjustment of the Conversion Price then in effect and the number of shares receivable upon conversion of the Notes) shall be applicable after that event as nearly equivalent as may be practicable.

(d)           Certificate of Adjustment. Upon the occurrence of each adjustment or readjustment of the applicable Conversion Price pursuant to this Section 4.5, the Company shall promptly compute such adjustment or readjustment in accordance with the terms hereof and prepare and furnish to each holder of Notes a certificate, signed by an officer of the Company, setting forth such adjustment or readjustment and showing in reasonable detail the facts upon which such adjustment or readjustment is based.

(e)            Limitation on Number of Shares Issuable. Notwithstanding anything herein to the contrary, provided that the Common Stock remains listed for trading on the NYSE American LLC or other national securities exchange, the aggregate number of shares of Common Stock issued upon conversion of (i) the Notes and (ii) the long-term convertible promissory notes issuable pursuant to the Purchase Agreement shall not exceed 19.9% of either (a) the total number of shares of Common Stock outstanding on the Issuance Date or (b) the total voting power of the Company’s securities outstanding on the Issuance Date that are entitled to vote on a matter being voted on by holders of the Common Stock, unless and until the Company has obtained the approval of the Company’s stockholders in accordance with the rules of the NYSE American LLC or other national securities exchange on which the shares of Common Stock are listed, as applicable. To the extent that any payment (or portion thereof) is required to be made under this Note and cannot be paid in shares of Common Stock pursuant to the provisions of the immediately preceding sentence, such payment (or applicable portion thereof) shall be payable in cash.

4.8           Registration, Exchange and Transfer. The Company will keep a register in which, subject to such reasonable regulations as it may prescribe, it will register all Notes. No transfer of this Note shall be valid as against the Company unless made upon such register. This Note is subject to the restrictions on transfer set forth on the face hereof. Upon surrender for transfer of this Note and compliance with said restrictions on transfer, the Company shall execute and deliver in the name of the transferee or transferees a new Note or Notes for a like principal amount.

This Note, if presented for transfer, exchange, redemption or payment, shall (if so required by the Company) be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the registered Holder or by his duly authorized attorney.

Any exchange or transfer shall be without charge, except that the Company may require payment of the sum sufficient to cover any processing cost, tax or governmental charge that may be imposed in relation thereto.

The Company may deem and treat the registered Holder hereof as the absolute owner hereof (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon by anyone other than the Company), for the purpose of receiving payment of or on account of the principal hereof and interest hereon, for the conversion hereof and for all other purposes, and the Company shall not be affected by any notice to the contrary.

5.             Events of Default.

5.1.          Definitions and Effect. In case one or more of the following “Events of Default” shall have occurred and be continuing:

(i)            default in the payment of any amount due under this Note, and continuance of such default for a period of ten (10) days;

(ii)           default in the performance of any covenant or agreement contained in this Note (other than as set forth in clause (i) of this Section 5.1) or the Parent Agreement and such default is not fully cured within fifteen (15) days after the Holder delivers written notice to the Company of the occurrence thereof;

(iii)          the Company shall have admitted in writing its inability to pay its debts as they mature, or shall have made an assignment for the benefit of creditors, or shall have been adjudicated bankrupt;

(iv)          a trustee or receiver of the Company, or of any substantial part of the assets of the Company, shall have been appointed and, if appointed in a proceeding brought against the Company, the Company by any action or failure to act shall have indicated its approval of, consent to or acquiescence in such appointment, or, within sixty (60) days after such appointment, such appointment shall not have been vacated, or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect;

(v)          proceedings involving the Company shall have been commenced by or against the Company under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law or statute of the federal government, or any state government, and, if such proceedings shall have been instituted against the Company, or the Company by any action or failure to act shall have indicated its approval of, consent to, or acquiescence therein, or an order shall have been entered approving the petition in such proceedings, and within sixty (60) days after the entry thereof, such order shall not have been vacated or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect;

(vi)          a Change of Control shall have occurred; or

(vii)         WDCO shall have ceased activities as a broker-dealer, including as a result of a sale of WDCO by the Company or the Parent to an unaffiliated third-party;

then and in each and every such case, the holders of a majority in aggregate principal amount of then-outstanding Notes may declare the principal and accrued but unpaid interest of all the Notes to be due and payable immediately, by written notice to the Company, and upon any such declaration the same shall become and shall be immediately due and payable, subject to the subordination provisions of Section 3 hereof. At any time after such declaration of acceleration has been made, and before a judgment or decree for payment of money due has been obtained, the holders of a majority in aggregate principal amount of the then-outstanding Notes may, by written notice to the Company, rescind and annul such declaration.

5.2.          Waiver. At any time before the date of any declaration accelerating the maturity of this Note, the holders of a majority in aggregate principal amount of then-outstanding Notes may waive any Event of Default hereunder. Such waivers shall be evidenced by written notice or other document specifying the Event(s) of Default being waived and shall be binding on all existing or subsequent holders of outstanding Notes.

6.             Prepayment. The Company shall have the right to prepay all or any portion of the then-outstanding principal amount of the Notes, together with any accrued but unpaid interest on the principal amount being paid. If only a portion of the principal amount of the Notes then outstanding is to be prepaid at a given time, such prepayment shall be made on a pro rata basis among the holders of the Notes (based on the relative principal amount of Notes held by each such holder). To exercise such right, the Company shall give notice in writing of its election to prepay the Notes to the holders of record of the Notes to be prepaid, addressed to them at their respective addresses appearing on the books of the Company. In such notice, the Company shall designate a date for the prepayment not less than ten (10) days following the date of the notice. Prior to the date of prepayment specified in the notice, a holder may elect to exercise the Holder Conversion Right.

7.             Restrictions on Transfer.

7.1.          Restricted Securities. By acceptance hereof, the Holder understands and agrees that this Note and the Common Stock receivable upon conversion hereof are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the Holder represents that it is familiar with Rule 144 promulgated by the SEC, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.

7.2.          Further Limitations on Disposition. Without in any way limiting the representations set forth above, the Holder further agrees not to make any disposition of all or any portion of this Note (or of Common Stock issuable upon conversion thereof) except in compliance with applicable state securities laws and unless and until:

(a)            there is then in effect a registration statement under the Securities Act covering such proposed disposition and such disposition is made in accordance with such registration statement;

(b)           such disposition is made in accordance with Rule 144 under the Securities Act; or

(c)           the Holder shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of the circumstances surrounding the proposed disposition, and, if requested by the Company, the Investor shall have furnished the Company with an opinion of counsel, which opinion and counsel shall be reasonably satisfactory to the Company, that such disposition will not require registration under the Securities Act and will be in compliance with applicable state securities laws.

7.3.          Legends. It is understood that each Note and each certificate evidencing Common Stock acquired upon conversion thereof (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) shall bear a legend in substantially the following form (in addition to any legends which may be required in the opinion of the Company’s counsel by applicable state or federal laws):

[THIS NOTE / THE SECURITIES REPRESENTED BY THIS CERTIFICATE] HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES AND MAY NOT BE OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FILED BY THE ISSUER WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION COVERING SUCH SECURITIES UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER THAT SUCH REGISTRATION IS NOT REQUIRED.

8.             Notices. Whenever notice is required to be given under this Note, unless otherwise provided herein, such notice shall be given in accordance with Section 12.6 of the Purchase Agreement.

9.             No Rights as Stockholder. This Note, as such, shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company.

10.           Headings and Governing Law. The descriptive headings in this Note are inserted for convenience only and do not constitute a part of this Note. The validity, meaning and effect of this Note shall be determined in accordance with the laws of the State of Delaware.

11.           Governing Law; Waiver of Jury Trial; Submission to Jurisdiction.

This Note, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Note, will in all respects be governed by, and construed in accordance with, the laws of the State of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

ANY LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS NOTE OR THE TRANSACTIONS CONTEMPLATED HEREBY MAY BE INSTITUTED EXCLUSIVELY IN THE FEDERAL OR STATE COURT SITTING IN THE STATE OF UTAH, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY PREPAID EXPRESS COURIER TO SUCH PARTY’S ADDRESS SET FORTH HEREIN WILL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE OR THE TRANSACTIONS CONTEMPLATED BY THIS NOTE. EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) MAKES THIS WAIVER VOLUNTARILY AND UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, AND (C) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS NOTE AND THE TRANSACTIONS CONTEMPLATED BY THIS NOTE, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.3.

12.          Severability. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under application law.

13.           Amendment. With the consent of the holders of a majority in aggregate principal amount of the then-outstanding Notes, the Company may amend the Notes for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, the Notes; provided, however, that no such amendment shall, without the consent of the holder of each outstanding Note affected thereby:

(a)           change: (i) the maturity of the principal of, or any installment of interest on, any Note; or (ii) the coin or currency in which the principal of or interest on any Note is payable;

(b)           reduce the principal amount thereof or the interest rate thereon;

(d)           reduce the percentage in principal amount of the outstanding Notes the consent of whose holders is required for any amendment or waiver as provided for in the Notes.

Prompt written notice that this Note has been amended or interpreted in accordance with the terms of this Section shall be given to each holder of a Note. Upon such amendment or interpretation, the Notes shall be deemed modified in accordance therewith, such amendment or interpretation shall form a part of this Note for all purposes, and every subsequent holder of Notes shall be bound thereby.

[Remainder of page intentionally left blank; signature page follows.]

IN WITNESS WHEREOF, ATLASCLEAR, INC. has duly caused this Note to be signed in its name and on its behalf by its duly authorized officer as of the date first above written.

	ATLASCLEAR, INC.


	By:
		Name:
		Title:

NOTICE OF CONVERSION

(to be signed upon conversion of the Note)

TO ATLASCLEAR, INC.:

The undersigned, the holder of the foregoing Note, hereby surrenders such Note for conversion into that number of shares of Common Stock of AtlasClear Holdings, Inc. as determined pursuant to Section 4.1 of the Note, and requests that the certificates for such shares be issued in the name of, and delivered to, ________________________________________, whose address is __________________________________________________.

Amount of Principal to be Converted:		$

Amount of Accrued Interest to be Converted:		$

Total Amount to be Converted:		$

VWAP		$

Conversion Price		$

Number of Shares to be Issued:

Dated:


	(signature)

	(address)

EXHIBIT B

Form of Long-Term Convertible Promissory Note

[see attached]

CONVERTIBLE PROMISSORY NOTE

February __, 2024

$[●]

Tampa, FL

No. LTCN-[●]

1.             Definitions. For purposes of this Note, the capitalized terms set forth below shall have the following meanings:

“Board” means the board of directors of the Company.

“Business Day” means each day, other than a Saturday or Sunday, on which banking institutions are not authorized or obligated by law, regulation or executive order to close in Tampa, Florida.

“Change of Control” means the occurrence of any of the following after the Issuance Date:

(a)            A Person or “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) files any report with the SEC indicating that such Person or group has become the direct or indirect “beneficial owner” (as defined below) of shares of the Parent’s common equity representing more than fifty percent (50%) of the voting power of all of the Parent’s then outstanding shares of Common Stock;

(b)           The consummation of (i) any sale, lease or other transfer, in one transaction or a series of transactions, of all or substantially all of the assets of the Parent and its subsidiaries, taken as a whole, to any Person, other than solely to the Parent or one or more of its subsidiaries; or (ii) any transaction or series of related transactions in connection with which (whether by means of merger, consolidation, share exchange, combination, reclassification, recapitalization, acquisition, liquidation or otherwise) all of the shares of Common Stock are exchanged for, converted into, acquired for, or constitutes solely the right to receive, other securities, cash or other property; provided, however, that any merger, consolidation, share exchange or combination of the Parent pursuant to which the Persons that directly or indirectly “beneficially owned” all classes of the Company’s common equity immediately before such transaction directly or indirectly “beneficially own,” immediately after such transaction, more than fifty percent (50%) of all classes of common equity of the surviving, continuing or acquiring company or other transferee, as applicable, or the parent thereof, in substantially the same proportions vis-à-vis each other as immediately before such transaction will be deemed not to be a Change of Control; or

“Common Stock” means the common stock of Parent, par value $0.0001 per share.

“Conversion Price” means, with respect to the conversion of any portion of this Note (including accrued and unpaid interest) in accordance with its terms, an amount equal to 90% (or 85%, in the case of conversion pursuant to Section 4.1) of the average VWAP of the Common Stock for the seven (7)-Trading Day period immediately preceding the applicable Conversion Date (as defined herein).

“Issuance Date” means February [●], 2024.

“Parent” means AtlasClear Holdings, Inc., a Delaware corporation f/k/a Calculator New Pubco, Inc.

“SEC” means the U.S. Securities and Exchange Commission.

2.             Payments.

2.1           Interest.

(a)            This Note shall bear interest at the rate of thirteen percent (13%) per annum. Accrued and unpaid interest shall be payable on the last day of each calendar quarter, commencing with the quarter ending March 31, 2024, and on the Maturity Date, until all principal and accrued and unpaid interest shall have been paid in full.

(b)           Interest shall be computed on the basis of a 360-day year of twelve (12) 30-day months and shall accrue commencing on the Issuance Date. Each interest payment hereunder shall be paid by the issuance of shares of Common Stock, with the number of shares issuable to be determined by dividing the amount payable by the Conversion Price; provided that the Company may, at its option, make any interest payment hereunder in cash; provided, further, than in the case of each interest payment hereunder other than the payment due on March 31, 2024, the Company must make such interest payment in cash if, as of the applicable payment date, the Registration Statement (as defined in the Parent Agreement) has not yet been declared effective and the shares that would be issuable on such payment date would not be eligible for sale under Rule 144 promulgated under the Securities Act.

2.2           Maturity. Subject to the provisions of Section 4 hereof relating to the conversion of this Note, the entire principal sum hereof shall be due and payable on February [●], 2026² (the “Maturity Date”). Additionally, accrued and unpaid interest shall be due and payable upon any of the following: (i) the payment of the entire principal sum hereof; or (ii) conversion of this Note pursuant to the provisions of Section 4 hereof as to that portion of the principal amount so converted.

2.4          Partial Payments. In the event of any partial payment of principal or accrued interest, for whatever reason, any such partial payment of principal and/or interest on the Notes shall be allocated among the respective Notes and holders thereof so that the amount of such payments to each holder shall bear as nearly as practicable the same ratio to the aggregate amount then to be paid as the principal amount of the Notes then held by such holder bears to the aggregate principal amount of Notes then outstanding.

² Two years following the Issuance Date.

4.             Conversion.

4.1.          Optional Conversion. At any time following the earlier of (a) the six (6)-month anniversary of the Issuance Date and (b) the occurrence of an Event of Default, and for so long as such Event of Default is continuing, the unpaid principal amount of this Note (together with all accrued but unpaid interest thereon) shall be convertible, in whole or in part, at the option of the Holder at any time prior to the payment in full of the principal amount of this Note, into such number of shares of fully paid and non-assessable shares of Common Stock as is determined by dividing the principal amount of the Note so converted (together with all accrued but unpaid interest thereon) by the applicable Conversion Price (the “Holder Conversion Right”).

4.2.          Issuance of Certificates. The Holder Conversion Right may be exercised by the Holder at any time permitted pursuant to Section 4.1 by the surrender of this Note (or of any replacement Note issued hereunder) with the conversion notice attached hereto duly executed, at the principal office of the Company or the transfer agent of the Parent. Conversion shall be deemed to have been effected (a) in the case of the Holder Conversion Right, on the date that such delivery of the Note and conversion notice is actually made, or (b) in the case of any interest payment pursuant to Section 2.1(c) (other than an interest payment which the Company shall have elected to make in cash), on the date on which such interest payment is due (as applicable, the “Conversion Date”). As promptly as practicable, and in any event within five (5) Trading Days, after a Conversion Date and, in the case of the Holder Conversion Right, the Company’s receipt of the Note being converted and the conversion notice, the Company shall issue and deliver to the Holder a certificate or certificates for the number of full shares of Common Stock to which the Holder is entitled (or evidence of the issuance of such shares in book entry form) and a check or cash with respect to any fractional interest in a share of Common Stock as provided in Section 4.4. The Company shall not be obligated to issue Common Stock certificates in the name of any party other than the Holder of the Notes, absent full compliance with the provisions of Section 7 hereof. The person in whose name the certificate or certificates for Common Stock are to be issued shall be deemed to have become a stockholder of record on the next succeeding day on which the transfer books are open, but the Conversion Price shall be that in effect on the Conversion Date. All rights with respect to the Notes (or any portion thereof) that are converted pursuant to this Note, including the rights to receive interest and notices, shall terminate upon the conversion pursuant to this Section 4.2. Upon conversion of only a portion of the principal amount of this Note in accordance with the terms hereof, the Company shall issue and deliver to the Holder hereof, at the expense of the Company, a new Note covering the principal amount of this Note not converted, which new Note shall entitle the holder thereof to interest on the principal amount thereof to the same extent as if the unconverted portion of this Note had not been surrendered for conversion.

