Gratitude Health, Inc. (Form: 8-K, Received: 04/22/2020 17:26:28)

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): April 20, 2020

GRATITUDE HEALTH, INC.

(Exact Name of Registrant as Specified in Charter)

Nevada

333-170715

27-1517938

(State or Other Jurisdiction

of Incorporation)

(Commission File Number)

(IRS Employer

Identification Number)

4014 Chase Avenue, #212

Miami Beach, FL 33140

(Address of Principal Executive Offices, Zip Code)

(631) 964-1111

(Registrant’s telephone number, including area code)

11231 US Highway One

Suite 200

North Palm Beach, FL 33408

(Former Name or Former Address, if Changed Since Last Report)

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

☐

Written communication pursuant to Rule 425 under the Securities Act (17 CFR 230.425).

☐

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

☐

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

☐

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

Securities registered pursuant to Section 12(b) of the Act: None

Title of each class	Trading Symbol(s)	Name of each exchange on which registered

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

Emerging growth company ☐

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

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

This Current Report on Form 8-K of Gratitude Health, Inc., a Nevada corporation (the “Company”), as well as other filings with the Securities and Exchange Commission (“SEC”), and the Company’s press release contained herein, contain statements relating to future results, plans, assumptions, assessments and information, including certain projections and business trends, that constitute “Forward-Looking Statements” within the meaning of the Private Securities Litigation Reform Act of 1995.

Forward-looking statements include statements concerning plans, objectives, goals, strategies, expectations, future events or performance and underlying assumptions and other statements that are other than statements of historical facts. These statements are often, but not always, made through the use of words or phrases such as “anticipates,” “believes,” “can,” “could,” “may,” “potential,” “should,” “will,” “plans,” “continuing,” “ongoing,” “expects,” “intends to,” and similar words or phrases. Certain statements contained herein are forward-looking statements and, accordingly, involve risks and uncertainties that could cause actual results or outcomes to differ materially from those expressed in such forward-looking statements, including, without limitation, risks related to our business and risks associated with our securities. The Company’s expectations, beliefs and projections are expressed in good faith and are believed by the Company to have a reasonable basis, including without limitations, management’s examination of historical operating trends, and data contained in the Company’s records and other data available from third parties. There can be no assurance that management’s expectations, beliefs or projections will be achieved or accomplished. Certain risks and uncertainties may cause actual results to be materially different from projected results contained in forward-looking statements in this Current Report and in other disclosures. The Company’s future results will depend upon various other risks and uncertainties, including, but not limited to, those detailed in the Company’s other filings with the SEC. Actual results may differ materially from those expressed or implied by forward-looking statements. The Company disclaims any obligation to revise any forward-looking statements to reflect the occurrence, or lack thereof, of events or circumstances after the date such forward-looking statements were made, except as required by law.

Unless otherwise provided in this Current Report on Form 8-K, all references to “we,” “us,” “Company,” “our,” “Gratitude,”, or the “Registrant” refer to the parent entity, Gratitude Health, Inc., a Nevada corporation. Unless otherwise indicated in this Current Report on Form 8-K, all references to the Company’s board of directors shall refer to the board of directors of Gratitude Health, Inc., a Nevada corporation.

Item 1.01 Entry into a Material Definitive Agreement.

Agreement and Plan of Merger

On April 20, 2020, the Company, Fresh Market Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub“), and Home Bistro, Inc., a privately-held Delaware corporation engaged in the food preparation and home-delivery business (“Home Bistro”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) pursuant to which, among other things, Merger Sub agreed to merge with and into Home Bistro, with Home Bistro becoming a wholly-owned subsidiary of the Company and the surviving corporation in the merger (the “Merger”). The Merger is intended to qualify for federal income tax purposes as a tax-free reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended.

Home Bistro provides high quality, direct-to-consumer, ready-made meals at www.homebistro.com, and restaurant quality meats and seafood through its Colorado Prime brand. Home Bistro is uniquely positioned to take advantage of the developing market opportunity generated by consumers’ growing demand for prepared meals ordered online and delivered to their homes.

The information set forth in Section 2.01 of this Current Report on Form 8-K is incorporated into this Item 1.01 by reference.

Exchange Agreement

Prior to the effective time of the Merger, the Company and certain of its existing securityholders entered into an Exchange Agreement providing for, among other things, the exchange (the “Exchange”) of securities held by such securityholders for shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), as more fully detailed therein. As a result of the Exchange, all of the Company’s issued and outstanding shares of Series A Convertible Preferred Stock, Series C Convertible Preferred Stock and Convertible Notes were converted into an aggregate of 173,187,500 shares, on a fully diluted basis, consisting of shares of the Company’s Common Stock and warrants. The 250,000 shares of Series B Convertible Preferred Stock remain issued and outstanding.

Furthermore, in connection with the Exchange Agreement and the Merger Agreement, the Company agreed to issue to certain shareholders a warrant to purchase shares of Common Stock (the “Warrant”).

Lock-Up and Leak-Out Agreement

In connection with the Merger, certain Company shareholders entered into a Lock-Up and Leak-Out Agreement with the Company pursuant to which, among other thing, such shareholders agreed to certain restrictions regarding the resale of the Common Stock for a period of two years from the date of the Merger Agreement, as more fully detailed therein.

Put Option Agreement

On April 20, 2020, the Company and a shareholder entered into a Put Option Agreement, pursuant to which, among other things, the Company agreed, at the election of the shareholder, to purchase certain shares of the Common Stock from such shareholder no sooner than two years from the date of the Put Option Agreement (the “Market Period”). Pursuant to the Put Option Agreement, in the event that the shareholder does not generate $1.3 million dollars (the “Total Investment”) in gross proceeds from the sale of its shares of Common Stock by the second anniversary of the Put Option Agreement, then the shareholder has the right to cause the Company to purchase up to an amount of the shareholder’s shares equal to the difference between the Total Investment and the net proceeds actually realized by the shareholder. The Put Right expires fourteen (14) days from end of the Market Period.

The preceding summaries of the Merger Agreement, the Exchange Agreement, the Warrant, the Lock-Up and Leak-Out Agreement and the Put Option Agreement do not purport to be complete and are qualified in their entirety by reference to the full text of the Merger Agreement, Exchange Agreement, Lock-Up and Leak–Out Agreement and Put Option Agreement, respectively, which are filed as Exhibits 2.1, 10.1, 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and incorporated herein by reference.

Item 2.01. Completion of Acquisition or Disposition of Assets.

On April 20, 2020, pursuant to the terms of the Merger Agreement, Merger Sub merged with and into Home Bistro, with Home Bistro continuing as the surviving corporation and a wholly-owned subsidiary of the Company. A copy of the Certificate of Merger merging Merger Sub with and into Home Bistro is filed herewith as Exhibit 3.1 and incorporated herein by reference.

At the effective time of the Merger, and subject to the terms and conditions of the Merger Agreement, each outstanding share of common stock of Home Bistro was converted into the right to receive fifteen thousand one hundred and point three (15,100.3) shares of Common Stock. Accordingly, the aggregate consideration issuable in the Merger to the former securityholders of Home Bistro is 767,838,260 shares of Common Stock on a fully-diluted basis. As a result of the Merger, the Company has 959,797,825 shares of Common Stock issued and outstanding on a fully-diluted basis. The Company plans to change its name to “Home Bistro, Inc.” and request a change to its ticker symbol as soon as possible and upon approval from the Secretary of State of the State of Nevada and the Financial Industry Regulatory Authority. Further, the Company intends to effect a reverse stock split of its Common Stock at a ratio of approximately 1-for-32 shares on or before June 1, 2020 and subject to required corporate and regulatory approvals.

The Merger Agreement contained customary representations, warranties and covenants made by the Company, Merger Sub and Home Bistro, including representations and covenants relating to obtaining the requisite approvals from each company’s board and shareholders, as applicable, and indemnification of directors and officers. The Merger Agreement provided that consummation of the Merger was subject to certain closing conditions including, but not limited to, obtaining all appropriate consents and closing certificates.

The description of the agreements above are qualified in their entirety by reference to the full text of the agreements filed as Exhibits hereto, which are incorporated herein by reference. These agreements have been included as exhibits to this Current Report on Form 8-K to provide investors and securityholders with information regarding certain of their respective terms and conditions. This information is not intended to provide any financial or other information about the parties to the agreements or their respective subsidiaries or affiliates. The representations, warranties and covenants contained in the agreements are made only for purposes of that agreement and as of specific dates, are solely for the benefit of the parties to the agreements, may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of the parties to the agreements or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the dates of the agreements, and such subsequent information may not be fully reflected in public disclosures by the parties to the applicable agreement. The information in these agreements should be considered in conjunction with the entirety of the factual disclosure about the Company in the Company’s public reports filed with the SEC.

Item 3.02 Unregistered Sale of Equity Securities.

The description of the Merger set forth in Item 2.01 of this Current Report on Form 8-K is incorporated into this Item 3.02 by reference. The issuance of Common Stock was made in reliance on the exemption provided by Section 4(a)(2) of the Securities Act of 1933, as amended, for the offer and sale of securities not involving a public offering.

Item 5.01.

Changes in Control of Registrant.

The information set forth in Items 1.01 and 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

Following the Merger, the Company’s former stockholders now hold approximately twenty percent (20%) of Common Stock issued and outstanding, on a fully-diluted basis.

Item 5.02. Departure of Directors or Certain Officers; Election of Directors.

On April 20, 2020, pursuant to the terms of the Merger Agreement, Roy G. Warren, Jr., Mike Edwards and Bruce Zanca resigned as directors of the Company and Roy G. Warren, Jr. resigned as Chief Operating Officer of the Company. The resignations were not the result of any disagreement related to the Company’s operations, policies or practices. Furthermore, on April 20, 2020, Mr. Zalmi Duchman, the Chief Executive Officer of Home Bistro, Michael Finkelstein and Michael Novielli were appointed as directors of the Company. In addition, Mr. Duchman was appointed Chief Executive Officer.

Zalmi Duchman, 39, has been the Company’s Chief Executive Officer and Secretary, and a member of the Board of Directors of the Company, since April 20, 2020. Mr. Duchman also has been wholly-owned subsidiary Home Bistro’s Chief Executive Officer since March 2018 and a member of the Home Bistro’s Board of Directors since March 2018. Mr. Duchman founded The Fresh Diet, Inc. in 2005 and served as its Chief Executive Officer until July 2013 and its Chairman of the Board from July 2013 until its August 2014 acquisition. Mr. Duchman and The Fresh Diet, Inc. have earned numerous prestigious accolades over the years, including making the Inc. 500 list consecutively in 2010, 2011 and 2012, the Forbes Top 20 Most Promising U.S. Companies List in 2011 and 2012, as well as being an Ernst & Young Entrepreneur of the Year nominee in both 2009 and 2011. The Miami Herald named Duchman as one of Miami’s leading “20 under 40”. Mr. Duchman is well qualified to serve as the Chief Executive Officer due to his extensive experience in the management and operation of companies in the Company’s industry, and his previous leadership experience as an entrepreneur, chairman and chief executive officer.

Michael Finkelstein, 65, has been a member of Board of Directors of the Company since April 20, 2020. From 2013 to present, Mr. Finkelstein has consulted with family offices in New York City and Europe as a reorganization and problem-solving specialist and has founded and run a high quality catering business. From 2003 to 2013, Michael co-founded a “pipe fund” with a U.S. partner which grew at its peak into a $100 million dollar entity and was liquidated in 2013. His public accounting, financial and taxation experience is primarily derived from his time at Arthur Andersen & Co. where he rose to the high level of income tax manager. Mr. Finkelstein became one of Canada’s top producing investment advisors after departing public accounting and was a multiple award winner at his firm in the investment services business. Michael is a graduate of McGill University with a Major in Economics. Michael received his diploma in public accounting after his B.A. at McGill and successfully completed the chartered accountancy exams in Canada. Mr. Finkelstein is well qualified to serve as a member of the Board of Directors of the Company due to his extensive experience in the financial and accounting industries.

Michael Novielli, 55, has been a member of the Company’s Board of Directors since April 20, 2020. Since January 2020, Mr. Novielli has been a Managing Partner of Hudson View Capital Management, a corporate advisory and investment firm. From 1996 to 2019, he was a Managing Partner of Dutchess Capital which invested in over 200 growth-stage companies, with a total transaction value exceeding $1 billion. Mr. Novielli was a member of the firm’s investment committee and also served on the board of directors of the firm’s portfolio companies. He helped engineer the firm’s expansion into Europe, Asia, Australia and Latin America and also led the firm’s private to public strategy, as well as restructurings and workouts of its distressed portfolio, which included corporate divestitures, asset sales, ABCs and bankruptcy. Mr. Novielli has over 30 years’ experience in asset management, corporate finance, advisory and investment banking. He began his investment career with PaineWebber (now UBS), and held previous positions in corporate accounting and finance with PHH Corp., a Fortune 100 company. Mr. Novielli graduated with a BS in Business from the University of South Florida and completed post-graduate Business studies at Colorado State University. Mr. Novielli is well qualified to serve as a member of the Board of Directors of the Company due to his extensive financial and investment experience.

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

On April 7, 2020, the Company filed an amendment to its articles of incorporation (the “Amendment”) with the Secretary of State of the State of Nevada to increase its authorized number of shares of Common Stock to 1,000,000,000 shares of Common Stock and created 20,000,000 shares of blank check preferred stock which may be issued by the Company from time to time.

A copy of Amendment is filed hereto as Exhibit 3.2 and is incorporated into Item 5.03 of this Current Report on Form 8-K by reference.

Item 7.01 Regulation FD Disclosure.

On April 21, 2020, the Company issued a press release announcing the completion of the Merger. A copy of the press release is furnished herewith under the Securities Exchange Act of 1934, as amended, as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Financial Statement and Exhibits.

(a) Financial statements of businesses acquired.

The audited financial statements of Home Bistro as of December 31, 2018, and the notes to the audited financial statements, are filed as Exhibit 99.2 hereto, and are hereby incorporated by reference into Item 9.01 of this Current Report on Form 8-K.

The unaudited financial statement of Home Bistro for the nine-month period ending September 30, 2019, and the notes to the unaudited financial statements, are filed as Exhibit 99.3 hereto, and are hereby incorporated by reference into Item 9.01 of this Current Report on Form 8-K.

(b) Pro forma financial information.

To the extent unaudited pro forma financial information is required to be filed under Item 9.01(b), it will be filed by an amendment to this Current Report on Form 8-K no later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.


Exhibit No.		Description

2.1*		Agreement and Plan of Merger, dated April 20, 2020, by and among Gratitude Health, Inc., Fresh Market Merger Sub, Inc. and Home Bistro, Inc.
3.1 3.2 10.1 10.2 10.3 10.4 99.1 99.2 99.3		Certificate of Merger merging Fresh Market Merger Sub, Inc. with and into Home Bistro, Inc. Certificate of Amendment to Articles of Incorporation, dated April 7, 2020. Form of Exchange Agreement. Form of Warrant. Form of Lock-Up and Leak-Out Agreement. Put Option Agreement, dated April 20, 2020, between the Company and the stockholder named therein. Press Release dated April 20, 2020, titled “Gratitude Health, Inc. Acquires Direct-to-Consumer Prepared Meal Provider “Home Bistro, Inc.”” Audited Financial Statements of Home Bistro, Inc. for the year ended December 31, 2018 and related notes. Unaudited Financial Statements of Home Bistro, Inc. for the nine months ending September 30, 2019 and September 30, 2018 and related notes.

*	The schedules and exhibits to the Merger Agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or exhibit will be furnished to the SEC upon request.

SIGNATURES

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

	GRATITUDE HEALTH, INC.

	By: /S/ Zalmi Duchman
Date: April 22, 2020	Name: Zalmi Duchman Title: Chief Executive Officer

Gratitude Health, Inc. 8-K

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

Gratitude Health, Inc.,

Fresh Market Merger Sub, Inc.

and

Home Bistro, Inc.

Dated as of April 20, 2020

THIS AGREEMENT AND PLAN OF MERGER, dated as of April 20, 2020 (this “Agreement”), by and among Gratitude Health, Inc., a Nevada corporation (the “Company”), Fresh Market Merger Sub, Inc., Delaware corporation and a wholly owned subsidiary of the Company (“Merger Sub”), and Home Bistro, Inc., a Delaware corporation (“Home Bistro”).

WHEREAS, the respective Boards of Directors of the Company, Merger Sub and Home Bistro have approved and declared advisable the merger of Merger Sub with and into Home Bistro (the “Merger”) upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “DGCL”);

WHEREAS, the respective Boards of Directors of the Company and Home Bistro have determined that the Merger is in furtherance of and consistent with their respective business strategies and is in the best interest of their respective stockholders, and the Company has approved this Agreement and the Merger as the sole stockholder of Merger Sub;

WHEREAS, for federal income tax purposes, the Company, Merger Sub and Home Bistro intend that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”);

WHEREAS, immediately after the Effective Time, Home Bistro shall be renamed Fresh Diet, Inc. and the Company shall be renamed Home Bistro, Inc.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

THE MERGER

Section 1.1 The Merger. Upon the terms and subject to satisfaction or waiver of the conditions set forth in this Agreement, and in accordance with the DGCL, Merger Sub, at the Effective Time, shall be merged with and into Home Bistro. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and Home Bistro shall continue as the surviving corporation of the Merger (the “Surviving Corporation”) and shall be a wholly owned subsidiary of the Company.

Section 1.2 Closing. The closing of the Merger (the “Closing”) shall take place on such date as mutually determined by the parties hereto after the satisfaction or waiver of the conditions (excluding conditions that, by their nature, cannot be satisfied until the Closing Date) set forth in Article VI, unless this Agreement has been theretofore terminated pursuant to its terms (the actual date of the Closing being referred to herein as the “Closing Date”). The Closing shall be held at the place previously agreed to in writing by the parties. At the Closing, the parties hereto shall cause the Merger to be consummated by filing a certificate of merger relating to the Merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware, in such form as required by, and executed in accordance with the relevant provisions of, the DGCL (the date and time of such filing, or if another date and time is specified in such filing, such specified date and time, being the “Effective Time”).

Section 1.3 Effect of the Merger. At the Effective Time, the effect of the Merger shall be as provided in the Certificate of Merger, this Agreement and the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided herein, all the property, rights, privileges, powers and franchises of Home Bistro and Merger Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of Home Bistro and Merger Sub shall become the debts, liabilities and duties of the Surviving Corporation.

Section 1.4 Certificate of Incorporation; By-laws. At the Effective Time, (i) the Certificate of Incorporation, as amended, of the Surviving Corporation shall be its Certificate of Incorporation and (ii) the By-laws of the Surviving Corporation shall be its By-laws, in each case until thereafter changed or amended as provided therein or applicable federal, state, national, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental body or authority (“Law”).

Section 1.5 Directors and Officers of Surviving Corporation. At the Effective Time, the initial directors of the Surviving Corporation shall be the persons designated on Exhibit A hereto, each to hold office in accordance with the Certificate of Incorporation and By-laws of the Surviving Corporation. The initial officers of the Surviving Corporation shall be the persons designated on Exhibit A hereto, each to hold office in accordance with the Certificate of Incorporation and By-laws of the Surviving Corporation.

Section 1.6 Directors; Officers; Change of Company Name. The parties will take all action necessary such that as of the Effective Time (x) the Board of Directors of the Company shall consist of the three (3) members set forth on Exhibit A hereto, of whom three (3) out of three (3) directors have been designated by the parties and (y) the officers of the Company shall consist of the officers set forth on Exhibit A hereto. The parties shall take such action as is necessary to structure the Board of Directors of the Company to satisfy applicable stock exchange and corporate governance requirements. Immediately after the Effective Time, the Company shall take, or cause to be taken, all action necessary to amend the Company Certificate (as defined) such that the Company shall be renamed Home Bistro, Inc. (the “Name Change”).

ARTICLE II

EXCHANGE AND CONVERSION OF SECURITIES; REVERSE SPLIT; SERIES XX CONVERSION; AMENDMENTS

Section 2.1 Exchange and Conversion of Securities. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Merger Sub, Home Bistro or the holders of any of the following securities:

(a) Exchange of Home Bistro Common Stock for Company Common Stock. Each share of common stock, par value $0.001 per share, of Home Bistro (“Home Bistro Common Stock”) issued and outstanding immediately prior to the Effective Time, shall be automatically converted into a right to receive a number of shares of Common Stock of the Company (“Company Common Stock”) equal to fifteen thousand one hundred and point three to one (15,100.3 to 1) (the “Exchange Ratio”). At the Effective Time, all such shares of Home Bistro Common Stock shall be tendered to Merger Sub and any shares held in treasury shall be cancelled for no further consideration.

(b) Merger Sub. Each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and be exchanged for one newly and validly issued, fully paid and nonassessable share of common stock of the Surviving Corporation. Each stock certificate of Merger Sub evidencing ownership of any such shares shall, as of the Effective Time, evidence ownership of such shares of common stock of the Surviving Corporation.

Section 2.2 The Company’s Articles of Incorporation; Company Articles. The Company understands that the authorized capital stock shall consist of 1,000,000,000 shares of Company Common Stock, par value $0.001 per share, and 20,000,000 shares of blank check preferred stock, par value $0.001 per share (the “Company Preferred Stock”).

Section 2.3 Appraisal Rights. Notwithstanding anything in this Agreement to the contrary, shares of Home Bistro Common Stock and Home Bistro Preferred Stock outstanding immediately prior to the Effective Time and held by a stockholder who has not voted in favor of the Merger or consented thereto in writing and who has properly demanded appraisal for such shares in accordance with the DGCL, shall not be converted into a right to receive shares of Company Common Stock and instead shall be entitled to receive payment of the appraised value of such shares of Home Bistro Common Stock and Home Bistro Preferred Stock held by them in accordance with the DGCL unless such stockholder fails to effectively perfect or withdraws or otherwise loses such stockholder’s right to appraisal. If, after the Effective Time such stockholder fails to perfect or withdraws or loses such stockholder’s right to appraisal, such shares of Home Bistro Common Stock or Home Bistro Preferred Stock shall be treated as if they had been converted as of the Effective Time into the right to receive such consideration. Home Bistro shall give the Company prompt notice of any demands received by Home Bistro for appraisal of shares of Home Bistro Common Stock. Home Bistro shall not settle, make any payments with respect to, or offer to settle, any claim with respect to dissenting shares without the consent of the Company.

Home Bistro shall give Company prompt written notice of any demands by dissenting stockholders received by Home Bistro, withdrawals of such demands and any other instruments served on Home Bistro and any material correspondence received by Home Bistro in connection with such demands, and Company shall have the right to direct all negotiations and proceedings with respect to such demands; provided that Home Bistro shall have the right to participate in such negotiations and proceedings. Home Bistro shall not, except with Company’s prior written consent, voluntarily make any payment with respect to, or settle or offer to settle, any such demands, or approve any withdrawal of any such demands or agree to do any of the foregoing.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND MERGER SUB

Except as set forth in the Disclosure Schedule which identifies exceptions by specific section references delivered by the Company and Merger Sub to Home Bistro prior to the execution of this Agreement (the “Company Disclosure Schedule”), the Company and Merger Sub hereby jointly and severally represent and warrant to Home Bistro as follows:

Section 3.1 Organization and Qualification; Subsidiaries. Each of the Company and Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada and the State of Delaware, respectively. The Company and Merger Sub each do not own any capital stock of, or any equity, ownership or profit sharing interest of any nature in, or controls directly or indirectly, any other entity other than Company’s ownership of Merger Sub and Gratitude Health, Inc., a Florida corporation. The Company and Merger Sub each is not nor has it otherwise been, directly or indirectly, a party to, member of or participant in any partnership, joint venture or similar business entity. Each of the Company and Merger Sub has not agreed nor is it obligated to make, or is bound by any agreements, contract or similar documents under which it may become obligated to make, any future investment in or capital contribution to any other entity. Each of the Company and Merger Sub has the requisite power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted. Each of the Company and Merger Sub is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that would not, individually or in the aggregate, have a material adverse effect. The Company does have any subsidiaries other than Merger Sub.

Section 3.2 Certificate of Incorporation and By-laws; Corporate Books and Records. The copies of the Company’s Restated Certificate of Incorporation (the “Company Certificate”) and Amended and Restated By-laws (the “Company By-laws”) provided to Home Bistro are complete and correct copies thereof as in effect on the date hereof. Neither the Company nor Merger Sub is in violation of any of the provisions of the Company or Merger Sub’s Certificate or the Company or Merger Sub’s By-laws. True and complete copies of all minute books of the Company have been made available by the Company to Home Bistro.

Section 3.3 Capitalization

(a) As of the Effective Time, (A)17,082,065 shares of Company Common Stock (other than treasury shares) will be issued and outstanding, all of which shall be validly issued and fully paid, nonassessable and free of preemptive rights, and (B) 982,917,95shares of Company Common Stock will be held in the treasury of the Company.

(b) Other than as disclosed in Schedule 3.3 to the Company Disclosure Schedule attached, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound relating to the issued or unissued capital stock or other equity interests of the Company or any of its subsidiaries, or securities convertible into or exchangeable for such capital stock or other equity interests, or obligating the Company or any of its subsidiaries to issue or sell any shares of its capital stock or other equity interests, or securities convertible into or exchangeable for such capital stock of, or other equity interests in, the Company or any of its subsidiaries.

(c) Other than as disclosed in Schedule 3.3 to the Company Disclosure Schedule attached, there are no outstanding contractual obligations of the Company or Merger Sub (A) restricting the transfer of, (B) affecting the voting rights of, (C) requiring the repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (D) requiring the registration for sale of, or (E) granting any preemptive or antidilutive right with respect to, any shares of Company Common Stock, Company Preferred Stock, or any capital stock of, or other equity interests in, the Company or Merger Sub. Each outstanding share of capital stock of Merger Sub is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and is owned, beneficially and of record, by the Company or another of its subsidiaries, free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on the Company’s or such other of its subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever (“Encumbrances”). There are no outstanding contractual obligations of the Company or Merger Sub to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any of its subsidiaries or any other person, other than guarantees by the Company of any indebtedness or other obligations of Merger Sub.

(d) Other than as disclosed in Schedule 3.3 to the Company Disclosure Schedule attached, the Company does not have outstanding any bonds, debentures, notes, or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of the Company on any matter. The Company has not adopted a stockholder rights plan.

Section 3.4 Authority.

