Exhibit 3.1

CERTIFICATE OF DESIGNATION OF
SERIES A CONVERTIBLE PREFERRED STOCK OF
NEWTON GOLF COMPANY, INC.

Pursuant to Section 151 of the General Corporation Law of the State of Delaware, Newton Golf Company, Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:

WHEREAS, the Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”) authorizes the issuance of up to 5,000,000 shares of preferred stock, par value $0.01 per share, 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 of Preferred Stock, and, with respect to each such 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 it is the desire of the Board to establish and fix the number of shares to be included in a new series of Preferred Stock and the designation, rights, preferences, and limitations of the shares of such new series.

NOW, THEREFORE, BE IT RESOLVED, that the Board does hereby provide for the issue of a series of Preferred Stock and does hereby in this Certificate of Designation (the “Certificate of Designation”) establish and fix and herein state and express the designation, rights, preferences, powers, restrictions, and limitations of such series of Preferred Stock as follows:

1. Designation. There shall be a series of Preferred Stock that shall be designated as “Series A Convertible Preferred Stock” (the “Series A Preferred Stock”) and the number of Shares constituting such series shall be 50,000. The rights, preferences, powers, restrictions, and limitations of the Series A Preferred Stock shall be as set forth herein.

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

“Annual Dividend Payment Date” means July 8 of each year (each, an “Anniversary Date”), commencing on the first Anniversary Date immediately following the Date of Issuance; provided, that if any such Anniversary Date is not a Business Day then the “Annual Dividend Payment Date” shall be the next Business Day immediately following such Anniversary Date.

“Annual Dividend Payment Record Date” has the meaning set forth in Section 4.1(d).

“Annual Dividends” has the meaning set forth in Section 4.1(b).

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

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

“Certificate of Designation” has the meaning set forth in the Recitals.

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

“Change of Control” means (a) any transaction or series of related transactions in which any person or group (other than any holder of Series A Preferred Stock, any of its affiliates or any group in which it is a member) acquires beneficial ownership of more than 50% of the voting power of the Corporation, (b) a sale of all or substantially all of the Corporation’s assets, or (c) any merger, consolidation, or similar business combination transaction involving the Corporation after which the stockholders of the Corporation immediately prior to such transaction hold less than a majority of the voting power of the surviving or resulting entity.

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

“Convertible Securities” means any securities (directly or indirectly) convertible into or exchangeable for Common Stock, but excluding Options.

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

“Conversion Price” has the meaning set forth in Section 7.5.

“Date of Issuance” means, for any Share of Series A Preferred Stock, the date on which the Corporation initially issues such Share (without regard to any subsequent transfer of such Share or reissuance of the certificate(s) representing such Share).

“Exempt Issuance” means the issuance of (a) shares of Common Stock or Convertible Securities to employees, consultants, contractors, advisors, officers or directors of the Corporation pursuant to any equity incentive or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Corporation, (b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the Date of Issuance, provided that such securities have not been amended since the date of this Certificate of Designation to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term of such securities, (c) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by a majority of the disinterested directors of the Corporation, provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Corporation and shall provide to the Corporation additional benefits in addition to the investment of funds, but shall not include a transaction in which the Corporation is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d) shares in connection with commercial lending or banking arrangements.

“Holder” means a holder of Shares of the Series A Preferred Stock.

“Junior Securities” means, collectively, the Common Stock and any other class of securities that is specifically designated as junior to the Series A Preferred Stock.

“Liquidation” has the meaning set forth in Section 5.1(a).

“Liquidation Preference” means, with respect to any Share on any given date, the Original Issue Price of such Share plus all accrued and unpaid PIK Dividends and all accrued and unpaid Cash Dividends thereon as of such date.

“Nasdaq Minimum Price” means the Nasdaq Minimum Price as defined in Nasdaq Listing Rule 5635(d).

“Options” means any warrants or other rights or options to subscribe for or purchase Common Stock or Convertible Securities.