4.3.          Reservation of Stock Issuable Upon Conversion. The Company covenants that, for so long as any Notes remain outstanding, the Company will at all times have authorized and reserved a sufficient number of shares of Common Stock to provide for the full issuance of shares pursuant to Section 2.1(c) and the full exercise of the Holder Conversion Right.

4.4.          Fractional Shares. No fractional shares of Common Stock shall be issued upon conversion of this Note. In lieu of any fractional shares to which the Holder would otherwise be entitled, the Company shall pay cash equal to the product of such fraction multiplied by the fair value of one share of the Parent’s Common Stock on the Conversion Date, as determined in good faith by the Board.

4.5.          Adjustment of Conversion Price. The Conversion Price and the number and kind of securities which may be received upon the exercise of the Holder Conversion Right or the Company Conversion Right shall be subject to the adjustment from time to time upon the happening of certain events, as follows:

(a)            Adjustment for Stock Splits and Combinations. If the Company shall at any time or from time to time after the date hereof effect a subdivision of the outstanding Common Stock, the Conversion Price then in effect immediately before that subdivision shall be proportionately decreased, and conversely, if the Company shall at any time or from time to time after the date hereof combine the outstanding shares of Common Stock, the Conversion Price then in effect immediately before the combination shall be proportionately increased. Any adjustment under this Section 4.5(a) shall become effective at the close of business on the date the subdivision or combination becomes effective.

(e)            Limitation on Number of Shares Issuable. Notwithstanding anything herein to the contrary, provided that the Common Stock remains listed for trading on the NYSE American LLC or other national securities exchange, the aggregate number of shares of Common Stock issued upon conversion of (i) the Notes and (ii) the short-term convertible promissory notes issuable pursuant to the Purchase Agreement shall not exceed 19.9% of either (a) the total number of shares of Common Stock outstanding on the Issuance Date or (b) the total voting power of the Company’s securities outstanding on the Issuance Date that are entitled to vote on a matter being voted on by holders of the Common Stock, unless and until the Company has obtained the approval of the Company’s stockholders in accordance with the rules of the NYSE American LLC or other national securities exchange on which the shares of Common Stock are listed, as applicable. To the extent that any payment (or portion thereof) is required to be made under this Note and cannot be paid in shares of Common Stock pursuant to the provisions of the immediately preceding sentence, such payment (or applicable portion thereof) shall be payable in cash.

5.             Events of Default.

5.1.          Definitions and Effect. In case one or more of the following “Events of Default” shall have occurred and be continuing:

(i)            default in the payment of any amount due under this Note, and continuance of such default for a period of ten (10) days;

(iii)          the Company shall have admitted in writing its inability to pay its debts as they mature, or shall have made an assignment for the benefit of creditors, or shall have been adjudicated bankrupt;

(iv)          a trustee or receiver of the Company, or of any substantial part of the assets of the Company, shall have been appointed and, if appointed in a proceeding brought against the Company, the Company by any action or failure to act shall have indicated its approval of, consent to or acquiescence in such appointment, or, within sixty (60) days after such appointment, such appointment shall not have been vacated, or stayed on appeal or otherwise, or shall not otherwise have ceased to continue in effect;

(vi)          a Change of Control shall have occurred; or

(vii)         WDCO shall have ceased activities as a broker-dealer, including as a result of a sale of WDCO by the Company or the Parent to an unaffiliated third-party;

5.2.          Waiver. At any time before the date of any declaration accelerating the maturity of this Note, the holders of a majority in aggregate principal amount of then-outstanding Notes may waive any Event of Default hereunder. Such waivers shall be evidenced by written notice or other document specifying the Event(s) of Default being waived and shall be binding on all existing or subsequent holders of outstanding Notes.

7.             Restrictions on Transfer.

7.1.          Restricted Securities. By acceptance hereof, the Holder understands and agrees that this Note and the Common Stock receivable upon conversion hereof are characterized as “restricted securities” under the federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under such laws and applicable regulations such securities may be resold without registration under the Securities Act only in certain limited circumstances. In this connection, the Holder represents that it is familiar with Rule 144 promulgated by the SEC, as presently in effect, and understands the resale limitations imposed thereby and by the Securities Act.

7.2.          Further Limitations on Disposition. Without in any way limiting the representations set forth above, the Holder further agrees not to make any disposition of all or any portion of this Note (or of Common Stock issuable upon conversion thereof) except in compliance with applicable state securities laws and unless and until:

(b)           such disposition is made in accordance with Rule 144 under the Securities Act; or

7.3.          Legends. It is understood that each Note and each certificate evidencing Common Stock acquired upon conversion thereof (or evidencing any other securities issued with respect thereto pursuant to any stock split, stock dividend, merger or other form of reorganization or recapitalization) shall bear a legend in substantially the following form (in addition to any legends which may be required in the opinion of the Company’s counsel by applicable state or federal laws):

9.             No Rights as Stockholder. This Note, as such, shall not entitle the Holder to any voting rights or other rights as a stockholder of the Company.

11.           Governing Law; Waiver of Jury Trial; Submission to Jurisdiction.

12.           Severability. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, then such court may make such change as shall be necessary to render the provision in question effective and valid under application law.

(a)            change: (i) the maturity of the principal of, or any installment of interest on, any Note; or (ii) the coin or currency in which the principal of or interest on any Note is payable;

(b)            reduce the principal amount thereof or the interest rate thereon;

(d)           reduce the percentage in principal amount of the outstanding Notes the consent of whose holders is required for any amendment or waiver as provided for in the Notes.

[Remainder of page intentionally left blank; signature page follows.]

IN WITNESS WHEREOF, ATLASCLEAR, INC. has duly caused this Note to be signed in its name and on its behalf by its duly authorized officer as of the date first above written.

	ATLASCLEAR, INC.


	By:
		Name:
		Title:

NOTICE OF CONVERSION

(to be signed upon conversion of the Note)

TO ATLASCLEAR, INC.:

Amount of Principal to be Converted:		$

Amount of Accrued Interest to be Converted:		$

Total Amount to be Converted:		$

VWAP		$

Conversion Price		$

Number of Shares to be Issued:

Dated:


	(signature)

	(address)

EXHIBIT C

Parent Guaranty and Registration Rights Agreement

[see attached]

EXHIBIT D

Supplement to Disclosure Schedule

[see attached]

D-1 – Company Disclosure Schedule Supplement – Article IV

D-2 – Seller Disclosure Schedule Supplement – Article V

D-3 – Purchaser Disclosure Schedule Supplement – Article VI

Exhibit 10.10 (i)

AMENDMENT NO. 9 TO STOCK PURCHASE AGREEMENT

THIS AMENDMENT NO. 9 (this “Amendment”), dated as of February 7, 2024, to the Stock Purchase Agreement, dated as of April 15, 2022, as amended on June 15, 2022, November 15, 2022, May 30, 2023, August 8, 2023, November 6, 2023, November 22, 2023, December 14, 2023 and January 9, 2024 (as amended, the “Stock Purchase Agreement”), by and among WILSON-DAVIS & CO. INC., a Utah corporation (the “Company”), those individuals and/or entities listed in Exhibit A of the Stock Purchase Agreement (collectively, the “Sellers,” and individually, a “Seller”), and ATLASCLEAR, INC., a Wyoming corporation (inadvertently identified as “Atlas Clear Corp., a Delaware registered corporation” in the Stock Purchase Agreement) (“Purchaser”), is entered into by and among the Company, Sellers, Purchaser, CALCULATOR NEW PUBCO, INC., a Delaware corporation to be renamed AtlasClear Holdings, Inc. ( “Parent”), and, solely for purposes of Section 2(b)(iii)(C), QUANTUM VENTURES LLC, a Delaware limited liability company (“Sponsor”, and together with Parent, Sellers, Purchaser and the Company, the “Parties” and each a “Party”), pursuant to terms set forth in Section 2 below. Capitalized terms not otherwise defined in this Amendment have the meanings given such terms in the Stock Purchase Agreement.

RECITALS

WHEREAS Section 12.1 of the Stock Purchase Agreement provides for the amendment of the Stock Purchase Agreement in accordance with the terms set forth therein;

WHEREAS Purchaser, Parent, Quantum FinTech Acquisition Corp., Calculator Merger Sub 1, Inc., Calculator Merger Sub 2, Inc., Atlas FinTech Holdings Corp. and Robert McBey entered into that certain Business Combination Agreement, dated as of November 16, 2022 (as amended, the “Business Combination Agreement”) providing for the acquisition by Parent of Quantum and the Company;

WHEREAS Purchaser, Sellers and Parent wish to renegotiate the principal terms of the Stock Purchase Agreement and the purchase and sale of the Company’s capital stock described therein;

WHEREAS the Parties desire to further amend the Stock Purchase Agreement as set forth below.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

AMENDMENT

Amendment to Section 1.1 – Definitions.

The following definitions are added to Section 1.1 of the Stock Purchase Agreement:

“Common Stock” will mean (i) prior to the consummation of the transactions contemplated by the Business Combination Agreement, the common stock of Quantum, and (ii) from and after the consummation of the transactions contemplated by the Business Combination Agreement, the common stock of Parent, par value $0.0001 per share.

“Founder Shares” will mean shares of common stock, par value $0.0001 per share, of Quantum, purchased by Sponsor prior to Quantum’s initial public offering.

“Sponsor” will mean Quantum Ventures LLC, a Delaware limited liability company.

“VWAP” will mean, for any Trading Day, the per share volume-weighted average price of the Common Stock as reported by Bloomberg through its “VAP” function in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one share of Common Stock on such Trading Day determined using a volume weighted average method by a nationally recognized independent investment banking firm retained for this purpose by Company), determined without regard to after-hours trading or any other trading outside of the regular trading session.

“Trading Day” will mean any day on which the Common Stock is traded for any period on the principal securities exchange or other securities market or over-the-counter bulletin board on which the Common Stock is then being traded.

Amendment to Section 3.3 – Final Closing Deliverables.

Section 3.3(a)(ii) of the Stock Purchase Agreement is hereby deleted in its entirety.

Section 3.3(a)(iii) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(iii)

 (A)          Purchaser and Parent will pay, or cause to be paid, on a joint and several basis, to (1) the Sellers, on a pro rata basis based on their respective ownership percentage in the Company, an amount equal to twelve million dollars ($12,000,000) in immediately available funds (the “Cash Payment”) and (2) Glen Holdings, an amount equal to three million dollars ($3,000,000) via the issuance of (a) a short-term convertible promissory note in the form attached hereto as Exhibit A (the “Short-Term Convertible Promissory Note”) for the principal amount of $2,000,0000 and (b) a long-term convertible promissory note in the form attached hereto as Exhibit B (the “Long-Term Convertible Promissory Note”) for the principal amount of $1,000,000; provided, however, that Purchaser and Parent may, at their sole option, reduce the amount of the Cash Payment to eight million dollars ($8,000,000), subject to the provisions of Section 3.3(a)(iii)((C) below (the “Cash Reduction Election”).

(B)          Purchaser will issue additional Short-Term Convertible Promissory Notes to all Sellers, including Glen Holdings, in an aggregate principal amount of $3,000,000, on a pro rata basis based on their respective ownership percentage of the Company.

(C)           (1)         If, and only if, Purchaser and Parent make the Cash Reduction Election, Sponsor shall assign and transfer, or cause to be assigned and transferred to the Sellers, directly or constructively (including, if applicable, pursuant to a forfeiture and reissuance) on a pro rata basis based on their respective ownership percentage in the Company, (aa) Founder Shares having an aggregate value of four million dollars ($4,000,000) (the “Consideration Shares”), calculated based on the VWAP for the five (5) Trading Days immediately preceding the Closing (the “Closing VWAP”) and (bb) additional Founder Shares having an aggregate value of two million dollars ($2,000,000) (the “Bonus Shares”), calculated based on the Closing VWAP. The Consideration Shares and the Bonus Shares will be registered on the Form S-4 previously filed by Parent and will not be subject to any lock-up restrictions.

(2)          Following the Closing and continuing until the six-month anniversary of the Closing (the “Measurement Date”), the Sellers may sell any or all of the Consideration Shares, in their discretion. If, prior to the Measurement Date, the Sellers have sold all of the Consideration Shares and have received aggregate gross proceeds of less than four million dollars ($4,000,000) (the “Gross Proceeds Shortfall”), the Sponsor shall, upon receipt of reasonable written evidence thereof, assign and transfer, or cause to be assigned and transferred to the Sellers, directly or constructively (including, if applicable, pursuant to a forfeiture and reissuance), additional Founder Shares having a value (calculated based on the VWAP for the five (5) Trading Days immediately preceding the date of calculation) equal to the Gross Proceeds Shortfall, which the Sellers may sell (any such additional shares, the “Additional Shares”). This process may be repeated prior to the Measurement Date until the Sellers have received aggregate gross proceeds of at least four million dollars ($4,000,000) through the sale of the Consideration Shares and any Additional Shares (such proceeds, collectively, the “Sale Proceeds”).

(3)          If, as of the Measurement Date, the aggregate Sales Proceeds plus the value of any Consideration Shares and Additional Shares then held by the Sellers (calculated based on the VWAP for the five (5) Trading Days immediately preceding the Measurement Date) is less than four million dollars ($4,000,000), then Parent shall pay the difference to the Sellers, on a pro rata basis based on their respective ownership percentage in the Company, and the Sponsor shall have no obligation to assign and transfer, directly or constructively (including, if applicable, pursuant to a forfeiture and reissuance), any additional Founder Shares. If, as of the Measurement Date, the aggregate Sales Proceeds plus the value of any Consideration Shares and Additional Shares then held by the Sellers (calculated based on the VWAP for the five (5) Trading Days immediately preceding the Measurement Date) is greater than four million dollars ($4,000,000), then the Sellers shall, jointly and severally, promptly assign and transfer back directly or constructively (including, if applicable, pursuant to a forfeiture and reissuance), to the Sponsor the excess Consideration Shares and/or Additional Shares.

(4)          Notwithstanding anything to the contrary herein, in no event shall the maximum number of Founder Shares required to be transferred by Sponsor hereunder (including Consideration Shares, Additional Shares and Bonus Shares) exceed 2,500,000. Until the obligation to transfer Additional Shares is satisfied, Sponsor will reserve such shares for possible future assignments and transfers, directly or constructively (including, if applicable, pursuant to a forfeiture and reissuance), to the Sellers. In addition, in no event shall Sponsor transfer any founder shares to any Seller to the extent that such Seller would, as a result, own 10% or more of Parent’s outstanding shares of Common Stock (in which case Sponsor shall remain obligated to assign and transfer, directly or constructively (including, if applicable, pursuant to a forfeiture and reissuance), the shares not transferred as a result of this sentence to such Seller if and when such Seller has reduced its holdings below 10%).

Amendment to Section 9.1(a)(v) – Termination. Section 9.1(a)(v) of the Stock Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(v)

(A)          by a majority in interest of the Sellers and the Company if the Business Combination Agreement is terminated in accordance with its terms; and

(B)          by a majority in interest of the Sellers and the Company if the closing of the Business Combination Agreement and the Stock Purchase Agreement (and the payments required to the Sellers thereunder) do not occur on or before February 15, 2024.

ARTICLE II

MISCELLANEOUS

[Signature page follows]

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed as of the date first above written.

	COMPANY: WILSON-DAVIS & CO., INC., a Utah corporation

	By:	/s/ Lyle W. Davis
	Name:	Lyle W. Davis
	Title:	Chairman

	PURCHASER: ATLASCLEAR, INC., a Wyoming corporation

	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	Chief Business Development Officer

	PARENT: CALCULATOR NEW PUBCO, INC.