(a) Each of the Company and Merger Sub has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by the Company and Merger Sub and the consummation by the Company and Merger Sub of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company or Merger Sub and no stockholder votes are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly authorized and validly executed and delivered by each of the Company and Merger Sub and constitutes a legal, valid and binding obligation of each of the Company and Merger Sub, enforceable against each of the Company and Merger Sub in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(b) The Board of Directors of the Company (the “Company Board”), by resolutions duly adopted by unanimous vote by unanimous written consent and not subsequently rescinded or modified in any way (the “Company Board Approval”), has duly (i) determined that this Agreement and the transactions contemplated hereby (including the Merger) are advisable and fair to and in the best interests of the Company and its stockholders, and (ii) approved and adopted this Agreement, and the transactions contemplated hereby (including the Merger). The Company Board Approval constitutes approval of this Agreement and the Merger as required under any applicable state takeover Law and no such state takeover Law is applicable to the Merger or the other transactions contemplated hereby, including, without limitation, the restrictions on business combinations contained in Section 203 of the DGCL.

(c) Merger Sub’s Board of Directors, by unanimous written consent, has (i) determined that this Agreement and the transactions contemplated hereby (including the Merger) are advisable and fair to and in the best interests of the Company, as Merger Sub’s sole stockholder, (ii) approved and adopted this Agreement and the transactions contemplated hereby (including the Merger), and (iii) recommended that the Company approve and adopt this Agreement and the transactions contemplated hereby (including the Merger).

Section 3.5 No Conflict; Required Filings and Consents.

(a) The execution and delivery of this Agreement by each of the Company and Merger Sub does not, and the performance of this Agreement by each of the Company and Merger Sub will not, (A) contravene, conflict with or result in a violation of any provision of the Company Certificate or Company By-laws or any equivalent organizational documents of any of its Subsidiaries (including Merger Sub), (B) (assuming that all consents, approvals, authorizations and permits described in Section 3.5(b) have been obtained and all filings and notifications described in Section 3.5(b) have been made and any waiting periods thereunder have terminated or expired) conflict with or violate any Law applicable to the Company or any of its subsidiaries or any order, writ, injunction, judgment or decree to which the Company or Merger Sub, or any of the property or asset of the Company or Merger Sub is subject, bound or affected or (C) require any consent or approval under, result in any breach of or any loss of any benefit under, constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or asset of the Company of Merger Sub pursuant to, any contract or other instrument or obligation, except, with respect to clauses (B) and (C), for any such conflicts, violations, consents, approvals, breaches, losses, defaults or other occurrences which would not, individually or in the aggregate, have a material adverse effect. The execution and delivery of this Agreement by each of the Company and Merger Sub does not, and the performance of this Agreement by each of the Company and Merger Sub will not, contravene, conflict with or result in a violation of any of the terms or requirements of, or give any (a) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (b) federal, state, local, municipal, foreign or other government; (c) governmental or quasi-governmental authority of any nature (including any governmental division, department, agency, commission, bureau, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or entity and any court or other tribunal, and for the avoidance of doubt, any taxing authority); or (d) self-regulatory organization (including Nasdaq) (a “Governmental Body”) the right to revoke, withdraw, suspend, cancel, terminate or modify, any authorization that is held by the Company or Merger Sub, except as would not reasonably be expected to be material to the Company or Merger Sub or their respective business.

(b) The execution and delivery of this Agreement by each of the Company and Merger Sub does not, and the performance of this Agreement by each of the Company and Merger Sub will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity or any other person, except (A) under the Exchange Act, the Securities Act, applicable Blue Sky Law and the filing and recordation of the Certificate of Merger as required by the DGCL and (B) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, have a material adverse effect.

(c) The execution and delivery of this Agreement by each of the Company and Merger Sub does not, and the performance of this Agreement by the Company and Merger Sub, does not contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any material agreement, contract, subcontract, lease (whether for real or personal property), mortgage, license, sublicense or other legally binding commitment or undertaking of any nature to which such person is a party or by which such person or any of its assets are bound or affected under applicable Law agreements, document or contract (“Material Contract”), or give any person the right to: (i) declare a default or exercise any remedy under any Company or Merger Sub Material Contract; (ii) any material payment, rebate, chargeback, penalty or change in delivery schedule under any Company or Merger Sub Material Contract; (iii) accelerate the maturity or performance of any Company or Merger Sub Material Contract; or (iv) cancel, terminate or modify any term of any Company or Merger Sub Material Contract, except in the case of any non-material breach, default, penalty or modification.

(d) The execution and delivery of this Agreement by each of the Company and Merger Sub does not, and the performance of this Agreement by the Company and Merger Sub shall not result in the imposition or creation of any lien, pledge, hypothecation, charge, mortgage, security interest, lease, license, option, easement, reservation, servitude, adverse title, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction or encumbrance of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset (“Encumbrance”) upon or with respect to any asset owned or used by the Company or Merger Sub.

(e) Except for the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL and the Preferred Stock and holders of notes, the Company or Merger Sub is not nor will it be required to make any filing with or give any notice to, or to obtain any consent from, any person in connection with (x) the execution, delivery or performance of this Agreement, or (y) the consummation of the contemplated transactions, which if individually or in the aggregate were not given or obtained, would reasonably be expected to prevent or materially delay the ability of the Company or Merger Sub to consummate the contemplated transactions.

Section 3.6 Ownership of Merger Sub; No Prior Activities. Merger Sub is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Merger Sub is a direct wholly-owned subsidiary of the Company. Merger Sub has not conducted any activities other than in connection with the organization of Merger Sub, the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby. Merger Sub has no Subsidiaries.

Section 3.7 Financials.

(a) The consolidated financial statements of the Company as of the period ending December 31, 2017, audited through December 31, 2018 (including the notes thereto) provided by the Company to Home Bistro (the “Company Financial Statements”) were prepared in accordance with GAAP applied (except as may be indicated in the notes thereto) on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and present fairly the consolidated financial position, results of operations and cash flows of the Company and the consolidated subsidiaries of the Company as of the respective dates thereof and for the respective periods indicated therein. The books and records of the Company and each of its subsidiaries have been, and are being, maintained in accordance with applicable material legal and accounting requirements.

(b) Except as and to the extent set forth on the consolidated balance sheet of the Company and its consolidated subsidiaries included in the Company’s Financial Statements or as otherwise disclosed on Schedule 3.7 of the Company Disclosure Schedules, none of the Company, Merger Sub or any of its consolidated subsidiaries has any liabilities, indebtedness, or expense of any kind, whether accrued, absolute, contingent, matured or unmatured (whether or not required to be reflected in the financial statements in accordance with GAAP) or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be reflected on a balance sheet or in notes thereto prepared in accordance with GAAP, except for normal year-end adjustments and liabilities or obligations incurred in the ordinary course of business that would not, individually or in the aggregate, have a material adverse effect.

(c) Each of the Company and Merger Sub maintains accurate books and records reflecting their assets and liabilities. The Company has a material weakness in its internal controls as reported in its filings with the Securities and Exchange Commission (the “SEC”).

(d) There have been no formal internal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer or chief financial officer or the Company Board of Directors or any committee thereof. Neither the Company nor its independent auditors have identified (i) any fraud, whether or not material, that involves the Company, its management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by the Company or (ii) any claim or allegation regarding any of the foregoing.

(e) Between the date of the Company’s latest unaudited Balance Sheet and the date of this Agreement, the Company has conducted its business only in the ordinary course of business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and there has not been any change, event, circumstance, or development that would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of the Company (a “Company Material Adverse Effect”). The Company and Merger Sub do not have any knowledge of any Company Material Adverse Effect regarding the preparation and completion of the audit being conducted on the Company’s Financial Statements for the fiscal year ended December 31, 2019.

Section 3.8 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Merger based upon arrangements made by or on behalf of the Company or Merger Sub.

Section 3.9 Tax Treatment. Neither the Company nor Merger Sub, has taken or agreed to take any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. Neither the Company nor Merger Sub is aware of any agreement, plan or other circumstance that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

Section 3.10 Litigation. Except as and to the extent disclosed in Schedule 3.10 of the Company Disclosure Schedule, (a) there is no suit, claim, action, proceeding or investigation pending or, to the knowledge of the Company or Merger Sub, threatened in writing against the Company or Merger Sub (b) each of the Company and Merger Sub is not subject to any outstanding and unsatisfied order, writ, injunction, decree or arbitration ruling, award or other finding. There is no suit, claim, action, proceeding or investigation pending or, to the knowledge of the Company or Merger Sub, threatened in writing against the Company or Merger Sub that, as of the date hereof, challenges the validity or propriety, or seeks to prevent consummation of, the Merger or any other transaction contemplated by this Agreement.

Section 3.11 Vote Required. The affirmative vote of the holders of a majority of the outstanding shares of Merger Sub Common Stock are the only votes of the holders of any class or series of capital stock or other equity securities of the Company or Merger Sub necessary to approve this Agreement and the transactions contemplated hereby, including the Merger (the “Merger Sub Stockholder Approval”).

Section 3.12 Taxes.

(a) Except as set forth on Schedule 3.12 of the Company Disclosure Schedule, each of the Company and Merger Sub has prepared and timely filed all material tax returns required to be filed relating to any and all taxes concerning or attributable to the Company and Merger Sub and their respective operations other than taxes being disputed, and such tax returns have been completed in accordance with applicable legal requirements in all material respects. Each of the Company and Merger Sub has paid or withheld all taxes required to be paid or withheld with respect to their Employees and have paid over to the appropriate Taxing authority all such taxes. Each of the Company and Merger Sub has executed any outstanding waiver of any statute of limitations on or outstanding extension of the period for the assessment or collection of any Tax.

(b) Except as set forth on Schedule 3.12 of the Company Disclosure Schedule, no audit or other examination of any tax return of the Company or Merger Sub is presently in progress, nor has the Company or Merger Sub been notified in writing of any request for such an audit or other examination.

(c) Except as set forth on Schedule 3.12 of the Company Disclosure Schedule, each of the Company and Merger Sub has no liabilities for unpaid taxes which have not been accrued or reserved on the Company Balance Sheet in accordance with GAAP, and the Company and Merger Sub has not incurred any liability for taxes since the date of the Company Balance Sheet other than in the ordinary course of business. There are no liens on the assets of the Company or Merger Sub relating to or attributable to taxes.

(d) The Company has not been, during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States Real Property Holding Company” within the meaning of Section 897(c)(2) of the Code. The Company (i) has never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return, (ii) owes no amount under any tax sharing, indemnification or allocation agreement, (iii) has any liability for the taxes of any person (other than the Company) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign legal requirements), as a transferee or successor, by contract, or otherwise. Each of the Company or Merger Sub has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.

(e) There is no agreement, plan, arrangement or other contract covering any current or former employee or other service provider of the Company or Merger Sub to which the Company or Merger Sub is a party or by which the Company or Merger Sub is bound that, considered individually or considered collectively with any other such agreements, plans, arrangements or other contracts, will, or could be expected to, as a result of the transactions contemplated hereby, give rise directly or indirectly to the payment of any amount that would be characterized as an “parachute payment” within the meaning of Section 280G of the Code (or any corresponding or similar provision of state, local or foreign tax law). No employee, director, consultant or other service provider of the Company or Merger Sub is entitled to receive any additional gross up payment from the Company by reason of any taxes imposed by Section 4999 of the Code.

(f) There is no contract of the Company or Merger Sub covering any of its employees that, considered individually or considered collectively with any other such contract of the Company or Merger Sub, will, or would reasonably be expected to, as a result of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or subsequent events), give rise directly or indirectly to the payment of any amount that could reasonably be expected to be non-deductible under Section 162(m) of the Code (or any corresponding or similar provision of state, local or foreign Tax Legal Requirements).

Section 3.13 Compliance. Each of the Company and Merger Sub is not in any material respect in conflict with, or in default or in violation of, any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental entity applicable to the Company or Merger Sub or by which the Company or Merger Sub or any of their respective businesses or properties is bound or affected, including, any laws, rules or regulations relating to anticompetitive or unfair pricing or trade practices, false advertising, consumer protection, export or import controls, government contracting, anti-kickback compliance, occupational health and safety, equal employment opportunities, fair employment practices, and sex, race, religious and age discrimination. There is no judgment, injunction, order or decree binding upon the Company or Merger Sub which has or would reasonably be expected to have the effect of prohibiting or materially impairing the Company’s Merger Sub’s business or the parties’ ability to consummate the transactions contemplated herein. Each of the Company and Merger Sub hold all required governmental authorizations which are material to the operation of the business of the Company or Merger Sub as currently conducted (collectively, the “Company Permits”). Schedule 3.13 of the Company Disclosure Schedule identifies each Company Permit. Each of the Company and Merger Sub is in material compliance with the terms of the Company Permits. No Legal Proceeding is pending or, to the knowledge of the Company or Merger Sub threatened, which seeks to revoke, limit, suspend, or materially modify any Company Permit. The rights and benefits of each Company Permit will be available to the Company, immediately after the Effective Time on terms substantially identical to those enjoyed by the Company as of the date of this Agreement and immediately prior to the Effective Time.

Section 3.14 Employee Plans.

(a) The Company has not maintained, established, sponsored, participated in, or contributed to any material plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written or unwritten or otherwise, funded or unfunded (herein, the “Company Employee Plan”), including without limitation, each “employee benefit plan,” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). Except as set forth in Schedule 3.14 to the Company Disclosure Schedule, the Company is not a party, and never has been a party, to any employment, severance, consulting, relocation, or other agreement or contract under which the Company has a current material obligation (herein, “Company Employee Agreement”). The Company has no commitment to establish any new Company Employee Plan or Company Employee Agreement, to materially modify any Company Employee Plan or Company Employee Agreement (except to the extent required by applicable legal requirements), or to adopt or enter into any Company Employee Plan or Company Employee Agreement.

(b) The Company has never maintained, established, sponsored, participated in, or contributed to, any (i) Pension Plan which is subject to Title IV of ERISA or Section 412 of the Code; (ii) Multiemployer Plan; (iii) “multiple employer plan” as defined in ERISA or the Code; or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code. No Company Employee Plan provides health benefits that are not fully insured through an insurance contract.

(c) Neither the Company nor Merger Sub is in conflict with, or in default under or in violation of, any applicable foreign, federal, state and local laws, regulations, or collective bargaining agreements or arrangements respecting employment, employment practices, terms and conditions of employment, Tax withholding, prohibited discrimination, equal employment, fair employment practices, immigration status, employee safety and health, and wages and hours, except for those conflicts, defaults or violations that, individually or in the aggregate, would not, individually or in the aggregate, have a material adverse effect.

(d) Each of the Company and Merger Sub is not a party to any collective bargaining agreement or union contract with respect to the Company employees and no collective bargaining agreement is being negotiated by the Company or Merger Sub. There is no labor dispute, strike or work stoppage against the Company pending or, to the knowledge of the Company, threatened or reasonably anticipated. As of the date hereof, there are no actions, suits, claims, or proceedings pending, or, to the knowledge of the Company, threatened against the Company, relating to any labor, safety or discrimination matters involving any the Company employee, including, without limitation, charges of material unfair labor practices or discrimination complaints.

Section 3.15 Real Property.

The Company does not currently own, or has ever owned, any real property.

Section 3.16 Takeover Statutes.

The Board of Directors of the Company has approved this Agreement and the transactions contemplated hereby as required to render inapplicable to such agreements and transactions any takeover statutes pursuant to the Nevada Revised Statutes, to the extent applicable. To the knowledge of the Company, no other state takeover or similar statute or regulation (each, a “Takeover Statute”) is applicable to the Merger or the other transactions contemplated by this Agreement.

Section 3.17 Intellectual Property.

(a) The Company owns, or has the legal and valid right to use, as currently being used by the Company, all intellectual property owned by, licensed to, or controlled by the Company that is necessary for or used in the business of the Company as presently conducted (“Company IP Rights”), and with respect to Company IP Rights that are owned by the Company, has the right to bring actions for the infringement of such Company IP Rights.

(b) Schedule 3.17 of the Company Disclosure Schedule sets forth an accurate, true and complete listing of all Company IP Rights that are owned by the Company that are registered, filed or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights, and registered trademarks (including domain names) and all applications for any of the foregoing and to the knowledge of the Company, all Company Rights that are exclusively licensed to the Company that are registered, filed or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights, and registered trademarks (including domain names) and all applications for any of the foregoing, and, specifying as to each such item, as applicable, the owner(s) of record (and, in the case of domain names, the registrar), jurisdiction of application and/or registration, the application and/or registration number, the date of application and/or registration, and the status of application and/or registration. To the Company’s knowledge, each item of Company IP Rights that is registered is and at all times has been filed and maintained in compliance with all applicable Law and all filings, payments, and other actions required to be made or taken to maintain such item of registration in full force and effect have been made by the applicable deadline.

(c) Schedule 3.17 of the Company Disclosure Schedule accurately identifies (i) all material Company Contracts pursuant to which the Company IP Rights are licensed to the Company (other than (A) any non-customized software that (1) is so licensed solely in executable or object code form pursuant to a non-exclusive, internal use software license and other intellectual property associated with such software and (2) is not incorporated into, or material to the development, manufacturing, or distribution of, any of the Home Bistro products or services, (B) any intellectual property licensed ancillary to the purchase or use of equipment, reagents or other materials and (C) any confidential information provided under confidentiality agreements), and (ii) whether the license or licenses granted to Home Bistro are exclusive or non-exclusive. Schedule 3.17 of the Company Disclosure Schedule accurately identifies each material the Company Contract pursuant to which the Company has granted any license under, or any right (whether or not currently exercisable) or interest in, any the Company IP Rights to any person. There is no current or pending action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel (a “Legal Proceeding”) (including, but not limited to, opposition, interference, inter parties review, or other proceeding in any patent or other government office) contesting the validity, ownership or right to use, sell, license or dispose of any the Company IP Rights or products or technologies, nor has the Company received any written notice asserting or suggesting that any such the Company IP Rights, or the Company’s right to use, sell, license or dispose of any such the Company IP Rights or products or technologies conflicts with or infringes or misappropriates or will conflict with or infringe or misappropriate the rights of any other person. Each Person who is or was an employee or contractor of the Company and who is or was involved in the creation or development of any material the Company IP Rights has signed a valid, enforceable agreement containing an assignment of such intellectual property to the Company and confidentiality provisions protecting confidential information of the Company. No current or former stockholder, officer, director, or employee of Company has any claim, right (whether or not currently exercisable), or interest to or in any the Company IP Rights purported to be owned by the Company. To the Knowledge of the Company, no employee of the Company or any or any of its Subsidiaries is (a) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for the Company or (b) in breach of any Contract with any former employer or other person concerning the Company IP Rights purported to be owned by the Company or confidentiality provisions protecting trade secrets and confidential information comprising the Company IP Rights purported to be owned by the Company.

Section 3.18 Assets.

The Company owns, and has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all assets reflected on the Company Unaudited Balance Sheet; and (b) all other assets reflected in the books and records of the Company as being owned by the Company. All of such assets are owned or, in the case of leased assets, leased by the Company free and clear of any Encumbrances.

Section 3.19 Contracts and Agreements.

(a) Schedule 3.19 of the Company Disclosure Schedule identifies each of the material the Company Contract in effect as of the date of this Agreement (each, a “Company Material Contract”and collectively, the “Company Material Contracts”):

(i) each the Company Contract relating to any agreement of indemnification or guaranty not entered into in the ordinary course of business;

(ii) each Company Contract containing (A) any covenant limiting the freedom of the Company or the Surviving Corporation to engage in any line of business or compete with any person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision;

(iii) each Company Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;

(iv) each Company Contract relating to the disposition or acquisition of material assets or any ownership interest in any entity;

(v) each Company Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of Company or any loans or debt obligations with officers or directors of Company;

(vi) each Company Contract requiring payment by or to Company after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of the Company; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which the Company has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which the Company has continuing obligations to develop any intellectual property that will not be owned, in whole or in part, by the Company; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of the Company or any Contract to sell, distribute or commercialize any products or service of the Company;

(vii) each Company Contract with any person, including any financial advisor, broker, finder, investment banker or other person, providing advisory services to Home Bistro in connection with the contemplated transactions;

(viii) each Company real estate lease;

(ix) each Company Contract with any Governmental Body;

(x) each Company IP Rights Agreement;

(xi) each Company Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of Company; or

(xii) any other Company Contract that is not terminable at will (with no penalty or payment) by Company, and (A) which involves payment or receipt by Company after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $100,000 in the aggregate, or (B) that is material to the business or operations of the Company.

(b) The Company has delivered or made available to Home Bistro accurate and complete copies of all the Company Material Contracts, including all amendments thereto. Except as set forth in Schedule 3.19 of the Company Disclosure Schedule, there are no Company Material Contracts that are not in written form. Neither the Company, nor to the Company’s knowledge, as of the date of this Agreement has any other party to a Company Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Company Material Contract in such manner as would permit any other party to cancel or terminate any such Company Material Contract, or would permit any other party to seek damages which would reasonably be expected to be material to the Company or its business. As to the Company, as of the date of this Agreement, each Company Material Contract is valid, binding, enforceable and in full force and effect. No person is renegotiating, or has a right pursuant to the terms of any Company Material Contract to change, any material amount paid or payable to Company under any Company Material Contract or any other material term or provision of any Company Material Contract.

Section 3.20 Environmental Matters.

The Company has complied with all applicable federal, state, local or foreign Law relating to pollution or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including any Law or regulation relating to emissions, discharges, releases or threatened releases of hazardous materials, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of hazardous material (“Environmental Laws”), which compliance includes the possession by the Company of all permits and other governmental authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for any failure to be in such compliance that, either individually or in the aggregate, would not reasonably be expected to be material to the Company or its business. The Company has not received, any written notice or other communication (in writing or otherwise), whether from a Governmental Body or other person, that alleges that the Company is not in compliance with or has liability pursuant to any Environmental Law and, to the knowledge of the Company, there are no circumstances that would reasonably be expected to prevent or interfere with the Home Bistro’s or any of its Subsidiaries’ compliance in any material respects with any Environmental Law, except where such failure to comply would not reasonably be expected to be material to the Company or its business. No current or (during the time a prior property was leased or controlled by the Company) prior property leased or controlled by the Company has had a release of or exposure to hazardous materials in material violation of or as would reasonably be expected to result in any material liability of the Company pursuant to Environmental Law. No consent, approval or governmental authorization of or registration or filing with any Governmental Body is required by Environmental Laws in connection with the execution and delivery of this Agreement or the contemplated transactions.

Section 3.21 Insurance.

The Company has delivered or made available to Home Bistro accurate and complete copies of all material insurance policies and all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of the Company. Each of such insurance policies is in full force and effect and the Company is in compliance in all material respects with the terms thereof. Other than customary end of policy notifications from insurance carriers, the Company has not received any notice or other communication regarding any actual or possible: (i) cancellation or invalidation of any insurance policy; or (ii) refusal or denial of any coverage, reservation of rights or rejection of any material claim under any insurance policy. The Company has provided timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding that is currently pending against the Company for which the Company has insurance coverage, and no such carrier has issued a denial of coverage or a reservation of rights with respect to any such Legal Proceeding, or informed the Company of its intent to do so.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF HOME BISTRO

Except as set forth in the Disclosure Schedule which identifies exceptions by specific section references delivered by Home Bistro to the Company prior to the execution of this Agreement (the “Home Bistro Disclosure Schedule”), Home Bistro hereby represents and warrants to the Company as follows:

Section 4.1 Organization and Qualification; Subsidiaries. Home Bistro is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Home Bistro has no subsidiaries. Home Bistro does not own any capital stock of, or any equity, ownership or profit sharing interest of any nature in, or controls directly or indirectly, any other entity. Home Bistro is not nor has it otherwise been, directly or indirectly, a party to, member of or participant in any partnership, joint venture or similar business entity. Home Bistro has not agreed nor is it obligated to make, or is bound by any agreements, contract or similar documents under which it may become obligated to make, any future investment in or capital contribution to any other entity. Home Bistro has the requisite power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted. Home Bistro is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that would not, individually or in the aggregate, have a material adverse effect.

Section 4.2 Certificate of Incorporation and By-laws; Corporate Books and Records. The copies of Home Bistro’s Certificate of Incorporation (the “Home Bistro Certificate”) and By-laws (the “Home Bistro By-laws”) as provided to the Company are complete and correct copies thereof as in effect on the date hereof. Home Bistro is not in violation of any of the provisions of the Home Bistro Certificate or the Home Bistro By-laws. True and complete copies of all minute books of Home Bistro have been made available by Home Bistro to the Company.

Section 4.3 Capitalization.

(a) The authorized capital stock of Home Bistro consists of 110,000,000 shares of capital stock consisting of: (i) 100,000,000 shares of Common Stock, par value of $0.0001 per share; and (ii) 10,000,000 shares of blank check preferred stock, par value of $0.0001 per share. As of the Effective Time, 50,849 (0 shares of Home Bistro Common Stock (other than treasury shares) were issued and outstanding, all of which were validly issued and fully paid, nonassessable and free of preemptive rights, (B) no shares of Home Bistro Common Stock were held in the treasury of Home Bistro. As of the Effective Time, 0 shares of preferred stock were issued and outstanding. All capital stock or other equity securities of Home Bistro have been issued in compliance with applicable federal and state securities laws. Home Bistro does not have any subsidiaries.

(b) Except as otherwise disclosed on Section 4.3 of the Home Bistro Disclosure Schedule, as of the Effective Time, there were no options, warrants or other rights, agreements, arrangements or commitments of any character to which Home Bistro is a party or by which Home Bistro is bound relating to the issued or unissued capital stock or other equity interests of Home Bistro, or securities convertible into or exchangeable for such capital stock or other equity interests, or obligating Home Bistro to issue or sell any shares of its capital stock or other equity interests, or securities convertible into or exchangeable for such capital stock of, or other equity interests in, Home Bistro. Home Bistro has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of capital stock reserved for issuance as set forth in this Section 4.3 or Section 4.3 of the Home Bistro Disclosure Schedule. Home Bistro has previously provided the Company with a true and complete list, as of the date hereof, of the shareholders of Home Bistro.

(c) There are no outstanding contractual obligations of Home Bistro (A) restricting the transfer of, (B) affecting the voting rights of, (C) requiring the repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (D) requiring the registration for sale of, or (E) granting any preemptive or antidilutive right with respect to, any shares of Home Bistro Common Stock or any capital stock of, or other equity interests in, Home Bistro. There are no outstanding contractual obligations of Home Bistro to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any person.

(d) Home Bistro does not have outstanding any bonds, debentures, notes, or other obligations the holders of which have the right to vote (or convertible into or exercisable for securities having the right to vote) with the stockholders of Home Bistro on any matter. Home Bistro has not adopted a stockholders’ rights plan.

Section 4.4 Authority.

