Exhibit 3.1

OPTIMUMBANK HOLDINGS, INC.

ARTICLE OF AMENDMENT

TO

ARTICLES OF INCORPORATION

CERTIFICATE OF DESIGNATION

OF
SERIES C PREFERRED STOCK

Pursuant to Section 607.0602 of the Florida Business Corporation Act (the “Act”), OPTIMUMBANK HOLDINGS, INC., a Florida corporation (the “Corporation”), hereby certifies that pursuant to the authority conferred upon the Board of Directors of the Corporation (the “Board of Directors”) by the Articles of Incorporation of the Corporation as further amended from time to time (the “Articles of Incorporation”), and in accordance with the provisions of Section 607.0602 of the Florida Business Corporation Act (the “FBCA”), the Board of Directors duly adopted the following resolutions:

WHEREAS, the Articles of Incorporation of the Corporation (the “Articles of Incorporation”) authorizes the issuance of up to 6,000,000 shares of preferred stock, no par value of the Corporation (“Preferred Stock”) in one or more series, and expressly authorizes the Board of Directors of the Corporation (the “Board”), subject to limitations prescribed by law, to provide out of the unissued shares of Preferred Stock for series, to establish and fix the number of shares to be included in any series of Preferred Stock and the designation, rights, preferences, powers, restrictions, and limitations of the shares of such series; and

WHEREAS, the Board has determined that it is in the best interest of the Company: (i) authorize a Series C Preferred Stock, and (ii) to designate 4,000,000 shares of Series C Preferred Stock;

NOW, THEREFORE, it is hereby:

RESOLVED, that the Board hereby approves an amendment to the Articles of Incorporation to authorize a Series C Preferred Stock and to designate 4,000,000 shares of Series C Preferred Stock, with the rights, preferences, powers, restrictions and limitations set forth in this Certificate of Designation;

FURTHER RESOLVED, the Certificate of Designation states its entirety as follows:

1. Designation. There shall be a series of Preferred Stock that shall be designated as “Series C Preferred Stock” (the “Series C Preferred Stock”) and the total number of Shares constituting such series shall be 4,000,000. The rights, preferences, powers, restrictions, and limitations of the Series C Preferred Stock shall be as set forth in this Certificate of Designation.

2. Defined Terms. For purposes hereof, the following terms shall have the following meanings:

“Articles of Incorporation” has the meaning set forth in the Recitals.

“Board” has the meaning set forth in the Recitals.

“Certificate of Designation” means this Fourth Amended and Restated Certificate of Designation.

“Common Stock” means the common stock, par value $0.01 per shares, of the Corporation.

“Corporation” has the meaning set forth in the Preamble.

“Holder” means a Person that holds Shares of Series C Preferred Stock.

“Permissible Transfer” means a transfer by a Holder: (i) to the Corporation; (ii) in a widely distributed public offering of Common Stock or Series C Preferred Stock; (iii) that is part of an offering that is not a widely distributed public offering of Comon Stock or Series C Preferred Stock but is one in which no one transferee (or group of associated transferees) acquires the right to receive two percent (2%) or more of any class of the voting securities of the Corporation then outstanding (including pursuant to a related series of transfers); (iv) that is part of a transfer of Common Stock or Series C Preferred Stock to an underwriter for the purpose of conducting a widely distributed public offering; or (v) to a transferee that controls more than fifty percent (50%) of the voting securities of the Corporation without giving effect to such transfer.

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

“Preferred Stock” has the meaning set forth in the Recitals.

“Share” means any share of Series C Preferred Stock.

“Subsidiary” means, with respect to any Person, any other Person of which a majority of the outstanding shares or other equity interests having the power to vote for directors or comparable managers are owned, directly or indirectly, by the first Person.

“Supermajority Interest” means the affirmative vote or consent of the Holders of at least two-thirds all of the Shares of the Series C Preferred Stock, at the time outstanding, voting as one class, shall be required to amend the provisions of the this Certificate of Designation or any other certificate amendatory thereof or supplemental thereto (including any certificate of designation or any similar document relating to any series of preferred stock) so as to materially and adversely affect the rights, preferences or privileges of the Series C Preferred Stock, provided however, that any increase in the amount of the authorized or issued Series C Preferred Stock, or the authorized Common Stock or Preferred Stock of the Corporation or the creation and issuance, or any increase in the authorized or issued amount, of other series of Preferred Stock ranking equally with and/or junior to the Series C Preferred Stock with respect to the payment of dividends (whether such dividends are cumulative non-cumulative) and/or the distribution of assets upon liquidation, dissolution or winding up of the Corporation will not be deemed to adversely affect the powers, preferences, privileges or rights of the Holders of Shares of Series C Preferred Stock.

3. Rank. Except as otherwise expressly set forth in this Certificate of Designation, Shares of the Series C Preferred Stock shall equal to the Common Stock, with respect to payment or distribution of assets upon liquidation, dissolution, or winding up of the Corporation, whether voluntary or involuntary.

4. Dividends. If the Corporation declares or pays a dividend or distribution on the Common Stock, whether such dividend or distribution is payable in cash, securities, or other property, but excluding any dividend or distribution payable on the Common Stock in shares of Common Stock, the Corporation shall simultaneously declare and pay a dividend on the Series C Preferred Stock on a pro rata basis with the Common Stock.

5. Conversion.

(a) Unless the shares of Series C Preferred Stock shall have previously been converted into shares of Common Stock pursuant to Section 5(b), a Holder shall be permitted to convert, or upon the written request of the Corporation shall convert, shares of Series C Preferred Stock into shares of Common Stock at any time or from time to time, provided that upon such conversion the Holder, together with all Affiliates of the Holder, will not own or control in the aggregate more than nine point nine percent (9.9%) of the Common Stock (or of any class of voting securities issued by the Corporation), excluding for the purpose of this calculation any reduction in ownership resulting from transfers by such holder of voting securities of the Corporation (which, for the avoidance of doubt, does not include Series C Preferred Stock), provided further that the right to convert under this Section 5(a) shall not be available to a transferee of shares of Series C Preferred Stock with respect to a transfer other than a Permissible Transfer. In any such conversion, each share of Series C Preferred Stock will convert initially into 100 shares of Common Stock, subject to adjustment as provided below.

(b) Each share of Series C Preferred Stock shall automatically convert into one share of Common Stock (the “Conversion Rate”), without any further action by the transferor, transferee, or the Corporation, immediately upon any sale, transfer, assignment or other disposition (including by merger, reorganization, operation of law or otherwise): (i) pursuant to a widespread public distribution of Series C Preferred Stock (including a transfer to an underwriter for the purpose of conducting a widespread public distribution or pursuant to Rule 144 under the Securities Act of 1933, as amended); (ii) if no transferee (or group of associated transferees) would receive 2% or more of any class of voting securities of the Corporation, but only if such transferee is not an “affiliate” (as defined in 17 CFR Section 230.405) of the transferor; or (iii) to a transferee that would control more than 50% of the voting securities of the Corporation without any transfer from the transferor.

(c) The Conversion Rate shall in all events be equitably adjusted if: (i) the Corporation subdivides or splits its outstanding Common Stock, including by way of a dividend or distribution of shares of Common Stock, or a combination of shares of Common Stock; (ii) the Corporation combines its outstanding shares of Common Stock into a lesser number of shares; or (iii) there occurs any merger, consolidation, or other reorganization of the Corporation.

(d) To effect any permitted conversion under Section 5(a) or Section 5(b), the Holder shall surrender the certificate or certificates evidencing such shares of Series C Preferred Stock, duly endorsed, at the registered office of the Corporation, and provide written instructions to the Corporation as to the number of whole shares for which such conversion shall be effected, together with any appropriate documentation that may be reasonably required by the Corporation. Upon the surrender of such certificate(s), the Corporation will issue and deliver to such Holder (in the case of a conversion under Section 5(a)) or such Holder’s transferee (in the case of a conversion under Section 5(b)) a certificate or certificates for the number of shares of Common Stock into which the Series C Preferred Stock has been converted and, in the event that such conversion is with respect to some, but not all, of the Holder’s shares of Series C Preferred Stock, the Corporation shall deliver to such Holder a certificate or certificate(s) representing the number of shares of Series C Preferred Stock that were not converted to Common Stock. All shares of Common Stock delivered upon conversion of the Series C Preferred Stock shall be duly authorized, validly issued, fully paid and non-assessable, free and clear of all liens, claims, security interests, charges and other encumbrances.

(e) Upon the conversion of any shares of Series C Preferred Stock into shares of Common Stock, each such share of Series C Preferred Stock shall be automatically redesignated as a share of Common Stock. Upon the physical surrender to the Corporation (or, to its stock transfer agent, if any) of a certificate representing shares of Series C Preferred Stock converted pursuant hereto, together with a written certification to the effect that such shares are being transferred in accordance herewith (a “Transfer Certification”), the Corporation will (or will cause its transfer agent to) issue and deliver a new certificate, registered as the Holder making the transfer may request, representing the aggregate number of shares of Common Stock issued upon conversion of the shares of Series C Preferred Stock being transferred (provided that, if the transfer agent for the Common Stock is participating in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program and the transferee is eligible to receive shares through DTC, the Corporation’s transfer agent shall instead credit such number of full Common Stock to such transferee’s balance account with DTC through its Deposit/Withdrawal at Custodian system). In the event that less than all of the shares of Series C Preferred Stock represented by a certificate are transferred pursuant hereto, the Corporation shall promptly issue a new certificate registered in the name of the transferor Holder representing such remaining shares of Series C Preferred Stock not subject to such transfer.

(f) The issuance of shares of Common Stock upon conversion of Shares of Series C Preferred Stock pursuant to this Certificate of Designation shall be made without payment of additional consideration by, or other charge, cost, or tax to, the Holder in respect thereof.

6. Voting. The holders of Shares of Series C Preferred Stock shall have no voting rights, except as required by law or as permitted by Section 15. In all matters to be voted on by the holders of Shares of Series C Preferred Stock, such holders will vote as a class and each Share shall entitle its holder to one vote.

7. Reissuance of Series C Preferred Stock. Any shares of Series C Preferred Stock redeemed, converted, or otherwise acquired by the Corporation or any Subsidiary shall be cancelled and retired as authorized and issued shares of capital stock of the Corporation and no such Shares shall thereafter be reissued, sold, or transferred.

8. No Impairment. The Corporation will not, by amendment of its Articles of Incorporation of Incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid or seek to avoid the observance of performance of any of the terms to be observed or performed hereunder by the Corporation, but will at all times in good faith assist in the carrying out of all the provision of this Section and in the taking of all such actions as may be necessary or appropriate in order to protect the conversion rights of the holders of the Series C Preferred Stock against impairment.

9. Compliance with Law. Prior to the delivery of any securities that the Corporation shall be obligated to deliver upon conversion of the Series C Preferred Stock the Corporation shall use its reasonable best efforts to comply with any federal and state laws and regulations thereunder requiring the registration of such securities with, or any approval of or consent to the delivery thereof by, any governmental authority.