	By:	/s/ Craig Ridenhour
	Name:	Craig Ridenhour
	Title:	Director

	Solely for purposes of Section 2(b)(iii)(C), SPONSOR: QUANTUM VENTURES LLC, a Delaware limited liability company

	By:	/s/ John M. Schaible
	Name:	John M. Schaible
	Title:	Chief Executive Officer

	SELLERS:

	/s/ Byron B. Barkley
	BYRON B. BARKLEY, an individual

	BARKLEY PENSION TRUST/PROFIT SHARING PLAN

	By:	/s/ Byron B. Barkley
	Name:	Byron B. Barkley
	Title:	Trustee

	PAUL N. DAVIS ESTATE

	By:	/s/ Brent Davis
	Name:	Brent Davis
	Title:	Personal Representative

	/s/ Lyle W. Davis
	LYLE W. DAVIS, an individual

	/s/ James C. Snow
	JAMES C. SNOW, an individual

	/s/ William Walker
	WILLIAM WALKER, an individual

	GLEN HOLDINGS CORP.

	By:	/s/ Eric Flesche
	Name:	Eric Flesche
	Title:	Personal Representative

Exhibit 10.11

EXECUTION VERSION

PARENT GUARANTY AND REGISTRATION RIGHTS AGREEMENT

This PARENT GUARANTY AND REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of January 9, 2024, by and between AtlasClear Holdings, Inc., a Delaware corporation f/k/a Calculator New Pubco, Inc. (the “Parent”), and the persons listed on the signature pages hereto under the heading “Holders” (the “Holders”).

W I T N E S S E T H

WHEREAS, pursuant to the terms of that certain Stock Purchase Agreement, dated as of April 11, 2022, by and among AtlasClear, Inc., a Wyoming corporation (the “Company”), Wilson-Davis & Co., Inc., a Utah corporation (“WDCO”), and the Holders, as amended (the “Purchase Agreement”; capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement), the Company is issuing to the Holders, on the date hereof, certain short-term convertible promissory notes and long term convertible promissory notes (collectively, the “Notes”); and

WHEREAS, it is a condition to the Holders’ obligation to consummate the transactions contemplated by the Purchase Agreement that the Parent execute and deliver this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, including the benefits to be received by the Parent from the consummation of the transactions contemplated by the Purchase Agreement, the receipt of which is hereby acknowledged, the Parent hereby covenants and agrees for the equal and ratable benefit of the Holders as follows:

1.             AGREEMENT TO GUARANTEE.

(a)           The Parent hereby guarantees to each Holder that:

(1)             the principal of and interest on the Notes will be promptly paid in full when due, and all other obligations of the Company to the Holders thereunder will be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and

(2)             in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity, by acceleration or otherwise.

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, the Parent shall be obligated to pay the same immediately. The Parent agrees that this is a guarantee of payment and not a guarantee of collection.

(b)           The Parent hereby agree that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability of the Notes, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Parent hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Agreement will not be discharged except by complete performance of the obligations contained in the Notes.

EXECUTION VERSION

(c)           If any Holder is required by any court or otherwise to return to the Company, the Parent or any custodian, trustee, liquidator or other similar official acting in relation to either the Company or the Parent, any amount paid by either to such Holder, this guaranty, to the extent theretofore discharged, shall be reinstated in full force and effect.

(d)           This guaranty and the rights and obligations evidenced hereby are subordinate in the manner and to the extent set forth in Section 3 of the Notes to the Senior Indebtedness (as defined in the Notes), and each Holder, by its acceptance hereof, irrevocably agrees to be bound by the provisions of Section 3 of the Notes.

2.             REGISTRATION RIGHTS.

(a)           The Parent agrees that, within thirty (30) calendar days after the date hereof, the Parent will file with the Securities and Exchange Commission (the “SEC”), at the Company’s sole cost and expense, a registration statement, or an amendment to a previously-filed registration statement (as applicable, a “Registration Statement”) registering the resale of the shares of Common Stock (as defined in the Notes) underlying the Notes (the “Conversion Shares”), and the Company shall use its commercially reasonable efforts to have the Registration Statement declared effective as soon as practicable after the filing thereof; provided, however, that the Company’s obligations to include each Holder’s Conversion Shares in the Registration Statement are contingent upon such Holder furnishing in writing to the Company such information regarding such Holder, the securities of the Parent held by such Holder and the intended method of disposition of such Holder’s Conversion Shares as shall be reasonably requested by the Parent to effect the registration of such Conversion Shares, and shall execute such documents in connection with such registration as the Parent may reasonably request that are customary of a selling stockholder in similar situations. The Parent further agrees that, subject to the proviso in the immediately preceding sentence, it will register the resale of the Conversion Shares in the first registration statement filed by the Parent after the date hereof. The Parent will provide a draft of the Registration Statement to the Holders for review at least two (2) Business Days in advance of filing the Registration Statement and shall in good faith consider each Holder’s reasonable comments thereto, if any. Unless required under applicable laws and SEC rules, in no event shall any Holder be identified as a statutory underwriter in the Registration Statement; provided, that if any Holder is required to be so identified as a statutory underwriter in the Registration Statement, such Holder will have an opportunity to withdraw its Conversion Shares from the Registration Statement.

(b)           The Parent agrees that, except for such times as the Parent is permitted to suspend the use of the prospectus forming part of a Registration Statement as set forth below, the Company will use its commercially reasonable efforts to, at its expense, cause each Registration Statement to remain effective until the earlier of (i) three years from the date hereof, (ii) the date on which all of the Conversion Shares included in the Registration Statement shall have been sold, or (iii) the first date on which all of the Conversion Shares included in the Registration Statement can be sold under Rule 144 of the Securities Act of 1933, as amended, without limitation as to volume or manner of sale.

EXECUTION VERSION

(c)           Notwithstanding anything to the contrary herein, if the filing, initial effectiveness or continued use of a Registration Statement at any time would (i) require the Parent to make an adverse disclosure, (ii) require the inclusion in such Registration Statement of financial statements that are unavailable to the Parent for reasons beyond the Parent’s control or (iii) in the good faith judgment of the board of directors of the Parent, be seriously detrimental to the Parent and its holders of capital stock, (such circumstance, a “Suspension Event”) and it would therefore be essential to defer such filing, initial effectiveness or continued use at such time, the Parent shall have the right, upon delivering prompt written notice to the Holders of such action (which notice shall not specify the nature of the event giving rise to such delay or suspension), to delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time determined in good faith by the Parent to be necessary for such purpose. In the event the Parent exercises its rights under this Section 2(c), each Holder agrees to suspend, immediately upon its receipt of the notice referred to above, its use of the prospectus relating to any Registration Statement in connection with any sale or offer to sell Conversion Shares until such Holder receives written notice from the Parent that such sales or offers of Conversion Shares may be resumed, and in each case maintain the confidentiality of such notice and its contents.

3.             STOCKHOLDER APPROVAL. The Parent agrees that, if and to the extent required to allow any of the Notes to be converted into Conversion Shares in accordance with the rules or regulations of the NYSE American LLC or other national securities exchange on which the Parent’s common stock is then traded (the “Principal Market”), the Parent will (a) by no later than April 30, 2024, prepare and file with the SEC a proxy statement (the “Proxy Statement”) meeting the requirements of Section 14 of the Securities Exchange Act of 1934, as amended, which Proxy Statement shall (1) comply with applicable law, the rules and regulations of the Principal Market, the Parent’s amended and restated certificate of incorporation and bylaws and the Delaware General Corporation Law and (2) provide for the approval of the issuance of all of the Conversion Shares in compliance with the rules and regulations of the Principal Market (without regard to any limitations on conversion set forth in the Notes), and (b) use its commercially reasonable efforts to address all comments of the staff of the SEC with respect thereto, to mail the definitive Proxy Statement as soon as practicable and to take all other actions necessary or desirable so that the resolutions approving the Company’s issuance of the Conversion Shares shall be fully effective so as to permit the conversion in full of the Notes without limitation resulting from the rules or regulations of the Principal Market.

4.             NOTICES. All notices or other communications to the Parent or any Holder shall be given as provided in Section 12.6 of the Purchase Agreement.

5.             GOVERNING LAW. This Agreement, including the formation, breach, termination, validity, interpretation, and enforcement thereof, and all transactions contemplated by this Agreement, will in all respects be governed by, and construed in accordance with, the laws of the State of Utah, without giving effect to principles or rules of conflict of laws, to the extent such principles or rules would permit or require the application of the laws of another jurisdiction.

EXECUTION VERSION

6.             COUNTERPARTS. The parties may sign any number of copies of this Agreement. Each signed copy shall be an original, but all of them together represent the same agreement.

7.             EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.

[Remainder of page intentionally left blank; signature page follows.]

EXECUTION VERSION

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and attested, all as of the date first above written.

PARENT:

ATLASCLEAR HOLDINGS, INC.

By:	/s/ Craig Ridenhour
Name:	Craig Ridenhour
Title:	CBDO

HOLDERS:

WILSON-DAVIS & CO., INC.

By:	/s/ Lyle W. Davis
Name:	Lyle W. Davis
Title:	Chairman

/s/ Byron B. Barkley
BYRON B. BARKLEY, an individual

BARKLEY PENSION TRUST/PROFIT SHARING PLAN

By:	/s/ Byron B. Barkley
BYRON B. BARKLEY, trustee

PAUL N. DAVIS ESTATE

By:	/s/ Brent Davis
BRENT DAVIS, personal representative

/s/ Lyle W. Davis
LYLE W. DAVIS, an individual

/s/ James C. Snow
JAMES C. SNOW, an individual

/s/ William Walker
WILLIAM WALKER, an individual

GLEN HOLDINGS CORP.

By:	/s/ Paul Eric Flesche
Paul Eric Flesche, President

/s Robert G. McBey
Robert G. McBey

[SIGNATURE PAGE TO PARENT GUARANTY AND REGISTRATION RIGHTS AGREEMENT]

Exhibit 10.12

ATLASCLEAR HOLDINGS, INC.

2024 EQUITY INCENTIVE PLAN

1. Purposes of the Plan. The purposes of this Plan are (a) to attract and retain the best available personnel to ensure the Company’s success and accomplish the Company’s goals; (b) to incentivize Employees, Directors and Independent Contractors with long-term equity-based compensation to align their interests with the Company’s stockholders; and (c) to promote the success of the Company’s business.

The Plan permits the grant of Incentive Stock Options, Nonstatutory Stock Options, Restricted Stock, Restricted Stock Units, Stock Appreciation Rights and Stock Bonus Awards.

Definitions. As used herein, the following definitions will apply:

(a) “Administrator” means the Board or any of its Committees as will be administering the Plan, in accordance with Section 4 of the Plan.

(b) “Affiliate” means a Parent, a Subsidiary or any corporation or other entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company.

(c) “Applicable Laws” means all applicable laws, rules, regulations and requirements, including, but not limited to, all applicable U.S. federal or state laws, rules and regulations, the rules and regulations of any stock exchange or quotation system on which the Common Stock is listed or quoted, and the applicable laws, rules and regulations of any other country or jurisdiction where Awards are, or will be, granted under the Plan or Participants reside or provide services to the Company or any Affiliate, as such laws, rules, and regulations shall be in effect from time to time.

(d) “Award” means, individually or collectively, a grant under the Plan of Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units or Stock Bonus Awards.

(e) “Award Agreement” means the written or electronic agreement setting forth the terms and provisions applicable to each Award granted under the Plan. The Award Agreement is subject to the terms and conditions of the Plan.

(f)

“Board” means the Board of Directors of the Company.

(g)

“Cause” means, with respect to the termination of a Participant’s status as a Service Provider:

(A) any material breach by Participant of any material written agreement between Participant and the Company; (B) any failure by Participant to comply with the Company’s material written policies or rules as they may be in effect from time to time; (C) neglect or persistent unsatisfactory performance of Participant’s duties; (D) Participant’s repeated failure to follow reasonable and lawful instructions from the Board or Chief Executive Officer; (E) Participant’s indictment for, conviction of, or plea of guilty or nolo contendre to, any felony or crime that results in, or is reasonably expected to result in, a material adverse effect on the business or reputation of the Company; (F) Participant’s commission of or participation in an act of fraud against the Company; (G) Participant’s intentional damage to the Company’s business, property or reputation; or (H) Participant’s unauthorized use or disclosure of any proprietary information or trade secrets of the Company or any other party to whom the Participant owes an obligation of nondisclosure as a result of his or her relationship with the Company. For purposes of clarity, a termination without “Cause” does not include any termination that occurs solely as a result of Participant’s death or Disability. The determination as to whether a Participant’s status as a Service Provider for purposes of the Plan has been terminated for Cause shall be made in good faith by the Company and shall be final and binding on the Participant. The foregoing definition does not in any way limit the Company’s ability (or that of any Affiliate or any successor thereto, as appropriate) to terminate a Participant’s employment or consulting relationship at any time, subject to Applicable Laws.

(h) “Change in Control” except as may otherwise be provided in an Award Agreement or other applicable agreement, means the occurrence of any of the following:

(i) The consummation of a merger or consolidation of the Company with or into another entity or any other corporate reorganization, if the Company’s stockholders immediately prior to such merger, consolidation or reorganization cease to directly or indirectly own immediately after such merger, consolidation or reorganization at least a majority of the combined voting power of the continuing or surviving entity’s securities outstanding immediately after such merger, consolidation or reorganization;

(ii) The consummation of the sale, transfer or other disposition of all or substantially all of the Company’s assets (other than (x) to a corporation or other entity of which at least a majority of its combined voting power is owned directly or indirectly by the Company, (y) to a corporation or other entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the Common Stock of the Company or (z) to a continuing or surviving entity described in Section 2(h)(i) in connection with a merger, consolidation or reorganization which does not result in a Change in Control under Section 2(h)(i));

(iii) A change in the effective control of the Company which occurs on the date that a majority of members of the Board is replaced during any twelve (12) month period by Directors whose appointment or election is not endorsed by two-thirds (2/3) of the members of the Board prior to the date of the appointment or election; or

(iv) The consummation of any transaction as a result of which any Person becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing at least fifty percent (50%) of the total voting power represented by the Company’s then outstanding voting securities. For purposes of this Section 2(h), the term “Person” shall have the same meaning as when used in Sections 13(d) and 14(d) of the Exchange Act but shall exclude:

(1) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or an Affiliate;

(2) a corporation or other entity owned directly or indirectly by the stockholders of the Company in substantially the same proportions as their ownership of the Common Stock of the Company;

(3) the Company; and

(4) a corporation or other entity of which at least a majority of its combined voting power is owned directly or indirectly by the Company.

A transaction shall not constitute a Change in Control if its sole purpose is to change the state of the Company’s incorporation or to create a holding company that will be owned in substantially the same proportions by the persons who held the Company’s securities immediately before such transactions. In addition, if any Person (as defined above) is considered to be in effective control of the Company, the acquisition of additional control of the Company by the same Person will not be considered to cause a Change in Control. If required for compliance with Section 409A of the Code, in no event will a Change in Control be deemed to have occurred if such transaction is not also a “change in the ownership or effective control of ” the Company or “a change in the ownership of a substantial portion of the assets of ” the Company as determined under Treasury Regulation Section 1.409A-3(i)(5) (without regard to any alternative definition thereunder).

(i) “Code” means the Internal Revenue Code of 1986, as amended. Reference to a specific section of the Code or regulation thereunder shall include (i) such section of the Code, any guidance and regulations promulgated under such section of the Code, including any successor provisions, guidance and regulations thereto, and (ii) any comparable provision of any future legislation or regulation amending, supplementing or superseding such section or regulation.

(j) “Committee” means a committee of Directors or of other individuals satisfying Applicable Laws appointed by the Board in accordance with Section 4 hereof.

(k) “Common Stock” means the common stock of the Company.

(l) “Company” means AtlasClear Holdings, Inc., a Delaware corporation, or any successor thereto.

(m) “Determination Date” means any time when the achievement of the Performance Goals associated with the applicable Performance Period remains substantially uncertain; provided, however, that without limiting the foregoing, that if the Determination Date occurs on or before the date on which 25% of the Performance Period has elapsed, the achievement of such Performance Goals shall be deemed to be substantially uncertain.

(n) “Director” means a member of the Board.

(o) “Disability” means total and permanent disability as defined in Section 22(e)(3) of the Code in the case of Incentive Stock Options, and for all other Awards, means as determined by the Social Security Administration or the long-term disability plan maintained by the Company; provided however, that if the Participant resides outside of the United States, “Disability” shall have such meaning as is required by Applicable Laws. The Administrator in its discretion may determine whether a total and permanent disability exists in accordance with uniform and non-discriminatory standards adopted by the Administrator from time to time.