(a) Home Bistro has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement by Home Bistro and the consummation by Home Bistro of the transactions contemplated hereby have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of Home Bistro and no stockholder votes are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly authorized and validly executed and delivered by Home Bistro and constitutes a legal, valid and binding obligation of Home Bistro, enforceable against Home Bistro in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

(b) The Board of Directors of Home Bistro (the “Home Bistro Board”by resolutions duly adopted by unanimous written consent and not subsequently rescinded or modified in any way (the “Home Bistro Board Approval”), has duly (i) declared that this Agreement and the transactions contemplated hereby (including the Merger) are advisable and fair to, advisable and in the best interests of Home Bistro and its stockholders, and (ii) approved and adopted this Agreement and the transactions contemplated hereby (including the Merger); and (iii) the Board resolved to recommend that the stockholders of Home Bistro adopt this Agreement and vote for the approval of the Merger and directed that this Agreement and the transactions contemplated hereby be submitted for consideration by Home Bistro’s stockholders in accordance with this Agreement.

Section 4.5 No Conflict; Required Filings and Consents.

(a) The execution and delivery of this Agreement by Home Bistro does not, and the performance of this Agreement by Home Bistro will not (A) contravene, conflict with or result in a violation of any provision of the Home Bistro Certificate or Home Bistro By-laws, (B) (assuming that all consents, approvals, authorizations and permits described in Section 4.5(b) have been obtained and all filings and notifications described in Section 4.5(b) have been made and any waiting periods thereunder have terminated or expired) conflict with or violate any Law applicable to Home Bistro or any order, writ, injunction, judgment or decree to which Home Bistro, or any of the property or asset of Home Bistro is subject, bound or affected, or (C) require any consent or approval under, result in any breach of or any loss of any benefit under, constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or asset of Home Bistro pursuant to, any contract or other instrument or obligation, except, with respect to clauses (B) and (C), for any such conflicts, violations, consents, approvals, breaches, losses, defaults or other occurrences which would not, individually or in the aggregate, have a material adverse effect. The execution and delivery of this Agreement by Home Bistro does not, and the performance of this Agreement by Home Bistro will not, contravene, conflict with or result in a violation of any of the terms or requirements of, or give any Governmental Body the right to revoke, withdraw, suspend, cancel, terminate or modify, any authorization that is held by Home Bistro, except as would not reasonably be expected to be material to Home Bistro or its business.

(b) The execution and delivery of this Agreement by Home Bistro does not, and the performance of this Agreement by Home Bistro will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity or any other person, except (A) under the Exchange Act, the Securities Act, applicable Blue Sky Law and the filing and recordation of the Certificate of Merger as required by the DGCL and (B) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, have a material adverse effect.

(c) The execution and delivery of this Agreement by Home Bistro does not, and the performance of this Agreement by Home Bistro will contravene, conflict with or result in a violation or breach of, or result in a default under, any provision of any agreement, contract, subcontract, lease (whether for real or personal property), mortgage, license, sublicense or other legally binding commitment or undertaking of any nature to which such person is a party or by which such person or any of its assets are bound or affected under applicable Law agreements, document or contract (“Material Contract”), or give any person the right to: (i) declare a default or exercise any remedy under any Home Bistro Material Contract; (ii) any material payment, rebate, chargeback, penalty or change in delivery schedule under any Home Bistro Material Contract; (iii) accelerate the maturity or performance of any Home Bistro Material Contract; or (iv) cancel, terminate or modify any term of any Home Bistro Material Contract, except in the case of any non-material breach, default, penalty or modification.

(d) result in the imposition or creation of any lien, pledge, hypothecation, charge, mortgage, security interest, lease, license, option, easement, reservation, servitude, adverse title, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction or encumbrance of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset (“Encumbrance”) upon or with respect to any asset owned or used by Home Bistro.

(e) Except for the filing of the Certificate of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL, Home Bistro is not nor will it be required to make any filing with or give any notice to, or to obtain any consent from, any person in connection with (x) the execution, delivery or performance of this Agreement, or (y) the consummation of the contemplated transactions, which if individually or in the aggregate were not given or obtained, would reasonably be expected to prevent or materially delay the ability of Home Bistro to consummate the contemplated transactions.

Section 4.6 Financial Statements.

(a) Home Bistro has delivered to the Company true and complete copies of (i) the audited consolidated financial statements of Home Bistro as of the periods ending December 31, 2017 and December 31, 2018 (including the notes thereto) and unaudited consolidated balance sheets at September 30 2019, (“Unaudited Balance Sheet”) together with related unaudited consolidated statements of income, stockholders’ equity and cash flows, and notes thereto, of the Company for the nine (9) months then ended (the “Home Bistro Financial Statements”) which were prepared in accordance with GAAP applied (except as may be indicated in the notes thereto) on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and present fairly the consolidated financial position, results of operations and cash flows of Home Bistro as of the respective dates thereof and for the respective periods indicated therein. The books and records of Home Bistro have been, and are being, maintained in accordance with applicable material legal and accounting requirements.

(b) Except as and to the extent set forth on the balance sheet of Home Bistro included in the Home Bistro Financial Statements, Home Bistro has no liabilities indebtedness, or expense of any kind, whether accrued, absolute, contingent, matured or unmatured (whether or not required to be reflected in the financial statements in accordance with GAAP) or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be reflected on a balance sheet or in notes thereto prepared in accordance with GAAP, except for normal year-end adjustments and liabilities or obligations incurred in the ordinary course of business that would not, individually or in the aggregate, have a material adverse effect.

(c) Home Bistro maintains accurate books and records reflecting their assets and liabilities and maintains a system of internal accounting controls designed to provide reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of the financial statements of Home Bistro and to maintain accountability of Home Bistro’s assets; (iii) access to Home Bistro’s assets is permitted only in accordance with management’s general or specific authorization; (iv) the recorded accountability for Home Bistro’s assets is compared with the existing assets at regular intervals and appropriate action is taken with respect to any differences; and (v) accounts, notes and other receivables and inventory are recorded accurately, and proper and adequate procedures are implemented to effect the collection thereof on a current and timely basis. Home Bistro maintains internal control over financial reporting that provides reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes.

(d) There have been no formal internal investigations regarding financial reporting or accounting policies and practices discussed with, reviewed by or initiated at the direction of the chief executive officer or chief financial officer or the Home Bistro Board of Directors or any committee thereof. Neither Home Bistro nor its independent auditors have identified (i) any significant deficiency or material weakness in the design or operation of the system of internal accounting controls utilized by Home Bistro, (ii) any fraud, whether or not material, that involves Home Bistro, its management or other employees who have a role in the preparation of financial statements or the internal accounting controls utilized by Home Bistro, or (iii) any claim or allegation regarding any of the foregoing.

(e) Between the date of Home Bistro Unaudited Balance Sheet and the date of this Agreement, Home Bistro has conducted its business only in the ordinary course of business (except for the execution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and there has not been any change, event, circumstance, or development that would reasonably be expected to have a material adverse effect on the business, condition (financial or otherwise), assets, liabilities or results of operations of Home Bistro (a “Home Bistro Material Adverse Effect”).

Section 4.7 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the Merger based upon arrangements made by or on behalf of Home Bistro.

Section 4.8 Tax Treatment. Home Bistro, has not taken or agreed to take any action that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code. Home Bistro is not aware of any agreement, plan or other circumstance that would prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

Section 4.9 Litigation. Except as and to the extent disclosed in Section 4.9 of the Home Bistro Disclosure Schedule, (a) there is no suit, claim, action, proceeding or investigation pending or, to the knowledge of Home Bistro, threatened in writing against Home Bistro; and (b) Home Bistro is not subject to any outstanding and unsatisfied order, writ, injunction, decree or arbitration ruling, award or other finding. There is no suit, claim, action, proceeding or investigation pending or, to the knowledge of Home Bistro, threatened in writing against Home Bistro that, as of the date hereof, challenges the validity or propriety, or seeks to prevent consummation of, the Merger or any other transaction contemplated by this Agreement.

Section 4.10 Vote Required. The affirmative vote of the holders of a majority of the outstanding shares of Home Bistro Common Stock are the only votes of the holders of any class or series of capital stock or other equity securities of Home Bistro necessary to approve this Agreement and the transactions contemplated hereby, including the Merger (the “Home Bistro Stockholder Approval”).

Section 4.11 Taxes.

(a) Except as otherwise disclosed on the Home Bistro Disclosure Schedule, Home Bistro has prepared and timely filed all material tax returns required to be filed relating to any and all taxes concerning or attributable to Home Bistro and its operations, and such tax returns have been completed in accordance with applicable legal requirements in all material respects. Home Bistro has paid or withheld all taxes required to be paid or withheld with respect to their Employees and have paid over to the appropriate Taxing authority all such taxes. Home Bistro has executed any outstanding waiver of any statute of limitations on or outstanding extension of the period for the assessment or collection of any Tax.

(b) No audit or other examination of any tax return of Home Bistro is presently in progress, nor has Home Bistro been notified in writing of any request for such an audit or other examination.

(c) Home Bistro has no liabilities for unpaid taxes which have not been accrued or reserved on the Home Bistro Balance Sheet in accordance with GAAP, and Home Bistro has not incurred any liability for taxes since the date of the Home Bistro Balance Sheet other than in the ordinary course of business. There are no liens on the assets of Home Bistro relating to or attributable to taxes.

(d) Home Bistro has not been, during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States Real Property Holding Company” within the meaning of Section 897(c)(2) of the Code. Home Bistro (i) has never been a member of an affiliated group (within the meaning of Code §1504(a)) filing a consolidated federal income Tax Return, (ii) owes no amount under any tax sharing, indemnification or allocation agreement, (iii) has any liability for the taxes of any person (other than Home Bistro) under Treas. Reg. § 1.1502-6 (or any similar provision of state, local or foreign legal requirements), as a transferee or successor, by contract, or otherwise. Home Bistro has not constituted either a “distributing corporation” or a “controlled corporation” in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code.

(e) There is no agreement, plan, arrangement or other contract covering any current or former employee or other service provider of Home Bistro to which Home Bistro is a party or by which Home Bistro is bound that, considered individually or considered collectively with any other such agreements, plans, arrangements or other contracts, will, or could be expected to, as a result of the transactions contemplated hereby, give rise directly or indirectly to the payment of any amount that would be characterized as an “parachute payment” within the meaning of Section 280G of the Code (or any corresponding or similar provision of state, local or foreign tax law. No employee, director, consultant or other service provider of Home Bistro is entitled to receive any additional gross up payment from Home Bistro by reason of any taxes imposed by Section 4999 of the Code.

(f) There is no contract of Home Bistro covering any of its employees that, considered individually or considered collectively with any other such contract of Home Bistro, will, or would reasonably be expected to, as a result of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or subsequent events), give rise directly or indirectly to the payment of any amount that could reasonably be expected to be non-deductible under Section 162(m) of the Code (or any corresponding or similar provision of state, local or foreign Tax Legal Requirements).

Section 4.12 Compliance. Home Bistro is not in any material respect in conflict with, or in default or in violation of, any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, order, edict, decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental entity applicable to Home Bistro or by which Home Bistro or any of its businesses or properties is bound or affected, including, any laws, rules or regulations relating to anticompetitive or unfair pricing or trade practices, false advertising, consumer protection, export or import controls, government contracting, antikickback compliance, occupational health and safety, equal employment opportunities, fair employment practices, and sex, race, religious and age discrimination. There is no judgment, injunction, order or decree binding upon Home Bistro which has or would reasonably be expected to have the effect of prohibiting or materially impairing the Home Bistro’s business or the parties’ ability to consummate the transactions contemplated herein. Home Bistro hold all required governmental authorizations which are material to the operation of the business of Home Bistro as currently conducted (the “Home Bistro Permits”). Section 4.12 of the Home Bistro Disclosure Schedule identifies each Home Bistro Permit. Home Bistro is in material compliance with the terms of the Home Bistro Permits. No Legal Proceeding is pending or, to the knowledge of Home Bistro threatened, which seeks to revoke, limit, suspend, or materially modify any Home Bistro Permit. The rights and benefits of each Home Bistro Permit will be available to the Surviving Corporation, immediately after the Effective Time on terms substantially identical to those enjoyed by the Home Bistro as of the date of this Agreement and immediately prior to the Effective Time.

Section 4.13 Employee Plans.

(a) Home Bistro has not maintained, established, sponsored, participated in, or contributed to any material plan, program, policy, practice, contract, agreement or other arrangement providing for compensation, severance, termination pay, deferred compensation, performance awards, stock or stock-related awards, fringe benefits or other employee benefits or remuneration of any kind, whether written or unwritten or otherwise, funded or unfunded (herein, a “Home Bistro Employee Plan”), including without limitation, each “employee benefit plan,” within the meaning of Section 3(3) of the ERISA. Except as set forth in Section 4.13 to the Home Bistro Disclosure Schedule, Home Bistro is not a party, and never has been a party, to any employment, severance, consulting, relocation, or other agreement or contract under which Home Bistro has a current material obligation (herein, a “Home Bistro Employee Agreement”). Home Bistro has no commitment to establish any new Home Bistro Employee Plan or Home Bistro Employee Agreement, to materially modify any Home Bistro Employee Plan or Home Bistro Employee Agreement (except to the extent required by applicable legal requirements), or to adopt or enter into any Home Bistro Employee Plan or Home Bistro Employee Agreement.

(b) Home Bistro has never maintained, established, sponsored, participated in, or contributed to, any (i) Pension Plan which is subject to Title IV of ERISA or Section 412 of the Code; (ii) Multiemployer Plan; (iii) “multiple employer plan” as defined in ERISA or the Code; or (iv) a “funded welfare plan” within the meaning of Section 419 of the Code. No Home Bistro Employee Plan provides health benefits that are not fully insured through an insurance contract.

(c) Home Bistro is not in conflict with, or in default under or in violation of, any applicable foreign, federal, state and local laws, regulations, or collective bargaining agreements or arrangements respecting employment, employment practices, terms and conditions of employment, Tax withholding, prohibited discrimination, equal employment, fair employment practices, immigration status, employee safety and health, and wages and hours, except for those conflicts, defaults or violations that, individually or in the aggregate, would not, individually or in the aggregate, have a material adverse effect.

(d) Home Bistro is not a party to any collective bargaining agreement or union contract with respect to Home Bistro employees and no collective bargaining agreement is being negotiated by Home Bistro. There is no labor dispute, strike or work stoppage against Home Bistro pending or, to the knowledge of Home Bistro, threatened or reasonably anticipated. As of the date hereof, there are no actions, suits, claims, or proceedings pending, or, to the knowledge of Home Bistro, threatened against Home Bistro, relating to any labor, safety or discrimination matters involving any Home Bistro employee, including, without limitation, charges of material unfair labor practices or discrimination complaints.

Section 4.14 Real Property.

Home Bistro does not currently own, or has ever owned, any real property.

Section 4.15 Takeover Statutes.

The Board of Directors of Home Bistro has approved this Agreement and the transactions contemplated hereby as required to render inapplicable to such agreements and transactions DGCL Section 203, to the extent applicable. To the knowledge of Home Bistro, no other state takeover or similar statute or regulation (each, a “Takeover Statute”) is applicable to the Merger or the other transactions contemplated by this Agreement.

Section 4.16 Intellectual Property.

Home Bistro owns, or has the legal and valid right to use, as currently being used by Home Bistro, all intellectual property owned by, licensed to, or controlled by Home Bistro that is necessary for or used in the business of Home Bistro as presently conducted (“Home Bistro IP Rights”), and with respect to Home Bistro IP Rights that are owned by Home Bistro, has the right to bring actions for the infringement of such Home Bistro IP Rights.

(a) Section 4.16 of the Home Bistro Disclosure Schedule sets forth an accurate, true and complete listing of all Home Bistro IP Rights that are owned by Home Bistro that are registered, filed or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights, and registered trademarks (including domain names) and all applications for any of the foregoing and to the knowledge of Home Bistro, all Home Bistro Rights that are exclusively licensed to Home Bistro that are registered, filed or issued under the authority of, with or by any Governmental Body, including all patents, registered copyrights, and registered trademarks (including domain names) and all applications for any of the foregoing, and, specifying as to each such item, as applicable, the owner(s) of record (and, in the case of domain names, the registrar), jurisdiction of application and/or registration, the application and/or registration number, the date of application and/or registration, and the status of application and/or registration. To Home Bistro’s knowledge, each item of Home Bistro IP Rights that is registered is and at all times has been filed and maintained in compliance with all applicable Law and all filings, payments, and other actions required to be made or taken to maintain such item of registration in full force and effect have been made by the applicable deadline.

(b) Section 4.16 of the Home Bistro Disclosure Schedule accurately identifies (i) all material Home Bistro Contracts pursuant to which Home Bistro IP Rights are licensed to Home Bistro (other than (A) any non-customized software that (1) is so licensed solely in executable or object code form pursuant to a non-exclusive, internal use software license and other intellectual property associated with such software and (2) is not incorporated into, or material to the development, manufacturing, or distribution of, any of the Home Bistro products or services, (B) any intellectual property licensed ancillary to the purchase or use of equipment, reagents or other materials and (C) any confidential information provided under confidentiality agreements), and (ii) whether the license or licenses granted to Home Bistro are exclusive or non-exclusive.

(c) Section 4.16 of the Company Disclosure Schedule accurately identifies each material Home Bistro Contract pursuant to which Home Bistro has granted any license under, or any right (whether or not currently exercisable) or interest in, any Home Bistro IP Rights to any person.

(d) There is no current or pending action, suit, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, inquiry, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Body or any arbitrator or arbitration panel (a “Legal Proceeding”) (including, but not limited to, opposition, interference, inter partes review, or other proceeding in any patent or other government office) contesting the validity, ownership or right to use, sell, license or dispose of any Home Bistro IP Rights or products or technologies, nor has Home Bistro received any written notice asserting or suggesting that any such Home Bistro IP Rights, or Home Bistro’s right to use, sell, license or dispose of any such Home Bistro IP Rights or products or technologies conflicts with or infringes or misappropriates or will conflict with or infringe or misappropriate the rights of any other person.(e) Each Person who is or was an employee or contractor of Home Bistro and who is or was involved in the creation or development of any material Home Bistro IP Rights has signed a valid, enforceable agreement containing an assignment of such intellectual property to Home Bistro and confidentiality provisions protecting confidential information of Home Bistro. No current or former stockholder, officer, director, or employee of Home Bistro has any claim, right (whether or not currently exercisable), or interest to or in any Home Bistro IP Rights purported to be owned by Home Bistro. To the Knowledge of Home Bistro, no employee of the Company or any or any of its Subsidiaries is (i) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for Home Bistro or (ii) in breach of any Contract with any former employer or other person concerning Home Bistro IP Rights purported to be owned by Home Bistro or confidentiality provisions protecting trade secrets and confidential information comprising Home Bistro IP Rights purported to be owned by Home Bistro.

Section 4.17 Assets.

Home Bistro owns, and has good and valid title to, or, in the case of leased properties and assets, valid leasehold interests in, all tangible properties or tangible assets and equipment used or held for use in its business or operations or purported to be owned by it, including: (a) all assets reflected on the Home Bistro Unaudited Balance Sheet; and (b) all other assets reflected in the books and records of Home Bistro as being owned by Home Bistro. All of such assets are owned or, in the case of leased assets, leased by Home Bistro free and clear of any Encumbrances.

Section 4.18 Contracts and Agreements.

(a) Section 4.18 of the Home Bistro Disclosure Schedule identifies each of the material Home Bistro Contract in effect as of the date of this Agreement (each, a “Home Bistro Material Contract”and collectively, the “Home Bistro Material Contracts”):

(i) each Home Bistro Contract relating to any agreement of indemnification or guaranty not entered into in the ordinary course of business;

(ii) each Home Bistro Contract containing (A) any covenant limiting the freedom of Home Bistro or the Surviving Corporation to engage in any line of business or compete with any person, (B) any most-favored pricing arrangement, (C) any exclusivity provision, or (D) any non-solicitation provision;

(iii) each Home Bistro Contract relating to capital expenditures and requiring payments after the date of this Agreement in excess of $100,000 pursuant to its express terms and not cancelable without penalty;

(iv) each Home Bistro Contract relating to the disposition or acquisition of material assets or any ownership interest in any entity;

(v) each Home Bistro Contract relating to any mortgages, indentures, loans, notes or credit agreements, security agreements or other agreements or instruments relating to the borrowing of money or extension of credit or creating any material Encumbrances with respect to any assets of Home Bistro or any loans or debt obligations with officers or directors of Home Bistro;

(vi) each Home Bistro Contract requiring payment by or to Home Bistro after the date of this Agreement in excess of $100,000 pursuant to its express terms relating to: (A) any distribution agreement (identifying any that contain exclusivity provisions); (B) any agreement involving provision of services or products with respect to any pre-clinical or clinical development activities of Home Bistro; (C) any dealer, distributor, joint marketing, alliance, joint venture, cooperation, development or other agreement currently in force under which Home Bistro has continuing obligations to develop or market any product, technology or service, or any agreement pursuant to which Home Bistro has continuing obligations to develop any intellectual property that will not be owned, in whole or in part, by Home Bistro; or (D) any Contract to license any third party to manufacture or produce any product, service or technology of Home Bistro or any Contract to sell, distribute or commercialize any products or service of Home Bistro;

(vii) each Home Bistro Contract with any person, including any financial advisor, broker, finder, investment banker or other person, providing advisory services to the Company in connection with the contemplated transactions;

(viii) each Home Bistro real estate lease;

(ix) each Home Bistro Contract with any Governmental Body;

(x) each Home Bistro IP Rights Agreement;

(xi) each Home Bistro Contract containing any royalty, dividend or similar arrangement based on the revenues or profits of Home Bistro; or

(xii) any other Home Bistro Contract that is not terminable at will (with no penalty or payment) by Home Bistro, and (A) which involves payment or receipt by Home Bistro after the date of this Agreement under any such agreement, contract or commitment of more than $100,000 in the aggregate, or obligations after the date of this Agreement in excess of $100,000 in the aggregate, or (B) that is material to the business or operations of the Home Bistro.

(b) Home Bistro has delivered or made available to Company accurate and complete copies of all Home Bistro Material Contracts, including all amendments thereto. Except as set forth in Section 1.1(b) of the Home Bistro Disclosure Schedule, there are no Home Bistro Material Contracts that are not in written form. Neither Home Bistro, nor to Home Bistro’s knowledge, as of the date of this Agreement has any other party to a Home Bistro Material Contract, breached, violated or defaulted under, or received notice that it breached, violated or defaulted under, any of the terms or conditions of any Home Bistro Material Contract in such manner as would permit any other party to cancel or terminate any such Home Bistro Material Contract, or would permit any other party to seek damages which would reasonably be expected to be material to Home Bistro or its business. As to Home Bistro, as of the date of this Agreement, each Home Bistro Material Contract is valid, binding, enforceable and in full force and effect. No person is renegotiating, or has a right pursuant to the terms of any Home Bistro Material Contract to change, any material amount paid or payable to Home Bistro under any Home Bistro Material Contract or any other material term or provision of any Home Bistro Material Contract.

Section 4.19 Environmental Matter.

Home Bistro has complied with all applicable federal, state, local or foreign Law relating to pollution or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including any Law or regulation relating to emissions, discharges, releases or threatened releases of hazardous materials, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of hazardous material (“Environmental Laws”), which compliance includes the possession by Home Bistro of all permits and other governmental authorizations required under applicable Environmental Laws and compliance with the terms and conditions thereof, except for any failure to be in such compliance that, either individually or in the aggregate, would not reasonably be expected to be material to Home Bistro or its business. Home Bistro has not received, any written notice or other communication (in writing or otherwise), whether from a Governmental Body or other person, that alleges that Home Bistro is not in compliance with or has liability pursuant to any Environmental Law and, to the knowledge of Home Bistro, there are no circumstances that would reasonably be expected to prevent or interfere with the Company’s or any of its Subsidiaries’ compliance in any material respects with any Environmental Law, except where such failure to comply would not reasonably be expected to be material to Home Bistro or its business. No current or (during the time a prior property was leased or controlled by Home Bistro) prior property leased or controlled by Home Bistro has had a release of or exposure to hazardous materials in material violation of or as would reasonably be expected to result in any material liability of Home Bistro pursuant to Environmental Law. No consent, approval or governmental authorization of or registration or filing with any Governmental Body is required by Environmental Laws in connection with the execution and delivery of this Agreement or the contemplated transactions.

Section 4.20 Insurance.

Home Bistro has delivered or made available to Company accurate and complete copies of all material insurance policies and all material self-insurance programs and arrangements relating to the business, assets, liabilities and operations of Home Bistro. Each of such insurance policies is in full force and effect and Home Bistro is in compliance in all material respects with the terms thereof. Other than customary end of policy notifications from insurance carriers, Home Bistro has not received any notice or other communication regarding any actual or possible: (i) cancellation or invalidation of any insurance policy; or (ii) refusal or denial of any coverage, reservation of rights or rejection of any material claim under any insurance policy. Home Bistro has provided timely written notice to the appropriate insurance carrier(s) of each Legal Proceeding that is currently pending against Home Bistro for which Home Bistro has insurance coverage, and no such carrier has issued a denial of coverage or a reservation of rights with respect to any such Legal Proceeding, or informed Home Bistro of its intent to do so.

ARTICLE V

COVENANTS

Section 5.1 Tax-Free Reorganization Treatment.

(a) The Company and Home Bistro shall use their commercially reasonable best efforts, and shall cause their respective subsidiaries to use their commercially reasonable best efforts, to take or cause to be taken any action necessary for the Merger to qualify as a reorganization within the meaning of Section 368(a) of the Code. Neither the Company nor Home Bistro shall, nor shall they permit any of their respective subsidiaries to, take or cause to be taken any action that could reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.

(b) This Agreement is intended to constitute, and the parties hereto hereby adopt this Agreement as, a “plan of reorganization” within the meaning Treasury Regulation Sections 1.368-2(g) and 1.368-3(a). Each of the Company and Home Bistro shall report the Merger as a reorganization within the meaning of Section 368 of the Code, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code.

Section 5.2 Preparation of the Form 8-K.

As promptly as practicable after the date hereof, Home Bistro and the Company shall cooperate and work together in good faith to prepare one or more Current Reports on Form 8-K under the Exchange Act (including any amendments thereof, the “Form 8-K”) as required by the Exchange Act for disclosure of the transactions contemplated hereby. Home Bistro and Company shall cooperate and work together in good faith to prepare one or more, such Form 8-Ks to be filed by Company with the SEC, from time to time after the Closing, as required by applicable Legal Requirements. Such Form 8-Ks shall comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder and shall contain all information regarding Home Bistro, the Company and the transactions contemplated herein as would be required to be contained in a General Form for Registration of Securities on Form 10, including the consent of Home Bistro’s independent accountants as to the filing of Home Bistro’s financial statements contained therein, to the extent applicable, except that Home Bistro and Company shall be permitted to defer the filing of pro forma financial information to the extent permitted to do so under applicable laws and regulations (a final draft capable of being filed with the SEC shall be referred to as the “Final Draft Form 8-K”).