10. Listing. The Corporation herby covenants and agrees that, if at any time the Common Stock shall be trade don any national securities exchange, the Corporation will, if permitted by the rules of such exchange, list and keep listed, so long as the Common Stock shall be so listed on such exchange, all the Common Stock issuable upon conversion of the Series C Preferred Stock provided, however, that if the rules of such exchange require the Corporation to defer the listing of such Common Stock until the first conversion of Series C Preferred Stock into Common Stock in accordance with the provisions hereof, the Corporation covenants to list such Common Stock issuable upon conversion of the Series C Preferred Stock in accordance with the requirements of such exchange at such time.

11. Notices. Except as otherwise provided herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (Receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business date if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage paid. Such communications must be sent (a) to the Corporation, at its principal executive offices and (b) to any Holder, at such Holder’s address as it appears in the stock records of the Corporation (or at such other address for a stockholder as shall be specified in a notice given in accordance with this section.

12. Preemptive Rights. The Holders of Shares of Series C Preferred Stock shall have no preemptive rights with respect to any shares of the Corporation’s capital stock or any of its other securities convertible into or carrying rights or options to purchase any such capital stock.

13. Record Holders. To the fullest extend permitted by applicable law, the Corporation and any transfer agent for the Series C Preferred Stock may deem and treat the record Holder of any share of Series C Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor such transfer agent shall be affected by any notice to the contrary.

14. Other Rights. The Series C Preferred Stock shall not have any powers, preferences, privileges, or rights other than as set forth herein or in the Articles of Incorporation or as proved by applicable law.

15. Amendment and Waiver. No provision of this Certificate of Designation may be amended, modified, or waived except by an instrument in writing executed by the Corporation and a Supermajority Interest of Series C Preferred Stock, and any such written amendment, modification, or waiver will be binding upon the Corporation and each Holder of Series C Preferred Stock.

16. Effective Date of Amendment. The Amendment shall become effective on the date these Articles of Amendment are filed with the Department of State of the State of Florida.

17. Board and Shareholder Approval. The Amendment was duly approved by the Board of Directors of the Company at a special meeting held on March 8, 2024. Shareholder approval is not required.

[Signature Page Follows]

IN WITNESS WHEREOF, OptimumBank Holdings, Inc. has executed these Articles of Amendment on the 8th day of March, 2024.

Exhibit 10.1

OPTIMUMBANK HOLDINGS, INC.

SUBSCRIPTION AGREEMENT AND INVESTOR QUESTIONNAIRE

THE SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE OF OPTIMUMBANK HOLDINGS, INC. HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE COMMON STOCK CANNOT BE SOLD, TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF, EXCEPT IN COMPLIANCE WITH THE RESTRICTIONS ON TRANSFERABILITY PRINTED ON THE COMMON STOCK CERTIFICATE AND APPLICABLE FEDERAL AND STATE SECURITIES LAWS, AND WILL NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH SUCH CERTIFICATES AND SUCH LAWS.

OptimumBank Holdings, Inc.

2929 East Commercial Boulevard

Suite 303

Ft. Lauderdale, Florida 33308

To the Board of Directors of OptimumBank Holdings, Inc. (the “Company”):

1. SUBSCRIPTION. The undersigned hereby agrees and gives a binding commitment to purchase from the Company the total number of shares as set forth on the signature page hereto on the terms provided for herein of the Company’s common stock, par value $0.01 per share (the “Common Stock”), at a purchase price of $3.90 per share. The subscription amount for the shares so subscribed will be paid pursuant to the instructions to be provided by the Company on or before the business day preceding the closing date of the offering (the “Closing Date”).

The undersigned acknowledges that an investment in the Common Stock involves significant risks and that no federal or state agency has made any finding or recommendation as to the Company’s feasibility or prospects for successful operation.

The undersigned understands and agrees that the Company reserves the right to accept or reject the undersigned’s subscription for the Shares for any reason or for no reason, in whole or in part, at any time prior to its acceptance by the Company, and the same shall be deemed to be accepted by the Company only when this Subscription Agreement is signed by a duly authorized person by or on behalf of the Company; the Company may do so in counterpart form..

The undersigned understands and agrees that the Company is obligated to file with the Securities and Exchange Commission (the “SEC”) a Schedule 14C at least twenty (20) days prior to issuing shares of Common Stock pursuant to this Subscription Agreement. Within three (3) days of the Company accepting Subscription Agreements from investors to purchase at least 1,500,000 shares of Common Stock, the Company will file such a Schedule 14C. On the twentieth (20th) day following such filing, the undersigned shall deliver to the Company funds represented by a wire transfer or official bank check made payable to “OptimumBank Holdings, Inc.” in an amount equal to the total purchase price of the number of shares of Common Stock for which the undersigned has subscribed. If within the twenty (20) day period commencing on the date the Company files the Schedule 14C, the SEC issues any comment or takes any action which requires the Company to amend or supplement its Schedule 14C, the undersigned’s obligation to deliver to the Company such funds shall be deferred until the Company has satisfied the SEC’s comments or other requirements. The Company shall keep the undersigned reasonably informed as to the status of its filing of its Schedule 14C.

2. REPRESENTATIONS BY UNDERSIGNED. The undersigned acknowledges, agrees, represents, and warrants as follows:

(a) The undersigned has been provided access to and has read: (i) the Company’s Investor Presentation dated February 1, 2024, and (ii) the Company’s reports filed with the SEC up to and including any reports filed on or before the date hereof. In addition, the undersigned has requested and received such additional information and has made such investigation concerning the Company and its wholly owned subsidiary, OptimumBank (the “Bank”) and other matters as the undersigned has deemed advisable. Such materials and information referenced in the two preceding sentences, together with this Subscription Agreement and Investor Questionnaire, are referred to herein as the “Offering Materials.” As of the date hereof, the undersigned has not been furnished with any information, statements, or representations, oral or written, that is contrary in any material way to the information presented and statements made in the Offering Materials.

(b) The undersigned understands that the offering of the Common Stock has not been registered under the Securities Act of 1933, as amended (the “1933 Act”), in reliance on an exemption from registration of transactions by an issuer that do not involve any public offering. The undersigned further understands that the offering of Common Stock has not been qualified or registered under state securities laws in reliance upon exemptions under such laws and, in part, in reliance upon the representations, warranties, and covenants made and information furnished by the undersigned herein; that the offering and the Offering Materials have not been reviewed by the SEC, any state securities authority or other regulatory authority; and that a number of material terms of the offering do not comply with the standards generally applied by such authorities with respect to offerings that are subject to their review.

(c) The undersigned represents and warrants that it is an “accredited investor” within the meaning of Rule 501 under the securities Act of 1933 and that the undersigned has initialed the following statements which are applicable to him/her/it, with the understanding that the Company will rely on such representations, warranties, and covenants in determining the suitability of this investment for the undersigned and in order to comply with federal and state securities laws.

(d) The undersigned, either alone or with his/her/its purchaser representative, has such knowledge and experience in financial and business matters that he/she/it is capable of evaluating the risks and merits of this investment and to protect the undersigned’s own interests in connection with an investment in the Common Stock.

(e) The undersigned recognizes that an investment in the Common Stock involves special risks, including the risk of loss of the entire investment.

(f) The undersigned understands that the shares of Common Stock offered and being purchased are not savings accounts or deposits and are not insured by the Federal Deposit Insurance Corporation, the Deposit Insurance Fund, or any other government agency.

(g) If applicable, the undersigned has discussed with the undersigned’s purchaser representative the suitability of an investment in the Common Stock for the undersigned’s particular situation.

(h) The undersigned acknowledges that because the Common Stock has not be registered pursuant to the requirements of the 1933 Act, therefore, the undersigned may not be able to readily sell or dispose of such shares of Common Stock. The undersigned further acknowledges that: (i) he/she/it has liquid assets sufficient to assure that purchase of the Common Stock will cause no undue financial difficulties and that, after purchasing the Common Stock; (ii) the undersigned will be able to provide for any foreseeable current needs and other possible contingencies; (iii) the undersigned is able to bear the risk of illiquidity and the risk of a complete loss of this investment; and (iv) the undersigned offers, as evidence of ability to bear economic risk, the information required in this Subscription Agreement and Investor Questionnaire.

(i) The undersigned understands that the undersigned’s ability to transfer the Common Stock will be restricted, including restrictions against transfers unless the transfer is in compliance with the registration requirements of the 1933 Act and applicable state securities laws (including investor suitability standards) or the Company registers for resale the shares of Common Stock pursuant to the requirements of the 1933 Act.

(j) The Common Stock is being purchased for the account of the undersigned for investment only and not for the interest or account of any other person or with a view toward resale, assignment, fractionalization, or distribution thereof, and the undersigned agrees not to sell, transfer, pledge, hypothecate, or otherwise transfer, encumber, or dispose of the Common Stock purchased hereby unless such shares have been registered under the 1933 Act and applicable state securities laws or unless an exemption from the registration requirements of the 1933 Act and such laws is available.

(k) All information which the undersigned has provided to the Company concerning the undersigned and the undersigned’s financial condition and knowledge of financial and business matters is correct, complete, and accurate as of the date hereof and may be relied upon by the Company. If there is any material change in such information prior to the undersigned’s purchase of the Common Stock, the undersigned will provide the Company with such information in writing prior to delivering any funds to the Company, or accepting any shares of Common Stock from the Company, pursuant to Section 1 hereof.

(l) The undersigned agrees to indemnify and hold harmless the Company and the Bank, and each officer and director of the Company and the Bank, against any and all liability, costs, and expenses arising out of or resulting from any misrepresentations, breach of warranty, or breach of any covenant by the undersigned contained in this Subscription Agreement and Investor Questionnaire or otherwise with respect to the shares of Common Stock being subscribed for by the undersigned.

(m) The undersigned acknowledges that once an executed Subscription Agreement and Investor Questionnaire has been received by the Company, it may not be rescinded or modified by the undersigned unless the offering is terminated or the subscription is rejected by the Company.

(n) Notwithstanding any of the other provisions hereof, the undersigned agrees that the Company will not be obligated to issue any shares of Common Stock pursuant to this Subscription Agreement if the issuance of such shares would constitute a violation by the undersigned or by the Company of any provision of any applicable law or regulation or policy of any governmental authority.

(o) The undersigned specially represents and warrants to, and covenants with, the Company that the undersigned: (i) is not, and will not, act in concert with any other person, as described in and contemplated by Regulation Y (12 CFR Part 225) or Chapter 658, Florida Statutes; (ii) does not have any written or oral agreement to vote his/her/its Common Stock with any other investor or stockholder of the Company, and (iii) will not seek to exercise any controlling influence over the Company’s Board of Directors, senior management or policies and business affairs of the Company or the Bank.

3. INFORMATION CONCERNING EACH SUBSCRIBER. The undersigned represents and warrants that the following information is true and complete with respect to each subscriber (if the subscription is made by more than one person, give the information for each person):

4. TYPE OF OWNERSHIP.

The type of ownership in which the undersigned intends to purchase Common Stock is:

*Please check with the custodian of your retirement account as to any documentation which may be required in order to make such an investment.

If for TRUST ownership:

If you intend to invest jointly with any other individual(s), please list below the names of such other individual(s) and state whether they are: (i) your spouse; (ii) your relative; or (iii) a relative of your spouse, and indicate whether or not you reside with such individual.