(p) “Effective Date” means February 9, 2024.

(q) “Employee” means any person, including Officers and Directors, employed by the Company or any Affiliate of the Company. Neither service as a Director nor payment of a director’s fee by the Company will be sufficient to constitute “employment” by the Company.

(r) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(s) “Exchange Program” means a program under which outstanding Awards are amended to provide for a lower exercise price or surrendered or cancelled in exchange for (i) Awards with a lower exercise price, (ii) a different type of Award or awards under a different equity incentive plan, (iii) cash, or (iv) a combination of (i), (ii) and/or (iii). Notwithstanding the preceding, the term Exchange Program does not include (x) any action described in Section 15 or any action taken in connection with a Change in Control transaction nor (y) any transfer or other disposition permitted under Section 14. For the purpose of clarity, each of the actions described in the prior sentence, none of which constitute an Exchange Program, may be undertaken (or authorized) by the Administrator in its sole discretion without approval by the Company’s stockholders.

(t) “Fair Market Value” means, as of any date, the value of Common Stock determined as follows:

(i) If the Common Stock is listed on any established stock exchange or a national market system, its Fair Market Value will be the closing sales price for such stock (or the closing bid, if no sales were reported) as quoted on such exchange or system on the day of determination, as reported in such source as the Administrator deems reliable;

(ii) If the Common Stock is regularly quoted by a recognized securities dealer but selling prices are not reported, the Fair Market Value of a Share will be the mean between the high bid and low asked prices for the Common Stock on the day of determination, as reported in such source as the Administrator deems reliable; or

(iii) In the absence of an established market for the Common Stock, the Fair Market Value will be determined in good faith by the Administrator in compliance with Applicable Laws and regulations and in a manner that complies with Section 409A of the Code.

(u) “Fiscal Year” means the fiscal year of the Company.

(v) “Incentive Stock Option” means an Option that by its terms qualifies and is intended to qualify as an incentive stock option within the meaning of Section 422 of the Code and the regulations promulgated thereunder.

(w) “Independent Contractor” means any person, including an advisor, consultant or agent, engaged by the Company or an Affiliate to render services to such entity or who renders, or has rendered, services to the Company, or any Affiliate and is compensated for such services.

(x) “Insider” means an Officer or Director or any other person whose transactions in Common Stock are subject to Section 16 of the Exchange Act.

(y) “Nonstatutory Stock Option” means an Option that by its terms does not qualify or is not intended to qualify as an Incentive Stock Option.

(z) “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations promulgated thereunder.

(aa) “Option” means a stock option granted pursuant to the Plan.

(bb) “Outside Director” means a Director who is not an Employee.

(cc) “Parent” means any corporation (other than the Company) in an unbroken chain of corporations ending with the Company if each of the corporations other than the Company owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Parent on a date after the adoption of the Plan shall be considered a Parent commencing as of such date.

(dd) “Participant” means the holder of an outstanding Award.

(ee) “Performance Goal” means a formula or standard determined by the Administrator with respect to each Performance Period based on one or more of the following criteria and any adjustment(s) thereto established by the Administrator: (1) sales or non-sales revenue; (2) return on revenues; (3) operating income; (4) income or earnings including operating income; (5) income or earnings before or after taxes, interest, depreciation and/or amortization; (6) income or earnings from continuing operations; (7) net income; (8) pre-tax income or after-tax income; (9) net income excluding amortization of intangible assets, depreciation and impairment of goodwill and intangible assets and/or excluding charges attributable to the adoption of new accounting pronouncements; (10) raising of financing or fundraising; (11) project financing; (12) revenue backlog; (13) gross margin; (14) operating margin or profit margin; (15) capital expenditures, cost targets, reductions and savings and expense management; (16) return on assets (gross or net), return on investment, return on capital, or return on stockholder equity; (17) cash flow, free cash flow, cash flow return on investment (discounted or otherwise), net cash provided by operations, or cash flow in excess of cost of capital; (18) performance warranty and/or guarantee claims; (19) stock price or total stockholder return; (20) earnings or book value per share (basic or diluted); (21) economic value created; (22) pre-tax profit or after-tax profit; (23) strategic business criteria, consisting of one or more objectives based on meeting specified market penetration or market share, completion of strategic agreements such as licenses, joint ventures, acquisitions, and the like, geographic business expansion, objective customer satisfaction or information technology goals, intellectual property asset metrics; (24) objective goals relating to divestitures, joint ventures, mergers, acquisitions and similar transactions; (25) objective goals relating to staff management, results from staff attitude and/or opinion surveys, staff satisfaction scores, staff safety, staff accident and/or injury rates, compliance, headcount, performance management, completion of critical staff training initiatives; (26) objective goals relating to projects, including project completion, timing and/or achievement of milestones, project budget, technical progress against work plans; and (27) enterprise resource planning. Awards issued to Participants may take into account other criteria (including subjective criteria). Performance Goals may differ from Participant to Participant, Performance Period to Performance Period and from Award to Award. Any criteria used may be measured, as applicable, (i) in absolute terms, (ii) in relative terms (including, but not limited to, any increase (or decrease) over the passage of time and/or any measurement against other companies or financial or business or stock index metrics particular to the Company), (iii) on a per share and/or share per capita basis, (iv) against the performance of the Company as a whole or against any Affiliate(s), or a particular segment(s), a business unit(s) or a product(s) of the Company or individual project company, (v) on a pre-tax or after-tax basis, (vi) on a GAAP or non-GAAP basis, and/or (vii) using an actual foreign exchange rate or on a foreign exchange neutral basis.

(ff) “Performance Period” means the time period during which the Performance Goals or other vesting provisions must be satisfied for Awards. Performance Periods may be of varying and overlapping duration, at the sole discretion of the Administrator.

(gg) “Period of Restriction” means the period during which the transfer of Shares of Restricted Stock is subject to restrictions and therefore, the Shares are subject to a substantial risk of forfeiture. Such restrictions may be based on the passage of time, the achievement of target levels of performance, or the occurrence of other events as determined by the Administrator.

(hh) “Plan” means this AtlasClear Holdings, Inc. 2024 Equity Incentive Plan, as may be amended from time to time.

(ii) “Restricted Stock” means Shares issued pursuant to a Restricted Stock award under Section 7 of the Plan.

(jj) “Restricted Stock Unit” means a bookkeeping entry representing an amount equal to the Fair Market Value of one Share, granted pursuant to Section 8. Each Restricted Stock Unit represents an unfunded and unsecured obligation of the Company.

(kk) “Rule 16b-3” means Rule 16b-3 of the Exchange Act or any successor to Rule 16b-3, as in effect when discretion is being exercised with respect to the Plan.

(ll) “Section 16(b)” means Section 16(b) of the Exchange Act.

(mm) “Service Provider” means an Employee, Director or Independent Contractor.

(nn) “Share” means a share of Common Stock, as adjusted in accordance with Section 15 of the Plan.

(oo) ”Stock Appreciation Right” means an Award, granted alone or in connection with an Option, that pursuant to Section 9 is designated as a Stock Appreciation Right.

(pp) “Stock Bonus” or “Stock Bonus Award” means an Award granted pursuant to Section 10 of the Plan.

(qq) “Subsidiary” means any corporation (other than the Company) in an unbroken chain of corporations beginning with the Company if each of the corporations other than the last corporation in the unbroken chain owns stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. A corporation that attains the status of a Subsidiary on a date after the adoption of the Plan shall be considered a Subsidiary commencing as of such date.

(rr) “Tax-Related Items” means income tax, social insurance or other social contributions, national insurance, social security, payroll tax, fringe benefits tax, payment on account or other tax- related items.

Stock Subject to the Plan.

(a) Stock Subject to the Plan. Subject to the provisions of Sections 3(b) and 15 of the Plan, the maximum aggregate number of Shares that may be issued under the Plan is 1,178,176. The Shares may be authorized, but unissued, or reacquired Common Stock. Notwithstanding the foregoing, subject to the provisions of Section 15 below, in no event shall the maximum aggregate number of Shares that may be issued under the Plan pursuant to Incentive Stock Options exceed the number set forth in this Section 3(a), plus the number of Shares added to the Plan pursuant to Section 3(b) below, plus, to the extent allowable under Section 422 of the Code and the regulations promulgated thereunder, any Shares that become available for issuance pursuant to Section 3(c).

(b) Automatic Share Reserve Increase. The number of Shares available for issuance under the Plan will be increased on the first day of each Fiscal Year beginning with the 2024 Fiscal Year through and including the first day of the 2033 Fiscal Year, in each case, in an amount equal to the lessor of (i) five percent (5%) of the total number of Shares that are issued and outstanding on the first day of the applicable Fiscal Year, (ii) the number of Shares initially reserved for issuance under the Plan pursuant to the first sentence of Section 3(a) above, and (iii) such smaller number of Shares as may be determined by the Board.

(c) Lapsed Awards. To the extent any Award expires or is forfeited or becomes unexercisable for any reason without having been exercised in full, or is surrendered pursuant to an Exchange Program, the unissued Shares that were subject thereto shall, unless the Plan shall have been terminated, continue to be available under the Plan for issuance pursuant to future Awards. In addition, any Shares which are retained by the Company upon exercise of an Award in order to satisfy the exercise or purchase price for such Award or any withholding taxes due with respect to such Award shall be treated as not issued and shall continue to be available under the Plan for issuance pursuant to future Awards. Shares issued under the Plan and later forfeited to the Company due to the failure to vest or repurchased by the Company at the original purchase price paid to the Company for the Shares (including, without limitation, upon forfeiture to or repurchase by the Company in connection with a Participant ceasing to be a Service Provider) shall again be available for future grant under the Plan. To the extent an Award under the Plan is paid out in cash rather than Shares, such cash payment will not result in reducing the number of Shares available for issuance under the Plan.

(d) Assumption or Substitution of Awards by the Company. The Administrator, from time to time, may determine to substitute or assume outstanding awards granted by another company, whether in connection with an acquisition of such other company or otherwise, by either: (a) assuming such award under this Plan or (b) granting an Award under this Plan in substitution of such other company’s award. Such assumption or substitution will be permissible if the holder of the substituted or assumed award would have been eligible to be granted an Award under this Plan if the other company had applied the rules of this Plan to such grant. In the event the Administrator elects to assume an award granted by another company, subject to the requirements of Section 409A of the Code, the purchase price or the exercise price, as the case may be, and the number and nature of Shares issuable upon exercise or settlement of any such Award will be adjusted appropriately. In the event the Administrator elects to grant a new Option in substitution rather than assuming an existing option, such new Option may be granted with a similarly adjusted exercise price. Any awards that are assumed or substituted under this Plan shall not reduce the number of Shares authorized for grant under the Plan or authorized for grant to a Participant in any Fiscal Year.

Administration of the Plan.

(a)

Procedure.

(i) Multiple Administrative Bodies. Different Committees with respect to different groups of Service Providers may administer the Plan.

(ii) Rule 16b-3. To the extent desirable to qualify transactions hereunder as exempt under Rule 16b-3, the transactions contemplated hereunder will be structured to satisfy the requirements for exemption under Rule 16b-3.

(iii) Other Administration. Other than as provided above, the Plan will be administered by (A) the Board or (B) a Committee, which committee will be constituted to satisfy Applicable Laws.

(b) Powers of the Administrator. Subject to the provisions of the Plan, the Administrator will have the authority, in its discretion:

(i) to determine the Fair Market Value in accordance with Section 2(t);

(ii)

to select the Service Providers to whom Awards may be granted hereunder;

(iii)

to determine the number of Shares to be covered by each Award granted hereunder;

(iv)

to approve forms of Award Agreements for use under the Plan;

(v) to determine the terms and conditions, not inconsistent with the terms of the Plan, of any Award granted hereunder; such terms and conditions may include, but are not limited to, the exercise price, the time or times when Awards may be exercised (which may be based on Performance Goals), any vesting acceleration or waiver of forfeiture restrictions, and any restriction or limitation regarding any Award or the Shares relating thereto, based in each case on such factors as the Administrator will determine;

(vi) to institute and determine the terms and conditions of an Exchange Program; provided however, that the Administrator shall not implement an Exchange Program without the approval of the holders of a majority of the Shares that are present in person or by proxy and entitled to vote at any annual or special meeting of the Company’s stockholders;

(vii) to construe and interpret the terms of the Plan and Awards granted pursuant to the Plan;

(viii) correct any defect, supply any omission or reconcile any inconsistency in this Plan, any Award or any Award Agreement;

(ix) to prescribe, amend and rescind rules and regulations relating to the Plan, including rules and regulations established for the purpose of satisfying non-U.S. Applicable Laws, for qualifying for favorable tax treatment under non-U.S. Applicable Laws or facilitating compliance with non-U.S. Applicable Laws (sub-plans may be created for any of these purposes);

(x) to modify or amend each Award (subject to Section 22 of the Plan), including but not limited to the discretionary authority to extend the post-termination exercisability period of Awards, to accelerate vesting and to extend the maximum term of an Option (subject to the terms and conditions of the Plan and compliance with all Applicable Laws, including, without limitation, Section 6(b) of the Plan regarding Incentive Stock Options and Section 409A of the Code);

(xi) adjust Performance Goals to take into account changes in Applicable Laws or in accounting or tax rules, or such other extraordinary, unforeseeable, nonrecurring or infrequently occurring events or circumstances as the Administrator deems necessary or appropriate to avoid windfalls or hardships;

(xii) to allow Participants to satisfy tax withholding obligations in such manner as prescribed in Section 16 of the Plan;

(xiii) to authorize any person to execute on behalf of the Company any instrument required to give effect to the grant of an Award previously granted by the Administrator;

(xiv) to allow a Participant to defer the receipt of the payment of cash or the delivery of Shares that would otherwise be due to such Participant under an Award; and

(xv) to make all other determinations deemed necessary or advisable for administering the Plan.

(c) Effect of Administrator’s Decision. The Administrator’s decisions, determinations and interpretations will be final and binding on all Participants and any other holders of Awards. Any dispute regarding the interpretation of the Plan or any Award Agreement shall be submitted by the Participant to the Company for review. Any Officer of the Company, including but not limited to Insiders, shall have the authority to review and resolve disputes with respect to Awards held by Participants who are not Insiders, and such resolution shall be final and binding on the Company and the Participant. Only the Committee shall have the authority to review and resolve disputes with respect to Awards held by Participants who are Insiders, and such resolution shall be final and binding on the Company and the Participant.

(d) Delegation. To the extent permitted by Applicable Laws, the Board or Committee, in its sole discretion and on such terms and conditions as it may provide, may delegate all or any part of its authority and powers under the Plan to one or more Directors or Officers.

(e) Administration of Awards Subject to Performance Goals. The Administrator will, in its sole discretion, determine the Performance Goals, if any, applicable to any Award (including any adjustment(s) thereto that will be applied in determining the achievement of such Performance Goals) on or prior to the Determination Date. The Performance Goals may differ from Participant to Participant and from Award to Award. The Administrator shall determine and approve the extent to which such Performance Goals have been timely achieved and the extent to which the Shares subject to such Award have thereby been earned.

(f) Section 16 of the Exchange Act. Awards granted to Participants who are Insiders must be approved by two or more “non-employee directors” of the Board (as defined in the regulations promulgated under Section 16 of the Exchange Act).

5. Award Eligibility. Nonstatutory Stock Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units and Stock Bonus Awards may be granted to Service Providers. Incentive Stock Options may be granted only to Employees.

Stock Options.

(a) Limitations. Each Option will be designated in the Award Agreement as either an Incentive Stock Option or a Nonstatutory Stock Option. However, notwithstanding such designation, to the extent that the aggregate Fair Market Value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by the Participant during any calendar year (under all plans of the Company and any Parent or Subsidiary) exceeds one hundred thousand dollars ($100,000), such Options will be treated as Nonstatutory Stock Options. For purposes of this Section 6(a), Incentive Stock Options will be taken into account in the order in which they were granted. The Fair Market Value of the Shares will be determined as of the date the Option with respect to such Shares is granted.

(b) Term of Option. The term of each Option will be stated in the Award Agreement. In the case of an Incentive Stock Option, the term will be ten (10) years from the date of grant or such shorter term as may be provided in the Award Agreement. Moreover, in the case of an Incentive Stock Option granted to a Participant who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option will be five (5) years from the date of grant or such shorter term as may be provided in the Award Agreement.

(c)

Option Exercise Price and Consideration.