Section 5.3 Home Bistro Stockholder Approval

Home Bistro shall use reasonable best efforts to obtain the Home Bistro Stockholder Approval within twenty (20) business days following the date hereof in compliance with applicable legal requirements.

Section 5.4 Regulatory Matters; Reasonable Best Efforts.

(a) Each party hereto shall cooperate and promptly prepare and file all necessary documentation, to effect all necessary applications, notices, petitions and filings, and shall use reasonable best efforts to take or cause to be taken all actions, and do or cause to be done all things in order to obtain all approvals and authorizations of all governmental entities, necessary or advisable to consummate and make effective, in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this Agreement. Home Bistro shall have the right to review and approve in advance all characterizations of the information relating to Home Bistro, on the one hand, and the Company shall have the right to review and approve in advance all characterizations of the information relating to the Company, on the other hand, in either case, that appear in any application, notice, petition or filing made in connection with the Merger or the other transactions contemplated by this Agreement with any governmental entity. Home Bistro and the Company agree that they will consult and cooperate with each other with respect to the obtaining of all such necessary approvals and authorizations of governmental entities.

(b) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts (subject to, and in accordance with, applicable legal requirements) to take, or cause to be taken, promptly all actions, and to do, or cause to be done, promptly and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary consents or waivers from third parties and governmental entities, (ii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing, nothing in this Section 5.4(b) shall (i) limit any applicable rights a party may have to terminate this Agreement pursuant to Section 7.1 so long as such party has up to then complied in all material respects with its obligations under this Section 5.4(b) or require any party to offer, accept or agree to (A) dispose or hold separate any part of its businesses, operations, assets or product lines, (B) not compete in any geographic area or line of business, (C) restrict the manner in which, or whether, such party or any of its affiliates may carry on business in any part of the world or (D) pay any consideration (other than ordinary course filing, application or similar fees and charges) to obtain any approval, consent or waiver from a third party necessary, proper or advisable to consummate the transactions contemplated hereby, including the Merger or (iii) require any party to this Agreement to contest or otherwise resist any administrative or judicial action or proceeding, including any proceeding by a private party, challenging any of the transactions contemplated hereby, including the Merger, as violative of any antitrust law.

ARTICLE VI

CLOSING CONDITIONS

Section 6.1 Conditions to Obligations of Each Party Under This Agreement. The respective obligations of each party to effect the Merger and the other transactions contemplated herein shall be subject to the satisfaction at or prior to the Effective Time of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by applicable Law:

(a) No Order. No governmental entity, nor any federal or state court of competent jurisdiction or arbitrator shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or arbitration award or finding or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits consummation of the Merger or any other transactions contemplated in this Agreement.

(b) Consents and Approvals. All material consents, approvals and authorizations of any governmental entity required of Home Bistro, the Company or any of their subsidiaries shall have been obtained.

(c) Execution and Delivery of Lock-Up and Leak-Out Agreements. Each stockholder listed on attached Schedule A shall execute and deliver to the Company a Lock-Up and Leak-Out agreement on or prior to the Effective Time. A stockholder shall not receive its respective certificate evidencing its shares of Company Common Stock unless and until it has executed and delivered its Lock-Up and Leak-Out agreement to the Company.

Section 6.2 Additional Conditions to Obligations of the Company and Merger Sub. The obligations of the Company and Merger Sub to effect the Merger and the other transactions contemplated herein are also subject to the following conditions:

(a) Representations and Warranties. The representations and warranties of Home Bistro contained in this Agreement shall be true and correct (without giving effect to any limitation as to materiality set forth therein) at and as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a material adverse effect.

(b) Agreements and Covenants. Home Bistro shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Effective Time.

(c) No Material Adverse Effect. Since the date hereof, there shall not have been any change, event, occurrence or development that, individually or in the aggregate, has had or could reasonably be expected to have a material adverse effect on Home Bistro.

(d) Closing Certificates. The Company shall have received a certificate signed by the Chief Executive Officer of Home Bistro, in his individual and corporate capacity, dated the Effective Time, to the effect that, to his knowledge, the conditions set forth in Section 6.2(a), Section 6.2(b) and Section 6.2(c) have been satisfied.

(e) Resignation of Officers and Directors. Officer and Directors of the Company shall, at the Effective Time, deliver to Home Bistro their respective resignations from any and all positions that they may have at the Company or its Subsidiaries.

Section 6.3 Additional Conditions to Obligations of Home Bistro. The obligation of Home Bistro to effect the Merger and the other transactions contemplated herein are also subject to the following conditions:

(a) Representations and Warranties. The representations and warranties of the Company and Merger Sub contained in this Agreement shall be true and correct (without giving effect to any limitation as to materiality set forth therein) at and as of the Effective Time as if made at and as of such time, except where the failure of such representations and warranties to be true and correct would not, individually or in the aggregate, have a material adverse effect.

(b) Agreements and Covenants. The Company and Merger Sub shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by each of them on or prior to the Effective Time.

(c) No Material Adverse Effect. Since the date hereof, there shall not have been any change, event, occurrence or development that, individually or, in the aggregate, has had or could reasonably be expected to have a material adverse effect on the Company or Merger Sub.

(d) Closing Certificates. Home Bistro shall have received a certificate signed by the Chief Executive Officer of the Company, in his individual and corporate capacity, dated the Effective Time, to the effect that, to his knowledge, the conditions set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c) have been satisfied.

(e) Consents and Approvals. All material consents, approvals and authorizations of any person other than a Governmental Entity required to be set forth in Section 3.5 or Section 4.5 or the related sections of the Company Disclosure Schedule or the Home Bistro Disclosure Schedule, as applicable, shall have been obtained.

ARTICLE VII

TERMINATION, AMENDMENT AND WAIVER

Section 7.1 Termination. This Agreement may be terminated, and the Merger contemplated hereby may be abandoned, at any time prior to the Effective Time, by action taken or authorized by the Board of Directors of the terminating party or parties, whether before or after approval of the matters presented in connection with the Merger by the stockholders of the Company or the stockholders of Home Bistro:

(a) By mutual written consent of Home Bistro and the Company, by action of their respective Boards of Directors;

(b) By either the Company or Home Bistro if the Merger shall not have been consummated prior to March , 2020 (such date, the “Outside Date”); provided, however, that the right to terminate this Agreement under this Section 7.1(b) shall not be available to any party whose failure to fulfill any obligation under this Agreement (including without limitation such party’s obligations set forth in Section 5.7) has been the cause of, or resulted in, the failure of the Effective Time to occur on or before the Outside Date;

(c) By either the Company or Home Bistro if any governmental entity shall have issued an order, decree or ruling or taken any other action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, and such order, decree, ruling or other action shall have become final and non-appealable (which order, decree, ruling or other action the parties shall have used their commercially reasonable best efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 5.7);

(d) By written notice of Home Bistro (if Home Bistro is not in material breach of its obligations or its representations and warranties under this Agreement), if there has been a breach by the Company or Merger Sub of any representation, warranty, covenant or agreement contained in this Agreement which (i) would result in a failure of a condition set forth in Section 6.3(a) or 6.3(b); and (ii) cannot be cured prior to the Outside Date; provided that Home Bistro shall have given the Company written notice, delivered at least twenty (20) days prior to such termination, stating Home Bistro’s intention to terminate this Agreement pursuant to this Section 7.1(d) and the basis for such termination;

(e) By written notice of the Company (if the Company is not in material breach of its obligations or its representations and warranties under this Agreement), if there has been a breach by Home Bistro of any representation, warranty, covenant or agreement contained in this Agreement which (i) would result in a failure of a condition set forth in Section 6.2(a) or 6.2(b) and (ii) cannot be cured prior to the Outside Date; provided that the Company shall have given Home Bistro written notice, delivered at least twenty (20) days prior to such termination, stating the Company’s intention to terminate this Agreement pursuant to this Section 7.1(e) and the basis for such termination; or

(f) By written notice of either Home Bistro or the Company if (i) the Company Stockholder Approval shall not have been obtained at the Company Stockholders’ Meeting duly convened therefor (or at any adjournment or postponement thereof), or (ii) the Home Bistro Stockholder Approval shall not have been obtained at the Home Bistro Stockholders’ Meeting duly convened therefor (or at any adjournment or postponement thereof).

Section 7.2 Effect of Termination; Limitation on Liability. In the event of termination of this Agreement by either Home Bistro or the Company as provided in Section 7.1, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of Home Bistro or the Company or their respective subsidiaries, officers or directors except (x) with respect to this Section 7.2 and Article VIII and (y) with respect to any liabilities or damages incurred or suffered by a party as a result of the willful and material breach by the other party of any representations, warranties, covenants or other agreements set forth in this Agreement.

Section 7.3 Amendment. To the extent permitted by applicable Law, this Agreement may be amended by the parties, by action taken or authorized by their respective Boards of Directors, at any time before or after approval of the matters presented in connection with the Merger by the stockholders of Home Bistro and the Company; provided, that after any such approval, no amendment shall be made that by law requires further approval by the Company’s or Home Bistro’s stockholders, as the case may be, without such further approval. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the parties.

Section 7.4 Waiver. At any time prior to the Effective Time, any party hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party hereto, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered pursuant hereto, and (c) waive compliance by the other party with any of the agreements or conditions contained herein.

Section 7.5 Fees and Expenses. Subject to Section 7.2(a), Section 7.2(b) and Section 7.2(c) hereof, all expenses incurred by the parties hereto shall be borne solely and entirely by the party which has incurred the same (including, but not limited to, fees and expenses of counsel, accountants, investment bankers and other advisors).

ARTICLE VIII

GENERAL PROVISIONS

Section 8.1 Non-Survival of Representations and Warranties. The representations and warranties of Home Bistro contained in ARTICLE IV of this Agreement, or in any certificate or other writing delivered pursuant hereto or thereto or in connection herewith or therewith, shall survive the Closing until the twelve (12) month anniversary of the Closing Date (the “Survival Period”); provided that the representations and warranties of the Company set forth in Sections 4.1 (Organization; Standing and Power; Subsidiaries), 4.2 (Capital Structure), 4.3 (Authority; Non-Contravention; Necessary Consent), 4.5 (Undisclosed Liabilities), and 4.7 (Taxes) (collectively, the “Specified Representations”) shall survive until the expiration of the applicable statute of limitations applicable to claims related thereto. The covenants and agreements of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing indefinitely or for the shorter period explicitly specified therein, except that for such covenants and agreements that survive for such shorter period, breaches thereof shall survive indefinitely or until the latest date permitted by law. Notwithstanding the preceding sentences, any breach of representation, warranty, covenant or agreement in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if written notice of the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time.

Section 8.2 Notices. Any notices or other communications required or permitted under, or otherwise in connection with this Agreement, shall be in writing and shall be deemed to have been duly given when delivered in person or upon confirmation of receipt when transmitted by facsimile transmission (but only if followed by transmittal by national overnight courier or hand for delivery on the next business day) or on receipt after dispatch by registered or certified mail, postage prepaid, addressed, or on the next business day if transmitted by national overnight courier, in each case as follows:

If to Home Bistro, addressed to it at:

Home Bistro, Inc.

4014 Chase Avenue, #212

Miami Beach, FL 33140

with a copy to:

Faegre, Drinker, Biddle & Reath LLP

1177 Avenue of the Americas, 41st Floor

New York, NY 10036

Attention: Peter J. Gennuso, Esq.

If to the Company or Merger Sub, addressed to it at:

Gratitude Health, Inc.
11760 US1, Ste W507

Palm Beach Gardens, FL 33408

With a copy to:

Gracin & Marlow, LLP

The Chrysler Building

405 Lexington Avenue, 26^th Floor

New York, New York 10174

Email: lmarlow@gracinmarlow.com

Section 8.3 Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

Section 8.4 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible.

Section 8.5 Entire Agreement. This Agreement (together with the Exhibits, Home Bistro Disclosure Schedule and Company Disclosure Schedule and the other documents delivered pursuant hereto) constitutes the entire agreement of the parties and supersedes all prior agreements and undertakings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof, and except as otherwise expressly provided herein, is not intended to confer upon any other person any rights or remedies hereunder.

Section 8.6 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury.

(a) This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without regard to laws that may be applicable under conflicts of laws principles.

(b) Each of the parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Delaware State court, or Federal court of the United States of America, sitting in Delaware, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith or the transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (A) agrees not to commence any such action or proceeding except in such courts, (B) agrees that any claim in respect of any such action or proceeding may be heard and determined in such Delaware State court or, to the extent permitted by law, in such Federal court, (C) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such action or proceeding in any such Delaware State or Federal court and (D) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such Delaware State or Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 8.2. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by Law.

Section 8.7 Counterparts. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

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IN WITNESS WHEREOF, the Company, Merger Sub and Home Bistro have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

GRATITUDE HEALTH, INC.

By:	/s/ Roy Warren, Jr.
Name: Roy Warren, Jr.
Title: Chief Operating Officer

FRESH MARKET MERGER SUB, INC.

By:	/s/ Roy Warren, Jr.
Name: Roy Warren, Jr.
Title: Chief Operating Officer

HOME BISTRO, INC.

By:	/s/ Zalmi Duchman, Jr.
Name: Zalmi Duchman, Jr.
Title: Chief Executive Officer

List of Omitted Exhibits

The following exhibits to the Agreement and Plan of Merger, dated April 20 2020, by and among Gratitude Health, Inc., Fresh Market Merger Sub, Inc. and Home Bistro, Inc. have not been provided herein:

Exhibit C – Disclosure Schedules

•

Company Disclosure Schedules

•

Home Bistro Disclosure Schedules

The registrant hereby undertakes to furnish supplementally a copy of such omitted exhibits to the Securities and Exchange Commission upon request.

EXHIBIT A

DIRECTORS AND OFFICERS OF THE COMPANY AND THE SURVIVING CORPORATION

Directors:

Zalmi Duchman

Michael Finkelstein

Michael Novielli

Officers: Zalmi Duchman, Chief Executive Officer

Carlo Ricci, Chief Operating Officer

EXHIBIT B

BOARD OF DIRECTORS AND OFFICERS OF THE COMPANY

Directors:

Roy G. Warren, Jr.

Mike Edwards

Bruce Zanca

Officers:

Roy G. Warren, Jr. Chief Operating Officer

EXHIBIT C

DISCLOSURE SCHEDULES

SCHEDULE A

LOCK-UP/LEAK-OUT SHAREHOLDERS

Gratitude Health, Inc. 8-K

Exhibit 3.1

CERTIFICATE OF MERGER
MERGING
FRESH MARKET MERGER SUB, INC.
WITH AND INTO
HOME BISTRO, INC.

State of Delaware
Secretary of State
Division of Corporations
Delivered 05:15 FM 04/20/2020
FILED 05:15 PM 04/20/2020
SR 20202986479 - File Number 5317140

Pursuant to Title 8, Section 251 of the Delaware General Corporation Law (the “DGCL”), the undersigned corporation, organized and existing under and by virtue of the DGCL, hereby certifies that:

1. The name and state of incorporation of each of the constituent corporations of the merger (the “Constituent Corporations”) are as follows:

NAME	STATE OF INCORPORATION
Fresh Market Merger Sub, Inc.	Delaware
Home Bistro, Inc.	Delaware

2. An Agreement and Plan of Merger and Reorganization, dated as of April 20, 2020 (the “Agreement of Merger”), by and among each of the Constituent Corporations and Gratitude Health, Inc., a Nevada corporation, setting forth the terms and conditions of the merger of Fresh Market Merger Sub, Inc. with and into Home Bistro, Inc., has been approved, adopted, executed and acknowledged by each of the Constituent Corporations in accordance with Section 251 (and with respect to Fresh Market Merger Sub, Inc., by the written consent of its sole stockholder in accordance with Section 228) of the DGCL.

3. Home Bistro, Inc. is the surviving corporation in the merger, and the name of the surviving corporation is “Home Bistro, Inc.”

4. At the effective time of the merger, the Certificate of Incorporation of the surviving corporation shall be amended and restated by reason of the merger to read in its entirety as set forth in Exhibit A attached hereto and, as so amended, shall be the Amended and Restated Certificate of Incorporation of the surviving corporation until further amended in accordance with the provisions of the DGCL.

5. The executed Agreement of Merger is on file at 4104 Chase Avenue, Miami Beach, Florida 33140, the place of business of the surviving corporation.

6. A copy of the Agreement of Merger will be furnished by the surviving corporation on request and without cost to any stockholder of the Constituent Corporations.

[Remainder of this page intentionally left blank]

IN WITNESS WHEREOF, the surviving corporation has caused this certificate to be signed by an authorized officer as of the 20^th day of April, 2020.

	HOME BISTRO, INC.

	By:
	Name: Zalmi Duchman
	Title: Chief Executive Officer

[Signature Page to Certificate of Merger]

EXHIBIT A

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

HOME BISTRO, INC.

ARTICLE I

The name of the corporation is Home Bistro, Inc. (the “Corporation”).

ARTICLE II

The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, City of Wilmington, County of New Castle, 19801. The name of its registered agent at such address is The Corporation Trust Company.

ARTICLE III

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law.

ARTICLE IV

The aggregate number of shares which the Corporation shall have authority to issue is 100 shares of capital stock all of which shall be designated “Common Stock” and have a par value of $0.001 per share.

ARTICLE V

In furtherance of and not in limitation of the powers conferred by the laws of the State of Delaware, the Board of Directors of the Corporation is expressly authorized to make, amend or repeal Bylaws of the Corporation.

ARTICLE VI

The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors. The number of directors which shall constitute the whole Board of Directors shall be fixed by the Board of Directors in the manner provided in the Bylaws of the Corporation. Elections of directors need not be by written ballot unless otherwise provided in the Bylaws of the Corporation.

ARTICLE VII

(A) Limitation on Liability. To the fullest extent permitted by the Delaware General Corporation Law as the same exists or may hereafter be amended, a director of the Corporation shall not be liable to the Corporation or any of its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this paragraph shall be prospective only and shall not adversely affect any limitation, right or protection of a director of the Corporation existing at the time of such repeal or modification.

(B) Indemnification,

(i) Right to Indemnification. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he, or a person for whom he is the legal representative, is or was a director or officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person. Such right of indemnification shall inure whether or not the claim asserted is based on matters which antedate the adoption of this Article VII. The Corporation shall be required to indemnify or make advances to a person in connection with a proceeding (or part thereof) initiated by such person (other than compulsory counterclaims) only if the proceeding (or part thereof) was authorized by the Board of Directors of the Corporation.

(ii) Prepayment of Expenses. The Corporation shall pay the expenses (including attorneys’ fees) incurred in defending any proceeding in advance of its final disposition, provided however, that the payment of expenses incurred by a director or officer in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the director or officer to repay all amounts advanced if it should be ultimately determined that the director or officer is not entitled to be indemnified under this paragraph or otherwise.

(iii) Claims. If a claim for indemnification or prepayment of expenses under this Section (B) is not paid in full within 30 days after a written claim therefor has been received by the Corporation, the claimant may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the claimant was not entitled to the requested indemnification or prepayment of expenses under applicable law.

(iv) Non-Exclusivity of Rights. The rights conferred on any person by this paragraph shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of this Certificate, the By-laws, agreement, vote of stockholders or disinterested directors or otherwise.

(v) Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, enterprise or nonprofit entity.

(C) Amendment or Repeal. Any repeal or modification of the foregoing provisions of this Article VII shall not adversely affect any right or protection hereunder of any person in respect of any act of omission occurring prior to the time of such repeal or modification.

ARTICLE VIII

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation.

Gratitude Health, Inc. 8-K

Exhibit 3.2

Gratitude Health, Inc. 8-K

Exhibit 10.1

FORM OF

EXCHANGE AGREEMENT

EXCHANGE AGREEMENT (the “Agreement”) is made as of the __th day of April, 2020, by and between Gratitude Health, Inc., a Nevada corporation (the “Company”), and the parties identified on Schedule A hereto (each an “Investor” and collectively, “Investors”).

WHEREAS, the Investors hold the securities of the Company set forth an on such Investor’s signature page attached hereto (the “Existing Securities”);

WHEREAS, 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 in reliance on Section 3(a)(9) of the Securities Act, the Company desires to exchange with the Investors, and the Investors desire to exchange with the Company, the Existing Securities for shares of the Company’s Common Stock set forth on the Investors’ signature page hereto (the “Shares”, the "Exchange Securities"); and

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration of the premises and the mutual agreements, representations and warranties, provisions and covenants contained herein, the parties hereto, intending to be legally bound hereby, agree as follows:

Exchange. On the Closing Date (as defined below), subject to the terms and conditions of this Agreement, each Investor shall, and the Company shall, pursuant to Section 3(a) (9) of the Securities Act, exchange the Existing Securities for the Exchange Securities. Subject to the conditions set forth herein, the exchange of the Existing Securities for the Exchange Securities shall take place at the offices of Grushko & Mittman, P.C., on April __, 2020, or at such other time and place as the Company and the Investor mutually agree (the “Closing” and the “Closing Date”). At the Closing, the following transactions shall occur (such transaction an “Exchange”):

1.1

On the Closing Date, in exchange for the Existing Securities, the Company shall deliver Exchange Securities to the Investors or their designees in accordance with the Investors’ delivery instructions set forth on the Investors’ signature pages hereto. Upon receipt of the Exchange Securities in accordance with this Section 1.1, all of the Investors’ rights under the Existing Securities shall be extinguished and such Investors shall have no interest in, or ownership rights to, the Existing Securities. The Investors shall tender to the Company the Existing Securities within three (3) Trading Days (as defined below) of the Closing Date.

1.2

On the Closing Date, the Investors shall be deemed for all corporate purposes to have become the holders of record of the Exchange Securities, and the Existing Securities shall be deemed for all corporate purposes to have been cancelled, irrespective of the date such Exchange Securities are delivered to the Investors in accordance herewith. Until the Existing Securities have been delivered to the Company, the Investors shall bear the risk that they are acquired by a bona fide purchaser with no notice of the Investors’ and the Company’s claims. As used herein, “Trading Day” means any day on which the Common Stock is traded on the principal securities exchange or securities market on which the Common Stock is then traded.

1.3

The Company and the Investors shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary to effectuate the Exchanges, including, at the request of the Company or its transfer agent, executed stock powers in customary form.

Closing Conditions.

2.1

Conditions to Investor’s Obligations. The obligation of the Investors to consummate the Exchange is subject to the fulfillment, to the Investors’ reasonable satisfaction, prior to or at the Closing, of each of the following conditions:

(a)

Representations and Warranties. The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects on the date hereof and on and as of the Closing Date as if made on and as of such date.

(b)

Issuance of Securities. At the Closing, the Company shall issue Shares and/or certificates evidencing the Exchange Securities, registered in the name of each of the Investors;

(c)

No Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit or obtain substantial damages in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.

(d)

Proceedings and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident to such transactions shall be satisfactory in substance and form to the Investor, and the Investor shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.

(e)

Consents. The Company shall have obtained all required consents, as set forth on Schedule 3.6.

2.2

Conditions to the Company’s Obligations. The obligation of the Company to consummate the Exchanges is subject to the fulfillment, to the Company’s reasonable satisfaction, prior to or at the Closing, of each of the following conditions:

(a)

Representations and Warranties. The representations and warranties of the Investors contained in this Agreement shall be true and correct in all material respects on the date hereof and on and as of the Closing Date as if made on and as of such date.

(b)

No Actions. No action, proceeding, investigation, regulation or legislation shall have been instituted, threatened or proposed before any court, governmental agency or authority or legislative body to enjoin, restrain, prohibit, or obtain substantial damages in respect of, this Agreement or the consummation of the transactions contemplated by this Agreement.

(c)

Proceedings and Documents. All proceedings in connection with the transactions contemplated hereby and all documents and instruments incident to such transactions shall be satisfactory in substance and form to the Company and the Company shall have received all such counterpart originals or certified or other copies of such documents as the Company may reasonably request.

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

3.1

Organization, Good Standing and Qualification. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. The Company is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a material adverse effect on its business or properties.

3.2

Authorization. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of the Company hereunder, and the authorization (or reservation for issuance of), the Exchanges, and the issuance of the Exchange Securities have been taken on or prior to the date hereof.

3.3

Valid Issuance of the Securities. The Shares when issued and delivered in accordance with the terms of this Agreement, for the consideration expressed herein, will be duly and validly issued, fully paid and non-assessable.

3.4

Offering. Subject to the truth and accuracy of the Investors’ representations set forth in Section 4 of this Agreement, the offer and issuance of the Exchange Securities as contemplated by this Agreement are exempt from the registration requirements of the Securities Act. Neither the Company nor any authorized agent acting on its behalf will take any action hereafter that would cause the loss of such exemptions.

3.5

Compliance With Laws. The Company has not violated any law or any governmental regulation or requirement which violation has had or would reasonably be expected to have a material adverse effect on its business and the Company has not received written notice of any such violation.

3.6

Consents; Waivers. Other than as set forth on Schedule 3.6 attached hereto, no consent, waiver, approval or authority of any nature, or other formal action, by any Person, not already obtained, is required in connection with the execution and delivery of this Agreement by the Company or the consummation by the Company of the transactions provided for herein and therein.

3.7

Acknowledgment Regarding Investor’s Purchase of Securities. The Company acknowledges and agrees that the Investors are acting solely in the capacity of arm’s length Investor with respect to this Agreement and the other documents entered into in connection herewith (collectively, the “Transaction Documents”) and the transactions contemplated hereby and thereby and that the Investors are each not (i) an officer or director of the Company, (ii) an “affiliate” of the Company (as defined in Rule 144 promulgated under the Securities Act), or (iii) to the knowledge of the Company, a “beneficial owner” of more than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended). The Company further acknowledges that each Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice given by each Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and thereby is merely incidental to such Investor’s acceptance of the Exchange Securities. The Company further represents to each Investor that the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.

3.8

Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company, the Exchange Securities or any of the Company’s officers or directors in their capacities as such.

3.9

No Group. The Company acknowledges that, to the Company’s knowledge, each Investor is acting independently in connection with this Agreement and the transactions contemplated hereby, and is not acting as part of a “group” as such term is defined under Section 13(d) of the Securities Act and the rules and regulations promulgated thereunder.

3.10

Validity; Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Company is a party have been duly and validly authorized, executed and delivered on behalf of the Company and shall constitute the legal, valid and binding obligations of the Company enforceable against the Company in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution, delivery and performance by the Company of this Agreement and each Transaction Document to which the Company is a party and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Company or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Company is a party or by which it is bound, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities or “blue sky” laws) applicable to the Company, except in the case of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Company to perform its obligations hereunder.