5. In which state did you receive this Subscription Agreement?  

In which state did you execute and deliver the Subscription Agreement?

If the undersigned is a partnership, corporation, trust, or other entity, a “Verification Form for Partnerships, Corporations, Trusts and Other Entities” must be completed.

6. Subscriptions cannot be revoked or modified once they are submitted to the Company. The undersigned requests delivery of the Common Stock as follows (check only one):

7. This Subscription Agreement and Investor Questionnaire and any documents executed in connection herewith shall be governed by and construed and interpreted in accordance with the laws of the State of Florida without regard to any provision that would result in the application of the laws of any other state or jurisdiction. This Subscription Agreement and Investor Questionnaire are not assignable.

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SIGNATURE PAGE

The undersigned hereby subscribes for: __________ shares of Common Stock of OptimumBank Holdings, Inc., at a price of $3.90 per share, for a total purchase price of $____________. The undersigned subscriber hereby agrees, at such time as required by Section 1, to transmit a wire transfer payable to “OptimumBank Holdings, Inc.” in the amount of $______________ which represents the total aggregate amount payable and due to the Company for the Common Stock subscribed for by the undersigned.

CONCLUDING REPRESENTATIONS. The undersigned subscriber understands and agrees that the Company makes no representations or warranties other than those specifically set forth in this Subscription Agreement. Without limiting the generality of the foregoing, the undersigned understands and agrees that the Company makes no representations or warranties as to the revenues or return which the undersigned might receive from an investment in the Common Stock or as to the performance or financial condition of the Company, and that any representation to the contrary is unauthorized and may not be relied upon. The undersigned has access to and has read the documents that are included in the Offering Materials, and the undersigned understands and agrees that these shares of Common Stock have not been registered pursuant to the requirements of the 1933 Act or any state law. The undersigned understands that subscriptions cannot be revoked once they are submitted to the Company, and acknowledges and agrees that the Company reserves the right to accept or reject, in whole or in part, any subscription, for any reason in its sole discretion, which right may be exercised at the time of submission of an executed Subscription Agreement or at any time thereafter prior to the delivery of shares of Common Stock.

The foregoing Subscription Agreement and Investor Questionnaire are executed this ____ day of _______________, 2024, at ________________ (City), _____________ (State).

OPTIMUMBANK HOLDINGS, INC.

VERIFICATION FORM FOR PARTNERSHIPS,
CORPORATIONS, TRUSTS, AND OTHER ENTITIES

This form must be completed on behalf of any partnership, corporation, trust, or other entity seeking to subscribe for shares of common stock, par value $0.01 per share, of OptimumBank Holdings, Inc. (the “Common Stock”). Please include any additional information which you believe is necessary or appropriate to make the following information accurate and complete.

(a) Has the entity been formed for the specific purpose of purchasing Common Stock?

(b) If the answer to (a) above is no, please list the entity’s prior business activities and, if applicable, its prior participation in other investments (include year of investments or activities, amounts involved, general nature of activities or investments and types of investment vehicles):

__________________________________________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

The undersigned represents and warrants that it is (check one or more, if applicable):

If you are a corporation or partnership that is not an entity listed in (6)(a) through (l) above, does each natural person that directly or indirectly owns an equity interest in the entity qualify under the following Suitability Standards:

This Verification Form has been duly and validly authorized, executed and delivered and, when executed and delivered by the other parties hereto, will constitute the legal, valid, binding and enforceable obligation of the undersigned.

Additional information may be requested to verify any information provided in this form or in the other subscription materials.

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SIGNATURE PAGE

Signatures (all general partners of a partnership must sign; the president or vice president and secretary or assistant secretary of a corporation must sign; and the trustee of a trust must sign):

Address ________________________________________________________________________________________

________________________________________________________________________________________________

Telephone No. of Entity ________________________

Date: ________________, 2024

(If additional signatures are required, please use a separate sheet.)

Exhibit 10.2

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”) is made and entered into as of _________, 2024, by and among (i) OptimumBank Holdings, Inc. a Florida corporation (together with any successor entity thereto (the “Company”) and (ii) the several purchasers signatory hereto (each a “Purchaser” and collectively, the “Purchasers”).

This Agreement is made pursuant to the Subscription Agreement, dated as of the date listed into above, (the “Subscription Agreement”) between the Company and each Purchaser.

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 each of the Purchasers agree as follows:

1. Definitions. As used in this Agreement, the following terms shall have the following meanings:

“Accredited Investor Shares” means the Shares initially sold by the Company to “accredited investors” (within the meaning of Rule 501(a) promulgated under the Securities Act), as Participants.

“Advice” shall have the meaning set forth in Section 6(d).

“Affiliate” shall mean, as to any specified Person, (i) any Person directly or indirectly owning, controlling or holding, with power to vote, ten percent or more of the outstanding voting securities of such other Person, (ii) any Person, ten percent or more of whose outstanding voting securities are directly or indirectly owned, controlled or held, with power to vote, by such other Person, (iii) any Person directly or indirectly controlling, controlled by or under common control with such other Person, (iv) any executive officer, director, trustee or general partner of such Person, or (v) any legal entity for which such Person acts as an executive officer, director, trustee or general partner. An indirect relationship shall include circumstances in which a Person’s spouse, children, parents, siblings or mother, father, sister- or brother-in-law is or has been associated with a Person.

“Agreement” shall have the meaning set forth in the preamble.

“Board of Directors” shall mean the board of directors of the Company.

“Business Day” shall mean, with respect to any act to be performed hereunder, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York, New York or other applicable places where such act is to occur are authorized or obligated by applicable law, regulation or executive order to close.

“Closing Date” shall have the meaning set forth in the Subscription Agreement.

“Commission” shall mean the United States Securities and Exchange Commission.

“Common Stock” shall mean the common stock, $.01 par value, of the Company and any securities into which such common stock may hereinafter be reclassified.

“Company” shall have the meaning set forth in the preamble.

“Cutback Shares” shall have the meaning set forth in Section 2(c).

“Company Control Person” shall have the meaning set forth in Section 5(b) hereof.

“Controlling Person” shall have the meaning set forth in Section 5(a) hereof.

“Compass Point” shall mean Compass Point Research & Trading, LLC, a Delaware limited liability company and the Placement Agent for the offering provided in the Subscription Agreement.

“Effective Date” means the date that the Registration Statement filed pursuant to Section 2(a) is first declared effective by the Commission.

“Effectiveness Deadline” means, with respect to the Initial Registration Statement or the New Registration Statement, the ninetieth (90th) calendar day following the Closing Date (or, in the event the Commission reviews and has written comments to the Initial Registration Statement or the New Registration Statement, the one hundred twentieth (120th) calendar day following the Closing Date); provided, however, that if the Company is notified by the Commission that the Initial Registration Statement or the New Registration Statement will not be reviewed or is no longer subject to further review and comments, the Effectiveness Deadline as to such Registration Statement shall be the fifth (5th) Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above; provided, further, that if the Effectiveness Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Effectiveness Deadline shall be extended to the next Business Day on which the Commission is open for business.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission pursuant thereto.

“Event” has the meaning set forth in Section 2(c).

“Event Date” has the meaning set forth in Section 2(c).

“Filing Deadline” means, with respect to the Initial Registration Statement required to be filed pursuant to Section 2(a), the thirtieth (30th) calendar day following the Closing Date, provided, however, that if the Filing Deadline falls on a Saturday, Sunday or other day that the Commission is closed for business, the Filing Deadline shall be extended to the next business day on which the Commission is open for business.

“FINRA” shall mean the Financial Industry Regulatory Authority, Inc.

“Holder” shall mean each record owner of any Registrable Shares from time to time.

“Indemnified Party” shall have the meaning set forth in Section 5(c) hereof.

“Indemnifying Party” shall have the meaning set forth in Section 5(c) hereof.

“Initial Registration Statement” means the initial Registration Statement filed pursuant to Section 2(a) of this Agreement.

“Liquidated Damages” has the meaning set forth in Section 2(c).

“Losses” has the meaning set forth in Section 5(a).

“New Registration Statement” has the meaning set forth in Section 2(a).

“Person” shall mean an individual, partnership, corporation, limited liability company, trust, unincorporated organization, government or agency or political subdivision thereof, or any other legal entity.

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

“Prospectus” shall mean the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

“Purchaser” or “Purchasers” shall have the meaning set forth in the Preamble.

“Registrable Securities” shall mean all of (i) the Shares, and (ii) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing, provided, that the Holder has completed and delivered to the Company a Selling Stockholder Questionnaire; and provided, further, that with respect to a particular Holder, such Holder’s Shares shall cease to be Registrable Securities upon the earliest to occur of the following: (A) a sale pursuant to a Registration Statement or Rule 144 under the Securities Act (in which case, only such security sold by the Holder shall cease to be a Registrable Security); (B) becoming eligible for resale by the Holder under Rule 144 without the requirement for the Company to be in compliance with the current public information required thereunder and without volume or manner-of-sale restrictions, pursuant to a written opinion letter to such effect by counsel to the Company, addressed, delivered and acceptable to the Transfer Agent; or (C) such securities cease to be outstanding.

“Registration Statements” shall mean any one or more registration statements of the Company filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement (including without limitation the Initial Registration Statement, the New Registration Statement and any Remainder Registration Statements), amendments and supplements to such Registration Statements, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such Registration Statements.

“Remainder Registration Statement” shall have the meaning set forth in Section 2(a).

“Required Investors” shall have the meaning set forth in Section 6(f).

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

“Rule 415” shall mean Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

“Rule 424” shall mean Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.

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

“Selling Stockholder Questionnaire” shall mean a questionnaire which forms a part of the Subscription Agreement, or such other form of questionnaire as may reasonably be adopted by the Company from time to time.

“Shares” shall mean the shares of Common Stock issued or issuable to the Purchasers pursuant to the Subscription Agreement.

“Subscription Agreement” shall have the meaning set forth in the Preamble.

“Trading Day” shall mean a day on which the Common Stock is listed or quoted and traded on its Principal Market; provided, that in the event that the Common Stock is not listed or quoted on any Trading Market, then Trading Day shall mean a Business Day.

“Trading Market” shall mean whichever of the New York Stock Exchange, the NYSE American, the NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital Market on which the Common Stock is listed or quoted for trading on the date in question.