(i) Exercise Price. The per share exercise price for the Shares to be issued pursuant to exercise of an Option will be determined by the Administrator, subject to the following:

(1)

In the case of an Incentive Stock Option

(A) granted to an Employee who, at the time the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price will be no less than one hundred ten percent (110%) of the Fair Market Value per Share on the date of grant.

(B) granted to any Employee other than an Employee described in paragraph (A) immediately above, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(2) In the case of a Nonstatutory Stock Option, the per Share exercise price will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.

(3) Notwithstanding the foregoing, Options may be granted with a per Share exercise price of less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code.

(ii) Exercisability and Vesting. At the time an Option is granted, the Administrator will fix the period within which the Option may vest and/or be exercised and will determine any conditions that must be satisfied before the Option may vest and/or be exercised. An Option will vest and/or become exercisable at such time, and upon such terms, as are determined by the Administrator, which may include completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If an Option vests and/or becomes exercisable based on the satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional conditions, if any, should apply.

(iii) Form of Consideration. The Administrator will determine the acceptable form of consideration for exercising an Option, including the method of payment. In the case of an Incentive Stock Option, the Administrator will determine the acceptable form of consideration at the time of grant. Such consideration for both types of Options may consist of: (1) cash; (2) check; (3) promissory note, to the extent permitted by Applicable Laws, (4) other Shares, provided that such Shares have a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which such Option will be exercised and provided that accepting such Shares will not result in any adverse accounting consequences to the Company, as the Administrator determines in its sole discretion; (5) consideration received by the Company under a broker- assisted (or other) cashless exercise program (whether through a broker or otherwise) implemented by the Company in connection with the Plan; (6) by net exercise; (7) such other consideration and method of payment for the issuance of Shares to the extent permitted by Applicable Laws; or (8) any combination of the foregoing methods of payment.

(d)

Exercise of Option.

(i) Procedure for Exercise; Rights as a Stockholder. Any Option granted hereunder will be exercisable according to the terms of the Plan and at such times and under such conditions as determined by the Administrator and set forth in the Award Agreement. An Option may not be exercised for a fraction of a Share.

An Option will be deemed exercised when the Company receives: (i) a notice of exercise (in such form as the Administrator may specify from time to time) from the person entitled to exercise the Option, and (ii) full payment for the Shares with respect to which the Option is exercised (together with full payment of any applicable taxes or other amounts required to be withheld or deducted with respect to the Option). Full payment may consist of any consideration and method of payment authorized by the Administrator and permitted by the Award Agreement and the Plan. Shares issued upon exercise of an Option will be issued in the name of the Participant or, if requested by the Participant, in the name of the Participant and his or her spouse. Until the Shares are issued (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), no right to vote or receive dividends or any other rights as a stockholder will exist with respect to the Shares subject to an Option, notwithstanding the exercise of the Option. The Company will issue (or cause to be issued) such Shares promptly after the Option is exercised. No adjustment will be made for a dividend or other right for which the record date is prior to the date the Shares are issued, except as provided in Section 15 of the Plan.

(ii) Termination of Relationship as a Service Provider. If a Participant ceases to be a Service Provider, other than upon the Participant’s termination as the result of the Participant’s death, Disability or Cause, to the extent the Option is vested, the Participant may exercise his or her vested Option within such period of time as is specified in the Award Agreement or, if there is no specified time in the Award Agreement, the Participant may exercise his or her Option for three (3) months following the Participant’s termination. Notwithstanding the foregoing, in no event may the vested Option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement. If the Participant does not exercise his or her vested Option within the specified time, the vested Option will terminate, and the Shares covered by such vested Option will revert to the Plan. Further, unless otherwise provided by the Administrator, the Shares covered by the unvested portion of the Option will revert to the Plan at the end of the time specified for exercise of the Participant’s vested Option.

(iii) Disability of Participant. If a Participant ceases to be a Service Provider as a result of the Participant’s Disability, to the extent the Option is vested, the Participant may exercise his or her vested Option within such period of time as is specified in the Award Agreement or, if there is no specified time in the Award Agreement, the Participant may exercise his or her vested Option for twelve (12) months following the Participant’s termination as a result of Participant’s Disability. Notwithstanding the foregoing, in no event may the vested Option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement. If the Participant does not exercise his or her vested Option within the specified time, the vested Option will terminate, and the Shares covered by such vested Option will revert to the Plan. Further, unless otherwise provided by the Administrator, the Shares covered by the unvested portion of the Option will revert to the Plan at the end of the time specified for exercise of the Participant’s vested Option.

(iv)       Death of Participant. If a Participant dies while a Service Provider, the Participant’s designated beneficiary (provided such beneficiary has been designated prior to Participant’s death in a form acceptable to the Administrator) may exercise the Participant’s vested Option within such period of time as is specified in the Award Agreement or, if there is no specified time in the Award Agreement, any such designated beneficiary may exercise Participant’s vested Option for twelve (12) months following Participant’s death. If no such beneficiary has been designated by the Participant, then such vested Option may be exercised by the personal representative of the Participant’s estate or by the person(s) to whom the vested Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution. Notwithstanding the foregoing, in no event may the vested Option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement. If the Participant’s designated beneficiary, the personal representative of the Participant’s estate or the person(s) to whom the vested Option is transferred pursuant to the Participant’s will or in accordance with the laws of descent and distribution, as applicable, does not exercise the Participant’s vested Option within the specified time, the vested Option will terminate, and the Shares covered by such vested Option will revert to the Plan. Further, unless otherwise provided by the Administrator, the Shares covered by the unvested portion of the Option will revert to the Plan at the end of the time specified for exercise of the Participant’s vested Option.

(v)       Termination for Cause. If a Participant ceases to be a Service Provider as a result of being terminated for Cause, (i) the Participant may exercise his or her vested Option within such period of time (if any) as is specified in the Award Agreement or, (ii) if there is no specified time in the Award Agreement, any outstanding Option (including any vested portion thereof) held by such Participant shall immediately terminate in its entirety upon the Participant being first notified of his or her termination for Cause and the Participant will be prohibited from exercising his or her vested Option from and after the date of such notification. All the Participant’s rights under any Option, including the right to exercise the Option, may be suspended pending an investigation of whether Participant will be terminated for Cause. Notwithstanding the foregoing, in no event may the vested Option be exercised later than the expiration of the term of such Option as set forth in the Award Agreement. If the Participant does not exercise his or her vested Option within the specified time (if any), the vested Option will terminate, and the Shares covered by such vested Option will revert to the Plan. Further, unless otherwise provided by the Administrator, the Shares covered by the unvested portion of the Option will revert to the Plan at the end of the time specified for exercise of the Participant’s vested Option, if any.

Restricted Stock.

(a)       Grant of Restricted Stock. Subject to the terms and provisions of the Plan, the Administrator, at any time and from time to time, may grant Shares of Restricted Stock to Service Providers in such amounts as the Administrator, in its sole discretion, will determine.

(b)       Vesting Criteria and Other Terms. Each Award of Restricted Stock will be evidenced by an Award Agreement that will specify the Period of Restriction, the number of Shares granted, and such other terms and conditions as the Administrator, in its sole discretion, will determine. Unless the Administrator determines otherwise, the Company as escrow agent will hold Shares of Restricted Stock until the Period of Restriction has lapsed. The Period of Restriction will lapse at such time, and upon such terms, as are determined by the Administrator, which may include the completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If the Period of Restriction will lapse upon the satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional conditions, if any, should apply.

(c)       Transferability. Except as provided in this Section 7 or the Award Agreement, Shares of Restricted Stock may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated until the end of the applicable Period of Restriction.

(d)       Other Restrictions. The Administrator, in its sole discretion, may impose such other restrictions on Shares of Restricted Stock as it may deem advisable or appropriate.

(e)       Removal of Restrictions. Except as otherwise provided in this Section 7, Shares of Restricted Stock covered by each Restricted Stock grant made under the Plan will be released from escrow as soon as practicable after the last day of the Period of Restriction or at such other time as the Administrator may determine. The Administrator, in its discretion, may accelerate the time at which any restrictions will lapse or be removed.

(f)      Voting Rights. During the Period of Restriction, Service Providers holding Shares of Restricted Stock granted hereunder may exercise full voting rights with respect to those Shares, unless the Administrator determines otherwise.

(g)      Dividends and Other Distributions. Unless the Administrator provides otherwise, during the Period of Restriction, Service Providers holding Shares of Restricted Stock will be entitled to receive all dividends and other distributions paid with respect to such Shares, and any such dividends or distributions will be subject to the same terms, including, without limitation, vesting and restrictions on transferability and forfeitability, as the Shares of Restricted Stock with respect to which they were paid.

(h)       Return of Restricted Stock to Company. On the date set forth in the Award Agreement, the Restricted Stock for which restrictions have not lapsed will be cancelled and returned as unissued Shares to the Company and again will become available for grant under the Plan.

Restricted Stock Units.

(a)       Grant. Restricted Stock Units may be granted at any time and from time to time as determined by the Administrator. After the Administrator determines that it will grant Restricted Stock Units under the Plan, it will advise the Participant in an Award Agreement of the terms, conditions, and restrictions (if any) related to the grant, including the number of Restricted Stock Units.

(b)       Vesting Criteria and Other Terms. The Administrator will set vesting criteria and other terms in its discretion, which, depending on the extent to which the vesting criteria and other terms are met, will determine the number of Restricted Stock Units that settle. A Restricted Stock Unit Award will vest at such time, and upon such terms, as are determined by the Administrator, which may include upon completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If Restricted Stock Units vest based upon satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional conditions, if any, should apply.

(c)       Earning Restricted Stock Units. Upon meeting the applicable vesting criteria and any other conditions, the Participant will be entitled to have the Restricted Stock Units settled as determined by the Administrator. Notwithstanding the foregoing, at any time after the grant of Restricted Stock Units, the Administrator, in its sole discretion, may reduce or waive any vesting criteria or other conditions that must be met for the Restricted Stock Units to settle.

(d)       Dividend Equivalents. The Administrator may, in its sole discretion, award dividend equivalents in connection with the grant of Restricted Stock Units that may be settled in cash, in Shares of equivalent value, or in some combination thereof. Absent a contrary provision in an Award Agreement, such dividend equivalents shall be subject to the same terms, restrictions and risk of forfeiture as the Restricted Stock Units with respect to which the dividends accrue and shall not be settled unless and until the related Restricted Stock Units have vested and been earned.

(e)       Form and Timing of Settlement. Settlement of earned Restricted Stock Units will be made upon the date(s) determined by the Administrator and set forth in the Award Agreement. The Administrator, in its sole discretion, may settle earned Restricted Stock Units in cash, Shares, or a combination of both.

(f)       Cancellation. On the date set forth in the Award Agreement, all Shares underlying any unvested, unearned Restricted Stock Units will be forfeited to the Company for future issuance.

Stock Appreciation Rights.

(a)       Grant of Stock Appreciation Rights. Subject to the terms and conditions of the Plan, a Stock Appreciation Right may be granted to Service Providers at any time and from time to time as will be determined by the Administrator, in its sole discretion.

(b)       Number of Shares. The Administrator will have complete discretion to determine the number of Stock Appreciation Rights granted to any Service Provider.

(c)       Exercise Price and Other Terms. Each Stock Appreciation Right grant will be evidenced by an Award Agreement that will specify the exercise price, the term of the Stock Appreciation Right, the conditions of exercise, and such other terms and conditions as the Administrator, in its sole discretion, will determine. The per share exercise price for the Shares to be issued pursuant to exercise of a Stock Appreciation Right will be determined by the Administrator and will be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant. Otherwise, the Administrator, subject to the provisions of the Plan, will have complete discretion to determine the terms and conditions of Stock Appreciation Rights granted under the Plan.

(d)       Exercisability and Vesting. At the time a Stock Appreciation Right is granted, the Administrator will fix the period within which the Stock Appreciation Right may vest and/or be exercised and will determine any conditions that must be satisfied before the Stock Appreciation Right may vest and/or be exercised. A Stock Appreciation Right will vest and/or become exercisable at such time, and upon such terms, as are determined by the Administrator, which may include completion of a specified period of service with the Company or an Affiliate and/or based on the achievement of Performance Goals during a Performance Period as set out in advance in the Participant’s Award Agreement. If a Stock Appreciation Right vests and/or becomes exercisable based on the satisfaction of Performance Goals, then the Administrator will: (x) determine the nature, length and starting date of any Performance Period; (y) select the Performance Goals to be used to measure the performance; and (z) determine what additional conditions, if any, should apply.

(e)       Expiration of Stock Appreciation Rights. A Stock Appreciation Right granted under the Plan will expire upon the date determined by the Administrator, in its sole discretion, and set forth in the Award Agreement. Notwithstanding the foregoing, the rules of Section 6(b) relating to the maximum term and Section 6(d) relating to exercise also will apply to Stock Appreciation Rights.

(f)      Payment of Stock Appreciation Right Amount. Upon exercise of a Stock Appreciation Right, a Participant will be entitled to receive payment from the Company in an amount determined by multiplying:

(i)       The difference between the Fair Market Value of a Share on the date of exercise over the exercise price; times

(ii)

The number of Shares with respect to which the Stock Appreciation Right is exercised.

At the discretion of the Administrator, the payment upon Stock Appreciation Right exercise may be in cash, in Shares of equivalent value, or in some combination thereof.

10.

Stock Bonus Awards.

(a)       Awards of Stock Bonuses. A Stock Bonus Award is an award of Shares to an eligible person without a purchase price that is not subject to any restrictions. All Stock Bonus Awards may be made, but are not required to be made, pursuant to an Award Agreement.

(b)       Number of Shares. The Administrator will have complete discretion to determine the number of Shares to be awarded to any Participant under a Stock Bonus Award and any other terms applicable to such Stock Bonus Award.

(c)       Form and Timing of Payment. Payment of a Stock Bonus Award will be made upon the date(s) determined by the Administrator and set forth in the Award Agreement. Payment may be made in the form of cash, whole Shares, or a combination thereof, based on the Fair Market Value of the Shares subject to the Stock Bonus Award on the date of payment, as determined in the sole discretion of the Administrator.

11.       Outside Director Limitations. Stock awards granted during a single Fiscal Year under the Plan or otherwise, taken together with any cash fees paid during such Fiscal Year for services on the Board, shall not exceed $750,000 in total value for any Outside Director, except with respect to the first year of service in which case any stock awards granted and cash fees paid will not exceed $1,000,000 in total value (calculating the value of any such stock awards, in each case, based on the grant date fair value of such stock awards for financial reporting purposes). Such applicable limit shall include the value of any stock awards that are received in lieu of all or a portion of any annual committee cash retainers or other similar cash-based payments. Stock awards granted to an individual while he or she was serving in the capacity as an Employee or while he or she was an Independent Contractor but not an Outside Director will not count for purposes of the limitations set forth in this Section 11.

12.       Leaves of Absence/Transfer Between Locations. The Administrator shall have the discretion to determine at any time whether and to what extent the vesting of Awards shall be suspended during any leave of absence; provided, however, that in the absence of such determination, vesting of Awards shall continue during any paid leave and shall be suspended during any unpaid leave (unless otherwise required by Applicable Laws). A Participant will not cease to be an Employee in the case of (i) any leave of absence approved by the Participant’s employer or (ii) transfers between locations of the Company or between the Company or any Affiliate. If an Employee is holding an Incentive Stock Option and such leave exceeds three (3) months then, for purposes of Incentive Stock Option status only, such Employee’s service as an Employee shall be deemed terminated on the first (1^st) day following such three (3) month period and the Incentive Stock Option shall thereafter automatically treated for tax purposes as a Nonstatutory Stock Option in accordance with Applicable Laws, unless reemployment upon the expiration of such leave is guaranteed by contract or statute, or unless provided otherwise pursuant to a written Company policy.

13.       Change in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of his or her services for the Company or any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the Company and the Employee has a change in status from full-time to part-time), the Administrator, in its sole discretion, may (i) make a corresponding reduction in the number of Shares or cash amount subject to any portion of any outstanding Award that is scheduled to vest, settle and/or become payable after the date of such change in time commitment, and (ii) in lieu of or in combination with such a reduction, extend or otherwise revise the vesting, settlement and/or payment schedule applicable to any outstanding Award (in accordance with all Applicable Laws, including, without limitation, Section 409A of the Code, as applicable). In the event the Administrator takes any action pursuant to this Section 13, the Participant will have no right with respect to any portion of any affected Award.