3.11

Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided each Investor or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, nonpublic information. The Company understands and confirms that each Investor will rely on the foregoing representations in effecting transactions in the Exchange Securities.

3.12

Bring-Down of Representations and Warranties. All legal and factual representations and warranties made by the Company to the Investors in any prior agreements pursuant to which the Exchange Securities were originally issued are accurate and complete in all material respects as of the date hereof, unless as of a specific date therein in which case they shall be accurate as of such date (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect (as defined in such agreements), in all respects).

3.13

No Commission Paid. Neither the Company nor any of its Affiliates nor any person acting on behalf of or for the benefit of any of the foregoing, has paid or given, or agreed to pay or give, directly or indirectly, any commission or other remuneration (within the meaning of Section 3(a) (9) of the Securities Act and the rules and regulations of the Securities and Exchange Commission promulgated thereunder) for soliciting the Exchange.

Representations and Warranties of the Investor. Each Investor hereby represents, warrants and covenants that:

4.1

Authorization. The Investor has full power and authority to enter into this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby and has taken all action necessary to authorize the execution and delivery of this Agreement, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby.

4.2

Title to Existing Securities. The Investor is the lawful, record and beneficial owner of the Existing Securities free and clear of any liens, claims, agreements, charges, security interests and encumbrances whatsoever.

4.3

Accredited Investor Status; Investment Experience. The Investor is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D. The Investor can bear the economic risk of its investment in the Securities, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of an investment in the Exchange Securities.

4.4

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

4.5

Information. The Investor and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company and materials relating to the offer and issuance of the Exchange Securities which have been requested by the Investor. The Investor has had the opportunity to review the Company's filings with the Securities and Exchange Commission. The Investor and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties contained herein. The Investor understands that its investment in the Exchange Securities involves a high degree of risk. The Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Exchange Securities. The Investor is relying solely on its own accounting, legal and tax advisors, and not on any statements of the Company or any of its agents or representatives, for such accounting, legal and tax advice with respect to its acquisition of the Exchange Securities and the transactions contemplated by this Agreement.

4.6

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

4.7

Validity; Enforcement; No Conflicts. This Agreement and each Transaction Document to which the Investor is a party have been duly and validly authorized, executed and delivered on behalf of the Investor and shall constitute the legal, valid and binding obligations of the Investor enforceable against the Investor in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies. The execution, delivery and performance by the Investor of this Agreement and each Transaction Document to which the Investor is a party and the consummation by the Investor of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Investor or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which the Investor is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities or “blue sky” laws) applicable to the Investor, except in the case of clause (ii) above, for such conflicts, defaults or rights which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Investor to perform its obligations hereunder.

4.8

Bring-Down of Representations and Warranties. All legal and factual representations and warranties made by the Investor to the Company in any prior agreements pursuant to which the Exchange Securities were originally issued are accurate and complete in all material respects as of the date hereof, unless as of a specific date therein in which case they shall be accurate as of such date (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect (as defined in such agreements), in all respects).

Additional Covenants.

5.1

Disclosure. The Company shall, on or before 9:30 a.m., New York City time, on the first business day after the date of this Agreement, issue a Current Report on Form 8-K (the “8-K Filing”) disclosing all material terms of the transactions contemplated hereby. From and after the issuance of the 8-K Filing, the Investor shall not be in possession of any material, nonpublic information received from the Company or any of its respective officers, directors, employees or agents that is not disclosed in the 8-K Filing. The Company shall not, and shall cause its officers, directors, employees and agents, not to, provide the Investor with any material, nonpublic information regarding the Company from and after the filing of the 8-K Filing without the express written consent of each Investor. The Company shall not disclose the name of the Investor in any filing, announcement, release or otherwise, unless such disclosure is required by law or regulation. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Investor or any of its affiliates, on the other hand, shall terminate.

5.2

Tacking. Subject to the truth and accuracy of the Investor’s representations set forth in Section 4 of this Agreement, the parties acknowledge and agree that in accordance with Section 3(a) (9) of the Securities Act, the Exchange Securities issued in exchange for the Existing Securities will tack back to the original issue dates of each of the Existing Securities pursuant to Rule 144 and the Company agrees not to take a position to the contrary.

5.3

Listing and Electronic Transfer. The Company shall use its best efforts to maintain the listing or designation for quotation (as applicable) of its common stock upon each national securities exchange and automated quotation system on which the common stock is currently listed or designated while such securities are outstanding. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 5.3. The Company agrees to maintain the eligibility of the common stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.

5.4

Survival of Covenants. Sections 4.1, 4.3, 4.4, 4.5, 4.7, and 4.8 shall survive and be incorporated by reference into this Agreement.

5.5

Blue Sky. The Company shall make all filings and reports relating to the Exchange required under applicable securities or “Blue Sky” laws of the states of the United States following the date hereof, if any.

5.6

Fees and Expenses. 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.

5.7

Reservation. The Company shall maintain a reserve from its duly authorized shares of common stock for issuance pursuant to the Exchange in such amount as may then be required to fulfill its obligations in full under the Exchange.

Miscellaneous.

6.1

Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and the respective successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

6.2

Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state or 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, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.

6.3

Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

6.4

Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, facsimile, or electronic mail, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received), or (b) upon receipt, when sent by electronic mail (provided confirmation of transmission is electronically generated and keep on file by the sending party), or (c) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be:

If to the Company, to:

Gratitude Health, Inc.

11760 US1, Suite W507

Palm Beach Gardens, Florida 33408Attn: Roy G. Warren, Jr., Chief Operating Officer

Email: rwarren@organicgratitude.com

With copies (which shall not constitute notice) to:

Gracin & Marlow

Chrysler Building

405 Lexington Avenue, 26^th Floor

New York, NY 10174

Attn: Leslie Marlow, Esq.

Fax: (212) 208-4657

Email: lmarlow@gracinmarlow.com

If to any Investors:

To the names, addresses, fax numbers and email addresses identified on Schedule A hereto

With copies (which shall not constitute notice) to:

Grushko & Mittman, P.C.

515 Rockaway Avenue

Valley Stream, NY 11581

Attn: Barbara R. Mittman, Esq.

Fax: (212) 697-3575

Email: barbara@grushkomittman.com

6.5

Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement 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 Investor. Any amendment or waiver effected in accordance with this paragraph shall be binding upon Investor and the Company, provided that no such amendment shall be binding on a holder that does not consent thereto to the extent such amendment treats such party differently than any party that does consent thereto.

6.6

Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms.

6.7

Entire Agreement. This Agreement represents the entire agreement and understanding between the parties concerning the Exchange and the other matters described herein and therein and supersede and replaces any and all prior agreements and understandings solely with respect to the subject matter hereof and thereof.

6.8

Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

6.9

Interpretation. Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singular the plural, the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusive meaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder” or “herein” relate to this Agreement.

6.10

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

6.11

Survival. The representations, warranties and covenants of the Company and the Investor contained herein shall survive the Closing and delivery of the Exchange Securities.

6.12

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

6.13

No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

[SIGNATURES ON THE FOLLOWING PAGES]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first indicated above.

GRATITUDE HEALTH, INC.

By:	/s/ Roy G. Warren, Jr.
Name:	Roy G. Warren, Jr.
Title:	Chief Operating Officer

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR INVESTORS FOLLOWS]

Gratitude Health, Inc. 8-K

Exhibit 10.2

FORM OF

WARRANT

THESE SECURITIES AND THE SECURITIES ISSUABLE UPON THEIR EXERCISE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE TRANSFERRED UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, A “NO-ACTION” LETTER FROM THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE “COMMISSION”OR THE “SEC”) WITH RESPECT TO SUCH TRANSFER, A TRANSFER MEETING THE REQUIREMENTS OF RULE 144 OF THE COMMISSION, OR AN OPINION OF COUNSEL SATISFACTORY TO THE ISSUER TO THE EFFECT THAT ANY SUCH TRANSFER IS EXEMPT FROM SUCH REGISTRATION.

GRATITUDE HEALTH, INC.

WARRANT NO. XX

Dated: April __, 2020

Gratitude Health, Inc., a corporation organized under the laws of the State of Nevada (the “Company”), hereby certifies that, for value received from [name], a [insert state of incorporation or state of residence] (the “Holder”), is entitled, subject to the terms set forth below, to purchase from the Company up to a total of ___________ shares of the common stock, $0.001 par value per share (the “Common Stock”), of the Company (the “Warrant Shares”), at an exercise price equal to one thousandth ($0.001) per share (the “Exercise Price”). This Warrant may be exercised as provided herein any time after issuance through and including the tenth (10th) anniversary of its original issuance as noted above (the “Expiration Date”), subject to the following terms and conditions:

1. Registration of Warrant. The Company shall, from time to time and whenever requested by the Holder, register this Warrant in conformity with records to be maintained by the Company for such purpose (the “Warrant Register”) in the name of the Holder. The Company shall treat the registered Holder of this Warrant as the absolute owner hereof for any and all purposes, including the exercise hereof or any distribution to the Holder, and the Company shall not be affected by notice to the contrary.

2. Registration of Transfers and Exchanges.

(a) The Company or the transfer agent shall enter or record the transfer of all or any portion of this Warrant in the Warrant Register, upon surrender of this Warrant to the Company at the office specified herein or pursuant to Section 11 hereof. Upon any such registration or transfer, a new warrant to purchase Common Stock, in substantially the form of this Warrant (any such new warrant hereinafter referred to as a “New Warrant”), evidencing the portion of this Warrant so transferred shall be issued to the transferee and a New Warrant evidencing the remaining portion of this Warrant not so transferred, if any, shall be issued to the Holder. The acceptance of the New Warrant by the transferee thereof shall be deemed the acceptance of such transferee of all of the rights and obligations of a holder of a Warrant.

(b) This Warrant is exchangeable, upon the surrender hereof by the Holder to the office of the Company specified herein or pursuant to Section 3(b) hereof for one or more New Warrants, evidencing in the aggregate the right to purchase the number of Warrant Shares which may then be purchased hereunder. Any such New Warrant shall be dated as of the date of such exchange.

(c) The Holder and the Company shall maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise Form within one (1) Trading Day of delivery of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof. In addition to any other remedies which may be available to the Holder, in the event that the Company fails for any reason to effect delivery of the Warrant Shares by the Warrant Share Delivery Date, the Holder may revoke all or part of the relevant Warrant exercise by delivery of a notice to such effect to the Company, whereupon the Company and the Holder shall each be restored to their respective positions immediately prior to the exercise of the relevant portion of this Warrant, except that the liquidated damages described below shall be payable through the date notice of revocation or rescission is given to the Company.

3. Duration and Exercise of Warrants.

(a) This Warrant shall be exercisable by the registered Holder on any business day before 5:00 P.M., New York time, at any time and from time to time on or after the date hereof to and including the Expiration Date. At 5:00 P.M., New York time on the Expiration Date, the portion of this Warrant not exercised prior thereto shall be and become void and of no value. Prior to the Expiration Date, the Company may not call or otherwise redeem this Warrant without the prior written consent of the Holder, which consent shall be given or withheld at the sole and absolute discretion of the Holder.

(b) Certificates for shares purchased hereunder shall be transmitted by the Transfer Agent to the Holder by crediting the account of the Holder’s prime broker with The Depository Trust Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder or (B) this Warrant is being exercised via cashless exercise and Rule 144 is available, and otherwise by physical delivery to the address specified by the Holder in the Notice of Exercise by the date that is two (2) Trading Days after the latest of (A) the delivery to the Company of the Notice of Exercise, (B) surrender of this Warrant (if required) and (C) payment of the aggregate Exercise Price as set forth above (including by cashless exercise, if permitted) (such date, the “Warrant Share Delivery Date”). The Warrant Shares shall be deemed to have been issued, and Holder or any other person so designated to be named therein shall be deemed to have become a holder of record of such shares for all purposes, as of the date the Warrant has been exercised, with payment to the Company of the Exercise Price (or by cashless exercise, if permitted) and all taxes required to be paid by the Holder, if any, having been paid. The Company understands that a delay in the delivery of the Warrant Shares after the Warrant Share Delivery Date could result in economic loss to the Holder.

(c) This Warrant shall be exercisable in its entirety or, from time to time, for a portion of the number of Warrant Shares. If less than all of the Warrant Shares which may be purchased under this Warrant are exercised at any time, the Company shall issue or cause to be issued, at its expense, a New Warrant evidencing the right to purchase the remaining number of Warrant Shares for which no exercise has been evidenced by this Warrant. In the event the Common Stock representing the Warrant Shares is not delivered per the written instructions of the Holder within five (5) business days after Warrant Share Delivery Date, then the Company shall pay to Holder in cash. As compensation to the Holder for such loss, the Company agrees to pay (as liquidated damages and not as a penalty) to the Holder for late issuance of Warrant Shares upon exercise of this Warrant the proportionate amount of $10 per Trading Day (increasing to $20 per Trading Day after the fifth (5^th) Trading Day) commencing three (3) Trading Days after the Warrant Share Delivery Date for each $1,000 of Exercise Price of Warrant Shares for which this Warrant is exercised which are not timely delivered. The Company shall pay any payments incurred under this Section in immediately available funds upon demand. The parties hereto acknowledge and agree that the liquidated damages provision set forth in this section represents the parties’ good faith effort to quantify such damages and therefore agree that the form and amount of such liquidated damages are reasonable and will not constitute a penalty. Notwithstanding the foregoing, the payment of liquidated damages shall not relieve the Company from its obligations to deliver the Common Stock pursuant to the terms of this Warrant. The Company shall make any payments incurred under this Section 3 in immediately available funds within five (5) business days from the date of issuance of the applicable Warrant Shares. Nothing herein shall limit Holder’s right to pursue actual damages or cancel the Notice of Election for the Company’s failure to issue and deliver Common Stock to the Holder within seven (7) business days following the Warrant Share Delivery Date.

(d) In addition to any other rights available to the Holder, if the Company fails to cause the Transfer Agent to transmit to the Holder a certificate or the certificates representing the Warrant Shares pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, Common Shares to deliver in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”), then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including brokerage commissions, if any) for the Common Shares so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of Common Shares that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases Common Shares having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Common Shares with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing Common Shares upon exercise of the Warrant as required pursuant to the terms hereof.

4. Piggyback Registration Rights. If at any time after the issuance of the Warrant, the Company proposes to register any of its securities with the U.S. Securities and Exchange Commission, whether or not for its own account, the Company shall give prompt written notice to the Holder of its intention to effect such a registration (but in no event less than ten (10) business days prior to the anticipated filing date) and shall include in such registration the Warrant Shares naming the Holder as a selling stockholder thereunder. The Piggyback Registration Rights granted to the Holder pursuant to this Section shall continue until all of the Holder’s Warrant Shares have been sold in accordance with an effective registration statement or upon the Expiration Date. The Company will pay all registration expenses in connection therewith.

5. Payment of Taxes. Upon the exercise of this Warrant, the Company will pay all documentary stamp taxes attributable to the issuance of Warrant Shares; provided, however, that the Company shall not be required to pay any tax that may be payable in respect of any transfer involved in the registration of any certificates for Warrant Shares or Warrants in a name other than that of the Holder. The Holder shall be responsible for all other tax liability that may arise as a result of holding or transferring this Warrant or receiving Warrant Shares upon exercise hereof.

6. Replacement of Warrant. If this Warrant is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation hereof, or in lieu of and substitution for this Warrant, a New Warrant, but only upon receipt of evidence reasonably satisfactory to the Company of such loss, theft or destruction and indemnity, if requested, satisfactory to it. Applicants for a New Warrant under such circumstances shall comply with such other reasonable regulations and procedures and pay such other reasonable charges as the Company may prescribe.

7. Reservation of Warrant Shares. The Company covenants that it will at all times reserve and keep available out of the aggregate of its authorized but unissued Common Stock, solely for the purpose of enabling it to issue Warrant Shares upon exercise of this Warrant as herein provided, the number of Warrant Shares which are then issuable and deliverable upon the exercise of this entire Warrant, free from preemptive rights or any other actual contingent purchase rights of persons other than the Holder (taking into account the adjustments and restrictions of Section 8 hereof). The Company covenants that all Warrant Shares that shall be so issuable and deliverable shall, upon issuance and the payment of the applicable Exercise Price in accordance with the terms hereof, be duly and validly authorized, issued and fully paid and nonassessable. If the Company does not have a sufficient amount of Common Stock authorized to reserve for the Warrant Shares, it shall, as soon as reasonably practicable, use its best efforts to increase the number of its authorized shares such that the Company will have a sufficient amount of Common Stock authorized to reserve for the Warrant Shares.

8. Certain Adjustments. The Exercise Price and number of Warrant Shares issuable upon exercise of this Warrant are subject to adjustment from time to time as set forth in this Section 8. Upon each such adjustment of the Exercise Price pursuant to this Section 8, the Holder shall thereafter but prior to the Expiration Date be entitled to purchase, at the Exercise Price resulting from such adjustment, the number of Warrant Shares obtained by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of Warrant Shares issuable upon exercise of this Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment.

(a) An adjustment shall be made, if the Company, at any time while this Warrant is outstanding (i) pays a stock dividend (except scheduled dividends paid on outstanding preferred stock as of the date hereof which contain a stated dividend rate) or otherwise make distribution(s) on shares of its Common Stock or on any other class of capital stock or equity equivalent securities payable in Common Shares and not the Common Stock payable in shares of Common Stock; or (ii) subdivides outstanding shares of Common Stock into a larger number of shares. However, if the Company combines outstanding shares of Common Stock into a smaller number of shares, there shall be no adjustment to the Exercise Price. If either (i) or (ii) above occurs, the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding before such event and of which the denominator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding 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 or combination, and shall apply to successive subdivisions and combinations.

(b) In addition to any adjustments pursuant to Section 8(a) above, if at any time the Company grants, issues or sells any Common Shares Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders of any class of Common Shares (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of Common Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common Shares are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such Common Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).

(c) If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company, 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 Company or another Person) is completed pursuant to which holders of Common Shares are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding Common Shares, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Shares or any compulsory share exchange pursuant to which the Common Shares are effectively converted into or exchanged for other securities, cash or property, or (v) the Company, 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 or group of Persons whereby such other Person or group acquires more than 50% of the outstanding Common Shares (not including any Common Shares 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 exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder(without regard to any limitation on the exercise of this Warrant), the number of Common Shares (or successor security) of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of Common Shares for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one Common Share in such Fundamental Transaction, and the Company shall apportion the Exercise 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 Shares 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 exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days after, the consummation of the Fundamental Transaction, purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction. “Black Scholes Value“means the value of this Warrant based on the Black and Scholes Option Pricing Model obtained from the “OV”function on Bloomberg, L.P. (“Bloomberg”) determined as of the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected volatility equal to the greater of 100% and the 100 day volatility obtained from the HVT function on Bloomberg as of the Trading Day immediately following the public announcement of the applicable Fundamental Transaction, (C) the underlying price per share used in such calculation shall be the sum of the price per share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (D) a remaining option time equal to the time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 8(c) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the Common Shares acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Common Shares pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named as the Company herein.

(d) At any time while this Warrant is outstanding, if the Company distributes to all holders of Common Stock (and not to holders of this Warrant) evidence of its indebtedness or assets or rights or warrants to subscribe for or purchase any security (excluding those referred to in Section 8(a), and Section 8(e) hereof), then in each such case the Exercise Price shall be determined by multiplying the Exercise Price in effect immediately prior to the record date fixed for determination of stockholders entitled to receive such distribution by a fraction of which the denominator shall be the Exercise Price determined as of the record date mentioned above, and of which the numerator shall be such Exercise Price on such record date less the then fair market value at such record date of the portion of such assets or evidence of indebtedness so distributed applicable to one outstanding share of Common Stock as determined by the Company’s independent certified public accountants that regularly examines the financial statements of the Company (the “Appraiser”).

(e) If, at any time while this Warrant is outstanding, the Company shall issue, sell, is deemed to have issued or sold or cause to be issued rights or warrants to acquire or otherwise sell or distribute shares of Common Stock for a consideration per share less than the lower of the Exercise Price then in effect and the then fair market value of the Common Stock (“New Issuance Price”), then, immediately upon such issue or sale or deemed issuance or sale (the foregoing “Dilutive Issuances”), the Exercise Price shall be reduced to the New Issuance Price of the Dilutive Issuance) and upon any reduction of the Exercise Price, the number of shares of Common Stock that the Holder of this Warrant shall thereafter, on the exercise hereof, be entitled to receive shall be adjusted to a number determined by multiplying the Exercise Price in effect immediately prior thereto by a fraction, the numerator of which shall be the sum of (i) the number of shares of Common Stock outstanding immediately prior to such issuance, and (ii) the number of shares of Common Stock which the aggregate consideration received (or to be received, assuming exercise or conversion in full of such rights, warrants and convertible securities) for the issuance of such additional shares of Common Stock would purchase at the Exercise Price, and the denominator of which shall be the sum of the number of shares of Common Stock outstanding immediately after the issuance of such additional shares. Such adjustment shall be made successively whenever such an issuance is made.

(f) For the purposes of this Section 8, the following clauses shall also be applicable:

(i) Record Date. In case the Company shall take a record of the holders of its Common Stock for the purpose of entitling them (A) to receive a dividend or other distribution payable in Common Stock or in securities convertible or exchangeable into shares of Common Stock, or (B) to subscribe for or purchase Common Stock or securities convertible or exchangeable into shares of Common Stock, then such record date shall be deemed to be the date of the issue or sale of the shares of Common Stock deemed to have been issued or sold upon the declaration of such dividend or the making of such other distribution or the date of the granting of such right of subscription or purchase, as the case may be.

(ii) Treasury Shares. The number of shares of Common Stock outstanding at any given time shall not include shares owned or held by or for the account of the Company, and the disposition of any such shares shall be considered an issue or sale of Common Stock.

(g) All calculations under this Section 8 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be.

(h) Whenever the Exercise Price is adjusted pursuant to Section 8(d) hereof, the Holder, after receipt of the determination by the Appraiser, shall have the right to select an additional appraiser (which shall be a nationally recognized accounting firm), in which case the adjustment shall be equal to the average of the adjustments recommended by each of the Appraiser and such additional appraiser appointed under this Section 8(h). The Holder shall promptly mail or cause to be mailed to the Company, a notice setting forth the Exercise Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Such adjustment shall become effective immediately after the record date mentioned above, if:

(i) the Company shall declare a dividend (or any other distribution) on its Common Stock;

(ii) the Company shall declare a special nonrecurring cash dividend on or a redemption of its Common Stock;

(iii) the Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of capital stock of any class or of any rights;

(iv) the approval of any stockholders of the Company shall be required in connection with any reclassification of the Common Stock of the Company, any consolidation or merger to which the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Common Stock is converted into other securities, cash or property; or

(v) the Company shall authorize the voluntary dissolution, liquidation or winding up of the affairs of the Company, then the Company shall cause to be mailed to the Holder at their last addresses as they shall appear upon the Warrant Register, at least thirty (30) 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 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 Common Stock of record shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer, share exchange, dissolution, liquidation or winding up; provided, however, that the failure to mail such notice or any defect therein or in the mailing thereof shall not affect the validity of the corporate action required to be specified in such notice.

(i) An issuance of Common Stock upon the occurrence of a future event, circumstance or contingency shall be deemed to have occurred upon the issuance of the Common Stock or common stock equivalent whether or not such event, circumstance or contingency has occurred or is likely to occur.

9. Payment of Exercise Price. The Holder, at its sole election, may pay the Exercise Price in one of the following manners:

(a) Cash Exercise. The Holder shall deliver immediately available funds; or

(b) Cashless Exercise. If at any time from the date of issuance of this Warrant there is no effective Registration Statement registering the resale of the Warrant Shares by the Holder at such time, this Warrant may also be exercised at such time by means of a cashless exercise. In such event, the Holder shall surrender this Warrant to the Company, together with a notice of cashless exercise, and the Company shall issue to the Holder the number of Warrant Shares determined as follows:

X = Y (A-B)/A

where:

X = the number of Warrant Shares to be issued

to the Holder.

Y = the number of Warrant Shares with respect to which this Warrant is being exercised.

A = the average closing bid price of the Common Stock for the five (5) trading days immediately prior to the Date of Exercise.

B = the Exercise Price, as may be adjusted pursuant to this Warrant.

For purposes of Rule 144 of the Securities Act, it is intended, understood and acknowledged that the Warrant Shares issued in a cashless exercise transaction shall be deemed to have been acquired by the Holder, and the holding period for the Warrant Shares shall be deemed to have been commenced, on the issue date.

(c) The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to this Section 9 or as otherwise as may be allowable pursuant to this Warrant, to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Election, the Holder (together with the Holder’s Affiliates (as defined below), and any other persons acting as a group together with the Holder or any of the Holder’s Affiliates), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of Common Stock beneficially owned by the Holder and its Affiliates shall include the number of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of its Affiliates and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates. Except as set forth in the preceding sentence, for purposes of this Section 9(c), beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in this Section 9(c) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Election shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, 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 9(c), in determining the number of outstanding Common Stock, a Holder may rely on the number of outstanding Common Stock as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of Common Stock outstanding. Upon the written or oral request of a Holder, the Company shall within two Trading Days confirm orally and in writing to the Holder the number of Common Stock then outstanding. In any case, the number of outstanding Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or its Affiliates since the date as of which such number of outstanding Common Stock was reported. The “Beneficial Ownership Limitation“shall be 4.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of Common Stock issuable upon exercise of this Warrant. The Holder may decrease the Beneficial Ownership Limitation at any time and the Holder, upon not less than 61 days’ prior notice to the Company, may increase the Beneficial Ownership Limitation provisions of this Section 9(c), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Shares outstanding immediately after giving effect to the issuance of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 9(c) shall continue to apply. Any such increase will not be effective until the 61^st day after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 9(c) 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 holder of this Warrant. As used herein, “Affiliate”means any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with a person, as such terms are used in and construed under Rule 405 under the Securities Act.

10. Fractional Shares. The Company shall not be required to issue or cause to be issued fractional Warrant Shares on the exercise of this Warrant. The number of full Warrant Shares which shall be issuable upon the exercise of this Warrant shall be computed on the basis of the aggregate number of Warrant Shares purchasable on exercise of this Warrant so presented. If any fraction of a Warrant Share would, except for the provisions of this Section 10, be issuable on the exercise of this Warrant, the Company shall pay an amount in cash equal to the Exercise Price multiplied by such fraction.

11. Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, facsimile, or electronic mail, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received), or (b) upon receipt, when sent by electronic mail (provided confirmation of transmission is electronically generated and keep on file by the sending party), or (c) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: (i) if to the Company, to: Gratitude Health, Inc., 4014 Chase Avenue, #212, Miami Beach, FL 33140, with a copy to: Faegre, Drinker, Biddle & Reath, LLP, 1177 Avenue of the Americas, New York, NY 10036, Attn: Peter J. Gennuso, Esq. and (ii) if to the Holder, to: the address and fax number indicated on the front page of this Warrant, with an additional copy by fax only to (which shall not constitute notice):_________.