2. Registration Rights.

(a) On or prior to the Filing Deadline, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities not then registered on an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 or, if Rule 415 is not available for offers and sales of the Registrable Securities, by such other means of distribution of Registrable Securities as the Required Investors may reasonably specify. The Initial Registration Statement shall be on Form S-3 (except if the Company is then ineligible to register for resale the Registrable Securities on Form S-3, in which case such registration shall be on such other form available to register for resale the Registrable Securities as a secondary offering) subject to the provisions of Section 2(e). Notwithstanding the registration obligations set forth in this Section 2, in the event the Commission informs the Company that all of the Registrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company agrees to promptly (i) inform each of the Holders and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission and/or (ii) withdraw the Initial Registration Statement and file a new registration statement (a “New Registration Statement”), in either case covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering; provided, however, that prior to filing such amendment or New Registration Statement, the Company shall be obligated to use its commercially reasonable efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with Securities Act Rules Compliance and Disclosure Interpretation Question 612.09. If the Commission requires a limitation of the number of Registrable Securities permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent efforts to advocate with the Commission for the registration of all or a greater number of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities, the number of Registrable Securities to be registered on such Registration Statement will first be reduced by Registrable Securities not acquired pursuant to the Subscription Agreement (whether pursuant to registration rights or otherwise) and second by Registrable Securities represented by Shares (applied, in the case that some Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Shares held by such Holders, subject to a determination by the Commission that certain Holders must be reduced first based on the number of Shares held by such Holders). In the event the Company amends the Initial Registration Statement or files a New Registration Statement, as the case may be, under clauses (i) or (ii) above, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as commercially reasonable efforts allow (and as further allowed by the Commission), one or more registration statements on Form S-3 or such other form available to register for resale those Registrable Securities that were not registered for resale on the Initial Registration Statement, as amended, or the New Registration Statement (the “Remainder Registration Statements”).

(b) The Company shall use its commercially reasonable efforts to cause each Registration Statement to be declared effective by the Commission as soon as practicable and, with respect to the Initial Registration Statement, no later than the Effectiveness Deadline (including filing with the Commission a request for acceleration of effectiveness in accordance with Rule 461 promulgated under the Securities Act), and shall use its commercially reasonable efforts to keep each Registration Statement continuously effective under the Securities Act until the earlier of (i) such time as all of the Registrable Securities covered by such Registration Statement have been publicly sold by the Holders and (ii) the date on which all Shares cease to be Registrable Securities (the “Effectiveness Period”). The Company shall request effectiveness of a Registration Statement as of 5:00 P.M. New York City time on a Trading Day. The Company shall notify the Holders via email of the effectiveness of a Registration Statement within 24 hours of any Registration Statement becoming or being declared effective. The Company shall file a final Prospectus with the Commission as required by Rule 424(b) and shall provide the Holders with copies of the final Prospectus to be used in connection with the sale or other disposition of the securities covered thereby. The Company shall promptly inform each Holder in writing if, at any time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Holder is required to deliver a Prospectus in connection with any disposition of Registrable Securities.

(c) If: (i) the Initial Registration Statement is not filed with the Commission on or prior to the Filing Deadline, (ii) the Initial Registration Statement is not declared effective by the Commission (or otherwise does not become effective) for any reason on or prior to the Effectiveness Deadline, (iii) after its Effective Date, (A) such Registration Statement ceases for any reason (including without limitation by reason of a stop order, or the Company’s failure to update the Registration Statement), to remain continuously effective as to all Registrable Securities included in such Registration Statement or (B) the Holders are not permitted to utilize the Prospectus therein to resell such Registrable Securities for more than an aggregate of thirty (30) consecutive calendar days or forty (40) calendar days (which need not be consecutive days) during any twelve (12) month period, or (iv) after the Filing Deadline, and only in the event a Registration Statement is not effective or available to sell all Registrable Securities, the Company fails to satisfy the current public information requirement pursuant to Rule 144(c)(1) as a result of which the Holders who are not affiliates are unable to sell Registrable Securities without restriction under Rule 144 (or any successor thereto), (any such failure or breach in clauses (i) through (iv) above being referred to as an “Event,” and, for purposes of clauses (i), (ii) or (iv), the date on which such Event occurs, or for purposes of clause (iii), the date on which such thirty (30) or forty (40) calendar day period is exceeded, being referred to as an “Event Date”), then, in addition to any other rights the Holders may have hereunder or under applicable law, on each such Event Date and on each monthly anniversary of each such Event Date (if the applicable Event shall not have been cured by such date) until the earlier of (1) the applicable Event is cured or (2) the Registrable Securities are eligible for resale pursuant to Rule 144 without manner of sale or volume restrictions, the Company shall pay to each Holder an amount in cash, as liquidated damages and not as a penalty (“Liquidated Damages”), equal to one percent (1.0%) of the aggregate purchase price paid by such Holder pursuant to the Subscription Agreement for any unregistered Registrable Securities then held by such Holder. The parties agree that (1) notwithstanding anything to the contrary herein or in the Subscription Agreement, no Liquidated Damages shall be payable with respect to any period after the expiration of the Effectiveness Period, and in no event shall, the aggregate amount of Liquidated Damages (excluding Liquidated Damages payable in respect of an Event described in Section 2(c)(iv) herein) payable to a Holder exceed, in the aggregate, three percent (3%) of the aggregate purchase price paid by such Holder pursuant to the Subscription Agreement (and shall in no event exceed six percent (6%) of the aggregate purchase price paid by such Holder if there is an event described in Section 2(c)(iv) herein), and (2) in no event shall the Company be liable in any ninety (90) day period for Liquidated Damages under this Agreement in excess of one percent (1.0%) of the aggregate purchase price paid by the Holders pursuant to the Subscription Agreement. If the Company fails to pay any Liquidated Damages pursuant to this Section 2(c) in full within five (5) Business Days after the date payable, the Company will pay interest thereon at a rate of one and one-half percent (1.5%) per month (or such lesser maximum amount that is permitted to be paid by applicable law) to the Holder, accruing daily from the date such Liquidated Damages are due until such amounts, plus all such interest thereon, are paid in full. The Liquidated Damages pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior to the cure of an Event, except in the case of the first Event Date. The Company shall not be liable for Liquidated Damages under this Agreement as to any Registrable Securities which are not permitted by the Commission to be included in a Registration Statement (“Cutback Shares”) from the time that it is determined that such Cutback Shares are not permitted to be registered until such time as the provisions of this Agreement as to the Remainder Registration Statements required to be filed hereunder are due to be filed and declared effective, applying similar timing requirements as those contained in Section 2(a), as appropriately extended, as if such Remainder Registration Statement was an Initial Registration Statement, in which case the provisions of this Section 2(c) shall once again apply, if applicable. In such case, the Liquidated Damages shall be calculated to only apply to the percentage of Registrable Securities which are permitted by the Commission to be included in such Remainder Registration Statement. With respect to a Holder, the Effectiveness Deadline for a Registration Statement shall be extended without default or Liquidated Damages hereunder in the event that the Company’s failure to obtain the effectiveness of the Registration Statement on a timely basis results from the failure of any Holder to timely provide the Company with information requested by the Company and necessary to complete the Registration Statement in accordance with the requirements of the Securities Act (in which case the Effectiveness Deadline would be extended with respect to Registrable Securities held by such Holder).

(d) Each Holder agrees to furnish to the Company a completed Selling Stockholder Questionnaire not more than five (5) Trading Days following the date of this Agreement. At least ten (10) Trading Days prior to the first anticipated filing date of a Registration Statement for any registration under this Agreement, the Company will notify each Holder of the information the Company requires from that Holder other than the information contained in the Selling Stockholder Questionnaire, if any, which shall be completed and delivered to the Company promptly upon request and, in any event, within three (3) Trading Days prior to the applicable anticipated filing date. Each Holder further agrees that it shall not be entitled to be named as a selling securityholder in the Registration Statement or use the Prospectus for offers and resales of Registrable Securities at any time, unless such Holder has returned to the Company a completed and signed Selling Stockholder Questionnaire and a response to any requests for further information as described in the previous sentence. If a Holder of Registrable Securities returns a Selling Stockholder Questionnaire or a request for further information, in either case, after its respective deadline, the Company shall use its commercially reasonable efforts to take such actions as are required to name such Holder as a selling security holder in the Registration Statement or any pre-effective or post-effective amendment thereto and to include (to the extent not theretofore included) in the Registration Statement the Registrable Securities identified in such late Selling Stockholder Questionnaire or request for further information. Each Holder acknowledges and agrees that the information in the Selling Stockholder Questionnaire or request for further information as described in this Section 2(d) will be used by the Company in the preparation of the Registration Statement and hereby consents to the inclusion of such information in the Registration Statement.

(e) In the event that Form S-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall register the resale of the Registrable Securities on any other available form.

3. Registration Procedures. In connection with the obligations of the Company with respect to any registration pursuant to this Agreement, the Company shall use its commercially reasonable efforts to effect or cause to be effected the registration of the Registrable Shares under the Securities Act to permit the sale of such Registrable Shares by the Holder or Holders in accordance with the Holder’s or Holders’ intended method or methods of distribution, and the Company shall:

(a) Not less than five (5) Trading Days prior to the filing of each Registration Statement or any amendment or supplement thereto (except for Annual Reports on Form 10-K, and Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar or successor reports), (i) furnish to each Holder copies of such Registration Statement or amendment or supplement thereto, as proposed to be filed, which documents will be subject to the review and reasonable comment of such Holder (it being acknowledged and agreed that if a Holder does not object to or comment on the aforementioned documents within such five (5) Trading Day period, then the Holder shall be deemed to have consented to and approved the use of such documents) and (ii) use commercially reasonable efforts to cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall be necessary to conduct a reasonable investigation within the meaning of the Securities Act.

(b) (i) Prepare and file with the Commission such amendments (including post-effective amendments) and supplements, to each Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period; (ii) cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably practicable to any comments received from the Commission with respect to each Registration Statement or any amendment thereto and, as promptly as reasonably possible, provide the Holders true and complete copies of all correspondence from and to the Commission relating to such Registration Statement that pertains to the Holders as “Selling Stockholders” but not any comments that would result in the disclosure to the Holders of material and non-public information concerning the Company; and (iv) comply with the provisions of the Securities Act and the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement until such time as all of such Registrable Securities shall have been disposed of (subject to the terms of this Agreement) in accordance with the intended methods of disposition by the Holders thereof as set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; provided, however, that each Holder shall be responsible for the delivery of the Prospectus to the Persons to whom such Holder sells any of the Shares (including in accordance with Rule 172 under the Securities Act), and each Holder agrees to dispose of Registrable Securities in compliance with the Registration Statement and otherwise in compliance with applicable federal and state securities laws. In the case of amendments and supplements to a Registration Statement which are required to be filed pursuant to this Agreement (including pursuant to this Section 3(b)) by reason of the Company filing a report on Form 10-K, Form 10-Q or Form 8-K or any analogous report under the Exchange Act, the Company shall have incorporated such report by reference into such Registration Statement, if applicable, or shall file such amendments or supplements with the Commission on the same day on which the Exchange Act report which created the requirement for the Company to amend or supplement such Registration Statement was filed.

(c) Notify the Holders (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably practicable (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) and (if requested by any such Person) confirm such notice in writing no later than one (1) Trading Day following the day: (i)(A) when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement is proposed to be filed; (B) when the Commission notifies the Company whether there will be a “review” of such Registration Statement and whenever the Commission comments in writing on any Registration Statement (in which case the Company shall provide to each of the Holders true and complete copies of all comments that pertain to the Holders as a “Selling Stockholder” and all written responses thereto, but not information that the Company believes would constitute material and non-public information); and (C) with respect to each Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information that pertains to the Holders as “Selling Stockholders”; (iii) of the issuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceeding for such purpose; (v) of the occurrence of any event or passage of time that makes the financial statements included or incorporated by reference in a Registration Statement ineligible for inclusion or incorporation by reference therein or any statement made in such Registration Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires any revisions to such Registration Statement, Prospectus or other documents so that, in the case of such Registration Statement or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued availability of a Registration Statement or Prospectus; provided that, any and all such information shall remain confidential to each Holder until such information otherwise becomes public, unless disclosure by a Holder is required by law; and provided, further, that notwithstanding each Holder’s agreement to keep such information confidential, each such Holder makes no acknowledgement that any such information is material, non-public information.