“Original Issue Price” means, with respect to any Share, the product of (i) 100 and (ii) the original Conversion Price (as adjusted for any stock splits, stock dividends, recapitalizations, or similar transactions with respect to the Series A Preferred Stock).

“Payment Period” means, with respect to a share of Series A Preferred Stock, the period beginning on the day after the preceding Annual Dividend Payment Date (or if no Annual Dividend Payment Date has occurred since the Date of Issuance of such share of Preferred Stock, the Date of Issuance) to and including the next Annual Dividend Payment Date; provided that, for the purpose of determining the amount of Accrued Dividends for any Payment Period, the Payment Period shall be calculated based on the actual number of days elapsed during such Payment Period on either an actual 365-or 366-day year, as applicable.

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

“PIK Dividend” has the meaning set forth in Section 4.1(c).

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

“Principal Stock Exchange” shall mean (A) the Nasdaq Capital Market, or (B) in the event that the shares of Common Stock are no longer listed or quoted on the Nasdaq Capital Market, the principal United States or foreign national securities exchange on which the shares of Common Stock are so listed or quoted, or if the shares of Common Stock are not so listed or quoted on a United States or foreign national securities exchange, the last quoted Trading Day bid price for shares of Common Stock in the over-the-counter market as reported by OTC Markets Group Inc.

“Required Holders” means the holders of a majority of the then-outstanding shares of Series A Preferred Stock.

“Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations thereunder, which shall be in effect at the time.

“Series A Preferred Stock” has the meaning set forth in Section 1.

“Share” means a share of Series A Preferred Stock.

“Stated Value” means, with respect to any Share on any given date, the Original Issue Price of such Share plus all accrued and unpaid PIK Dividends.

“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.

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

3. Rank. With respect to payment of dividends and distribution of assets upon liquidation, dissolution, or winding up of the Corporation, whether voluntary or involuntary, all Shares of the Series A Preferred Stock shall rank senior to all Junior Securities, including the Common Stock.

4. Dividends.

4.1 Holders of the issued and outstanding shares of Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available for the payment of dividends, dividends on the terms described below:

(a) Holders of shares of Series A Preferred Stock shall be entitled to participate equally and ratably with the holders of shares of Common Stock in all dividends paid on the shares of Common Stock (other than dividends paid in the form of Common Stock, Convertible Securities or Options) as if immediately prior to the record date for such Common Stock dividend, all shares of Series A Preferred Stock then outstanding were converted into shares of Common Stock. Dividends payable pursuant to this Section 4.1(a) (the “Participating Dividends”) shall be payable on the same date that such dividends are payable to holders of shares of Common Stock, and no dividends shall be payable to holders of shares of Common Stock unless the full dividends contemplated by this Section 4.1(a) are paid at the same time to the Holders of the Series A Preferred Stock.

(b) In addition to any dividends pursuant to Section 4.1(a), the Corporation shall pay, subject to Section 4.1(c), if, as and when declared by the Board of Directors, out of funds of the Corporation legally available therefor, on each Annual Dividend Payment Date for the applicable Payment Period or Payment Periods dividends on each outstanding share of Series A Preferred Stock (the “Annual Dividends”) at a rate per annum (calculated on the basis of an actual 365- or 366-day year, as applicable) equal to 10.00% of the Original Issue Price per share of Series A Preferred Stock (the “Dividend Rate”), payable in accordance with Section 4.1(c) below. Subject to Section 4.2, Annual Dividends shall accrue and accumulate on a daily basis from the Date of Issuance of such share, whether or not declared and whether or not the Corporation has funds legally available for the payment of such dividends and shall be payable annually in arrears, if, as and when so authorized and declared by the Board of Directors, on each Annual Dividend Payment Date, commencing on the first Annual Dividend Payment Date following the Date of Issuance of such share. Accrued Dividends, to the extent unpaid, shall in all cases be payable upon a Liquidation pursuant to Section 5, upon a conversion of the Series A Preferred Stock pursuant to Section 7. Annual Dividend payments shall be aggregated per Holder and shall be made to the nearest cent (with $0.005 being rounded upward).