12. Warrant Agent. The Company shall serve as warrant agent under this Warrant. Upon thirty (30) days’ notice to the Holder, the Company may appoint a new warrant agent. Any corporation into which the Company or any new warrant agent may be merged or any corporation resulting from any consolidation to which the Company or any new warrant agent shall be a party or any corporation to which the Company or any new warrant agent transfers substantially all of its corporate trust or shareholders services business shall be a successor warrant agent under this Warrant without any further action. Any such successor warrant agent shall promptly cause notice of its succession as warrant agent to be mailed (by first class mail, postage prepaid) to the Holder at the Holder’s last address as shown on the Warrant Register.

13. Miscellaneous.

(a) This Warrant shall be binding on and inure to the benefit of the parties hereto. This Warrant may be amended only in writing signed by the Company and the Holder.

(b) Nothing in this Warrant shall be construed to give to any person or corporation other than the Company and the Holder any legal or equitable right, remedy or cause under this Warrant. This Warrant shall inure to the sole and exclusive benefit of the Company and the Holder.

(c) If the last or appointed day for the taking of any action or the expiration of any right required or granted herein shall not be a Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading Day.

(d) No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Shares or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.

(e) Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder or holder of Warrant Shares.

(f) This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.

(g) This Warrant shall be governed by and construed and enforced in accordance with the laws of the State of Nevada without regard to the principles of conflicts of law thereof.

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

(i) In case any one or more of the provisions of this Warrant shall be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Warrant shall not in any way be affected or impaired thereby and the parties will attempt in good faith to agree upon a valid and enforceable provision which shall be a commercially reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision in this Warrant.

(j) The Company hereby represent and warrants to the Holder that: (i) it is voluntarily issuing this Warrant of its own freewill, (ii) it is not issuing this Warrant under economic duress, (iii) the terms of this Warrant are reasonable and fair to the Company, and (iv) the Company has had independent legal counsel of its own choosing review this Warrant, advise the Company with respect to this Warrant, and represent the Company in connection with its issuance of this Warrant.

(k) This Warrant may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and, all of which taken together shall constitute one and the same Warrant. In the event that any signature is delivered by facsimile transmission, such signature shall create a valid binding obligation of the party executing (or on whose behalf such signature is executed) the same with the same force and effect as if such facsimile signature were the original thereof.

(l) This Warrant and the obligations of the Company hereunder shall not be assignable by the Company.

(m) Notwithstanding anything in this Warrant to the contrary, the parties hereto hereby acknowledge and agree to the following: (i) the Holder makes no representations or covenants that it will not engage in trading in the securities of the Company; (ii) the Company shall, by 8:30 a.m. New York Time on the trading day following the date hereof, file a current report on Form 8-K disclosing the material terms of the transactions contemplated hereby; (iii) the Company has not and shall not provide material non-public information to the Holder unless prior thereto the Holder Party shall have executed a written agreement regarding the confidentiality and use of such information; and (iv) the Company understands and confirms that the Holder will be relying on the acknowledgements set forth in clauses (i) through (iii) above if the Holder effects any transactions in the securities of the Company.

(n) Trading Day”means a day on which the principal Trading Market is open for trading for three or more hours.

(o) Trading Market”means the first listed of 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 MKT, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global Select Market, the New York Stock Exchange, the OTC Bulletin Board, the OTCQB, or the OTCQX (or any successors to any of the foregoing).

14. Governing Law; Submission to Jurisdiction. All disputes arising under this Warrant shall be governed by and interpreted in accordance with the laws of the State of Nevada, without regard to principles of conflict of laws. Any action brought by either party against the other concerning the transactions contemplated by this Warrant must be brought only in the civil or state courts of New York or in the federal courts located in the State and county of New York. Both parties and the individual signing this Warrant on behalf of the Company agree to submit to the jurisdiction of such courts. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. In the event that any provision of this Warrant is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or unenforceability of any other provision of this Warrant. Nothing contained herein shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other decision in favor of the Holder.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed by its authorized officer as of the date first indicated above.

	GRATITUDE HEALTH, INC.

	By	/s/ Zalmi Duchman
	Name: Zalmi Duchman
	Its: Chief Executive Office

	HOLDER

	By:
	Name:
	Title (if not an individual):

EXHIBIT A

FORM OF ELECTION TO PURCHASE

Gratitude Health, Inc.

Re: Intention to Exercise Right to Purchase Shares of Common Stock Under the Warrant

Gentlemen:

In accordance with the Warrant enclosed with this Form of Election to Purchase, the undersigned hereby irrevocably elects to purchase _________________shares of Common Stock, $0.001 par value per share, of Gratitude Health, Inc. and, if such Holder is not utilizing the cashless exercise provisions set forth in the Warrant, encloses herewith $________ in cash, certified or official bank check(s), which sum represents the aggregate Exercise Price for the number of shares of Common Stock to which this Form of Election to Purchase relates, together with any applicable taxes payable by the undersigned pursuant to the Warrant. Any capitalized terms used but not defined in this Form of Election to Purchase shall have the meaning ascribed to them in the accompanying Warrant.

The undersigned requests that certificates for the shares of Common Stock issuable upon this exercise be issued in the name of:

(Please insert SS# or FEIN #)

(Please print name and address)

If the number of shares of Common Stock issuable upon this exercise shall not be all of the shares of Common Stock which the undersigned is entitled to purchase in accordance with the enclosed Warrant, the undersigned requests that a New Warrant evidencing the right to purchase the shares of Common Stock not issuable pursuant to the exercise evidenced hereby be issued in the name of and delivered to:

(Please print name and address)

Dated:	,__________	Name of Holder:

		Signed:
		Print Name:
		Title:

(Signature must conform in all respects to name of Holder as specified on the face of the Warrant)

Gratitude Health, Inc. 8-K

Exhibit 10.3

FORM OF

LOCK-UP AND LEAK OUT AGREEMENT

This LOCK-UP AND LEAK-OUT AGREEMENT (the “Agreement”) is made as of ______, 2020 (the “Effective Date”) by and between Gratitude Health, Inc. a Nevada corporation, (the “Company”), and the undersigned holder of common stock (the “Stockholder”) of the Company.

WHEREAS, to ensure the development of an orderly trading market in the Company’s common stock (“Common Stock”), the Company and the Stockholder intend to enter into this Agreement to provide for the circumstances under which the Stockholder may sell or otherwise dispose of shares of the Company’s securities; and

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 undersigned Stockholder agree as follows:

Twenty-Four Month Prohibition on Sales or Transfers. Except as otherwise permitted under the section below “Restrictions on Sales; Volume Limitation, the Stockholder, including the Stockholder’s Affiliated Entities (as defined below), hereby agrees that for a period of twenty-four (24) months from the date of this Agreement (the “Lock-Up Period”), the Stockholder will not offer, sell, contract to sell, pledge, give, donate, transfer or otherwise dispose of, directly or indirectly, any shares of Company Common Stock or securities convertible into or exercisable for Common Stock or securities or rights convertible into or exchangeable or exercisable for any Common Stock, whether owned by the Stockholder as the date hereof or acquired subsequent to the date hereof (collectively, the “Lock-Up Shares”), enter into a transaction which would have the same effect, or enter into any swap, hedge or other arrangement that transfers, in whole or in part, any of the economic or voting consequences of ownership of such securities, whether any such aforementioned transaction is to be settled by delivery of the Lock-Up Shares or such other securities, in cash or otherwise, or publicly disclose the intention to make any such offer, sale, pledge or disposition, or to enter into any such transaction, swap, hedge or other arrangement (the “Lock-Up Agreement”). As used in this Agreement “Affiliated Entities” shall mean any legal entity, including any corporation, limited liability company, partnership, not-for-profit corporation, estate planning vehicle or trust, which is directly or indirectly owned or controlled by the Stockholder or his or her descendants or spouse, of which such Stockholder or his or her descendants or spouse are beneficial owners, or which is under joint control or ownership with any other person or entity subject to a lock-up agreement regarding the Common Stock with terms substantially identical to this Agreement.

Restrictions on Sales; Volume Limitations. The Company anticipates effectuating a 31.993:1 reverse split of its Common Stock (“Reverse Spit”) by no later than June 1, 2020, and, for purposes of this Agreement, the share price of the Common Stock shall mean its bid price per share following the Reverse Split (“Share Price”).

(i) Beginning the sooner of: (a) six (6) months from the Effective Date of this Agreement pursuant to Rule 144, or (b) immediately upon the effectiveness of a registration statement as declared by the U.S. Securities and Exchange Commission, in which shares of the Stockholder’s Common Stock have been registered, the Stockholder shall have the right to effect open market sales of his, her or its, as the case may be, Lock-Up Shares in an aggregate amount, subject to the following conditions;

(ii) If during the Lock-Up Period the Share Price is less than or equal to twenty-five cents ($0.25) per share, the Stockholder shall be prohibited from selling any Common Stock. Any such prohibition will continue during such time that the Share Price is less than or equal to twenty-five cents ($0.25).

(iii) If during the Lock-Up Period the Share Price exceeds twenty-five cents ($0.25) per share, the Stockholder shall have the right to effect open market sales of his, her or its, as the case may be, Lock-Up Shares in an aggregate daily amount equal to the following:

(a) If the Share Price is above twenty-five cents ($0.25) but under fifty cents ($0.50) (such price range, the “Initial Range”) the Stockholder shall have the right to effect open market sales of Lock-Up Shares in an aggregate daily amount equal to 0.01 multiplied by the Total Weekly Volume (as defined below) in the Common Stock, during such time that the Share Price is within the Initial Range.

(b) If the Share Price is equal to fifty cents ($0.50) per share but is less than seventy-five cents ($0.75) per shares (such price range, the “Secondary Range”), the Stockholder shall have the right to effect open market sales of Lock-Up Shares in an aggregate daily amount equal to 0.03 multiplied by the Total Weekly Volume (as defined below) in the Common Stock, during such time that the Share Price is within the Secondary Range.

(c) If the Share Price is equal to seventy-five cents ($0.75) per share but is less than one dollar ($1.00) per share (such price range, the “Third Range”), the Stockholder shall have the right to effect open market sales of Lock-Up Shares in an aggregate daily amount equal to 0.06 multiplied by the Total Weekly Volume (as defined below) in the Common Stock, during such time that the Share Price is within the Third Range.

(d) If Share Price is equal to or exceeds one dollar ($1.00) per share, there shall be no limitations on the amount of Common Stock that may be sold by the Stockholder, during such time the Share Price is equal to or greater than one dollar ($1.00).

For purposes of this Agreement, “Total Weekly Volume” shall mean the total number of shares of the Company’s Common Stock that are actually traded (bought and sold) prior to the Stockholder’s open market sales, as calculated by adding the daily volume of the Common Stock for the day(s) of that week prior to the open market sale. By way of example only, if the Share Price is $0.30 and the Stockholder is seeking to effect an open market sale on a given Wednesday, then the Total Weekly Volume shall be the sum of the daily volume for the Common Stock for Monday and Tuesday of that week. For clarity, Total Weekly Volume shall only be calculated within the range of Monday through Friday and shall not include the daily volume for any days of a previous week.

The amount of Lock-Up Shares that may be sold pursuant to this Section (b), shall be rounded to the nearest one hundred (100) shares. Lock-Up Share amounts equaling less than one hundred (100) shares shall be rounded up to equal one hundred shares.

By way of example only, if the Stockholder’s multiplier is equal to 0.01 when the Share Price exceeds twenty-five cents ($0.25), and during one week the total volume of the Common Stock is equal to nine thousand (9,000) shares, then the Stockholder shall apply the multiplier (0.01) to nine thousand (9,000) to determine the maximum Lock-Up Shares that may be sold for that period of ninety (90) shares. Because the amount of shares is less than one- hundred (100), the Stockholder will be eligible to sell one-hundred (100) shares. .

Lock-Up Share amounts that may be sold are not cumulative. If the Stockholder waives his, her or its, as the case may be, rights at any time during the Lock-Up Period, pursuant to this Section (b) (“Waivable Period”), the calculated Lock-Up Share amounts that may be sold for those Waivable Periods shall not accrue and not add to Lock-Up Share amounts that may be sold in future period or periods.

Application of this Agreement to Shares Sold or Otherwise Transferred. So long as such sales are made in compliance with the requirements of this Agreement, Lock-Up Shares sold in the public market shall thereafter not be subject to the restrictions on sale contained in this Agreement.

Attempted Transfers. Any attempted or purported sale or other Transfer of any Lock- Up Shares by the Stockholder in violation or contravention of the terms of this Agreement shall be null and void ab initio. The Company shall instruct its transfer agent to reject and refuse to transfer on its books any Lock-Up Shares that may have been attempted to be sold or otherwise transferred in violation or contravention of any of the provisions of this Agreement and shall not recognize any person or entity.

Broker Authorization. The Stockholder hereby authorizes any and all brokers, for all accounts holding the Stockholder’s Lock-Up Shares, to provide directly to the Company, immediately upon the Company’s request, a copy of all account statements showing the Lock-Up Shares and all trading activity in the Lock-Up Shares during the Lock-Up Period.

Acknowledgement of Representation. The Stockholder represents and warrants to the Company that the Stockholder was or had the opportunity to be represented by legal counsel and other advisors selected by Stockholder in connection with this Agreement. The Stockholder has reviewed this Agreement with his, her or its legal counsel and other advisors and understands the terms and conditions hereof.

Legends on Certificates. All Lock-Up Shares now or hereafter owned by the Stockholder, except any shares purchased in open market transactions by Stockholders that are not affiliates (as such term is defined under securities laws) of the Company, shall be subject to the provisions of this Agreement and the certificates representing such Lock-Up Shares shall bear the following legends:

THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED FOR VALUE UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR UNLESS THE CORPORATION RECEIVES AN OPINION OF COUNSEL SATISFACTORY TO IT, OR OTHERWISE SATISFIES ITSELF, THAT AN EXEMPTION FROM REGISTRATION IS AVAILABLE.

THE SALE, ASSIGNMENT, GIFT, BEQUEST, TRANSFER, DISTRIBUTION, PLEDGE, HYPOTHECATION OR OTHER ENCUMBRANCE OR DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY AND MAY BE MADE ONLY IN ACCORDANCE WITH THE TERMS OF A LOCK-UP AGREEMENT, A COPY OF WHICH MAY BE EXAMINED AT THE OFFICE OF THE CORPORATION.

Governing Law; Venue. All disputes arising under this Agreement shall be governed by and interpreted in accordance with the laws of the State of Nevada, without regard to principles of conflict of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement must be brought only in the civil or state courts of New York or in the federal courts located in the State and county of New York. Both parties and the individual signing this Agreement on behalf of the Company agree to submit to the jurisdiction of such courts. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conformed with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or unenforceability of any other provision of this Agreement. Nothing contained herein shall be deemed or operate to preclude the Stockholder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Stockholder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other decision in favor of the Stockholder.

Binding Effect. This Agreement will be binding upon and inure to the benefit of the Company, its successors and assigns and to the Stockholder and their respective permitted heirs, personal representatives, successors and assigns.

Entire Understanding. This Agreement sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter hereof and the transactions contemplated hereby and supersedes all prior written and oral agreements, arrangements and understandings relating to the subject matter hereof. This Agreement may only be changed by an agreement in writing, mutually signed by the Company and the Stockholder subject to this Agreement.

Remedies. The parties hereto acknowledge that money damages are not an adequate remedy for violations of this Agreement and that any party may, in such party’s sole discretion, apply to any court of competent jurisdiction for specific performance or injunctive relief or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party hereto waives any objection to the imposition of such relief. All rights, powers and remedies provided under this Agreement or otherwise available in respect hereof, whether at law or in equity, shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by any party hereto shall not preclude the simultaneous or later exercise of any other such right, power or remedy by such party.

Counterparts. This Agreement may be executed by facsimile and in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. Each counterpart may consist of a number of copies each signed by less than all, but together signed by all, of the parties hereto.

IN WITNESS WHEREOF, this Agreement has been signed as of the date first above written.

GRATITUDE HEALTH, INC.

/s/ Zalman Duchman

By: Name: Zalman Duchman

Title: Chief Executive Officer

IN WITNESS WHEREOF, the undersigned have caused this Lock-Up Leak-Out Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.

Name of Stockholder:

Signature of Authorized Signatory of Stockholder

Name of Authorized Signatory:

Title of Authorized Signatory:

Telephone Number of Stockholder:

Email Address of Stockholder:

Facsimile Number of Stockholder:

Address for Notice of Stockholder:

Address for Delivery of Shares for Stockholder (if not same as address for notice):

STOCKHOLDER’S SPOUSE (if and as applicable):

The undersigned spouse of the Stockholder has read and hereby approves the foregoing Agreement and agrees to be irrevocably bound by the Agreement and further agrees that any community property interest shall be similarly bound by the Agreement. I hereby irrevocably appoint my spouse as my attorney-in-fact with respect to any amendment or exercise of any rights under the Agreement.

Signature:

Name:

Signature of Authorized Signatory of Spouse:

Gratitude Health, Inc. 8-K

Exhibit 10.4

PUT OPTION AGREEMENT

This Put Option Agreement (this “Agreement”), is made and entered as of April 20, 2020, by and between Gratitude Health, Inc., a Nevada corporation (the “Company”) and Alpha Capital Anstalt (the “Stockholder”).

WHEREAS, as of the date hereof, the Stockholder owns, on a fully diluted basis but subject to such Beneficial Ownership Limitation restrictions on conversion, exercise or exchange (as defined in Section 9(c) of the Warrant (defined below)), an aggregate of 195,805,692 shares of the Company’s Common Stock (the “Shares” or “Stock”); and

WHEREAS, the Company anticipates effectuating a 31.993:1 reverse stock split as soon as practicable after the date hereof, which, once consummated, would result in the Stockholder owning an aggregate of 932,898 shares of Common Stock (the “Stockholder Shares”) and a warrant to purchase up to an additional 5,187,319 shares of the Company’s Common Stock, as more fully detailed in that certain Warrant issued to the Stockholder (the “Warrant”), all the foregoing Shares and Warrant subject to the Beneficial Ownership Limitation; and

WHEREAS, the Stockholder desires to have the right to sell to the Company up to all of the Stockholder Shares, and the Company desires to grant such right to the Stockholder, pursuant to the terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the mutual and dependent covenants hereinafter set forth, the parties agree as follows:

1. Sale of Stockholder Shares. Subject to any applicable state and federal securities laws, the Stockholder may sell or otherwise dispose of the Stockholder Shares.

2. Grant of Put Option.

(a) Right to Sell. In the event that the Stockholder has not generated an aggregate $1,300,000 in gross proceeds from the sale of the Stockholder Shares (the “Total Investment”) by the second anniversary of the date of this Agreement (such 24 month period, the “Market Period”), then the Stockholder shall have the right, but not the obligation, to cause the Company to purchase up to an amount of the Stockholder Shares equal to the difference between the Total Investment and the net proceeds actually realized by the Stockholder (the “Market Period Proceeds”) during the Market Period at the Put Purchase Price (as defined in Section 3 of this Agreement) (the “Put Right”). The Put Right granted hereunder to the Stockholder shall expire fourteen (14) days from end of the Market Period (the “Put Expiration Date”).

(b) Procedures.

(i) If the Stockholder desires to sell the Stockholder Shares pursuant to the Put Right contained in Section 2(a) on or before the Put Expiration Date, then the Stockholder shall deliver to the Company a written, unconditional and irrevocable notice (the “Put Exercise Notice”) exercising the Put Right and specifying the number of Shares to be sold (the “Put Shares”) by the Stockholder to the Company.

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(ii) By delivering the Put Exercise Notice, the Stockholder represents and warrants to the Company that (A) the Stockholder has full right, title and interest in and to the Stockholder Shares, (B) the Stockholder has all the necessary power and authority and has taken all necessary action to sell to the Company such Stockholder Shares as contemplated by this Section 2, and (C) the Stockholder Shares are free and clear of any and all mortgages, pledges, security interests, options, rights of first offer, encumbrances or other restrictions or limitations of any nature whatsoever created by Stockholder other than those arising as a result of or under the terms of this Agreement.

(iii) Subject to Section 2(c) below, the closing of any sale of Stockholder Shares pursuant to this Section 2 shall take place no later than ten (10) business days following receipt by the Company of the Put Exercise Notice. The Company shall give the Stockholder at least forty-eight (48) hours’ written notice of the date of closing (the “Put Right Closing Date”).

(iv) In the event the Stockholder does not deliver a Put Exercise Notice to the Company on or before the Put Expiration Date, any rights provided to Stockholder to require the Company to purchase the Shares pursuant to this Agreement shall terminate and be of no further force or effect.

(c) Consummation of Sale. The Company will pay the Put Purchase Price for the Shares on the Put Right Closing Date by issuing a promissory note to the Stockholder, a form of which is attached as Exhibit A.

(d) Cooperation. The Company and the Stockholder each shall take all actions as may be reasonably necessary to consummate the sale contemplated by this Section 2, including, without limitation, entering into agreements and delivering certificates and instruments and consents as may be deemed necessary or appropriate.

(e) Closing. At the closing of any sale and purchase pursuant to this Section 2, the Stockholder shall deliver to the Company a certificate or certificates representing the Stockholder Shares to be sold (if any), accompanied by stock powers and all necessary stock transfer taxes paid and stamps affixed, if necessary, against receipt of the Put Purchase Price.

3. Put Purchase Price. In the event Stockholder exercises the Put Right hereunder, the purchase price per share at which the Company shall be required to purchase the Put Shares (the “Put Purchase Price”) shall be calculated by (a) subtracting the aggregate Market Period Proceeds from Total Investment prior to the Put Expiration Date and (b) dividing the difference by the number of Stockholder Shares held by Stockholder on record as of the Put Closing Date:

Total Investment less Market Period Proceeds

Stockholder Shares at the Put Right Closing Date

* 194,851,030 pre-reverse split

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4. Notices. All notices, demands, waivers, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: (i) if to the Company, to: Home Bistro, Inc., 4014 Chase Avenue, #212, Miami Beach, FL 33140, Attn: Zalmi Duchman, CEO, with a copy by email only to: Faegre Drinker Biddle & Reath LLP 1177 Avenue of the Americas, New York, NY 10036, Attn: Peter J. Gennuso, Esq., peter.gennuso@faegredrinker.com, and (ii) if to the Stockholder, to: Lettstrasse 32, 9490 Vaduz, Liechtenstein, Fax: 011-423-2323196, with an additional copy by fax only to (which shall not constitute notice): Grushko & Mittman, P.C., 515 Rockaway Avenue, Valley Stream, New York 11581, fax: (212) 697-3575.

5. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

6. Successor and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. However, neither this Agreement nor any of the rights of the parties hereunder may otherwise be transferred or assigned by any party hereto, except (a) that if the Company shall merge or consolidate with or into, or sell or otherwise transfer substantially all its assets to, another company which assumes the Company’s obligations under this Agreement, the Company may assign its rights hereunder to that company, or (b) the Shares are transferred by Stockholder by will or by the laws of intestate succession, to Stockholder’s executors, administrators, testamentary trustees, legatees or beneficiaries. Any attempted transfer or assignment in violation of this Section 5 shall be void.

7. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement.

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

Page 3 of 6

9. Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

10. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

11. Governing Law; Submission to Jurisdiction. All disputes arising under this Agreement shall be governed by and interpreted in accordance with the laws of the State of Nevada, without regard to principles of conflict of laws. Any action brought by either party against the other concerning the transactions contemplated by this Agreement must be brought only in the civil or state courts of New York or in the federal courts located in the State and county of New York. Both parties and the individual signing this Agreement on behalf of the Company agree to submit to the jurisdiction of such courts. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s fees and costs. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may prove invalid or unenforceable under any law shall not affect the validity or unenforceability of any other provision of this Agreement. Nothing contained herein shall be deemed or operate to preclude the Stockholder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the Stockholder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other decision in favor of the Stockholder.

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

13. Compliance with Laws and Regulations. The exercise of the Put Option shall be subject to compliance by the Company and the Stockholder with all applicable requirements of law, including federal and state securities laws.

14. No Strict Construction. The parties to this Agreement 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 will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.

Page 4 of 6

15. Survival. The representations and warranties of the Company contained in this Agreement shall survive until the twenty-four (24) month anniversary of the Put Expiration Date.

16. Execution. This agreement may be executed in two or more counterparts, some of which may be signed by fewer than all the parties or may contain facsimile copies of pages signed by some of the parties. Each of those counterparts shall be deemed to be an original copy of this agreement, but all of them together shall constitute one and the same agreement. This agreement or any counterpart thereof may be delivered by facsimile or other means of electronic transmission and any such executed facsimile copy of PDF copy shall be treated as an original and shall be binding to the same extent as an executed original.

******************************************

IN WITNESS WHEREOF, the parties hereto have executed this Put Option Agreement on the date first written above.

GRATITUDE HEALTH, INC.

By:	/s/ Zalmi Duchman
Name:	Zalmi Duchman
Title:	Chief Executive Officer

ALPHA CAPITAL

By:	/s/ Konrad Ackermann

Name:	Konrad Ackermann

Title:	Director

Page 5 of 6

EXHIBIT A

PUT EXERCISE NOTICE

Name of Stockholder: Alpha Capital

Address:

	$ 1,300,000
Less: Aggregate Proceeds from the sale of Stock	-$
Net Sale Value of Put		$

Original Shares (post reverse split)*	6,090,377
Less: Shares Sold during Put Term
Number of Shares held by Stockholder subject to this Put Option

Put Price per Share

*Original and fully-diluted shares.

	By:
	Name:
	Title:

Page 6 of 6

Gratitude Health, Inc. 8-K

Exhibit 99.1

Gratitude Health, Inc. Acquires Direct-to-Consumer

Prepared Meal Provider “Home Bistro, Inc.”

PALM BEACH GARDENS, Fla., April 21, 2020 (BUSINESS WIRE) – Gratitude Health, Inc. (OTCQB: GRTD) (the “Company” or “Gratitude”) today announced it has completed the acquisition of Home Bistro, Inc. (“Home Bistro”), a Florida-based, direct-to-consumer, online prepared meal-delivery company, in an all-stock transaction. Home Bistro provides high quality, direct-to-consumer, ready-made meals at www.homebistro.com, and restaurant quality meats and seafood through its Colorado Prime brand. Home Bistro is uniquely positioned to take advantage of the developing market opportunity generated by consumers’ growing demand for prepared meals ordered online and delivered to their homes.

The Company plans to change its name to “Home Bistro, Inc.” and request a change to its ticker symbol as soon as possible and upon approval from the Secretary of State of Nevada and the Financial Industry Regulatory Authority.