(d) Use commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities for sale in any jurisdiction, as soon as practicable.

(e) If requested by a Holder, furnish to such Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptly after the filing of such documents with the Commission; provided, that the Company shall have no obligation to provide any document pursuant to this clause that is available on the Commission’s EDGAR system.

(f) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holder in connection with the registration or qualification (or exemption from the registration or qualification) of such Registrable Securities for the resale by the Holder under the securities or “Blue Sky” laws of such jurisdictions within the United States as any Holder reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable Securities covered by each Registration Statement; provided, that the Company shall not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject the Company to taxation in any jurisdiction where it is not then so subject or file a general consent to service of process in any jurisdiction.

(g) If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates or book entry statements, as applicable, representing Registrable Securities to be delivered to a transferee pursuant to the Registration Statement, which certificates or book entry statements shall be free, to the extent permitted by the Subscription Agreement and under law, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holders may reasonably request.

(h) Following the occurrence of any event contemplated by Section 3(c), as promptly as reasonably practicable (taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature disclosure of such event), prepare a supplement or amendment, including a post-effective amendment, to the affected Registration Statements or a supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, no Registration Statement nor any Prospectus will contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, form of prospectus or supplement thereto, in light of the circumstances under which they were made), not misleading. If the Company notifies the Holders in accordance with clauses (iii) through (vi) of Section 3(c) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall suspend use of such Prospectus. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable. For the avoidance of doubt, the Company’s rights under Section 3(c) above shall include the ability to suspend the use of any Prospectus arising from the filing of a post-effective amendment to a Registration Statement to update the Prospectus therein to include the information contained in the Company’s Annual Report on Form 10-K, which suspensions may extend for the amount of time reasonably required to respond to any comments of the staff of the Commission on such amendment.

(i) The Company may require each selling Holder to furnish to the Company a certified statement as to (i) the number of shares of Common Stock beneficially owned by such Holder and any Affiliate thereof, (ii) any Financial Industry Regulatory Authority (“FINRA”) affiliations, (iii) any natural persons who have the power to vote or dispose of the common stock and (iv) any other information as may be requested by the Commission, FINRA or any state securities commission. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of Registrable Securities because any Holder fails to furnish such information within three (3) Trading Days of the Company’s request, any Liquidated Damages that are accruing at such time as to such Holder only shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended as to such Holder only, until such time as the Holder furnishes such information to the Company.

(j) The Company shall reasonably cooperate with any registered broker through which a Holder proposes to resell its Registrable Securities in effecting a filing with FINRA pursuant to FINRA Rule 5110 as requested by any such Holder, however, such Holder or broker shall pay the filing fee required for the first such filing within two (2) Business Days of the request therefor.

4. Registration Expenses. All fees and expenses incident to the Company’s performance of or compliance with its obligations under this Agreement (excluding any underwriting discounts, selling commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals and all legal fees and expenses of legal counsel for any Holder) shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees and expenses (A) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (B) with respect to compliance with applicable state securities or Blue Sky laws (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities and determination of the eligibility of the Registrable Securities for investment under the laws of such jurisdictions as requested by the Holders), (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing prospectuses if the printing of prospectuses is reasonably requested by the Required Investors), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall the Company be responsible for any underwriting discounts, selling commissions, fees of underwriters, selling brokers, dealer managers or similar securities industry professionals or, except to the extent provided for in the Transaction Documents, any legal fees or other costs of the Holders.

5. Indemnification and Contribution.

(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify, defend and hold harmless each Holder, the officers, directors, agents, partners, members, managers, stockholders, Affiliates and employees of each of them, each Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners, members, managers, stockholders, agents and employees of each such “Controlling Person,” to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without limitation, reasonable costs of preparation and investigation and reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, that arise out of or are based upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or preliminary prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading, or (ii) any violation or alleged violation by the Company of the Securities Act, Exchange Act or any state securities law or any rule or regulation thereunder, in connection with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (A) such untrue statements, alleged untrue statements, omissions or alleged omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or to the extent that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and approved in writing by such Holder expressly for use in the Registration Statement, such Prospectus or preliminary prospectus or in any amendment or supplement thereto, or (B) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), related to the use by a Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated and defined in Section 6(d) below, to the extent that following the receipt of the Advice the misstatement or omission giving rise to such Loss would have been corrected, or (C) to the extent that any such Losses arise out of the Holder’s (or any other indemnified Person’s) failure to send or give a copy of the Prospectus or supplement (as then amended or supplemented), if required, pursuant to Rule 172 under the Securities Act (or any successor rule) to the Persons asserting an untrue statement or alleged untrue statement or omission or alleged omission at or prior to the written confirmation of the sale of Registrable Securities to such Person if such statement or omission was corrected in such Prospectus or Supplement. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of an Indemnified Party (as defined in Section 5(c)) and shall survive the transfer of the Registrable Securities by the Holders.

(b) Indemnification by Holders. Each Holder shall, notwithstanding any termination of this Agreement, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, agents or employees of such “Company Control Person,” to the fullest extent permitted by applicable law, from and against all Losses, as incurred, that arise out of or are based solely upon (i) any untrue or alleged untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus, or any preliminary prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (A) to the extent, but only to the extent, that such untrue statements or omissions are based upon information regarding such Holder furnished in writing to the Company by such Holder expressly for use therein, or (B) to the extent, but only to the extent, that such information relates to such Holder or such Holder’s proposed method of distribution of Registrable Securities and was reviewed and approved in writing by such Holder expressly for use in a Registration Statement, such Prospectus or such preliminary prospectus or in any amendment or supplement thereto or (C) in the case of an occurrence of an event of the type specified in Section 3(c)(iii)-(vi), to the extent, but only to the extent, related to the use by such Holder of an outdated or defective Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such Holder of the Advice contemplated in Section 6(d) below, but only if and to the extent that following the receipt of the Advice the misstatement or omission giving rise to such Loss would have been corrected, or (ii) Holder’s failure to deliver or cause to be delivered the Prospectus or any amendment or supplement thereto made available by the Company in compliance with Section 6(c). In no event shall the liability of any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable Securities giving rise to such indemnification obligation.

(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all reasonable fees and expenses incurred in connection with defense thereof; provided, that the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that such failure shall have materially and adversely prejudiced the Indemnifying Party.

An Indemnified Party shall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have reasonably determined, based upon the written advice of its counsel, that a conflict of interest exists if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be at the expense of the Indemnifying Party); provided, that the Indemnifying Party shall not be liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties. The Indemnifying Party shall not be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonably withheld, delayed or conditioned. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, delayed or conditioned, effect any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.

Subject to the terms of this Agreement, all documented fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section 5(c)) shall be paid to the Indemnified Party, as incurred, within twenty (20) Trading Days of written notice thereof to the Indemnifying Party; provided, that the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actions for which such Indemnified Party is finally judicially determined to not be entitled to indemnification hereunder.

(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless for any Losses, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other reasonable fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if the indemnification provided for in this Section 5 was available to such party in accordance with its terms.

The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 5(d), (A) no Holder shall be required to contribute, in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder from the sale of the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission and (B) no contribution will be made under circumstances where the maker of such contribution would not have been required to indemnify the Indemnified Party under the fault standards set forth in this Section 5. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

The indemnity and contribution agreements contained in this Section 5 are in addition to any liability that the Indemnifying Parties may have to the Indemnified Parties and are not in diminution or limitation of the indemnification provisions under the Subscription Agreement.

6. Miscellaneous.

(a) Remedies. In the event of a breach by the Company or by a Holder of any of their obligations under this Agreement, each Holder or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement.

(b) No Piggyback on Registrations; Prohibition on Filing Other Registration Statements. Except to the extent contemplated by the Subscription Agreement or the disclosure schedules thereto, neither the Company nor any of its security holders (other than the Holders in such capacity pursuant hereto) may include securities of the Company in a Registration Statement other than the Registrable Securities and the Company shall not prior to the Effective Date enter into any agreement providing any such right to any of its security holders. Except to the extent contemplated by the Subscription Agreement or the disclosure schedules thereto, the Company shall not file with the Commission a registration statement relating to an offering for its own account under the Securities Act of any of its equity securities other than a registration statement on Form S-8 or, in connection with an acquisition, on Form S-4 until the earlier of (i) the date that is thirty (30) days after the Initial Registration Statement or New Registration Statement, as the case may be, is declared effective or (ii) the date that all Registrable Securities held by non-affiliates are eligible for resale without volume or manner of sale restrictions under Rule 144 and without the requirement for the Company to be in compliance with the current public information requirements under Rule 144. For the avoidance of doubt, the Company shall not be prohibited from preparing and filing with the Commission a registration statement relating to an offering of Common Stock by existing stockholders of the Company under the Securities Act pursuant to the terms of registration rights held by such stockholder or from filing amendments to registration statements filed prior to the date of this Agreement. The provisions of this Agreement shall not impact the terms of any lock-up agreement entered into by any Purchaser for the benefit of the Company on or about the date hereof.

(c) Compliance. Each Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to the Registration Statement and shall sell the Registrable Securities only in accordance with a method of distribution described in the Registration Statement.

(d) Discontinued Disposition. By its acquisition of Registrable Securities, each Holder agrees that, upon receipt of a notice from the Company of the occurrence of any event of the kind described in Section 3(c)(iii)-(vi), such Holder will forthwith discontinue disposition of such Registrable Securities under a Registration Statement until it is advised in writing (the “Advice”) by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.

(e) No Inconsistent Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Company or any of its Subsidiaries, on or after the date hereof, enter into any agreement with respect to its securities that conflicts with the provisions hereof.

(f) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, or waived unless the same shall be in writing and signed by the Company and Holders of a majority of the then outstanding Registrable Securities (the “Required Investors”), provided that any party may give a waiver as to itself.

(g) Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth in the Subscription Agreement.

(h) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each Holder. 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. The Company may not assign its rights (except by merger, consolidation, share exchange or similar business combination transaction or in connection with another entity acquiring all or substantially all of the Company’s assets) or obligations hereunder without the prior written consent of the Required Investors. Each Holder may assign its respective rights hereunder in the manner and to the Persons as permitted under the Subscription Agreement; provided in each case that (i) the Holder agrees in writing with the transferee or assignee to assign such rights and related obligations under this Agreement, and for the transferee or assignee to assume such obligations, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment, (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of the name and address of such transferee or assignee and the securities with respect to which such registration rights are being transferred or assigned, (iii) at or before the time the Company received the written notice contemplated by clause (ii) of this sentence, the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein and (iv) the transferee is an “accredited investor,” as that term is defined in Rule 501 of Regulation D.

(i) Execution and Counterparts. This Agreement may be executed in two or more 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 Agreement. Counterparts may be delivered via facsimile, e-mail (including pdf or any electronic signature covered by the U.S. ESIGN Act of 2000 or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

(j) Governing Law; WAIVER OF JURY TRIAL. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in accordance with the Subscription Agreement. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k) Cumulative Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.