(c) The Annual Dividends may, at the option of the Corporation in its sole discretion, be paid (A) in cash, (B) by an increase to the Stated Value of the Series A Preferred (a “PIK Dividend”), (C) by any combination of cash and PIK Dividend or (D) allow the accrual of the dividend as an accrued and aunpaid Cash Dividend; provided that, notwithstanding anything to the contrary in this Certificate of Designation, the Corporation will not be permitted to make any PIK Dividend election to the extent such election would violate the listing standards of the Principal Stock Exchange (including but not limited to Nasdaq Marketplace Rule 5635). Any Annual Dividend that is not paid in cash or by a PIK Dividend that is accrued but unpaid is referred to as an “accrued and unpaid Cash Dividend.” For the avoidance of doubt, the Corporation is under no obligation to declare or pay Annual Dividends in cash and accrued and unpaid Cash Dividends shall accrue without interest until payable upon the occurrence of a Liquidation or conversion, as applicable.

(d) Each Participating Dividend or Annual Dividend shall be paid pro rata to the Holders of shares of Series A Preferred Stock entitled thereto. Each Participating Dividend or Annual Dividend shall be payable to the Holders of Series A Preferred Stock as they appear on the Corporation’s books and records at the close of Business on the record date designated by the Board of Directors for such dividends, which (i) with respect to Participating Dividends, shall be the same day as the record date for the payment of dividends to the holders of shares of Common Stock (the “Common Stock Dividend Record Date”), and (ii) with respect to Annual Dividends, shall be not more than thirty (30) days nor less than ten (10) days preceding the applicable Annual Dividend Payment Date (such date, an “Annual Dividend Payment Record Date”).

4.2 If the date of conversion of any share of Preferred Stock is after an Annual Dividend Payment Record Date for a declared Annual Dividend on the Preferred Stock but occurs on or prior to the next Annual Dividend Payment Date, then the Holder of such share at the close of business on such Annual Dividend Payment Record Date will be entitled, notwithstanding the related conversion, as applicable, to receive, on or, at the Corporation’s election, before such Annual Dividend Payment Date, such declared Annual Dividend on such share. Except as provided in this Section 4.2, Annual Dividends on any share of Preferred Stock will cease to accumulate from and after the date of conversion, as applicable.

4.3 Partial Dividend Payments. Except as otherwise provided herein, if at any time the Corporation pays less than the total amount of dividends then accrued with respect to the Series A Preferred Stock, such payment shall be distributed pro rata among the holders thereof based upon the aggregate accrued but unpaid dividends on the Shares held by each such holder.

5. Liquidation.

5.1 Liquidation.

(a) Liquidation Preference. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (a “Liquidation”), the holders of Shares of Series A Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders, before any payment shall be made to the holders of Junior Securities by reason of their ownership thereof, an amount per share equal to the Liquidation Preference of such Share. For the avoidance of doubt, the Series A Preferred Stock shall not be redeemable for cash at the option of the holders thereof, and the Corporation shall not be required to settle the Series A Preferred Stock in cash or other assets under any circumstances other than a Liquidation.

5.2 Remaining Assets. After payment in full of the Liquidation Preference to the holders of Series A Preferred Stock, the remaining assets of the Corporation available for distribution to its stockholders shall be distributed among the holders of Junior Securities.

5.3 Insufficient Assets. If upon any Liquidation the remaining assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of the Shares of Series A Preferred Stock the full Liquidation Preference to which they are entitled under Section 5.1, (a) the holders of the Shares shall share ratably in any distribution of the remaining assets and funds of the Corporation in proportion to the respective Liquidation Preferences which would otherwise be payable in respect of the Series A Preferred Stock in the aggregate upon such Liquidation if all amounts payable on or with respect to such Shares were paid in full, and (b) the Corporation shall not make or agree to make any payments to the holders of Junior Securities.