Merger Transaction

Pursuant to the terms and conditions of the merger transaction, all of the issued and outstanding shares of common stock of Home Bistro was exchanged for shares of common stock of Gratitude, resulting in Home Bistro becoming a wholly owned subsidiary of Gratitude. The shareholders of Gratitude retain approximately 20% of the issued and outstanding common stock of the Company, on a fully diluted basis.

The Transaction is an arm’s length transaction and was completed subject to a number of conditions, including, but not limited to, the following key conditions:

●

the execution of a Definitive Agreement; and

●

the completion of mutually satisfactory due diligence; and

●

the receipt of all required regulatory, corporate and third-party approvals, including the approval of a majority of shareholders of Home Bistro, and the fulfillment of all applicable regulatory requirements and conditions necessary to complete the acquisition.

New Board and Management

Effective on the closing of the merger transaction, the then current members of the board of directors of Gratitude and the current management of Gratitude have resigned. With respect of the Board, the current members were replaced by members appointed by Home Bistro and Gratitude and the existing management team of Home Bistro replaced the current management of Gratitude. The Company will be led by Home Bistro’s Chief Executive Officer, Zalmi Duchman, a successful entrepreneur, pioneer and thought leader in the food tech industry.

A Current Report on Form 8-K containing more detailed information regarding the merger transaction and the Company will be filed with the Securities and Exchange Commission

About Home Bistro, Inc.

Founded in 2014, Home Bistro provides high quality, direct-to-consumer, ready-made meals online at www.homebistro.com and restaurant quality meats and seafood through its Colorado Prime brand.

Forward-Looking Information

This news release contains forward-looking statements and forward-looking information within the meaning of applicable securities laws. These statements relate to future events or future performance. All statements other than statements of historical fact may be forward-looking statements or information. Generally, forward-looking statements and information may be identified by the use of forward-looking terminology such as “plans”, “ expects” or “does not expect”, “proposed”, “is expected”, “budgets”, “scheduled”, “estimates”, “forecasts”, “intends”, “anticipates” or “does not anticipate”, or “believes”, or variations of such words and phrases, or by the use of words or phrases which state that certain actions, events or results may, could, would, or might occur or be achieved. More particularly and without limitation, this news release contains forward-looking statements and information concerning the merger transaction (as described herein). Forward-looking statements consist of statements that are not purely historical, including any statements regarding beliefs, plans, expectations or intentions regarding the future. These forward-looking statements include, among others, statements about Gratitude’s future financial performance, the impact of management changes, any organizational restructuring and the sufficiency of capital resources to fund its ongoing operating requirements; statements about Gratitude’s expectations regarding the capitalization, resources and ownership structure of the combined company; statements about the potential benefits of the transaction; and any other statements other than statements of historical fact. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking statements that Gratitude makes due to a number of important factors, including (i) risks related to the ability to realize the anticipated benefits of the transaction, (ii) risks related to the combined entity’s access to existing capital and fundraising prospects to fund its ongoing operations, and (iii) other business effects, including the effects of industry, market, economic, political or regulatory conditions, future exchange and interest rates, and changes in tax and other laws, regulations, rates and policies, including the impact of COVID-19 on the broader market. Readers are cautioned not to place undue reliance on forward-looking statements, as there can be no assurance that the plans, intentions or expectations upon which they are based will occur. By their nature, forward-looking statements involve numerous assumptions, known and unknown risks and uncertainties, both general and specific that contribute to the possibility that the predictions, estimates, forecasts, projections and other forward-looking statements will not occur.

The forward-looking statements contained in this press release are made as of the date of this press release. Except as required by law, the Company disclaims any intention and assumes no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise. Detailed information regarding factors that may cause actual results to differ materially from the results expressed or implied by statements in this press release relating to the Company may be found in the Company’s periodic filings with the Securities and Exchange Commission, including the factors described in the sections entitled “Risk Factors”, copies of which may be obtained from the SEC’s website at www.sec.gov. Additionally, the Company undertakes no obligation to comment on the expectations of, or statements made by, third parties in respect of the matters discussed above.

Contact:

Zalmi Duchman, CEO

zalmi@homebistro.com

Ph: 631.694.1111

Gratitude Health, Inc. 8-K

Exhibit 99.2

HOME BISTRO, INC.
Index to Financial Statements


		Page

Financial Statements:

Report of Independent Registered Public Accounting Firm		2

Balance Sheet as of December 31, 2018		3

Statement of Operations for the Year Ended December 31, 2018		4

Statement of Stockholders’ Deficit for the Year Ended December 31, 2018		5

Statement of Cash Flow for the Year Ended December 31, 2018		6

Notes to Financial Statements		7

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

To the Board of Directors and Stockholders of
Home Bistro, Inc.

Opinion on the Financial Statements

We have audited the accompanying balance sheet of Home Bistro, Inc. (the Company) as of December 31, 2018, and the related statements of operations, stockholders’ deficit, and cash flows for the year ended December 31, 2018, and the related financial statement footnotes (collectively referred to as the “financial statements”).

In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2018 and the results of its operations and its cash flows for the year ended December 31, 2018 in conformity with accounting principles generally accepted in the United States of America.

Substantial Doubt Regarding Going Concern

The accompanying financial statements have been prepared assuming that the Company will continue as a going concern. As discussed in Note 2 of the financial statements, the Company suffered recurring losses from operations and has a significant accumulated deficit. In addition, the Company continues to experience negative cash flows from operations. These factors raise substantial doubt about the Company’s ability to continue as a going concern. Management’s plans in regard to these matters are described in Note 2 of the financial statements. The accompanying financial statements do not include any adjustments that might result from the outcome of this uncertainty.

Basis for Opinion

These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audit. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audit, we are required to obtain an understanding of internal control over financial reporting, but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

Our audit included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audit also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audit provides a reasonable basis for our opinion

D. Brooks and Associates CPAs, P.A.

Palm Beach Gardens, Florida

April 6, 2020

HOME BISTRO, INC.

BALANCE SHEET

December 31, 2018

ASSETS

CURRENT ASSETS:
Cash	$	49,281
Inventory		7,306
Prepaid expenses and other assets		8,344

Total Current Assets		64,931

Total Assets	$	64,931

LIABILITIES AND STOCKHOLDERS’ DEFICIT

CURRENT LIABILITIES:
Accounts payable	$	259,730
Accrued expenses and other liabilities		17,317
Note payable - in default		15,000
Advance payable		18,830
Unredeemed gift cards		9,966

Total Current Liabilities		320,843

Total Liabilities		320,843

Commitments and contingency (Note 11):

STOCKHOLDERS’ DEFICIT:
Preferred Stock: $0.0001 par value; 10,000 shares authorized; nil issued and outstanding		—
Common stock issuable: $0.0001 par value; 100,000 shares authorized, 34,423 common stock issuable		3
Additional paid-in capital		4,636,752
Accumulated deficit		(4,892,667	)

Total Stockholders’ Deficit		(255,912	)

Total Liabilities and Stockholders’ Deficit	$	64,931

The accompanying notes are an integral part of these financial statements.

HOME BISTRO, INC.

STATEMENT OF OPERATIONS

For the Year Ended December 31, 2018

Product sales, net	$	1,010,580
Cost of sales		609,029

Gross profit		401,551

Operating Expenses:
Compensation		423,859
Professional fees		26,258
General and administrative		184,575

Total Operating Expenses		634,692

Other Income (Expense):
Interest expense		(15,036	)
Gain on debt extinguishment		46,438

Total Other Income, net		31,402

Net Loss	$	(201,739	)

BASIC AND DILUTED LOSS PER COMMON SHARE:
Net loss per common share - basic and diluted	$	(6.54	)

WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic and diluted		30,852

The accompanying notes are an integral part of these financial statements.

HOME BISTRO, INC.

STATEMENT OF CHANGES IN STOCKHOLDERS’ DEFICIT

For the Year Ended December 31, 2018

	Preferred Stock			Common Stock Issuable
	Number				Number				Additional					Total
	of				of				Paid-in		Accumulated			Stockholders’
	Shares		Amount		Shares		Amount		Capital		Deficit			Deficit

Balance at December 31, 2017	—	$	—		9,270	$	1	$	3,811,565	$	(4,939,753	)	$	(1,128,187	)

Cumulative effect of change in accounting principal	—		—		—		—		—		248,825			248,825

Common stock issuable upon conversion of convertible debt, accrued interest and forfeiture of related warrants with related parties	—		—		2,134		—		439,144		—			439,144

Common stock issuable for cash	—		—		4,396		—		150,000		—			150,000

Accretion of stock-based compensation	—		—		18,425		2		229,311		—			229,313

Common stock issuable to consultants for services	—		—		198		—		6,732		—			6,732

Net loss	—		—		—		—		—		(201,739	)		(201,739	)

Balance at December 31, 2018	—	$	—		34,423	$	3	$	4,636,752	$	(4,892,667	)	$	(255,912	)

The accompanying notes are an integral part of these financial statements.

HOME BISTRO, INC.

STATEMENT OF CASH FLOWS

For the Year ended December 31, 2018

CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss	$	(201,739	)
Adjustments to reconcile net loss to net cash used in operating activities:
Amortization expense		15,368
Stock-based compensation		229,313
Stock issued for consulting services		6,732
Gain on debt extinguishment		(46,438	)
Change in operating assets and liabilities:
Inventory		(7,306	)
Prepaid expenses and other current assets		(3,697	)
Accounts payable		(131,095	)
Unredeemed gift cards		(17,386	)
Accrued expenses and other liabilities		23,006

Net Cash Used in Operating Activities		(133,242	)

CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from sale of common stock		150,000
Proceeds of advance payable		25,000
Repayment of note payable and advance payable		(33,909	)

Net Cash Provided by Financing Activities		141,091

Net Change in Cash		7,849

Cash - beginning of year		41,432

Cash - end of year	$	49,281

SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest	$	3,676
Income taxes	$	—

Non-cash investing and financing activities:
Issuance of common stock for convertible debt, accrued interest, and warrants with related parties	$	439,144
Cumulative effect of change in accounting principal in connection with gift certificate liability	$	248,825


The accompanying notes are an integral part of these financial statements.

Home Bistro, Inc.

Notes to Financial Statements

December 31, 2018

NOTE 1 – ORGANIZATION AND NATURE OF OPERATIONS

Home Bistro, Inc (f/k/a DineWise L.L.C.) (the “Company”) is a Delaware corporation formed on April 9, 2013 under the name DineWise L.L.C. On December 1, 2014, the Company underwent a statutory conversion filed under Section 8-265 of the Delaware Code whereby the Company converted from a limited liability company to a corporation. Additionally, on December 1, 2014, the Company changed its name to Home Bistro, Inc.

The Company provides prepackaged and prepared meals as a solution for time-constrained but discerning consumers focused on satisfying every member of the family by offering a broad array of the highest quality meal planning, delivery, and preparation services. Products are customized meal solutions, delivered fresh-frozen directly to the home.

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Basis of Presentation

The accompanying financial statements of the Company have been prepared in accordance with accounting principles generally accepted in the United States of America (the “U.S. GAAP”).

Going Concern

The financial statements have been prepared on a going concern basis, which contemplates the realization of assets and the settlement of liabilities and commitments in the normal course of business. As reflected in the accompanying financial statements, for the year ended December 31, 2018, the Company had net loss and cash used in operations of $201,739 and $133,242, respectively. At December 31, 2018, the Company had an accumulated deficit, stockholders’ deficit, and working capital deficit of $4,892,667, $255,914 and $255,914, respectively. These factors raise substantial doubt about the Company’s ability to continue as a going concern for a period of twelve months from the issuance date of this report. The Company’s primary source of operating funds in 2018 was primarily from the sale of common stock. The Company has experienced net losses from operations since inception, but expects these conditions to improve in the near term and beyond as it develops its business model. Management cannot provide assurance that the Company will ultimately achieve profitable operations or become cash flow positive, or raise additional debt and/or equity capital. Management believes that the Company’s capital resources are not currently adequate to continue operating and maintaining its business strategy for a period of twelve months from the issuance date of this report. If the Company is unable to raise additional capital or secure additional lending in the near future, management expects that the Company will need to curtail or cease operations. These financial statements do not include any adjustments related to the recoverability and classification of recorded asset amounts and classification of liabilities that might be necessary should the Company be unable to continue as a going concern.

Use of Estimates

The preparation of the financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates. Significant estimates during the year ended December 31, 2018 include the useful life of property and equipment, the estimates for obsolete inventory, assumptions used in the redemption recognition method for unredeemed gift cards, assumptions used in assessing impairment of long-term assets, estimates of current and deferred income taxes and deferred tax valuation allowances and the fair value of non-cash equity transactions.

Fair Value Measurements

The carrying amounts reported in the balance sheet for cash, inventory, prepaid expenses, accounts payable, accrued expense and other liabilities, notes payable – related party and unredeemed gift cards approximate their fair market value based on the short-term maturity of these instruments.

Cash and Cash Equivalents

For purposes of the statements of cash flows, the Company considers all highly liquid instruments with a maturity of three months or less at the purchase date and money market accounts to be cash equivalents. At December 31, 2018, the Company did not have any cash equivalents.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

The Company maintains its cash in bank and financial institution deposits that at times may exceed federally insured limits. There were no balances in excess of FDIC insured levels as of December 31, 2018. The Company has not experienced any losses in such accounts through December 31, 2018.

Inventory

Inventory, consisting of finished goods related to the Company’s products are stated at the lower of cost and net realizable value utilizing the first-in first-out (FIFO) method. A reserve is established when management determines that certain inventories may not be saleable. If inventory costs exceed expected net realizable value due to obsolescence or quantities in excess of expected demand, the Company will record reserves for the difference between the cost and the net realizable value. These reserves are recorded based on estimates and included in cost of sales. As of December 31, 2018, the inventory balance was minimal and the Company determined that there was no allowance needed.

Intangible Assets

Intangible assets consisted of the cost of internal-use software purchased from a third-party vendor which handled the Company’s accounting, order entry, sales, marketing, production and customer service. The intangible asset was being amortized over three years. As of December 31, 2018, this intangible asset was fully amortized.

Revenue Recognition

In May 2014, FASB issued Accounting Standards Update, ASU 2014-09, establishing ASC 606 - Revenue from Contracts with Customers (ASU 2014-09). ASU 2014-09, as amended by subsequent ASUs on the topic, establishes a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most of the existing revenue recognition guidance. This standard, which is effective for interim and annual reporting periods in fiscal years that begin after December 15, 2017, requires an entity to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services and also requires certain additional disclosures. The Company adopted this standard on January 1, 2018 using the modified retrospective approach, which requires applying the new standard to all existing contracts not yet completed as of the effective date and recording a cumulative-effect adjustment to retained earnings as of the beginning of the fiscal year of adoption. See recent adopted accounting pronouncements section of this note for the impact the adoption of this ASU had on the Company’s December 31, 2018 financial statements.

Product Sales

Product sales are recognized when the product is delivered to the customer and title has transferred, it is at this point in time that the Company’s performance obligations have been completed. Product sales are recorded net of any discounts or allowances and include shipping charges.

Customers can purchase gift cards via phone or online through the Company’s e-commerce website. Gift card purchases are initially recorded as unredeemed gift card liabilities and are recognized as product sales upon redemption. Historically, the majority of gift cards are redeemed within two years of issuance. The Company does not charge administrative fees on unused gift cards, and its gift cards do not have an expiration date.

Based on historical redemption patterns, a portion of issued gift cards are not expected to be redeemed. The Company uses the redemption recognition method for recognizing breakage related to unredeemed gift cards for which it has sufficient historical information. Under the redemption recognition method, breakage revenue is recorded in proportion to, and over the time period gift cards are actually redeemed. The estimated breakage rate is based on historical issuance and redemption patterns and is re-assessed by the Company on a regular basis. At least three years of historical data, which is updated annually, is used to estimate redemption patterns. Breakage revenue is included in product sales and amounted to $14,951 during the year ended December 31, 2018. Prior to 2018, revenue from gift cards was only recorded upon redemption (see Note 7).

Cost of Sales

The Company’s policy is to recognize product related cost of sales in conjunction with revenue recognition, when the product costs are incurred which is upon delivery of product. Cost of sales includes the costs directly attributable to the delivery of the product to customers including both inbound and outbound shipping costs.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

Shipping and handling costs incurred for product shipped to customers are included in cost of sales and amounted to $111,576 for the year ended December 31, 2018. Shipping and handling costs charged to customers are included in sales.

Stock-Based Compensation

Stock-based compensation is accounted for based on the requirements of ASC 718 – “Compensation–Stock Compensation”, which requires recognition in the financial statements of the cost of employee and director services received in exchange for an award of equity instruments over the period the employee or director is required to perform the services in exchange for the award (presumptively, the vesting period). The ASC also requires measurement of the cost of employee and director services received in exchange for an award based on the grant-date fair value of the award.

Advertising costs

The Company participates in various advertising programs. All costs related to advertising of the Company’s products are expensed in the period incurred. For the year ended December 31, 2018, advertising costs charged to operations were $35,495 and are included in general and administrative expenses on the accompanying statement of operations.

Income Taxes

The Company accounts for income taxes using the liability method prescribed by ASC 740 - Income Taxes. Under this method, deferred tax assets and liabilities are determined based on the difference between the financial reporting and tax bases of assets and liabilities using enacted tax rates that will be in effect in the year in which the differences are expected to reverse. The Company records a valuation allowance to offset deferred tax assets if based on the weight of available evidence, it is more-likely-than-not that some portion, or all, of the deferred tax assets will not be realized. The effect on deferred taxes of a change in tax rates is recognized as income or loss in the period that includes the enactment date.

On December 22, 2017, the United States signed into law the Tax Cuts and Jobs Act (the “Act”), a tax reform bill which, among other items, reduces the current federal income tax rate to 21% from 34%. The rate reduction is effective January 1, 2018, and is permanent. The Act has caused the Company’s deferred income taxes to be revalued. As changes in tax laws or rates are enacted, deferred tax assets and liabilities are adjusted through income tax expense. Pursuant to the guidance within SEC Staff Accounting Bulletin No. 118 (“SAB 118”), as of December 31, 2017, the Company recognized the provisional effects of the enactment of the Act for which measurement could be reasonably estimated. Since the Company has provided a full valuation allowance against its deferred tax assets, the revaluation of the deferred tax assets did not have a material impact on the financial statements presented. The ultimate impact of the Act may differ from these estimates due to the Company’s continued analysis or further regulatory guidance that may be issued as a result of the Act.

The Company follows the accounting guidance for uncertainty in income taxes using the provisions of ASC 740. Using that guidance, tax positions initially need to be recognized in the financial statements when it is more likely than not the position will be sustained upon examination by the tax authorities. For the years ended December 31, 2018 and 2017, the Company had no uncertain tax positions that qualify for either recognition or disclosure in the financial statements.

Basic and Diluted Loss Per Share

Pursuant to ASC 260-10-45, basic loss per common share is computed by dividing net loss by the weighted average number of shares of common stock outstanding for the periods presented. Diluted loss per share is computed by dividing net loss by the weighted average number of shares of common stock, common stock equivalents and potentially dilutive securities outstanding during the period. Potentially dilutive common shares consist of common stock issuable for stock options and warrants (using the treasury stock method), convertible notes and common stock issuable. These common stock equivalents may be dilutive in the future. There were no potentially dilutive equity securities outstanding as of December 31, 2018.

Concentration Risk

The Company purchased approximately 100% of its food products from two vendors during the year ended December 31, 2018. The Company is not obligated to purchase from this vendor, and, if necessary, there are other vendors from which the Company can purchase food products. As of December 31, 2018, the Company had an accounts payable balance of $902 to one of these vendors.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

Recent Adopted Accounting Pronouncements

In May 2014, the FASB issued ASU 2014-09, “Revenue from Contracts with Customers (Topic 606).” ASU 2014-09 eliminated transaction and industry-specific revenue recognition guidance under current GAAP and replaced it with a principle-based approach for determining revenue recognition. ASU 2014-09 requires that companies recognize revenue based on the value of transferred goods or services as they occur in the contract. The ASU also requires additional disclosure about the nature, amount, timing and uncertainty of revenue and cash flows arising from customer contracts, including significant judgments and changes in judgments and assets recognized from costs incurred to obtain or fulfill a contract. The Company adopted this ASU January 1, 2018 using the modified retrospective method, which primarily changed the accounting method related to unredeemed gift cards, referred to as breakage. Under this new guidance, expected breakage amounts are recognized proportionately into revenue as redemptions occur. Previously, revenue from gift cards was recognized upon redemption and the unredeemed gift cards remained as a current liability. The cumulative impact to retained earnings as of January 1, 2018 was $248,825.

Recent Accounting Pronouncements Not Yet Adopted

On February 25, 2016, the FASB issued ASU No. 2016-02 to amend the accounting guidance for leases. The accounting applied by a lessor is largely unchanged under ASU 2016-02. However, the standard requires lessees to recognize lease assets and lease liabilities for leases classified as operating leases on the balance sheet. Lessees will recognize in the statement of financial position a liability to make lease payments and a right-of-use asset representing its right to use the underlying asset for the lease term. For leases with a term of 12 months or less, a lessee is permitted to make an accounting policy election by class of underlying asset not to recognize lease assets and lease liabilities. If a lessee makes this election, it will recognize lease expense for such leases generally on a straight-line basis over the lease term. ASU 2016-02 is effective for fiscal years beginning after December 15, 2018 and early adoption is permitted. The Company is evaluating the impact of the revised guidance and believes that it will not have a significant impact on its financial statements.

Management does not believe that any other recently issued, but not yet effective accounting pronouncements, if adopted, would have a material effect on its financial statements.

NOTE 3- INTANGIBLE ASSETS

Intangible assets consisted of full service, prepackaged mid-market software incurred to track and record all aspects of the Company’s accounting, order entry, sales, marketing, production and customer service needs. The intangible asset was being amortized over three years using the straight-line method.

Intangible consisted of the following:

	December 31, 2018
Website and software	$	142,466
Less: accumulated amortization		(142,466	)
Intangible assets	$	—

Amortization of intangible assets amounted to approximately $15,368 for the year ended December 31, 2018 and is included in general and administrative expenses on the statement of operations. As of December 31, 2018, intangible assets have been fully amortized.

NOTE 4 - NOTES PAYABLE – RELATED PARTIES

During years ended December 31, 2015, 2016 and 2017, the Company received funding from entities, owned by certain principal stockholders’ and directors of the Company in the form of short-term convertible notes payable. Total proceeds received on the convertible notes payable at the time of funding was $325,000 and bore interest at rates ranging from 8-15% and default interest rates ranging from 18-24%. Maturity dates varied and commenced May 2016 and ended January 2018. In connection with the convertible notes payable, the Company issued the related entities 892 warrants to purchase shares of common stock at exercise prices contingent on future financings.

In 2015, the Company executed a $33,000 note payable with an entity, owned by the Company’s then Chief Executive Officer and a principal stockholder. Borrowings and accrued interest matured September 2015 and bore interest at 5%. In connection with the note payable, the related entity received 89 warrants to purchase common stock shares.

On February 22, 2018, the Company and all convertible notes payable and the note payable holders agreed to convert all outstanding principal, accrued interest and warrants into 1,956 shares of common stock. At the time of conversion, the total aggregate outstanding principal balance was $358,000 and accrued interest was $81,144 and all 985 warrants issued remained outstanding. The conversion resulted in an increase to additional paid-in capital of $439,144.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

NOTE 5 – NOTE PAYABLE

On July 3, 2015, the Company entered into a promissory note payable with a principal amount of $33,000. The note bears an interest of 5% per year and had a maturity date of September 1, 2016. During the year ended December 31, 2018, the Company repaid $18,000 of outstanding principal. As of December 31, 2018, the note was in default with an outstanding principal of $15,000 and accrued interest of $4,299 which is included in accrued expense and other liabilities. The principal of $15,000 has been presented on the accompanying balance sheet as note payable – in default.

On April 12, 2016, the Company entered into a promissory note payable with a principal amount of $150,000 and the note bore interest at a rate of 27.9% per year. The Company paid the remaining outstanding balance of $9,739 during the year ended December 31, 2018. As of December 31, 2018, the note has no outstanding balance.

NOTE 6 – ADVANCE PAYABLE

On September 6, 2018, the Company entered into a capital advance agreement (the “Advance Agreement”) with their e-commerce platform provider. Under the terms of the Advance Agreement, the Company received $25,000 and will repay $28,250 by remitting 15% of the total customer payments processed daily by the e-commerce platform provider until the advance is repaid in full. As of December 31, 2018, the advance had a balance of $18,830.

NOTE 7 – UNREDEEMED GIFT CARDS

Unredeemed gift cards activities for the year ended December 31, 2018 are summarized as follows:

	Year Ended December 31, 2018
Balance as of December 31, 2017	$	276,177
Change in accounting policy cumulative effect adjustment		(248,825	)
Sale of gift cards in 2018		27,262
Revenue from breakage		(14,951	)
Total gift card redemptions in 2018		(29,697	)
Balance as of December 31, 2018	$	9,966

NOTE 8 – RELTED PARTY TRANSACTION

The Company utilizes the shipping carrier account of a related entity, owned 50% by the Company’s current chief executive officer and principal stockholder for its inbound and outbound shipping needs. The related entity bills the Company for the direct cost of the shipping charges plus a 10% fee. The total amount paid to the related entity during the year ended December 31, 2018 was $63,716 which is included in cost of goods sold on the statement of operations.

See also Note 4 – Notes Payable – Related Parties.

NOTE 9 – STOCKHOLDERS’ DEFICIT

The Company has 110,000 shares of common stock authorized which consist of 100,000 shares of common stock with par value of $0.0001 and 10,000 shares of preferred stock with par value of $0.0001.

As of December 31, 2018, the Company had 34,423 shares of common stock issuable outstanding and no preferred stock outstanding.

Common Stock Issuable

As of December 31, 2018, the Company has not issued any of its common stock.

Common stock issuable for cash

●

During the year ended December 31, 2018, pursuant to subscription agreements, the Company sold 4,396 shares of common stock issuable to two investors for $34.12 per share, or total cash proceeds of $150,000.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

Stock-based compensation

●

During the year ended December 31, 2018, the Company granted to an executive pursuant to an employment agreement (see Note 11) 16,173 shares of common stock with a grant date value of $549,882 or $34 per share based on contemporaneous common share sales. During the year ended December 31, 2018, the Company recorded stock-based compensation of $152,745 which is included in compensation on the statement of operations. Total unrecognized compensation expense related to these common shares at December 31, 2018 amounted to $397,137 which will be amortized over the remaining vesting period of two years.