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

(m) Headings. The headings in this Agreement are for convenience only and shall not limit or otherwise affect the meaning hereof.

(n) Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under this Agreement are several and not joint with the obligations of any other Purchaser hereunder, and no Purchaser shall be responsible in any way for the performance of the obligations of any other Purchaser hereunder. The decision of each Purchaser to purchase the Securities pursuant to the Transaction Documents has been made independently of any other Purchaser. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert with respect to such obligations or the transactions contemplated by this Agreement. Each Purchaser acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction Documents. Each Purchaser shall be entitled to protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. The Company acknowledges that each of the Purchasers has been provided with the same Registration Rights Agreement for the purpose of closing a transaction with multiple Purchasers and not because it was required or requested to do so by any Purchaser.

(o) Entire Agreement. This Agreement and the Subscription Agreement (and the other Transaction Documents) constitute the entire agreement among the parties hereto with respect to the subject matter hereof and supersede all prior and contemporaneous arrangements or undertakings with respect thereto. There are no restrictions, promises, warranties or undertakings, other than as set forth or referred to herein and in the Subscription Agreement (and the other Transaction Documents).

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

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[Signature Page to Registration Rights Agreement]

IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.

[Signature Page to Registration Rights Agreement]

Exhibit 10.3

PLACEMENT AGENT AGREEMENT

This PLACEMENT AGENT AGREEMENT (this “Agreement”) is entered into this 28th day of March 2024, by and between OPTIMUMBANK HOLDINGS, INC., a Florida corporation, with its principal place of business at 2929 East Commercial Boulevard, Fort Lauderdale, Florida 33308 (the “Company”), its wholly-owned subsidiary, OPTIMUMBANK, a Florida corporation, with its principal place of business at 2929 East Commercial Boulevard, Fort Lauderdale, Florida 33308 (the “Bank”), and COMPASS POINT RESEARCH & TRADING, LLC, a Delaware limited liability company, with its principal place of business at1055 Thomas Jefferson Street N.W., Suite 303, Washington, D.C. 20007 (“Compass Point” or the “Placement Agent”).

The Company is a one-bank holding company and owns 100% of the Bank, a Florida chartered bank, and is offering, pursuant to the terms of this Agreement shares of its Common Stock, par value $.01 and Series C Preferred Stock (collectively referred to herein as the “Shares”) for an aggregate offering amount of approximately Eight Million Dollars ($8,000,000.00) (the “Offering”). The Company is offering the Shares only to “accredited investors” as defined in Regulation D under the Securities Act of 1933, as amended (the “1933 Act”).

The Company hereby confirms its agreement, on the terms and subject to the conditions set forth herein, to retain Compass Point to assist the Company in procuring investments from accredited investors (collectively, the “Purchasers”). The sale to the Purchasers will be made through a private placement offering by the Company, through the Placement Agent on a “best efforts” basis, pursuant to separate subscription agreements (the “Subscription Agreements”) between the Company and each Purchaser and related documents in accordance with Section 4(a)(2) of the 1933 Act and Regulation D promulgated thereunder.

Each prospective Purchaser agreeing to purchase Shares shall be required to deliver, among other things, an executed Subscription Agreement. The Company shall have the right to reject investments in whole or in part.

Capitalized terms used in this Agreement, unless otherwise defined herein or unless the context otherwise indicates, shall have the same meanings provided in the Subscription Agreements.

1. Appointment of Placement Agent.

(a) The Placement Agent is hereby appointed to act as the placement agent of the Company for the Offering. The Placement Agent will utilize its “best efforts” to solicit investments. The Placement Agent shall not be deemed to be an agent of the Company for any other purpose by virtue of this Agreement. The appointment and authorization of the Placement Agent under this Agreement shall expire on March 29, 2024 (the “Termination Date”), and, subject to Sections 1(b) and 8(g) hereof, may be terminated earlier than such date only by mutual agreement between the Company and the Placement Agent.

(b) Subject to the performance by the Company of all of its obligations to be performed under this Agreement and to the completeness and accuracy of all representations and warranties of the Company contained in this Agreement, the Placement Agent hereby accepts such agency and agrees to use its commercially reasonable efforts to assist the Company in finding qualified Purchasers pursuant to the Offering and other duties as set forth in this Agreement. It is understood that the Placement Agent has no commitment to sell or purchase any of the Shares. No provision of this Agreement shall require the Placement Agent to expend or risk their own funds or incur any financial liability on behalf of any Purchaser of the Shares or otherwise. The Placement Agent’s agency hereunder is not terminable by the Company prior to the Termination Date unless the Placement Agent has materially breached any of their respective covenants or agreements hereunder and failed to cure such breach within fifteen (15) days after written notice thereof is given by the Company to the Placement Agent.

(c) Investments shall be evidenced by the execution by each Purchaser of a Subscription Agreement. No Subscription Agreement shall be effective unless and until it is accepted by the Company. The Placement Agent shall not have any independent obligation to verify the accuracy or completeness of any information contained in any Subscription Agreement or the authenticity, sufficiency, or validity of any check delivered by any prospective Purchaser in payment for Shares, nor shall the Placement Agent incur any liability with respect to any such verification or failure to verify.

2. Representations and Warranties of the Company.

The Company and the Bank jointly and severally represent, covenant and warrant to the Placement Agent, as of the date hereof and as of the date of the closing of the Offering (the “Closing Date”) as follows:

(a) The Placement Agent is entitled to rely on the representations and warranties delivered to the Purchasers by the Company in any purchase agreement(s), including the Subscription Agreements, and/or other definitive documents executed or delivered in connection with the Offering.

(b) The Company is solely responsible for the contents of any offering materials (including, but not limited to, the Subscription Agreements, as well as any investor information packet, due diligence materials or other written information provided to any actual or prospective investor in the Shares) (collectively and taken as a whole, the “Offering Materials”) and any and all other written or oral communications provided by or on behalf of the Company to any actual or prospective investor in the Shares, and the Company represents and warrants that such Offering Materials and such other communications did not and will not, as of the date of any offer or sale of the Shares, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Company has authorized the Placement Agent to provide the Offering Materials to prospective Purchasers of the Shares.

(c) Assuming the accuracy of the information provided by the respective Purchasers in each Subscription Agreement, and further assuming that the Company has fulfilled the representations set forth in subsection (d) below, the offer and sale of the Shares are exempt from the registration requirements of the 1933 Act and the rules and regulations promulgated thereunder and applicable state laws. There exists no fact or set of facts which may cause the Offering to be integrated with any other offering of the Company’s securities or which would cause this Offering to lose its exemption under Regulation D promulgated pursuant to the 1933 Act. No person has any right to cause the Company to effectuate the registration under the 1933 Act of any securities of the Company.

(d) The Company represents and warrants to the Placement Agent that the Company has complied and will comply with all requirements with respect to Rule 506 of Regulation D promulgated pursuant to the 1933 Act, including, without limitation, the requirements that:

(i) Neither the Company nor any of its Affiliates (as defined in Rule 501(b) under the 1933 Act) or any person acting on its or their behalf (other than the Placement Agent, as to whom the Company makes no representation) has engaged or will engage, in connection with the offer and sale of the Shares, in any form of general solicitation or general advertising within the meaning of Rule 502(c) under the 1933 Act.

(ii) The Company will not offer or sell the Shares to any person who is not an “accredited investor” (as defined in Rule 501(a) under the 1933 Act).

(iii) The Company will exercise reasonable care to assure that the Purchasers of the Shares are not underwriters within the meaning of Section 2(a)(11) of the 1933 Act and, without limiting the foregoing, will comply with Rule 502(d) under the 1933 Act.

(iv) The Company will file a Form D with the Securities and Exchange Commission (the “SEC”) as contemplated by Rule 503 under the 1933 Act. The Placement Agent will have the right to review the Form D prior to filing. The Company will also make any and all necessary or appropriate state securities law or “blue sky” filings.

(e) The offer and sale of the Shares complies with all of the rules and regulations of the NASDAQ.

(f) Except for the Placement Agent, there is no other person or entity that is or will be entitled to a finder’s fee or any type of brokerage commission in connection with the transaction(s) contemplated by this Agreement as a result of any agreement or understanding with it.

(g) When certificates representing the Shares have been duly delivered to the Purchasers (or due recordation of the Shares shall have been made by book-entry) and payment in full shall have been made, the Purchasers shall have good and valid title to the Shares free and clear of all liens, encumbrances and claims, with the exception of claims arising from the acts of the Purchasers themselves, whatsoever (except as arising from applicable federal and state securities laws), and the Company shall have paid all taxes, if any, in respect of the original issuance thereof.

(h) The Company is not, and after giving effect to the offering and sale of the Shares, will not be, an “investment company” or an entity “controlled by” an “investment company,” as such terms are defined in the Investment Company Act of 1940, as amended.

(i) In connection with the Offering, the Company has not distributed any offering materials or made any representation, written or oral, other than as contained in, or in the case of oral communications, consistent with, the Offering Materials.

(j) The Company has not relied upon the Placement Agent or legal counsel for the Placement Agent for any legal, tax or accounting advice in connection with the offering and sale of the Shares or the preparation of any Offering Materials.

(k) This Agreement has been duly and validly authorized, executed and delivered by each of the Company and the Bank and is a valid and binding agreement and obligation of each of the Company and the Bank.

(l) The financial statements included in the Company’s latest annual report on Form 10-K and subsequent quarterly reports on Form 10-Q (the “Financial Statements”) present fairly the financial position of the Company as of the dates indicated and the results of operations and cash flows of the Company for the periods specified. Such Financial Statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved except as otherwise stated therein.

(m) Since the latest unaudited financial statements there has not been any (A) material adverse changes in the business, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company or the Bank, (B) transaction that is material to the Company or the Bank, except transactions in the ordinary course of business, (C) obligation that is material to the Company or the Bank, direct or contingent, incurred by the Company or the Bank, except obligations incurred in the ordinary course of business, or (D) change that is material to the Company or the Bank or in the Common Stock $.01 par value shares or Series C Preferred Stock or outstanding indebtedness of the Company or the Bank.

(n) The Company is a Florida corporation, organized, existing and with active status under the laws of Florida, with corporate power and authority under such laws to own, lease and operate its properties and conduct its business as now conducted. The Company has all power, authority, authorization and approvals as may be required to enter into this Agreement and each of the Subscription Agreements, and to carry out the provisions and conditions hereof and thereof, and to issue and the Shares.

(o) With the exception of any approvals required by the SEC related to the Offering, no further approval or authorization of any shareholder of the Company, its Board of Directors or other person or group is required for the issuance of the Shares.

3. Representations and Warranties of the Placement Agent. The Placement Agent represents, covenants and warrants to the Company, as follows:

(a) The Placement Agent is registered as a broker-dealer under applicable federal and state law, is a member in good standing of FINRA and has met and will continue to meet all registration, licensing, financial and reporting requirements it is required to meet under applicable federal and state laws and regulations in order to provide the services the Placement Agent has agreed to provide, or that the Placement Agent contemplates that it will provide, to the Company under this Agreement or otherwise in connection with the Offering.