14.       Transferability of Awards. Unless determined otherwise by the Administrator, an Award may not be sold, pledged, assigned, hypothecated, transferred, or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant. If the Administrator makes an Award transferable, such Award will contain such additional terms and conditions as the Administrator deems appropriate provided, however, that in no event may any Award be transferred for consideration to a third-party financial institution.

15.

Adjustments; Dissolution or Liquidation; Merger or Change in Control.

(a)       Adjustments. In the event of a stock split, reverse stock split, stock dividend, combination, consolidation, recapitalization (including a recapitalization through a large nonrecurring cash dividend) or reclassification of the Shares, subdivision of the Shares, a rights offering, a reorganization, merger, spin-off, split-up, repurchase, or exchange of Common Stock or other securities of the Company or other significant corporate transaction, or other change affecting the Common Stock occurs, the Administrator, in order to prevent dilution, diminution or enlargement of the benefits or potential benefits intended to be made available under the Plan, will, in such manner as it may deem equitable, adjust the number, kind and class of securities that may be delivered under the Plan and/or the number, class, kind and price of securities covered by each outstanding Award. Notwithstanding the forgoing, all adjustments under this Section 15 shall be made in a manner that does not result in taxation under Section 409A of the Code.

(b)       Dissolution or Liquidation. In the event of the proposed winding up, dissolution or liquidation of the Company, the Administrator will notify each Participant as soon as practicable prior to the effective date of such proposed transaction. To the extent it has not been previously exercised or settled, an Award will terminate immediately prior to the consummation of such proposed action.

(c)       Corporate Transaction. In the event of (i) a transfer of all or substantially all of the Company’s assets, (ii) a merger, consolidation or other capital reorganization or business combination transaction of the Company with or into another corporation, entity or person, (iii) the consummation of a transaction, or series of related transactions, in which any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) becomes the “beneficial owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly, of more than 50% of the Company’s then outstanding capital stock, or (iv) a Change in Control (each, a Corporate Transaction”), each outstanding Award (vested or unvested) will be treated as the Administrator determines, which determination may be made without the consent of any Participant and need not treat all outstanding Awards (or portion thereof) in an identical manner. Such determination, without the consent of any Participant, may provide (without limitation) for one or more of the following in the event of a Corporate Transaction: (A) the continuation of such outstanding Awards by the Company (if the Company is the surviving corporation); (B) the assumption of such outstanding Awards by the surviving corporation or its parent; (C) the substitution by the surviving corporation or its parent of new options or other equity awards for such Awards; (D) the cancellation of such outstanding Awards in exchange for a payment to the Participants equal to the excess of (1) the Fair Market Value of the Shares subject to such Awards as of the closing date of such Corporate Transaction over (2) the exercise price or purchase price paid or to be paid (if any) for the Shares subject to the Awards; provided that, at the discretion of the Administrator and to the extent permissible under all Applicable Laws (including without limitation Section 409A of the Code), such payment may be subject to the same conditions that apply to the consideration that will be paid to holders of Shares in connection with the transaction; (E) the full or partial acceleration of vesting, settlement, payment and/or expiration of such outstanding Awards; (F) the full or partial lapse of forfeiture, repurchase or reacquisition rights with respect to Shares previously acquired pursuant to any Awards; (G) the opportunity for Participants to exercise such outstanding Options and/or Stock Appreciation Rights prior to the occurrence of the Corporate Transaction and the termination of such outstanding, unexercised Options and/or Stock Appreciation Rights upon the consummation of such Corporate Transaction for no consideration; or (H) the cancellation of such outstanding Awards in exchange for no consideration.

(d)       Change in Control. An Award may be subject to additional acceleration of vesting, settlement, payment and/or expiration upon or after a Change in Control as may be provided in the Award Agreement for such Award or as may be provided in any other written agreement between the Company or any Affiliate and the Participant, but in the absence of such provision, no such acceleration will occur.

16.

Tax.

(a)       Withholding Requirements. Prior to the delivery of any Shares or cash pursuant to an Award (or exercise or settlement thereof) or prior to any time the Award or Shares are subject to taxation or other Tax-Related Items, the Company and/or the Participant’s employer will have the power and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy any Tax-Related Items or other items that the Company or any Affiliate is required to withhold or deduct or that is otherwise applicable with respect to such Award.

(b)       Withholding Arrangements. The Administrator, in its sole discretion and pursuant to such procedures as it may specify from time to time, may permit a Participant to satisfy such withholding or deduction obligations or any other Tax-Related Items, in whole or in part by (without limitation) (i) paying cash, (ii) electing to have the Company withhold otherwise deliverable cash or Shares, (iii) delivering to the Company already-owned Shares, or (iv) such other method as may be set forth in the Award Agreement; provided that, unless specifically permitted by the Company, any proceeds derived from a cashless exercise must be an approved broker-assisted cashless exercise or the cash or Shares withheld or delivered must be limited to avoid financial accounting charges under applicable accounting guidance or Shares must have been previously held for the minimum duration required to avoid financial accounting charges under applicable accounting guidance. The Fair Market Value of the Shares to be withheld or delivered will be determined based on such methodology that the Company deems to be reasonable and in accordance with Applicable Laws.

(c)       Compliance With Section 409A of the Code. Awards will be designed and operated in such a manner that they are either exempt from the application of, or comply with, the requirements of Section 409A of the Code such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Section 409A of the Code. The Plan and each Award Agreement under the Plan is intended to meet the requirements of Section 409A of the Code (or an exemption therefrom) and will be construed and interpreted in accordance with such intent, except as otherwise determined in the sole discretion of the Administrator. To the extent that an Award or payment, or the settlement or deferral thereof, is subject to Section 409A of the Code the Award will be granted, paid, settled or deferred in a manner that will meet the requirements of Section 409A of the Code (or an exemption therefrom), such that the grant, payment, settlement or deferral will not be subject to the additional tax or interest applicable under Section 409A of the Code. In no event will the Company be responsible for or reimburse a Participant for any taxes or other penalties incurred as a result of the application of Section 409A of the Code.

17.       No Effect on Employment or Service. Neither the Plan nor any Award will confer upon a Participant any right with respect to continuing the Participant’s relationship as a Service Provider with the Company or any Affiliate, nor will they interfere in any way with the Participant’s right or the Company’s or any Affiliate’s right to terminate such relationship at any time, with or without cause, to the extent permitted by Applicable Laws.

18.       Date of Grant. The date of grant of an Award will be, for all purposes, the date on which the Administrator makes the determination granting such Award, or such other later date as is determined by the Administrator. Notice of the determination will be provided to each Participant within a reasonable time after the date of such grant.

19.       Corporate Records Control. In the event that the corporate records (e.g., Board consents, resolutions or minutes) documenting the corporate action constituting the grant contain terms (e.g., exercise price, vesting schedule or number of Shares) that are inconsistent with those in the Award Agreement or related grant documents as a result of a clerical error in the papering of the Award Agreement or related grant documents, the corporate records will control and the Participant will have no legally binding right to the incorrect term in the Award Agreement or related grant documents.

20.       Clawback/Recovery. The Administrator may specify in an Award Agreement that the Participant’s rights, payments, and/or benefits with respect to an Award will be subject to reduction, cancellation, forfeiture, and/or recoupment upon the occurrence of certain specified events, in addition to any applicable vesting, performance or other conditions and restrictions of an Award. Notwithstanding any provisions to the contrary under this Plan, an Award granted under the Plan shall be subject to the Company’s clawback policy as may be established and/or amended from time to time. The Administrator may require a Participant to forfeit or return to and/or reimburse the Company for all or a portion of the Award and/or Shares issued under the Award, any amounts paid under, or benefits provided pursuant to, the Award, and any payments or proceeds paid or provided upon disposition of the Shares issued under the Award, pursuant to the terms of such Company policy or as necessary or appropriate to comply with Applicable Laws.

21.       Term of Plan. Subject to Section 25 of the Plan, the Plan will become effective as of the Effective Date. The Plan will continue in effect for a term of ten (10) years measured from the earlier of the date the Board approves this Plan or the approval of this Plan by the Company’s stockholders, unless terminated earlier under Section 22 of the Plan.

22.

Amendment and Termination of the Plan.

(a)       Amendment and Termination. The Administrator may at any time amend, alter, suspend or terminate the Plan.

(b)       Stockholder Approval. The Company will obtain stockholder approval of any Plan amendment to the extent necessary and desirable to comply with Applicable Laws.

(c)       Effect of Amendment or Termination. No amendment, alteration, suspension or termination of the Plan will materially impair the rights of any Participant, unless mutually agreed otherwise between the Participant and the Administrator, which agreement must be in writing and signed by the Participant and the Company. Termination of the Plan will not affect the Administrator’s ability to exercise the powers granted to it hereunder with respect to Awards granted under the Plan prior to the date of such termination.

23.

Conditions Upon Issuance of Shares.

(a)       Legal Compliance. Shares will not be issued pursuant to the vesting, exercise, settlement or payment (as applicable) of an Award unless the vesting, exercise, settlement or payment of such Award and the issuance and delivery of such Shares or cash will comply with Applicable Laws and will be further subject to the approval of counsel for the Company with respect to such compliance.

(b)       Investment Representations. As a condition to the vesting, exercise, settlement or payment of an Award, the Company may require the Participant to represent and warrant at the time of any such vesting, exercise, settlement or payment that the Shares are being purchased or issued only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required.

24.       Inability to Obtain Authority. The inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares, or payment of cash, hereunder, will relieve the Company of any liability in respect of the failure to issue or sell such Shares, or pay such cash, as to which such requisite authority will not have been obtained.

25.       Stockholder Approval. The Plan will be subject to approval by the stockholders of the Company within twelve (12) months after the date the Plan is adopted by the Board. Such stockholder approval will be obtained in the manner and to the degree required under Applicable Laws.

26.       Governing Law. The Plan and all Awards hereunder shall be construed in accordance with and governed by the laws of the State of Delaware, but without regard to its conflict of law provisions.

Exhibit 10.13

INDEMNIFICATION And Advancement AGREEMENT

This Indemnification and Advancement Agreement (as amended or amended and restated, this “Agreement”) is made as of February 9, 2024 (the “Effective Date”) by and between AtlasClear Holdings, Inc. (the “Company”), and ______________, [ ● ] of the Company (“Indemnitee”).

WITNESSETH THAT:

WHEREAS, the Board of Directors of the Company (the “Board”) believes that highly competent persons have become more reluctant to serve corporations as directors, officers, or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification and advancement of expenses against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;

WHEREAS, the Board has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The Amended and Restated Bylaws of the Company (as amended or amended and restated, the “Bylaws”) and the Amended and Restated Certificate of Incorporation of the Company (as amended or amended and restated, the “Certificate of Incorporation”) require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”). The Bylaws, Certificate of Incorporation, and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification and advancement of expenses;

WHEREAS, the uncertainties relating to such insurance, to indemnification, and to advancement of expenses may increase the difficulty of attracting and retaining such persons;

WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;

WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;

WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws, Certificate of Incorporation and any resolutions adopted pursuant thereto, and is not a substitute therefor, nor diminishes or abrogates any rights of Indemnitee thereunder;

WHEREAS, Indemnitee does not regard the protection available under the Bylaws, Certificate of Incorporation, DGCL and insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as an officer or director without adequate additional protection, and the Company desires Indemnitee to serve or continue to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified and be advanced expenses;

WHEREAS, Indemnitee may have certain rights to indemnification and/or insurance provided by another Person with whom Indemnitee is associated or insurer of any such Person, which Indemnitee and the Company intend to be secondary to the primary obligation of the Company to indemnify Indemnitee as provided herein, with the Company’s acknowledgement and agreement to the foregoing being a material condition to Indemnitee’s willingness to serve on the Board; and

WHEREAS, the Company and Indemnitee desire to terminate any prior indemnification agreement between the Company and Indemnitee in favor of the execution and delivery hereof.

NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:

Section 1.              Termination of Any Prior Indemnification Agreement. Any prior indemnification agreement between the Company and Indemnitee is hereby terminated as of the Effective Date.

Section 2.              Services to the Company. Indemnitee agrees to serve or continue to serve, as applicable, as a director and/or officer of the Company. This Agreement does not create any obligation on the part of the Company to continue Indemnitee in such position or on the part of Indemnity to continue in such position and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee.

Section 3.              Definitions. As used in this Agreement:

(a)            “Agent” means any person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.

(b)            A “Change in Control” occurs upon the earliest to occur after the Effective Date of any of the following events:

i.             Acquisition of Stock by Third Party. Any Person (as defined below) is or becomes (in a single transaction or series of related transactions) the Beneficial Owner (as defined below), directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities unless the change in relative beneficial ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors;

ii.            Change in the Board. During any period of two (2) consecutive years (not including any period prior to the Effective Date), individuals who at the beginning of such period constitute the Board, and any new director (other than a director designated by a person who has entered into an agreement with the Company to effect a transaction described in Section 3(b)i, Section 3(b)iii or Section 3(b)iv whose election by the Board or nomination for election by the Company’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to constitute at least a majority of the members of the Board;

iii.           Corporate Transactions. The effective date of a merger or consolidation of the Company (or any of its subsidiaries) with any other entity, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the voting securities of the surviving entity (or the resulting parent entity) outstanding immediately after such merger or consolidation and with the power to elect at least a majority of the Board or other governing body of such surviving entity (or the resulting parent entity);

iv.           Liquidation. The approval by the stockholders of the Company of the dissolution of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company’s assets; and

v.            Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.

vi.           For purposes of this Section 3(b), the following terms have the following meanings:

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time.

“Person” has the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act; provided, however, that Person excludes (i) the Company, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of the Company, and (iii) any corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.

Beneficial Owner” has the meaning given to such term in Rule 13d-3 under the Exchange Act; provided, however, that Beneficial Owner excludes any Person otherwise becoming a Beneficial Owner by reason of the stockholders of the Company approving a merger of the Company with another entity.

(c)           “Corporate Status” describes the status of a person who is or was acting as a director, officer, employee, fiduciary, or Agent of the Company or an Enterprise.

(d)           “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.

(e)           “Enterprise” means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.

(f)            “Expenses” includes all reasonable attorneys’ fees, retainers, court costs, mediation fees, transcript costs, expenses, disbursements and fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone and facsimile charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settling or negotiating for the settlement of, responding to or objecting to requests to provide discovery in or otherwise participating in, a Proceeding. Expenses shall also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 13(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. The parties agree that for the purposes of any advancement of Expenses for which Indemnitee has made written demand to the Company in accordance with this Agreement, all Expenses included in such demand that are certified by affidavit of Indemnitee’s counsel as being reasonable in the good faith judgment of such counsel shall be presumed conclusively to be reasonable. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.

(g)           “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include a law firm, or a member of a law firm, who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.

(h)           The term “Proceeding” includes any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, or any claim, counterclaim, cross claim, issue or matter therein, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, participant, potential party, non-party witness or otherwise by reason of Indemnitee’s Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement. A Proceeding also includes a situation the Indemnitee believes in good faith may lead to or culminate in the institution of a Proceeding.

Section 4.              Indemnity in Third-Party Proceedings. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, was or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to believe that Indemnitee’s conduct was unlawful.

Section 5.              Indemnity in Proceedings by or in the Right of the Company. The Company shall indemnify Indemnitee in accordance with the provisions of this Section 5 if Indemnitee is, was or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 5, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. The Company shall not indemnify Indemnitee for Expenses under this Section 5 related to any Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Court of Chancery of the State of Delaware (the “Delaware Court”) or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.

Section 6.              Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the fullest extent permitted by applicable law, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding to the extent that Indemnitee is successful, on the merits or otherwise. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by applicable law. For purposes of this Section 6 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.

Section 7.              Indemnification For Expenses of a Witness. To the fullest extent permitted by applicable law, the Company shall indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding to which Indemnitee is not a party but to which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate.

Section 8.              Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company shall indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.

Section 9.              Additional Indemnification. Notwithstanding any limitation in Section 4, Section 5, or Section 6, the Company shall indemnify Indemnitee to the fullest extent permitted by applicable law (including but not limited to, the DGCL and any amendments to or replacements of the DGCL adopted after the Effective Date that expand the Company’s ability to indemnify its officers and directors) if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor).