●

During the year ended December 31, 2018, the Company granted, to a former executive as a bonus, 2,252 shares of common stock with a grant date value of $76,568 or $34 per share based on contemporaneous common share sales which is included in compensation on the statement of operations .

Common stock issuable for services

●

During the year ended December 31, 2018, the Company granted, to a consultant, 198 shares of common stock with a grant date fair value of $76,568 or $34 per share based on contemporaneous sale of shares of common stock, which is included in compensation on the statements of operations.

Shares issuable for conversion of notes payable, accrued interest and warrants

●

During the year ended December 31, 2018, the holders of notes payable with an outstanding principal balance of $358,000, accrued interest of $81,144 and warrants to acquire 985 shares of common stock agreed to convert the notes, accrued interest and warrants for 2,134 shares of common stock (see Note 4).

Warrants

During the year ended December 31, 2018, holders of warrants to acquire 985 shares of common stock agreed to cancel the warrants in connection with the conversion of notes payable and accrued interest to shares of common stock (see Note 4).

Warrants activities for the year ended December 31, 2018 are summarized as follows:

	Number of Warrants			Weighted Average Exercise Price		Weighted Average Remaining Contractual Term (Years)		Aggregate Intrinsic Value
Balance Outstanding December 31, 2017		985		$	351.02		4.00	$	—

Forfeited in connection with debt conversion		(985	)	$	351.02		—		—

Balance Outstanding at December 31, 2018		—		$	—		—	$	—

NOTE 10– INCOME TAXES

The Company maintains deferred tax assets and liabilities that reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The deferred tax assets at December 31, 2018 consist of net operating loss carryforwards. The net deferred tax asset has been fully offset by a valuation allowance because of the uncertainty of the attainment of future taxable income.

The Act has caused the Company’s deferred income taxes to be revalued. As changes in tax laws or rates are enacted, deferred tax assets and liabilities are adjusted through income tax expense. Pursuant to the guidance within SEC Staff Accounting Bulletin No. 118 (“SAB 118”), as of December 31, 2017, the Company recognized the provisional effects of the enactment of the Act for which measurement could be reasonably estimated. Since the Company has provided a full valuation allowance against its deferred tax assets, the revaluation of the deferred tax assets did not have a material impact on any period presented. The ultimate impact of the Act may differ from these estimates due to the Company’s continued analysis or further regulatory guidance that may be issued as a result of the Act.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

The items accounting for the difference between income taxes at the effective statutory rate and the provision for income taxes for the year ended December 31, 2018 are as follow:

	Year Ended December 31, 2018
Income tax benefit at U.S. statutory rate of 21%	$	(42,365	)
Income tax benefit – state		(17,551	)
Non-deductible expenses		59,770
Change in valuation allowance		146
Total provision for income tax	$	—

The Company’s approximate net deferred tax asset as of December 31, 2018 was as follow:

	Year Ended December 31, 2018
Net operating loss carryforward	$	1,055,684
Total deferred tax asset		1,055,684
Less: valuation allowance		(1,055,684	)
Net deferred tax asset	$	—

The gross operating loss carryforward was approximately $3,554,400 at December 31, 2018. The Company provided a valuation allowance equal to the net deferred income tax asset as of December 31, 2018 because it was not known whether future taxable income will be sufficient to utilize the loss carryforward. The increase in the valuation allowance was $146 in 2018. The potential tax benefit arising from the net operating loss carryforward of $1,055,538 from the period prior to Act’s effective date will expire in 2033. The potential tax benefit arising from the net operating loss carryforward of $146 from the period following to the Act’s effective date can be carried forward indefinitely within the annual usage limitations for an aggregate net operating loss carryforward was $1,055,684.

Additionally, the future utilization of the net operating loss carryforward to offset future taxable income is subject to annual limitations as a result of ownership or business changes that occurred prior to 2018 and may occur in the future. The Company has not conducted a study to determine the limitations on the utilization of these net operating loss carryforwards. If necessary, the deferred tax assets will be reduced by any carryforward that may not be utilized or expires prior to utilization as a result of such limitations, with a corresponding reduction of the valuation allowance.

The Company does not have any uncertain tax positions or events leading to uncertainty in a tax position. The Company’s 2018 and 2017 Corporate Income Tax Returns are subject to Internal Revenue Service examination.

NOTE 11 – COMMITMENTS AND CONTINGENCIES

Employment Agreements

On February 20, 2018, the Company entered into an employment agreement (“Agreement”) with Zalman Scher Duchman to serve as the Company’s Chief Executive Officer (“CEO”), the term of which runs for three years includes an annual salary of $1.00 for the first year which shall be increased in the second and third year of employment to an amount mutually approved by Mr. Duchman and the Company’s Board of Directors. Thereafter, the Agreement shall be renewed upon the mutual agreement of CEO and Company. In connection with this Agreement, the Company issued 16,173 shares of restricted common stock with a grant date fair value of $549,882, as a sign-on bonus (see Note 7). The Company shall have the right and option to repurchase the stock at par value of $0.0001 if Mr. Duchman is terminated for cause; (i) all of the shares shall be eligible for stock repurchase if terminated for cause within the first year; (ii) 2/3 of the shares shall be eligible for stock repurchase terminated for cause within the second year and; (iii) 1/3 of the shares shall be eligible for stock repurchase terminated for cause within the third year.

Home Bistro, Inc.
Notes to Financial Statements
December 31, 2018

Lease Obligation Settlement

On February 22, 2018, the Company entered into a Surrender Agreement with a former landlord for rental obligations dating back to the year ended December 31, 2017 until the space was vacated by the Company on March 31, 2017. Upon executing the Surrender Agreement, the former landlord and the Company agreed that the total rental obligation due was $109,235. Former landlord agreed to $50,000 as full satisfaction of all obligations owed at the time of the Surrender Agreement. The Company agreed to make regular payments on the outstanding rental obligation until paid in full through September 2019; however, there is no penalty if the obligation is not fully paid by such date. As of December 31, 2018, the balance remaining due on this obligation was $35,000 which is included in accounts payable on the accompanying balance sheet. During the year ended December 31, 2018, the Company recognized a gain in connection with this settlement of $46,438.

NOTE 12 - SUBSEQUENT EVENTS

On January 8, 2020, the Company sold 1,213 shares of common stock at $20.61 per share to a related party resulting in cash proceeds of $25,000.

As of April 6, 2020, the Company has entered into two capital advance agreements (the “Advance Agreements”) with their e-commerce platform provider. Under the terms of the Advance Agreements, the Company has received $33,000 and will repay $37,290 by remitting 17% of the total customer payments processed daily by the e-commerce platform provider until the advances are repaid in full.

Gratitude Health, Inc. 8-K

Exhibit 99.3

HOME BISTRO, INC.
Index to Condensed Unaudited Financial Statements


		Page

Financial Statements:

Condensed Balance Sheets as of September 30, 2019 and December 30, 2018 (Unaudited)		2

Condensed Statements of Operations for the Nine Months Ended September 30, 2019 and 2018 (Unaudited)		3

Condensed Statements of Stockholders’ Deficit for the Nine Months Ended September 30, 2019 and 2018 (Unaudited)		4

Condensed Statements of Cash Flow for the Nine Months Ended September 30, 2019 and 2018 (Unaudited)		5

Notes to Condensed Unaudited Financial Statements		6

HOME BISTRO, INC.

CONDENSED BALANCE SHEETS

(Unaudited)

	September 30,			December 31,
	2019			2018

ASSETS
CURRENT ASSETS:
Cash	$	11,109		$	49,281
Inventory		—			7,306
Prepaid expenses and other assets		436			8,344

Total Current Assets		11,545			64,931

Total Assets	$	11,545		$	64,931

LIABILITIES AND STOCKHOLDERS’ DEFICIT

CURRENT LIABILITIES:
Accounts payable	$	248,370		$	259,730
Accrued expenses and other liabilities		25,089			17,317
Note payable – related party		3,000			—
Note payable - in default		4,900			15,000
Advance payable		807			18,830
Unredeemed gift cards		7,112			9,966

Total Current Liabilities		289,278			320,843

Total Liabilities		289,278			320,843

Commitments and contingency (Note 10)

STOCKHOLDERS’ DEFICIT:
Preferred Stock: $0.0001 par value; 10,000 shares authorized;
nil issued and outstanding		—			—
Common stock issuable: $0.0001 par value; 100,000 shares authorized,
34,423 common stock issuable		3			3
Additional paid-in capital		4,774,224			4,636,752
Accumulated deficit		(5,051,960	)		(4,892,667	)

Total Stockholders’ Deficit		(277,733	)		(255,912	)

Total Liabilities and Stockholders’ Deficit	$	11,545		$	64,931

The accompanying notes are an integral part of these condensed unaudited financial statements.

HOME BISTRO, INC.

CONDENSED STATEMENTS OF OPERATIONS

(Unaudited)

	For the Nine Months Ended
	September 30,
	2019			2018

Product sales, net	$	603,900		$	767,835
Cost of sales		347,749			452,225

Gross profit		256,151			315,610

Operating Expenses:
Compensation		271,240			345,348
Professional fees		24,731			15,508
General and administrative		119,196			142,322

Total Operating Expenses		415,167			503,178

Other Income (Expense):
Interest expense		(277	)		(13,251	)
Gain on debt extinguishment		—			46,438

Total Other Income (Expense), net		(277	)		33,187

Net Loss	$	(159,293	)	$	(154,381	)

BASIC AND DILUTED LOSS PER COMMON SHARE:
Net loss per common share - basic and diluted	$	(4.63	)	$	(6.29	)

WEIGHTED AVERAGE COMMON SHARES OUTSTANDING:
Basic and diluted		34,423			24,562

The accompanying notes are an integral part of these condensed unaudited financial statements.

HOME BISTRO, INC.

CONDENSED STATEMENTS OF CHANGES IN STOCKHOLDERS’ DEFICIT

For the Nine Months Ended September 30, 2019 and 2018

(Unaudited)

	Preferred Stock				Common Stock Issuable
	Number				Number				Additional					Total
	of				of				Paid-in		Accumulated			Stockholders’
	Shares		Amount		Shares		Amount		Capital		Deficit			Deficit

Balance at December 31, 2018		—	$	—		34,423	$	1	$	4,636,752	$	(4,892,667	)	$	(255,912	)
Accretion of stock-based compensation		—		—		—		—		137,472		—			137,472
Net loss		—		—		—		—		—		(159,293	)		(159,293	)

Balance at September 30, 2019		—	$	—		34,423	$	1	$	4,774,224	$	(5,051,960	)	$	(277,733	)

	Preferred Stock				Common Stock Issuable
	Number				Number				Additional					Total
	of				of				Paid-in		Accumulated			Stockholders’
	Shares		Amount		Shares		Amount		Capital		Deficit			Deficit

Balance at December 31, 2017		—	$	—		9,270	$	1	$	3,811,565	$	(4,939,753	)	$	(1,128,187	)
Cumulative effect of change in accounting principal		—		—		—		—		—		248,825			248,825
Common stock issuable upon conversion of convertible debt, accrued interest and forfeiture of related warrants with related parties		—		—		2,134		—		439,144		—			439,144
Common stock issuable for cash		—		—		4,396		—		150,000		—			150,000
Accretion of stock-based compensation		—		—		18,425		2		183,486		—			183,488
Common stock issuable to consultants for services		—		—		198		—		6,732		—			6,732
Net loss		—		—		—		—		—		(154,381	)		(154,381	)

Balance at September 30, 2018		—	$	—		34,423	$	3	$	4,590,927	$	(4,845,309	)	$	(254,379	)

The accompanying notes are an integral part of these condensed unaudited financial statements.

HOME BISTRO, INC.

CONDENSED STATEMENTS OF CASH FLOW

(Unaudited)

	For the Nine Months Ended
	September 30,
	2019			2018
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss	$	(159,293	)	$	(154,381	)
Adjustments to reconcile net loss to net cash used in operating activities:
Amortization expense		—			15,368
Stock-based compensation		137,472			183,488
Stock issued for consulting services		—			6,732
Gain on debt extinguishment		—			(46,438	)
Change in operating assets and liabilities:
Inventory		7,306			(15,402	)
Prepaid expenses and other current assets		7,908			7,017
Accounts payable		(11,360	)		(117,327	)
Customer deposits		—			(8,181	)
Unredeemed gift cards		(2,854	)		(24,724	)
Accrued expenses and other liabilities		7,772			10,302

Net Cash Used in Operating Activities		(13,049	)		(143,546	)

CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from sale of common stock		—			150,000
Proceeds from advance payable		—			25,000
Proceeds of note payable – related party		3,000			—
Repayment of note payable and advance payable		(28,123	)		(17,239	)

Net Cash (Used In) Provided by Financing Activities		(25,123	)		157,761

Net Change in Cash		(38,172	)		14,215

Cash - beginning of period		49,281			41,432

Cash - end of period	$	11,109		$	55,647

SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest	$	—		$	3,676
Income taxes	$	—		$	—


Non-cash investing and financing activities:
Issuance of common stock for convertible debt, accrued interest, and warrants with related parties	$	—		$	439,144
Cumulative effect of change in accounting principal in connection with gift certificate liability	$	—		$	248,825

The accompanying notes are an integral part of these condensed unaudited financial statements.

Home Bistro, Inc.

Notes to Unaudited Financial Statements

September 30, 2019

NOTE 1 – ORGANIZATION AND NATURE OF OPERATIONS

NOTE 2 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

Basis of Presentation

Management acknowledges its responsibility for the preparation of the accompanying condensed unaudited financial statements which reflect all adjustments, consisting of normal recurring adjustments, considered necessary in its opinion for a fair statement of its financial position and the results of its operations for the periods presented. The accompanying condensed unaudited financial statements of the Company have been prepared in accordance with accounting principles generally accepted in the United States of America (the “U.S. GAAP”) for interim financial information and with the instructions Article 8-03 of Regulation S-X. Operating results for interim periods are not necessarily indicative of results that may be expected for the fiscal year as a whole. Certain information and note disclosure normally included in financial statements prepared in accordance with U.S. GAAP has been condensed or omitted from these statements pursuant to such accounting principles and, accordingly, they do not include all the information and notes necessary for comprehensive financial statements. These unaudited condensed unaudited financial statements should be read in conjunction with the summary of significant accounting policies and notes to the financial statements for the year ended December 31, 2018 of the Company which were included in the Company’s current report on Form 8-K as filed with the Securities and Exchange Commission and attached herein.

Going Concern

The Company has experienced net losses from operations since inception, but expects these conditions to improve in the near term and beyond as it develops its business model. Management cannot provide assurance that the Company will ultimately achieve profitable operations or become cash flow positive, or raise additional debt and/or equity capital. Management believes that the Company’s capital resources are not currently adequate to continue operating and maintaining its business strategy for a period of twelve months from the issuance date of this report. If the Company is unable to raise additional capital or secure additional lending in the near future, management expects that the Company will need to curtail or cease operations. These financial statements do not include any adjustments related to the recoverability and classification of recorded asset amounts and classification of liabilities that might be necessary should the Company be unable to continue as a going concern.

Use of Estimates

The preparation of the financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from these estimates. Significant estimates during the nine months ended September 30, 2019 include the assumptions used in the redemption recognition method for unredeemed gift cards, deferred tax valuation allowances and the fair value of non-cash equity transactions.

Fair Value Measurements

The carrying amounts reported in the balance sheets for cash, inventory, prepaid expenses and other assets, accounts payable, accrued expense and other liabilities, notes payable – related party and unredeemed gift cards approximate their fair market value based on the short-term maturity of these instruments.

Home Bistro, Inc.

Notes to Unaudited Financial Statements

September 30, 2019

Cash and Cash Equivalents

For purposes of the statements of cash flows, the Company considers all highly liquid instruments with a maturity of three months or less at the purchase date and money market accounts to be cash equivalents. At September 30, 2019 and December 31,2018, the Company did not have any cash equivalents.

The Company maintains its cash in bank and financial institution deposits that at times may exceed federally insured limits. There were no balances in excess of FDIC insured levels as of September 30, 2019 and December 31, 2018. The Company has not experienced any losses in such accounts through September 30, 2019.

Inventory

Inventory, consisting of finished goods related to the Company’s products are stated at the lower of cost and net realizable value utilizing the first-in first-out (FIFO) method. A reserve is established when management determines that certain inventories may not be saleable. If inventory costs exceed expected net realizable value due to obsolescence or quantities in excess of expected demand, the Company will record reserves for the difference between the cost and the net realizable value. These reserves are recorded based on estimates and included in cost of sales. As of September 30, 2019 and December 31, 2018, the inventory balance was minimal and the Company determined that there was no allowance needed.

Intangible Assets

Intangible assets consisted of the cost of internal-use software purchased from a third-party vendor which handled the Company’s accounting, order entry, sales, marketing, production and customer service. The intangible asset was being amortized over three years. During 2018 this intangible asset was fully amortized.

Revenue Recognition

In May 2014, FASB issued Accounting Standards Update, ASU 2014-09, establishing ASC 606 - Revenue from Contracts with Customers (ASU 2014-09). ASU 2014-09, as amended by subsequent ASUs on the topic, establishes a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers and supersedes most of the existing revenue recognition guidance. This standard, which is effective for interim and annual reporting periods in fiscal years that begin after December 15, 2017, requires an entity to recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services and also requires certain additional disclosures. The Company adopted this standard on January 1, 2018 using the modified retrospective approach, which requires applying the new standard to all existing contracts not yet completed as of the effective date and recording a cumulative-effect adjustment to retained earnings as of the beginning of the fiscal year of adoption. The adoption ASU 2014-09 did not impact on the Company’s financial statements.

Product Sales

Based on historical redemption patterns, a portion of issued gift cards are not expected to be redeemed. The Company uses the redemption recognition method for recognizing breakage related to unredeemed gift cards for which it has sufficient historical information. Under the redemption recognition method, breakage revenue is recorded in proportion to, and over the time period gift cards are actually redeemed. The estimated breakage rate is based on historical issuance and redemption patterns and is re-assessed by the Company on a regular basis. At least three years of historical data, which is updated annually, is used to estimate redemption patterns. Breakage revenue is included in product sales and amounted to nil and $7,223 during the nine months ended September 30, 2019 and 2018, respectively (see Note 7).

Home Bistro, Inc.

Notes to Unaudited Financial Statements

September 30, 2019

Cost of Sales

Shipping and handling costs incurred for product shipped to customers are included in cost of sales and amounted to $53,183 and $89,189 for the nine months ended September 30, 2019 and 2018, respectively. Shipping and handling costs charged to customers are included in sales.

Stock-Based Compensation

Advertising costs

The Company participates in various advertising programs. All costs related to advertising of the Company’s products are expensed in the period incurred. For the nine months ended September 30, 2019 and 2018, advertising costs charged to operations were $43,347 and $27,631, respectively, and are included in general and administrative expenses on the accompanying condensed unaudited statements of operations

Income Taxes

The Company follows the accounting guidance for uncertainty in income taxes using the provisions of ASC 740. Using that guidance, tax positions initially need to be recognized in the financial statements when it is more likely than not the position will be sustained upon examination by the tax authorities. The Company had no uncertain tax positions that qualify for either recognition or disclosure in the financial statements during the nine months ended September 30, 2019.

Basic and Diluted Loss Per Share

Concentration Risk

The Company purchased approximately 100% of its food products from two vendors during the nine months ended September 30, 2019 and 2018. The Company is not obligated to purchase from these vendors, and, if necessary, there are other vendors from which the Company can purchase food products. As of September 30, 2019, and December 31, 2018, the Company had an accounts payable balance of $1,188 and $902, respectively, to one of these vendors.

Recent Accounting Pronouncements

Management does not believe that any other recently issued, but not yet effective accounting pronouncements, if adopted, would have a material effect on its financial statements.

Home Bistro, Inc.

Notes to Unaudited Financial Statements

September 30, 2019

NOTE 3- INTANGIBLE ASSETS

Amortization of intangible assets amounted to approximately $15,368 for the nine months ended September 30, 2018 and is included in general and administrative expenses on the statement of operations. As of September 30, 2018, intangible assets have been fully amortized.

NOTE 4 - NOTE PAYABLE – RELATED PARTY

On September 27, 2019, the Company entered into a note payable, with a principal stockholder, for a principal amount of $3,000. The note bears interest at a rate of 10% per year and matures on March 27, 2020. As of September 30, 2019, the note had an outstanding principal of $3,000 reported as note payable – related party in the accompanying balance sheets. Subsequent to the period ended September 30, 2019, the outstanding balance was paid in full (see Note 11).

NOTE 5 – NOTE PAYABLE – IN DEFAULT

On July 3, 2015, the Company entered into a promissory note payable with a principal amount of $33,000. The note bears interest at a rate of 5% per year and had a maturity date of September 1, 2016. During the year ended December 31, 2018, the Company repaid $18,000 of outstanding principal. As of December 31, 2018, the note was in default with an outstanding principal of $15,000 presented on the accompanying balance sheet as note payable – in default and accrued interest of $4,299 which is included in accrued expense and other liabilities. During the nine months ended September 30, 2019, the Company paid $10,100 of the outstanding principal balance. As of September 30, 2019, the note had a principal balance of $4,900. As of September 31, 2019, accrued interest of $4,576 was included in accrued expenses and other liabilities related to this note payable.

NOTE 6 – ADVANCE PAYABLE

NOTE 7 – UNREDEEMED GIFT CARDS

Unredeemed gift cards activities for the nine months ended September 30, 2019 are summarized as follows:

	September 30, 2019
Balance as of December 31, 2018	$	9,966
Change in accounting policy cumulative effect adjustment		—
Sale of gift cards		17,660
Revenue from breakage		—
Total gift card redemptions		(20,514	)
Balance as of September 30, 2019	$	7,112

NOTE 8 – RELATED PARTY TRANSACTIONS

The Company utilizes the shipping carrier account of a related entity, which is 50% owned by the Company’s current chief executive officer and principal stockholder for its inbound and outbound shipping needs. The related entity bills the Company for the direct cost of the shipping charges plus a 10% fee. The total amount paid to the related entity during the nine months ended September 30, 2019 and 2018 were $54,874 and $38,608, respectively, which is included in cost of goods sold on the statements of operations.

See also Note 4 – Notes Payable – Related Party

Home Bistro, Inc.

Notes to Unaudited Financial Statements

September 30, 2019

NOTE 9 – STOCKHOLDERS’ DEFICIT

The Company has 110,000 shares of common stock authorized which consist of 100,000 shares of common stock with par value of $0.0001 and 10,000 shares of preferred stock with par value of $0.0001.

As of September 30, 2019 and December 31, 2018, the Company had 34,423 shares of common stock issuable outstanding and no preferred stock outstanding.

Common Stock Issuable

As of September 30, 2019, the Company has not issued any of its common stock.

Common stock issuable for cash

●

During the nine months ended September 30, 2018, pursuant to subscription agreements, the Company sold 4,396 shares of common stock issuable to two investors for $34.12 per share, or total cash proceeds of $150,000.

Stock-based compensation

●

During the nine months ended September 30, 2018, the Company granted to an executive pursuant to an employment agreement (see Note 10) 16,173 shares of common stock with a grant date value of $549,882 or $34 per share based on contemporaneous sale of shares of common stock, which will be amortized over the 3 year vesting period through February 2021. During the nine months ended September 30, 2019 and 2018, the Company recorded stock-based compensation of $137,472 and $106,922, respectively, which is included in compensation on the condensed unaudited statements of operations. Total unrecognized compensation expense related to these common shares at September 30, 2019 amounted to $259,667.

●

During the nine months ended September 30, 2018, the Company granted, to a former executive as a bonus, 2,252 shares of common stock with a grant date fair value of $76,568 or $34 per share based on contemporaneous sale of shares of common stock, which is included in compensation on the statements of operations.

Common stock issuable for services

●

During the nine months ended September 30, 2018, the Company granted, to a consultant, 198 shares of common stock with a grant value of $6,732 or $34 per share based on contemporaneous sale of shares of common stock, which is included in general and administrative expense on the statements of operations.

Shares issuable for conversion of notes payable, accrued interest and warrants

●

During the nine months ended September 30, 2018, the holders of notes payable with an outstanding principal balance of $358,000, accrued interest of $81,144 and warrants to acquire 985 shares of common stock agreed to convert the notes, accrued interest and warrants for 2,134 shares of common stock.

Warrants

During the nine months ended September 30, 2018, holders of warrants to acquire 985 shares of common stock agreed to cancel the warrants in connection with the conversion of notes payable and accrued interest to shares of common stock (see Note 4). No warrants were issued and outstanding as of September 30, 2019.

NOTE 10 – COMMITMENTS AND CONTINGENCIES

Employment Agreements

On February 20, 2018, the Company entered into an employment agreement (“Agreement”) with Zalman Scher Duchman to serve as the Company’s Chief Executive Officer (“CEO”), the term of which runs for three years includes an annual salary of $1.00 for the first year which shall be increased in the second and third year of employment to an amount mutually approved by Mr. Duchman and the Company’s Board of Directors. Thereafter, the Agreement shall be renewed upon the mutual agreement of CEO and Company. In connection with this Agreement, the Company issued 16,173 shares of restricted common stock with a grant date fair value of $549,882, as a sign-on bonus (see Note 9). The Company shall have the right and option to repurchase the stock at par value of $0.0001 if Mr. Duchman is terminated for cause; (i) all of the shares shall be eligible for stock repurchase if terminated for cause within the first year; (ii) 2/3 of the shares shall be eligible for stock repurchase terminated for cause within the second year and; (iii) 1/3 of the shares shall be eligible for stock repurchase terminated for cause within the third year.

Home Bistro, Inc.

Notes to Unaudited Financial Statements

September 30, 2019

Lease Obligation Settlement

On February 22, 2018, the Company entered into a Surrender Agreement with a former landlord for rental obligations dating back to the year ended December 31, 2017 until the space was vacated by the Company on March 31, 2017. Upon executing the Surrender Agreement, the former landlord and the Company agreed that the total rental obligation due was $109,235. Former landlord agreed to $50,000 as full satisfaction of all obligations owed at the time of the Surrender Agreement. During the nine month period ended September 30, 2018, the Company recognized a gain in connection with this settlement of $46,438 and the Company agreed to make regular payments on the outstanding rental obligation until paid in full through September 2019; however, there is no penalty if the obligation is not fully paid by such date. As of December 31, 2018, and September 30, 2019, the balance remaining due on this obligation were $35,000 and $30,900, respectively, which is included in accounts payable on the accompanying balance sheets.

NOTE 11 - SUBSEQUENT EVENTS

On January 8, 2020, the Company sold 1,213 shares of common stock at $20.61 per share to a related party resulting in cash proceeds of $25,000.

Subsequent to September 30, 2019, the $3,000 outstanding principal of the note payable – related party (see Note 4) was paid in full.