(b) The Placement Agent will not provide any service or engage in any activity, and it will use its commercially reasonable efforts to not permit any of its employees, agents, representatives or to provide any service or engage in any activity, whether pursuant to this Agreement or otherwise in connection with the sale of the Shares, for which it does not have in effect all registrations, licenses and approvals necessary to cause that service or activity to comply with applicable federal and state laws and regulations.

(c) Notwithstanding anything contained in this Agreement to the contrary, the terms and conditions of the sale of the Shares as described in the Offering Materials shall control the conduct of the sale of the Shares, and the Placement Agent or any of its respective employees, agents, representatives or Affiliates shall not take any action in connection with the sale of the Shares contrary to those terms and conditions.

(d) In connection with or during the course of the sale of the Shares, the Placement Agent or any employee, agent, representative or Affiliate of the Placement Agent will not make any representation or provide any information to any Purchaser or potential Purchaser other than the representations and information contained in the Offering Materials or other information specifically approved by the Company.

(e) This Agreement has been duly and validly authorized, executed and delivered by the Placement Agent and is a valid and binding agreement and obligation of the Placement Agent.

(f) In connection with the sale of the Shares, the Placement Agent has not and will not:

(i) engage in general advertising;

(ii) to its knowledge, solicit an investment from an offeree unless the Company, its officers or directors, or the Placement Agent has a “preexisting relationship” with the offeree; or

(iii) otherwise violate the requirements for the exemption from the registration requirements of the 1933 Act provided by Rule 506 of Regulation D.

4. Closing Date Placement and Fees.

(a) Closing Date. All Purchasers shall be instructed to pay the purchase price for the Shares by wire transfer in immediately available funds to the Company to an account designated by the Company against delivery of certificates evidencing the Shares;

(b) Conditions to Placement Agent’s Obligations. The obligations of the Placement Agent hereunder are subject to the accuracy of the representations and warranties of the Company and the Bank contained herein and of the Company in the Subscription Agreements, as of the date hereof and as of the Closing Date, to the performance by the Company and the Bank of their respective obligations hereunder and of the Company under the Subscription Agreements and to the following additional conditions:

(i) Due Qualification or Exemption. (A) The Offering contemplated by this Agreement shall become qualified or be exempt from qualification under the securities laws of the jurisdictions in which the Shares are contemplated to be offered not later than the Closing Date, subject to any filings to be made thereafter, and (B) at the Closing Date, no stop order or similar directive or claim suspending the sale of the Shares shall have been issued or alleged, and no proceeding for that purpose shall have been initiated or threatened;

(ii) No Material Misstatements. Neither the “blue sky” qualification materials, the Offering Materials, nor any attachment or supplement thereto, will contain an untrue statement of a fact, which in the opinion of the Placement Agent, is material, or omit to state a fact, which, in the opinion of the Placement Agent, is material and is required to be stated therein, or is, in the opinion of the Placement Agent, necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;

(iii) Compliance with Agreements. The Company shall have complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and under the Subscription Agreements at or prior to the Closing Date;

(iv) Corporate Action. The Company shall have taken all corporate action necessary in order to permit the valid execution, delivery and performance of the Subscription Agreements by the Company, including, without limitation, obtaining the approval of the Company’s board of directors, for the execution and delivery of the Subscription Agreements, the performance by the Company of its obligations hereunder and the Offering contemplated hereby;

(v) Opinion of Counsel. The Company shall have caused its counsel to deliver to the Placement Agent an opinion as of the Closing Date, which opinion shall be substantially similar to the opinions delivered to the Purchasers pursuant to the Subscription Agreements and shall be in form and substance reasonably satisfactory to the Placement Agent and their respective counsel.

(vi) Officer’s and other Certificates. The Company shall have delivered to the Placement Agent, as of the Closing Date, such certificates (including secretary’s certificate, officers’ certificate, state good standing certificate(s), and bank regulatory certificates) and documents as the Placement Agent may reasonably request, in form and substance reasonably satisfactory to the Placement Agent and their respective counsel.

(c) Placement Fees and Expenses.

(i) As compensation for the Placement Agent’s services hereunder, the Company will pay in cash to the Placement Agent a placement fee (the “Placement Fee”) equal to (i) five percent (5%) of the gross proceeds from Shares purchased. Any Placement Fee will be payable to the Placement Agent in cash, by wire of good and immediately available funds, upon any closing date. Notwithstanding the foregoing, any Shares purchased by investors who were not solicited by the Placement Agent, namely, Linda Karasick and GKCC, LLC, shall not be used in calculating the Placement Fee.

(ii) In addition, whether or not a sale of the Shares occurs, the Company shall reimburse the Placement Agent upon demand for their reasonable out-of-pocket expenses and disbursements incurred in connection with this engagement, including, but not limited to, travel, reasonable fees and disbursements of the Placement Agent’s legal counsel, and printing and distribution of Offering Materials, provided, however, that such expense reimbursement shall not exceed $125,000 in the aggregate without the Company’s consent, which consent shall not be unreasonably withheld. The provisions of this paragraph are not intended to apply to, and shall not in any way limit or impair, the indemnification and contribution sections of this Agreement. The Placement Agent agrees to be responsible for any and all expenses incurred by the Placement Agent in connection with the Offering above such $125,000 amount.

5. Covenants of the Company.

(a) Use of Proceeds. The net proceeds of the Offering shall be used by the Company substantially as set forth in Offering Materials. Except as set forth in the Offering Materials, the Company shall not use any proceeds from the Offering to repurchase, redeem or otherwise acquire any shares of capital stock of the Company or repay any indebtedness of the Company, including but not limited to any indebtedness to current executive officers or principal shareholders of the Company, but excluding accounts payable to Persons other than Affiliates incurred in the ordinary course of business.

(b) Expenses of Offering. The Company shall be responsible for and shall bear all expenses incurred in connection with the Offering, including but not limited to, the costs of preparing, duplicating and delivering all selling documents (including but not limited to the Offering Materials, this Agreement, the blue sky memoranda and stock certificates), blue sky fees, filing fees and reasonable expenses and disbursements of the Placement Agent pursuant to Section 4(c)(ii) above.

(c) Notification. The Company shall notify the Placement Agent immediately, and in writing, (i) when any event shall have occurred during the period commencing on the date hereof and ending on the Closing Date as a result of which the Offering Materials would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in light of the circumstances under which they were made, and (ii) of the receipt of any notification with respect to the modification, rescission, withdrawal or suspension of the qualification or registration of the Shares, or of any exemption from such registration or qualification, in any jurisdiction. The Company will use its best efforts to prevent the issuance of any such modification, rescission, withdrawal or suspension and, if any such modification, rescission, withdrawal or suspension is issued and the Placement Agent so request, to obtain the lifting or curing thereof as promptly as possible. Upon receipt of a notification under this Section 5(c), the Placement Agent will suspend solicitations of the prospective Purchasers of the Shares until such time as (i) the Company shall prepare a supplement or amendment to the Offering Materials which corrects the statement or omission, or (ii) the modification, rescission, withdrawal or suspension has been lifted or otherwise cured, each to the satisfaction of the Placement Agent.

(d) Blue Sky. The Company shall use its best efforts to qualify the Shares for offering and sale under exemptions from qualification or registration requirements under the securities or “blue sky” laws of such jurisdictions as the Placement Agent may reasonably request; provided, however, that the Company will not be obligated to qualify as a dealer in securities in any jurisdiction in which it is not so qualified or to sign a general consent to service of process in any such jurisdiction. The Company will not consummate any sale of Shares in any jurisdiction in which it is not so qualified or in any manner in which such sale may not be lawfully made.

(e) Form D Filing. The Company shall file required copies of a Notice of Exempt Offering of Securities on Form D with the SEC no later than fifteen (15) days after the date of the first Closing Date The Company shall promptly file such amendments to such notices on Form D as shall become necessary and shall also comply with any filing requirement imposed by the laws of any state or jurisdiction in which offers and sales are made. The Company shall pay any applicable fees related thereto.

(f) No Other Finders or Brokers. During the term of the Placement Agent’s engagement hereunder, the Company will not (i) offer any Shares for sale to, or solicit any offers to buy from, any person or persons, whether directly or indirectly, other than through the Placement Agent or (ii) engage in any discussions with any person other than representatives of the Placement Agent for the purpose of engaging, or considering the engagement of, such person as a finder or broker in connection with the sale by the Company of the Shares covered by this Agreement.

(g) Cooperation, Due Diligence and Ongoing Accuracy of Representations. The Company has cooperated and will cooperate with the Placement Agent in any due diligence investigation reasonably requested by the Placement Agent with respect to the offer and sale of the Shares and has furnished and will furnish the Placement Agent with such information, including financial statements, with respect to the business, operations, assets, liabilities, financial condition and prospects of the Company as the Placement Agent may request. The Placement Agent may rely upon the accuracy and completeness of all such information and the Company acknowledges that the Placement Agent has not been retained to independently verify any of such information.

(h) Placement Agent Publicity. The Company agrees that upon consummation of the sale of Shares, the Placement Agent may place “tombstone” advertisements in financial and other publications and media at their own expense describing its services to the Company hereunder.

(i) Public Announcements. Except as otherwise required by applicable law or the rules of any regulatory agency, the Company shall not, during the period commencing on the date hereof and ending thirty (30) days after the Closing Date, issue any press release or other communication, make any written or oral statement to any media organization or publication or hold any press conference, presentation or seminar, or engage in any other publicity with respect to the Company and/or its subsidiaries, their financial condition, results of operations, business, properties, assets, or liabilities, or the Offering, without the prior written consent of the Placement Agent except in the ordinary course of business, to comply with applicable securities laws, and in both cases, not for the purpose of soliciting any interest in the Offering. The Company shall further not use the name of the Placement Agent or any officer, director, employee or shareholder of any Placement Agent without the express written consent of such party and such person in any manner that is inconsistent with the statements made with respect to such persons in the Offering Materials.

(j) Additional Acknowledgements. The Company acknowledges and agrees that:

(i) The financial models and presentations used by the Placement Agent in performing their services hereunder have been developed by and are proprietary to the Placement Agent and are protected under applicable copyright law. The Company further acknowledges and agrees that, except as required by applicable law, it will not reproduce or distribute all or any portion of such models or presentations without the prior written consent of the Placement Agent.

(ii) The Placement Agent is a full service securities firm engaged in a wide range of businesses and from time to time, in the ordinary course of its business, the Placement Agent or its Affiliates may hold long or short positions and trade or otherwise effect transactions for its own account or the account of its customers in debt or equity securities or loans of the companies which may be the subject of the transactions contemplated by this Agreement. During the course of the Placement Agent’s engagement with the Company, the Placement Agent may have in its possession material, non-public information regarding other companies that could potentially be relevant to the Company or the transactions contemplated herein but which cannot be shared due to an obligation of confidence to such other companies. As in all matters involving confidential client information, information barriers exist that restrict access to such information within the Placement Agent, except on a need-to-know basis.