Section 10.            Exclusions. Notwithstanding any provision in this Agreement, the Company is not obligated under this Agreement to make any indemnification payment to Indemnitee in connection with any Proceeding:

(a)           for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 16(b) and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or

(b)           for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 3(b) f) or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or

(c)           commenced by Indemnitee, including any Proceeding (or any part of any Proceeding) commenced by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement of Expenses, including a Proceeding (or any part of any Proceeding) commenced pursuant to Section 15, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its commencement or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.

Section 11.            Advances of Expenses.

(a)            The Company shall advance, to the fullest extent permitted by applicable law, the Expenses incurred by Indemnitee in connection with any Proceeding (or any part of any Proceeding) not commenced by Indemnitee or any Proceeding (or any part of any Proceeding) commenced by Indemnitee if (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement of Expenses from the Company or Enterprise, including a Proceeding (or any party of any Proceeding) commenced pursuant to Section 15 or (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its commencement. The Company shall advance the Expenses within ten (10) business days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding.

(b)           Advances shall be unsecured and interest free. Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company, thus, to the fullest extent permitted by applicable law, Indemnitee qualifies for advances upon the execution of this Agreement and delivery to the Company and no other form of undertaking is required other than the execution of this Agreement. The Company shall make advances without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.

Section 12.            Procedure for Notification of Claim for Indemnification or Advancement.

(a)            Indemnitee shall notify the Company in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. Indemnitee shall include in the written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding and provide such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. Indemnitee’s failure to notify the Company shall not relieve the Company from any obligation it may have to Indemnitee under this Agreement, and any delay in so notifying the Company shall not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company shall, promptly upon receipt of such a request for indemnification or advancement, advise the Board in writing that Indemnitee has requested indemnification or advancement of Expenses hereunder.

(a)           The Company shall be entitled to participate in the Proceeding at its own expense.

Section 13.            Procedure Upon Application for Indemnification.

(a)           Unless a Change in Control has occurred, the determination of Indemnitee’s entitlement to indemnification shall be made:

i.             by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

ii.            by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;

iii.            if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board; or

iv.            if so directed by the Board, by the stockholders of the Company.

(b)           If a Change in Control has occurred, the determination of Indemnitee’s entitlement to indemnification shall be made by written opinion provided by Independent Counsel selected by Indemnitee (unless Indemnitee requests such selection be made by the Board).

(c)           The party selecting Independent Counsel pursuant to subsection (a)(iii) or (b) of this Section 13 shall provide written notice of the selection to the other party. The notified party may, within ten (10) days after receiving written notice of the selection of Independent Counsel, deliver to the selecting party a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 3, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the law firm, or member of a law firm, so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within thirty (30) days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 12(a) and the final disposition of the Proceeding, Independent Counsel has not been selected or, if selected, any objection to has not been resolved, either the Company or Indemnitee may petition the Delaware Court for the appointment as Independent Counsel of a law firm, or member of a law firm, selected by the Delaware Court or by such other person as the Delaware Court designates. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 15(a), Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).

(d)           Indemnitee shall cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not protected by the attorney-client privilege or similar protection or privilege and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company shall, to the fullest extent permitted by applicable law, advance and pay any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitee’s entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly shall advise Indemnitee in writing of the determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written opinion provided to the Board by Independent Counsel.

(e)            If it is determined that Indemnitee is entitled to indemnification, the Company shall make payment to Indemnitee within ten (10) business days after such determination.

Section 14.            Presumptions and Effect of Certain Proceedings.

(a)           (In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall, to the fullest extent permitted by applicable law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(a), and the Company shall, to the fullest extent permitted by applicable law, have the burden of proof to overcome that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.

(b)           If the determination of the Indemnitee’s entitlement to indemnification has not made pursuant to Section 13 within sixty (60) days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 12(a) and (ii) the final disposition of the Proceeding for which Indemnitee requested indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by applicable law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. The Determination Period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 13(a)iv.

(c)           The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.

(d)           For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 14(d) are not exclusive and do not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

(e)           To the fullest extent permitted by applicable law, the knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.

Section 15.            Remedies of Indemnitee.

(a)            Indemnitee may commence a proceeding against the Company in the Delaware Court to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 13 that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 11, (iii) the determination of entitlement to indemnification is not made pursuant to Section 13 within the Determination Period, (iv) the Company does not indemnify Indemnitee or advance Expenses pursuant to Section 6 or Section 7 or the second to last sentence of Section 13(d) within ten (10) business days after receipt by the Company of a written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 4, Section 5, Section 6, or Section 7 within ten (10) business days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder. Alternatively, Indemnitee, at Indemnitee’s option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Indemnitee must commence such proceeding seeking an adjudication or an award in arbitration within one hundred and eighty (180) days following the date on which Indemnitee first has the right to commence such proceeding pursuant to this Section 15(a); provided, however, that the foregoing clause does not apply in respect of a proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 6. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.

(b)           If a determination is made pursuant to Section 13 that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 15 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee may not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 15, to the fullest extent permitted by applicable law, the Company shall have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and shall not introduce evidence of the determination made pursuant to Section 13.

(c)           If a determination is made pursuant to Section 13 that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 15, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.

(d)           The Company is, to the fullest extent not prohibited by applicable law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 15 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.

(e)           It is the intent of the Company that, to the fullest extent permitted by applicable law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company, to the fullest extent permitted by applicable law, shall (within ten (10) business days after receipt by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with any action concerning this Agreement, Indemnitee’s right to indemnification or advancement of Expenses from the Company, or concerning any directors’ and officers’ liability insurance policies maintained by the Company, and shall indemnify Indemnitee against any and all such Expenses unless the court determines that each of the Indemnitee’s claims in such action were made in bad faith or were frivolous or are prohibited by applicable law.

(f)            To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations under this Agreement through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of the Indemnitee.

(g)           (i) Whether or not the indemnification provided in Section 4, Section 5 or Section 6 is available in respect of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such Proceeding without requiring Indemnitee to contribute to such payment and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee, in each case, to the fullest extent permitted by applicable law. The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.

(ii)            Without diminishing or impairing the obligations of the Company set forth in the preceding subparagraph (g)(i), if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding), the Company shall, to the fullest extent permitted by applicable law, contribute to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred and paid or payable by Indemnitee in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction or events from which such Proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to applicable law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the transaction or events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such Proceeding), on the one hand, and Indemnitee, on the other hand, shall, to the fullest extent permitted by applicable law, be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.

(iii)            The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors, or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.

Section 16.            Non-exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.

(a)            The indemnification and advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be eliminated or impaired by any amendment, alteration or repeal of this Agreement in any way with respect to any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status occurring prior to any amendment, alteration or repeal of this Agreement. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Bylaws, Certificate of Incorporation, or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.

(b)            The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by Lockton Companies (other than the Company or other Enterprise) (collectively, the “Other Indemnitors”). The Company hereby, including for the benefit of the Other Indemnitors, who shall be third party beneficiaries of this Section 16(b):

i.             Acknowledges and agrees that, as between the Company and the Other Indemnitors, the Company is the indemnitor of first resort with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding arising from or related to Indemnitee’s Corporate Status with the Company;

ii.            Acknowledges and agrees that, as between the Company and the Other Indemnitors, the Company is primarily liable for all indemnification and indemnification or advancement of Expenses obligations for any Proceeding arising from or related to Indemnitee’s Corporate Status with the Company, whether created by law, organizational or constituent documents, contract (including this Agreement) or otherwise;

iii.            Acknowledges and agrees that, as between the Company and the Other Indemnitors, any obligation of the Other Indemnitors to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any Proceeding arising from or related to Indemnitee’s Corporate Status with the Company is secondary to the obligations of the Company;

iv.            Acknowledged and agrees that the Company shall indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against the Other Indemnitors or their insurers;

v.            Irrevocably waives, relinquishes and releases (A) the Other Indemnitors from any claim of contribution, subrogation, reimbursement, exoneration or indemnification, or any other recovery of any kind in respect of amounts paid by the Company to Indemnitee pursuant to this Agreement and (B) any right to participate in any claim or remedy of Indemnitee against the Other Indemnitors, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Other Indemnitors, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right;

vi.           Acknowledges and agrees that in the event that the Other Indemnitors or their insurers advances or extinguishes any liability or loss for Indemnitee, the payor has a right of subrogation against the Company or its insurers for all amounts so paid which would otherwise be payable by the Company or its insurers under this Agreement;

vii.          Acknowledges and agrees that in no event shall payment by the Other Indemnitors or their insurers affect the obligations of the Company hereunder or shift primary liability for the Company’s obligation to indemnify or advance of Expenses to the Other Indemnitors; and

viii.         Acknowledges and agrees that any indemnification or advancement of Expenses provided to Indemnitee by the Other Indemnitors is specifically in excess over the Company’s obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.

(c)           To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Company, Indemnitee shall be covered by such policy or policies to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies, including coverage in the event the Company does not or cannot, for any reason, indemnify or advance Expenses to Indemnitee as required by this Agreement. If, at the time of the receipt of a notice of a Proceeding pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable lawful action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company efforts to cause the insurers to pay such amounts and shall comply with the terms of such policies, including selection of approved panel counsel, if required.

(d)           The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitee’s Corporate Status with an Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise. The Company’s obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and desirable lawful action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise.

(e)            In the event of any payment made by the Company under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or insurance carrier. Indemnitee shall execute all papers required and take all lawful action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.

Section 17.            Duration of Agreement. This Agreement continues until and terminates upon the later of: (a) ten (10) years after the date that Indemnitee ceases to have a Corporate Status or (b) one (1) year after the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 15 relating thereto. The indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.

Section 18.            Severability. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and remain enforceable to the fullest extent permitted by applicable law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.

Section 19.            Interpretation. Any ambiguity in the terms of this Agreement shall be resolved in favor of Indemnitee and in a manner to provide the maximum indemnification and advancement of Expenses permitted by applicable law. The Company and Indemnitee intend that this Agreement provide, to the fullest extent permitted by applicable law, for indemnification and advancement in excess of that expressly provided, without limitation, by the Certificate of Incorporation, the Bylaws, vote of the Company stockholders or disinterested directors, or applicable law.

Section 20.            Enforcement.

(a)            The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as a director or officer of the Company.

(b)            This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws and applicable law, and is not a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.

Section 21.            Modification and Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or constitutes a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.

Section 22.            Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.

Section 23.            Notices. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c) sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:

(a)            If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.

(b)            If to the Company to:

4221 W. Boy Scout Blvd., Ste 300

Tampa, FL 33607
Attention: Craig Ridenhour
Email: creidenthour@atlasbanc.com

or to any other address as may have been furnished to Indemnitee by the Company.

Section 24.            Contribution. To the fullest extent permitted by applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect: (a) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (b) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).

Section 25.            Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 15(a), to the fullest extent permitted by applicable law, the Company and Indemnitee hereby irrevocably and unconditionally (a) agree that any proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any court in any other country, (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any proceeding arising out of or in connection with this Agreement, (c) waive any objection to the laying of venue of any such proceeding in the Delaware Court, and (d) waive, and agree not to plead or to make, any claim that any such proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.

Section 26.            Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together constitutes one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.

Section 27.            Headings. The headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.

IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.

COMPANY:

ATLASCLEAR HOLDINGS, INC

By:
Name:
Office:

INDEMNITEE:

By:
Name:
Address:

[Signature Pages to Indemnification Agreement – AtlasClear Holdings, Inc.]

Exhibit 14.1

ATLASCLEAR HOLDINGS, INC.

CODE OF BUSINESS CONDUCT AND ETHICS

Introduction

The Board of Directors (the “Board”) of AtlasClear Holdings, Inc. (the “Company”) has adopted this code of business conduct and ethics (this “Code”), as amended from time to time by the Board, and which is applicable to all of the Company’s directors, officers and employees (to the extent that employees are hired in the future) to:

●

promote honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest between personal and professional relationships;

●

promote the full, fair, accurate, timely and understandable disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “SEC”), as well as in other public communications made by or on behalf of the Company;

●

promote compliance with applicable governmental laws, rules and regulations;

●

deter wrongdoing; and

●

require prompt internal reporting of breaches of, and accountability for adherence to, this Code.

In addition to following this Code in all aspects of business activities, the Company’s directors, officers and employees are expected to seek guidance in any situation where there is a question regarding compliance issues, whether with the letter or the spirit of the Company’s policies and applicable laws. Cooperation with this Code is essential to the continued success of the Company’s business and the cultivation and maintenance of its reputation as a good corporate citizen. Misconduct is never justified, even where sanctioned or ordered by an officer or other individual in a position of higher management. No individual, regardless of stature or position, can authorize actions that are illegal, or that jeopardize or violate Company standards. This Code sets forth general principles of conduct and ethics and is intended to work in conjunction with the policies and procedures that are covered in the Company’s specific policy statements.

Nothing in this Code prohibits the Company’s directors, officers or employees from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the SEC, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of U.S. federal law or regulation. No prior authorization from the Company is needed to make any such reports or disclosures and there is no duty to notify the Company that any such reports or disclosures have been made. The Company has a no-tolerance policy for retaliation against persons who raise good faith compliance, ethics or related issues.

This Code may be amended and modified by the Board. In this Code, references to the “Company” mean AtlasClear Holdings, Inc. and, in appropriate context, the Company’s subsidiaries, if any.

Honest, Ethical and Fair Conduct

Each person owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair and candid. Deceit, dishonesty and subordination of principle are inconsistent with integrity. Service to the Company should never be subordinated to violations of laws or regulations, unscrupulous dealings or to personal gain and advantage.

Each person must:

act with integrity, including being honest and candid while still maintaining the confidentiality of the Company’s information where required or when in the Company’s interests;

observe all applicable governmental laws, rules and regulations;

comply with the requirements of applicable accounting and auditing standards, as well as Company policies, in order to maintain a high standard of accuracy and completeness in the Company’s financial records and other business-related information and data;

adhere to a high standard of business ethics and not seek competitive advantage through unlawful or unethical business practices;

deal fairly with the Company’s customers, suppliers, competitors, employees and independent contractors;

refrain from taking advantage of anyone through manipulation, concealment, abuse of privileged information, misrepresentation of material facts or any other unfair-dealing practice;

protect the assets of the Company and ensure their proper use;

until the earlier of (i) the Company’s liquidation, or (ii) such time that such person ceases to be an officer or director of the Company, in each case, to first present to the Company for the Company’s consideration, prior to presentation to any other entity, any business opportunity, but only if such opportunity is suitable for the Company, subject to the Company’s certificate of incorporation and bylaws in effect at such time and subject to any other fiduciary or contractual obligations such officer or director may have; and

avoid actual or apparent conflicts between personal, private interests (including any related party transaction) and the interests of the Company, wherever possible, including receiving improper personal benefits as a result of his or her position, except as may be allowed under guidelines or resolutions approved by the Board (or the appropriate committee of the Board) or as disclosed in the Company’s public filings with the SEC. Anything that would be a conflict for a person subject to this Code also will be a conflict for a member of his or her immediate family or any other close relative.

Examples of conflict of interest situations include, but are not limited to, the following:

●

any significant ownership interest in any supplier or customer;

●

any consulting or employment relationship with any supplier or customer;

●

the receipt of any money, non-nominal gifts or excessive entertainment from any entity with which the Company has current or prospective business dealings;

●

selling anything to the Company or buying anything from the Company, except on the same terms and conditions as a third party would buy or sell a comparable item in an arm’s-length transaction;

●

any other financial transaction, arrangement or relationship (including any indebtedness or guarantee of indebtedness) involving the Company; and

●

any other circumstance, event, relationship or situation in which the personal interest of a person subject to this Code interferes, or even appears to interfere, with the interests of the Company as a whole.

Any material transaction or relationship that reasonably could be expected to give rise to a conflict of interest shall be disclosed to the Board.

Confidentiality

The Company’s directors, officers and employees must maintain and protect the confidentiality of information entrusted to them by the Company, or that otherwise comes into their possession, while carrying out their duties and responsibilities, except when disclosure is authorized by the Company or legally mandated.

Confidential information encompasses all non-public information (including, for example, “inside information” or information that third-parties have entrusted to the Company) that may be of use to competitors, or may otherwise be harmful to the Company or its key stakeholders, if disclosed. Financial information is of special sensitivity and should under all circumstances be considered confidential, except where its disclosure is approved by the Company or when the information has been publicly disseminated.