5.4 Notice Requirement. In the event of any Liquidation, the Corporation shall, within ten (10) days of the date the Board approves such action, or no later than twenty (20) days of any stockholders’ meeting called to approve such action, or within twenty (20) days of the commencement of any involuntary proceeding, whichever is earlier, give each holder of Shares of Series A Preferred Stock written notice of the proposed action. Such written notice shall describe the material terms and conditions of such proposed action, including a description of the stock, cash, and property to be received by the holders of Shares upon consummation of the proposed action and the date of delivery thereof. If any material change in the facts set forth in the initial notice shall occur, the Corporation shall promptly give written notice to each holder of Shares of such material change.

6. Voting.

6.1 Voting Generally. Each holder of outstanding Shares of Series A Preferred Stock shall be entitled to vote with holders of outstanding shares of Common Stock, voting together as a single class, with respect to any and all matters presented to the stockholders of the Corporation for their action or consideration (whether at a meeting of stockholders of the Corporation, by written action of stockholders in lieu of a meeting or otherwise), except as provided by law or by the provisions of Section 6.3 below. In any such vote, each Share of Series A Preferred Stock shall be entitled to a number of votes equal to the number of shares of Common Stock into which the Share is convertible pursuant to Section 7 herein as of the record date for such vote or written consent or, if there is no specified record date, as of the date of such vote or written consent; provided, however, that in no event shall any Holder be entitled to voting rights with respect to shares in excess of the Beneficial Ownership Limitation set forth in Section 7.6; provided further, that the Series A Preferred shall not be entitled to vote on a proposal to approve issuances upon the conversion of the Series A Preferred pursuant to Nasdaq Marketplace Rule 5635 or other similar rule of the Principal Stock Exchange. Each holder of outstanding Shares of Series A Preferred Stock shall be entitled to notice of all stockholder meetings (or requests for written consent) in accordance with the Corporation’s bylaws.

6.2 Protective Provisions. For so long as holders of at least twenty-five percent (25%) of the outstanding shares of Series A Preferred Stock issued pursuant to the initial issuance thereof remain outstanding, the affirmative vote or written consent of the Required Holders shall be required for the Corporation to take any of the following actions:

(a) any amendment, alteration or modification of the rights, preferences or privileges of the Series A Preferred Stock in a manner that disproportionately and adversely affects the Series A Preferred Stock relative to other equity securities of the Corporation;

(b) any authorization or issuance of equity securities expressly senior to the Series A Preferred Stock with respect to liquidation preference; or

(c) any voluntary bankruptcy or insolvency filing by the Corporation.

6.3 Exceptions. For the avoidance of doubt, none of the following shall require the consent of the Required Holders: (a) any increase in the authorized number of shares of Common Stock or other Junior Securities of the Corporation, (b) any issuance of Common Stock or securities convertible into or exercisable for Common Stock otherwise permitted pursuant to the terms hereof, including pursuant to employee compensation arrangements, inducement grants, strategic transactions, commercial arrangements, financing transactions or issuances to consultants, advisors or service providers approved by the Board, (c) the issuance of additional shares of Series A Preferred Stock in one or more closings up to the maximum aggregate investment amount contemplated by the initial offering of the Series A Preferred Stock, or (d) any merger, reverse merger, recapitalization, reorganization, business combination, acquisition transaction or similar strategic transaction approved by the Board pursuant to which the Series A Preferred Stock is converted into Common Stock immediately prior to the consummation of such transaction in accordance with the terms hereof.

7. Conversion.

7.1 Right to Convert; Forced Conversion; Change of Control Conversion.

(a) Right to Convert. Subject to the provisions of this Section 7, at any time and from time to time after the Date of Issuance, any holder of Series A Preferred Stock shall have the right by written election to the Corporation to convert all or any portion of the outstanding Shares of Series A Preferred Stock held by such holder into such number of shares of Common Stock as is determined by dividing the quotient of (A) (i) the Stated Value divided by (ii) the Conversion Price in effect immediately prior to such conversion by (B) one hundred (100). For the avoidance of doubt, accrued and unpaid PIK Dividends shall accrue solely on the Original Issue Price of the Series A Preferred Stock and shall not compound.