(iii) The Placement Agent’s research analysts and research department are independent from the Placement Agent’s investment banking division and are subject to certain regulations and internal policies. The Placement Agent’s research analysts may hold and make statements or investment recommendations and/or publish research reports with respect to the Company, the transactions contemplated herein or any counterparty thereto that differ from or are inconsistent with the views or advice communicated by the Placement Agent’s investment banking division.

(k) Right of First Refusal.

Effective upon the closing of the Offering and lasting for a period of twelve (12) months thereafter (the “ROFR Period”), Compass Point shall have a right of first refusal to act as the lead book-running underwriter or placement agent in connection with any and all public or private equity offerings and equity-linked financings (each a “Subject Transaction”) contemplated by the Company, and in acting in such capacity, Compass Point shall be entitled to a fee of no less than any other underwriter or placement agent participating in the Subject Transaction. If no closing of the Offering occurs during the term of this Agreement, Compass Point shall not be entitled to any right of first refusal and there shall be no ROFR Period. If no other underwriter or placement agent is participating in the Subject Transaction, then the fee offered shall be consistent with the market rate for similar engagements. Notwithstanding the foregoing, in no circumstance shall the gross fee be greater than 5.0% of the gross proceeds from a non-At-The-Market (“ATM”) Subject Transaction or greater than 2% of the gross proceeds from an ATM Subject Transaction. The term “Subject Transaction” shall not include any of the following: (i) securities issued by the Company or any of its subsidiaries in connection with an acquisition, a merger, a consolidation or a sale or purchase of assets or in connection with a strategic investment, partnership or joint venture, (ii) securities issued by the Company or any of its subsidiaries in connection with any debt financing, other than convertible notes issued by the Company, (iii) securities issued by the Company in a self-directed offering, and (iv) securities issued pursuant to employee benefit, option or purchase plans in effect as of the date of this Agreement. If the Company intends to pursue a Subject Transaction during the ROFR Period, it shall not retain, engage or solicit any other investment bank, broker-dealer, underwriter, placement agent or similar entity, unless the Company first sends the material terms of the proposed Subject Transaction in writing to Compass Point (the “Written Offering Terms”) and provides Compass Point with the opportunity to exercise its right of first refusal with respect to the Subject Transaction. In this regard, Compass Point shall have five (5) business days from its receipt of the Written Offering Terms in which to determine whether or not to act as the underwriter or placement agent for the Subject Transaction. If Compass Point refuses, then the Company may engage another underwriter or placement agent to act as the underwriter or placement agent for the Subject Transaction. If such financing is consummated (A) with another underwriter or placement agent upon substantially the same terms and conditions as the Written Offering Terms and (B) within six (6) months after the end of the aforesaid five (5) business day period, then Compass Point’s’ right of first refusal shall be forfeited; provided, however, if such Subject Transaction is not consummated under the conditions of clause (A) and (B) above, then the right of first refusal shall once again be reinstated under the same terms and conditions set forth in this paragraph during the remainder of the ROFR Period. The Right of First Refusal granted hereunder may be terminated by the Company for “Cause,” which shall mean: (i) a material breach by Compass Point of this Agreement or a material failure by Compass Point to provide the services as contemplated by this Agreement.

6. Termination and Survival.

(a) Notwithstanding the expiration or termination of the Placement Agent’s appointment pursuant to Section 1(a) of this Agreement, the Company shall remain responsible for the reimbursement of the Placement Agent’s expenses (and any unpaid Placement Fees that are owed and/or, if a closing of the Offering has occurred, that become owed as a result of any subsequent closing of the Offering) under Section 4(c) of this Agreement, and the indemnification and contribution obligations of the Company under Section 7 below shall survive.

(b) If during a period of six (6) months following the expiration or termination of the Placement Agent’s engagement hereunder, the Company or any of its Affiliates sells any capital securities (including common stock, preferred stock or other capital securities) to investors contacted by Compass Point on behalf of the Company during the term of this Agreement, then the Company shall pay, or cause to be paid, to the Placement Agent upon the closing of any such sale an exclusivity fee (the “Exclusivity Fee”) equal to five percent (5%) of the gross proceeds from such sale.

7. Indemnification. The Company and Bank hereby agree to indemnify the Placement Agent in accordance with the following indemnification provisions:

(a) The Company and the Bank shall indemnify the Placement Agent, their respective officers, employees and associated persons and hold them harmless against any and all losses, claims, damages or liabilities to which the Placement Agent may become subject (i) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Offering Materials, including documents described in or incorporated by reference or in any other written or oral communication provided by or on behalf of the Company to any actual or prospective Purchaser of the Shares or arising out of or based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, (ii) arising out of or based in whole or in part on any inaccuracy in the representations or warranties of the Company contained in any purchase agreement, or any failure of the Company to perform its obligations thereunder or (iii) arising in any manner out of or in connection with the services (whether such services are rendered before, on, or after the date of this Agreement) or matters (whether such matters relate to dates before, on, or after the date of this Agreement) that are the subject of this Agreement (including, without limitation, the offer and sale of the Shares), and shall reimburse the Placement Agent promptly for any legal or other expenses reasonably incurred by it in connection with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuits, investigations, claims or other proceedings arising in any manner out of or in connection with the services or matters that are the subject of this Agreement (including, without limitation, in connection with the enforcement of this Agreement and the indemnification obligations set forth herein); provided, however, that the Company shall not be liable to the Placement Agent under clause (iii) of this paragraph in respect of any loss, claim, damage, liability or expense to the extent that it is finally judicially determined that such loss, claim, damage, liability or expense resulted directly from the gross negligence or willful misconduct of the Placement Agent in the performance of its services hereunder.

(b) The Company and the Bank agree that the indemnification and reimbursement commitments set forth herein shall apply whether or not the Placement Agent is a formal party to any such lawsuits, claims or other proceedings and that such commitments shall extend upon the terms set forth herein to any controlling person, Affiliate, partner, director, officer, employee or agent of the Placement Agent (each, with the Placement Agent, an “Indemnified Person”). The Company and the Bank further agree that, without the Placement Agent’s prior written consent, it will not enter into any settlement of a lawsuit, claim or other proceeding arising out of the transactions contemplated by this Agreement unless such settlement (i) includes an explicit and unconditional release from the party bringing such lawsuit, claim or other proceeding of all Indemnified Persons and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.

(c) The Company and the Bank further agree that the Indemnified Persons are entitled to retain one separate counsel (in addition to any local counsel) of their choice in connection with any of the matters in respect of which indemnification, reimbursement or contribution may be sought under this Agreement.

(d) The Company, the Bank, and the Placement Agent agree that if any indemnification or reimbursement sought hereunder is judicially determined to be unavailable for a reason other than the gross negligence or willful misconduct of the Placement Agent, then, whether or not the Placement Agent is the Indemnified Person, the Company, the Bank and the Placement Agent shall contribute to the losses, claims, damages, liabilities and expenses for which such indemnification or reimbursement is held unavailable (i) in such proportion as is appropriate to reflect the relative benefits to the Company and the Bank, on the one hand, and the Placement Agent, on the other hand, in connection with the transactions to which such indemnification or reimbursement relates or (ii) if the allocation provided by clause (i) above is judicially determined not to be permitted, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative faults of the Company and the Bank, on the one hand, and the Placement Agent, on the other hand, as well as any other equitable considerations.

(e) The relative benefits received (or anticipated to be received) by the Company and the Bank, on the one hand, and the Placement Agent, on the other hand, in connection with this Agreement shall be deemed to be in the same respective proportions as the total transaction fees paid to the Placement Agent pursuant to this Agreement bears to the net proceeds from the private placement of the Shares (before deducting expenses) received by the Company. The relative fault of the Company and the Bank, on the one hand, and the Placement Agent, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statements of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company, the Bank or by the Placement Agent and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(f) The Company, the Bank and the Placement Agent agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission. Notwithstanding the provisions of this Section 7, the Placement Agent shall not be required to contribute any amount in excess of the amount by which its Placement Fee actually received pursuant to this Agreement exceeds the amount of any losses, claims, damages or liabilities which the Placement Agent has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each controlling person, if any, of the Placement Agent and the partners, directors, officers, employees and agents of the Placement Agent or any such controlling person shall have the same rights to contribution as the Placement Agent.

8. Miscellaneous.

(a) No Fiduciaries. Nothing in this Agreement, expressed or implied, is intended to confer or does confer on any person or entity other than the parties hereto or their respective successors and assigns, and to the extent expressly set forth herein, the Indemnified Persons (as defined in Section 7(b) hereto), any rights or remedies under or by reason of this Agreement or as a result of the services to be rendered by the Placement Agent hereunder. The parties acknowledge and agree that the Placement Agent is not acting in a fiduciary capacity with respect to the Company and that the Placement Agent is not assuming any duties or obligations other than those expressly set forth in this Agreement. The Company further agrees that the Placement Agent or any of its respective controlling persons, Affiliates, partners, directors, officers, employees or consultants shall not have any liability to the Company or any person asserting claims on behalf of or in right of the Company for any losses, claims, damages, liabilities or expenses arising out of or relating to this Agreement or the services to be rendered by the Placement Agent hereunder, unless it is finally judicially determined that such losses, claims, damages, liabilities or expenses resulted from the gross negligence or willful misconduct of the Placement Agent.

(b) Successors and Assignees. No party may assign its rights under this Agreement without the written consent of the other parties. The benefits of this Agreement shall inure to the respective successors and permitted assignees of the parties hereto and the other Indemnified Persons (as defined in Section 7(b) hereto), and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and permitted assignees.

(c) Governing Law. This Agreement will be governed by the laws of the State of New York. Each of the Company, the Bank and the Placement Agent irrevocably submit to the exclusive jurisdiction of the state and federal courts of the State of New York located in the city and borough of Manhattan for the purpose of any suit, action or other proceeding arising out of this Agreement, or any of the agreements or transactions contemplated hereby, which is brought by or against any party. Each of the Company, the Bank and the Placement Agent hereby knowingly, voluntarily and irrevocably waives any right it may have to a trial by jury in respect of any claim based upon, arising out of or in connection with this Agreement.

(d) Notices. All communications hereunder shall be in writing and, except as otherwise provided herein, will be mailed, delivered or faxed and confirmed as follows:

(e) Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect.

(f) Counterparts. This Agreement may be executed in any number of counterparts (including by facsimile, email or other electronically delivery of a signature), each of which shall be deemed to be an original and all of which together shall be deemed to be the same agreement.

(g) Termination. Subject to the general survival provisions contained herein, this Agreement may be terminated solely at the discretion of the Placement Agent prior to the Closing Date upon written notice to the Company.

(h) Independent Contractor. The Placement Agent shall act as independent contractors and nothing contained herein or otherwise shall be construed to create any partnership or joint venture between the Placement Agent and the Company.

(i) Headings. The headings and captions of the various subdivisions of this Agreement are for convenience or reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof.

(j) Entire Agreement. This Agreement constitutes the entire understanding and agreement among the parties with respect to the subject matter hereof and supersedes all prior understanding or agreements among the parties with respect thereto, whether oral or written, express or implied. Neither this Agreement nor any term hereof may be changed, waived or terminated orally, but only by an instrument in writing signed by the party against which enforcement of the change, waiver or termination is sought.

[Signature page follows]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date set forth above.