Disclosure

The Company strives to ensure that the contents of and the disclosures in the reports and documents that the Company files with the SEC and other public communications shall be full, fair, accurate, timely and understandable in accordance with applicable disclosure standards, including standards of materiality, where appropriate. Each person must:

●

not knowingly misrepresent, or cause others to misrepresent, facts about the Company to others, whether within or outside the Company, including to the Company’s independent registered public accountants, governmental regulators, self-regulating organizations and other governmental officials, as appropriate; and

●

in relation to his or her area of responsibility, properly review and critically analyze proposed disclosure for accuracy and completeness.

In addition to the foregoing, the Chief Executive Officer and Chief Financial Officer of the Company and the Chief Executive Officer and the Chief Financial Officer of each subsidiary of the Company (or persons performing similar functions), if any, and each other person that typically is involved in the financial reporting of the Company must familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business and financial operations of the Company.

Each person must promptly bring to the attention of the Board of Directors any information he or she may have concerning (a) significant deficiencies in the design or operation of internal and/or disclosure controls that could adversely affect the Company’s ability to record, process, summarize and report financial data or (b) any fraud that involves management or other employees who have a significant role in the Company’s financial reporting, disclosures or internal controls.

Compliance

It is the Company’s obligation and policy to comply with all applicable governmental laws, rules and regulations. All directors, officers and employees of the Company are expected to understand, respect and comply with all of the laws, regulations, policies and procedures that apply to them in their positions with the Company. Employees are responsible for talking to their supervisors to determine which laws, regulations and Company policies apply to their position and what training is necessary to understand and comply with them.

Directors, officers and employees are directed to specific policies and procedures available to persons they supervise.

Reporting and Accountability

The Board is responsible for applying this Code to specific situations in which questions are presented to it and has the authority to interpret this Code in any particular situation. Any person who becomes aware of any existing or potential breach of this Code is required to notify the Board promptly. Failure to do so is, in and of itself, a breach of this Code.

Specifically, each person must:

●

notify the Board promptly of any existing or potential violation of this Code; and

●

not retaliate against any other person for reports of potential violations that are made in good faith.

The Company will follow the following procedures in investigating and enforcing this Code and in reporting on this Code:

●

the Board will take all appropriate action to investigate any breaches reported to it; and

●

upon determination by the Board that a breach has occurred, the Board (by majority decision) will take or authorize such disciplinary or preventive action as it deems appropriate, after consultation with the Company’s internal or external legal counsel, up to and including dismissal or, in the event of criminal or other serious violations of law, notification of the SEC or other appropriate law enforcement authorities.

No person following the above procedure shall, as a result of following such procedure, be subject by the Company or any officer or employee thereof to discharge, demotion suspension, threat, harassment or, in any manner, discrimination against such person in terms and conditions of employment.

Waivers and Amendments

Any waiver (defined below) or an implicit waiver (defined below) from a provision of this Code for the principal executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions or any amendment (as defined below) to this Code is required to be disclosed in a Current Report on Form 8-K filed with the SEC. In lieu of filing a Current Report on Form 8-K to report any such waivers or amendments, the Company may provide such information on its website, in the event that it establishes one in the future, and if it keeps such information on the website for at least 12 months and discloses the website address as well as any intention to provide such disclosures in this manner in its most recently filed Annual Report on Form 10-K.

A “waiver” means the approval by the Board of a material departure from a provision of this Code. An “implicit waiver” means the Company’s failure to take action within a reasonable period of time regarding a material departure from a provision of this Code that has been made known to an executive officer of the Company. An “amendment” means any amendment to this Code other than minor technical, administrative or other non-substantive amendments hereto.

Any request for a waiver of any provision of this Code must be in writing and addressed to the Board. All persons should note that it is not the Company’s intention to grant or to permit waivers from the requirements of this Code. The Company expects full compliance with this Code.

Insider Information and Securities Trading

The Company’s directors, officers or employees who have access to material, non-public information are not permitted to use that information for security trading purposes or for any purpose unrelated to the Company’s business. It is also against the law to trade or to “tip” others who might make an investment decision based on inside company information. For example, using non-public information to buy or sell the Company securities, options in the Company securities or the securities of any Company supplier, customer, competitor or potential target is prohibited. The consequences of insider trading violations can be severe. These rules also apply to the use of material, non-public information about other companies (including, for example, the Company’s customers, competitors, potential business partners and potential targets). In addition to directors, officers or employees, these rules apply to such person’s spouse, children, parents and siblings, as well as any other family members living in such person’s home.

Financial Statements and Other Records

All of the Company’s books, records, accounts and financial statements must be maintained in reasonable detail, must appropriately reflect the Company’s transactions and must both conform to applicable legal requirements and to the Company’s system of internal controls. Unrecorded or “off the books” funds or assets should not be maintained unless permitted by applicable law or regulation.

Records should always be retained or destroyed according to the Company’s record retention policies. In accordance with those policies, in the event of litigation or governmental investigation, please consult the Board or the Company’s internal or external legal counsel.

Any and all reports received by the Company of questionable accounting, violations of internal accounting controls, or any other auditing or financial matters, or the reporting of fraudulent financial information or other questionable conduct that are submitted to an officer of the Company will be handled as follows:

●

All reports received will be logged and include, among other things: (1) the date the report was received, (2) a description of the report, (3) the reporting party (if provided), and (4) the status and disposition of an investigation of the report.

●

The Chief Executive Officer and Chief Financial Officer of the Company will promptly submit to the Audit Committee of the Board (the “Audit Committee”) all reports received. The Audit Committee shall direct and oversee an investigation of all reports as it determines to be appropriate. The Audit Committee may also delegate the oversight and investigation of reports to the appropriate members of the Company’s management. The Audit Committee may request special treatment for any report and may re-assume the direction and oversight of an investigation of any report delegated to members of our management.

10.

Improper Influence on Conduct of Audits

No director or officer, or any other person acting under the direction thereof, shall directly or indirectly take any action to coerce, manipulate, mislead or fraudulently influence any public or certified public accountant engaged in the performance of an audit or review of the financial statements of the Company or take any action that such person knows or should know that if successful could result in rendering the Company’s financial statements materially misleading. Any person who believes such improper influence is being exerted should report such action to such person’s supervisor, or if that is impractical under the circumstances, to any of the Company’s directors.

Types of conduct that could constitute improper influence include, but are not limited to, directly or indirectly:

●

offering or paying bribes or other financial incentives, including future employment or contracts for non-audit services;

●

providing an auditor with an inaccurate or misleading legal analysis;

●

threatening to cancel or canceling existing non-audit or audit engagements if the auditor objects to the Company’s accounting;

●

seeking to have a partner removed from the audit engagement because the partner objects to the Company’s accounting;

●

blackmailing; and

●

making physical threats.

11.

Anti-Corruption Laws

The Company complies with the anti-corruption laws of the countries in which it does business, including the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”). Directors, officers, employees and agents, such as third party sales representatives, shall not take or cause to be taken any action that would reasonably result in the Company not complying with such anti-corruption laws, including the FCPA. If you are authorized to engage agents on the Company’s behalf, you are responsible for ensuring they are reputable and for obtaining a written agreement for them to uphold the Company’s standards in this area.

12.

Violations

The Board will investigate any reported violations and will oversee an appropriate response, including corrective action and preventative measures. Any director, officer or employee who violates this Code will face appropriate, case specific disciplinary action, which may include demotion or discharge. Such action is in addition to any civil or criminal liability which might be imposed by any court or regulatory agency.

13.

Other Policies and Procedures

Any other policy or procedure set out by the Company in writing or made generally known to employees, officers or directors of the Company prior to the date hereof or hereafter are separate requirements and remain in full force and effect.

14.

Inquiries

All inquiries and questions in relation to this Code or its applicability to particular people or situations should be addressed to the Board, or such other compliance officer as shall be designated from time to time by the Company.

Exhibit 21.1

SUBSIDIARIES OF ATLASCLEAR HOLDINGS, INC.*



Name of Subsidiary		Jurisdiction of Organization
AtlasClear, Inc.		Wyoming
Wilson-Davis & Co., Inc.		Utah
QFTA Inc.		Delaware

*	Pursuant to Item 601(b)(21)(ii) of Regulation S-K, the names of other subsidiaries of AtlasClear Holdings, Inc. are omitted because, considered in the aggregate, they would not constitute a “significant subsidiary” (as defined in Rule 1-02(w) of Regulation S-X).

Exhibit 99.1

AtlasClear Announces Closing of Business Combination with Quantum FinTech Acquisition Corporation and Acquisition of Wilson-Davis & Co.

AtlasClear Expected to Begin Trading on the NYSE on Monday, February 12 Under the Ticker “ATCH”

Tampa, FL – February 12, 2024 – AtlasClear, Inc. announced today the completion on Friday, February 9^th, 2024, of its previously announced business combination with Quantum FinTech Acquisition Corporation (“Quantum”) (NYSE: QFTA), a publicly-traded special purpose acquisition company, which was approved by Quantum’s stockholders on November 3, 2023. The combined company will operate as AtlasClear Holdings, Inc. (“AtlasClear”), and its common stock is expected to begin trading on the NYSE American LLC (“NYSE Amex”) under the ticker symbol ATCH on Monday, February 12, 2024.

AtlasClear also announced the completion of its acquisition of broker-dealer Wilson-Davis & Co., Inc. (“Wilson-Davis”), and that its definitive agreement to acquire Commercial Bancorp of Wyoming (“Commercial Bancorp”) continues to be in full force and effect. It is expected that Commercial Bancorp will be merged with and into a subsidiary of AtlasClear upon receipt of all necessary regulatory approvals.

“Today marks an important milestone for AtlasClear as we embark on our journey to bring a one-stop technology and financing solution to small and midsize financial institutions,” said John Schaible, Chairman and Chief Executive Officer of Quantum, and Chief Strategy Officer of AtlasClear. “As a public company, we’ll seek to grow both organically and through further acquisitions, as well as by expanding the balance sheet for both the clearing firm and the bank.”

“With the completion of this business combination, the AtlasClear team will focus on filling a gap in the capital markets where smaller institutions, broker-dealers and asset managers have been at a disadvantage,” said Craig Ridenhour, Chief Business Development Officer of AtlasClear. “By combining an operating, profitable correspondent clearing firm, with an operating, profitable Federal Reserve member bank, and then layering in technology to handle the front office, back office and risk management functions of those institutions, we’re creating one venue where these smaller financial institutions can service all of their relevant operational needs, including trade clearing, settlement and banking services.”

As a result of the completion of the business combination by the deadline under Quantum’s charter, Quantum did not need to implement the charter amendment for an additional extension, which was approved by its stockholders at a special meeting held on February 8, 2024.

In connection with the closing of the business combination, AtlasClear has instructed the escrow agent to release from escrow 4,000,000 of Quantum’s founder shares that were held in escrow pursuant to the escrow agreement from Quantum’s initial public offering (consisting of 949,084 shares owned by Chardan Quantum, LLC and 3,050,916 shares owned by Quantum Ventures, LLC) , as contemplated by the amendment to such escrow agreement disclosed on October 31, 2023.

About AtlasClear

AtlasClear plans to build a cutting-edge technology enabled financial services firm that would create a more efficient platform for trading, clearing, settlement and banking of evolving and innovative financial products with a focus on the small and middle market financial services firms. The strategic goal of AtlasClear is to have a fully vertically integrated suite of cloud-based products including account opening, trade execution, risk management, regulatory reporting and settlement. The team that will lead AtlasClear consists of respected financial services industry veterans that have founded and led other companies in the industry including Penson Clearing, Southwest Securities, NexTrade and Anderen Bank.

About the Financial Technology

The nature of the combined entity is expected to be supported by robust, proven, financial technologies with a full suite that will enable the flow of business and success of the enterprise. The combined entity is expected to have a full exchange platform for a spectrum of financial products. In addition, the combined entity is expected to have a full prime brokerage and, following the Commercial Bancorp acquisition, a prime banking platform with complete front-end delivery. The enterprise is anticipated to offer a fixed income risk management platform which can be expanded to a diverse application on financial products.

The combined entity is expected to be run by a new digital suite of technologies that became part of the transaction at closing.

About Quantum FinTech Acquisition Corporation

Quantum is a blank check company, also commonly referred to as a special purpose acquisition company, or SPAC, that was formed for the purpose of entering into a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses, with a principal focus on identifying high-growth financial services and fintech businesses as targets.

About Wilson-Davis & Co., Inc.

Wilson-Davis is a full-service correspondent securities broker-dealer. The company is registered with the Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority and the Securities Investor Protection Organization. In addition, Wilson-Davis is a member of DTCC as well as the National Securities Clearing Corporation. Headquartered in Salt Lake City, Utah and Dallas, Texas. Wilson-Davis has been servicing the investment community since 1968, with satellite offices in California, Arizona, Colorado, New York, New Jersey and Florida.

About Commercial Bancorp of Wyoming

Commercial Bancorp is a bank holding company operating through its wholly-owned subsidiary, Farmers State Bank (“FSB”) and has been servicing the local community in Pine Bluffs, WY since 1915. It has focused the majority of its services on private and corporate banking. A member of the Federal Reserve, FSB is expected to be a strategic asset for the combined company’s long-term business model.

Cautionary Statement Regarding Forward-Looking Statements

This communication contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended, that reflect AtlasClear’s current views with respect to, among other things, the future operations and financial performance of AtlasClear and the combined company. Forward-looking statements in this communication may be identified by the use of words such as “anticipate,” “assume,” “believe,” “continue,” “could,” “estimate,” “expect,” “foreseeable,” “future,” “intend,” “may,” “outlook,” “plan,” “potential,” “proposed” “predict,” “project,” “seek,” “should,” “target,” “trends,” “will,” “would” and similar terms and phrases. Forward-looking statements contained in this communication include, but are not limited to, statements as to (i) anticipated use of proceeds from the transaction, (ii) AtlasClear’s expectations as to various operational results and market conditions, (iii) AtlasClear’s anticipated growth strategy, including the proposed acquisitions, (iv) anticipated benefits of the transaction and proposed acquisitions, (v) the financial technology of the combined entity, (vi) anticipated timing for the combined company to begin trading on NYSE Amex, and (vii) statements regarding the proposed transaction between AtlasClear and Pacsquare, including the anticipated benefits of such acquisition.

The forward-looking statements contained in this communication are based on the current expectations of AtlasClear and its management and are subject to risks and uncertainties. No assurance can be given that future developments affecting AtlasClear or the combined company will be those that are anticipated. Actual results may differ materially from current expectations due to changes in global, regional or local economic, business, competitive, market, regulatory and other factors, many of which are beyond the control of AtlasClear. Should one or more of these risks or uncertainties materialize, or should any of the assumptions prove incorrect, actual results may vary in material respects from those projected in these forward-looking statements. Factors that could cause actual results to differ may emerge from time to time, and it is not possible to predict all of them.

Such factors include, but are not limited to: the risk that AtlasClear’s acquisition of Commercial Bancorp and its subsidiary bank, FSB, does not close as a result of the failure to satisfy the conditions to closing such acquisition (including, without limitation, the receipt of approval of Commercial Bancorp’s stockholders and receipt of required regulatory approvals); failure to recognize the anticipated benefits of the transaction, which may be affected by, among other things, competition, the ability of the combined entity to maintain relationships with customers and suppliers and strategic alliance third parties, and to retain its management and key employees; estimates of AtlasClear and the combined company’s financial performance being materially incorrect predictions; AtlasClear’s failure to complete the proposed acquisitions on favorable terms to AtlasClear or at all; AtlasClear’s inability to integrate, and to realize the benefits of, the proposed acquisitions; AtlasClear’s inability to realize the anticipated benefits of the transaction with Pacsquare; changes in general economic or political conditions; changes in the markets that AtlasClear targets or the combined company will target; slowdowns in securities or cryptocurrency trading or shifting demand for trading, clearing and settling financial products; any change in laws applicable to AtlasClear or any regulatory or judicial interpretation thereof; and other factors, risks and uncertainties, including those that were included under the heading “Risk Factors” in the final proxy statement/prospectus filed with the SEC, and those included under the heading “Risk Factors” in Quantum’s 2022 Form 10-K and its subsequent filings with the SEC. AtlasClear and Quantum caution that the foregoing list of factors is not exhaustive. Any forward-looking statement made in this communication speaks only as of the date hereof. Plans, intentions or expectations disclosed in forward-looking statements may not be achieved and no one should place undue reliance on such forward-looking statements. Neither AtlasClear nor Quantum undertakes any obligation to update, revise or review any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by any applicable securities laws.

Contacts

Media
AtlasClearPR@icrinc.com

Investors
atlasclearir@icrinc.com