(b) Forced Conversion. The Corporation shall have the right to require conversion of all, but not less than all, outstanding Shares of Series A Preferred Stock into shares of Common Stock at the applicable Conversion Price (calculated as set forth in Section 7.1(a)) if the closing price of the Common Stock equals or exceeds $3.00 per share (subject to proportional adjustment for stock splits, stock dividends, stock combinations, recapitalizations and similar events) for ten (10) consecutive trading days; provided, that a registration statement covering the resale of the shares of Common Stock issuable upon such conversion is effective at the time of such forced conversion.

(c) Change of Control Conversion. Upon a Change of Control, all outstanding Shares of Series A Preferred Stock shall automatically convert into shares of Common Stock immediately prior to the consummation of such Change of Control at the applicable Conversion Price (calculated as set forth in Section 7.1(a)), and the holders of Series A Preferred Stock shall participate in such transaction solely on an as-converted basis together with the holders of Common Stock. For the avoidance of doubt, the Series A Preferred Stock shall not be redeemable for cash or other assets in connection with a Change of Control. For the avoidance of doubt, beneficial ownership resulting solely from the acquisition, holding or conversion of Series A Preferred Stock in accordance with the terms hereof shall not, by itself, constitute a Change of Control.

7.2 Procedures for Conversion; Effect of Conversion.

(a) Procedures for Holder Conversion. In order to effectuate a conversion of Shares of Series A Preferred Stock pursuant to Section 7.1(a), a holder shall (a) submit a written election to the Corporation that such holder elects to convert Shares, the number of Shares elected to be converted and (b) surrender, along with such written election, to the Corporation the certificate or certificates representing the Shares being converted, duly assigned or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto) or, in the event the certificate or certificates are lost, stolen, or missing, accompanied by an affidavit of loss executed by the holder. The conversion of such Shares hereunder shall be deemed effective as of the date of surrender of such Series A Preferred Stock certificate or certificates or delivery of such affidavit of loss. Upon the receipt by the Corporation of a written election and the surrender of such certificate(s) and accompanying materials, the Corporation shall as promptly as practicable (but in any event within five (5) days thereafter) deliver to the relevant holder (a) a certificate in such holder’s name (or the name of such holder’s designee as stated in the written election) for the number of shares of Common Stock to which such holder shall be entitled upon conversion of the applicable Shares as calculated pursuant to Section 7.1(a) and, if applicable (b) a certificate in such holder’s (or the name of such holder’s designee as stated in the written election) for the number of Shares of Series A Preferred Stock represented by the certificate or certificates delivered to the Corporation for conversion but otherwise not elected to be converted pursuant to the written election. All shares of capital stock issued hereunder by the Corporation shall be duly and validly issued, fully paid, and nonassessable, free and clear of all taxes, liens, charges, and encumbrances with respect to the issuance thereof.

(b) Procedures for Automatic Conversion. As of the closing of a Change of Control all outstanding Shares of Series A Preferred Stock shall be converted to the number of shares of Common Stock calculated pursuant to Section 7.1(c) without any further action by the relevant holder of such Shares or the Corporation. As promptly as practicable following such Change of Control (but in any event within five (5) days thereafter), the Corporation shall send each holder of Shares of Series A Preferred Stock written notice of such event. Upon receipt of such notice, each holder shall surrender to the Corporation the certificate or certificates representing the Shares being converted, duly assigned, or endorsed for transfer to the Corporation (or accompanied by duly executed stock powers relating thereto) or, in the event the certificate or certificates are lost, stolen, or missing, accompanied by an affidavit of loss executed by the holder. Upon the surrender of such certificate(s) and accompanying materials, the Corporation shall as promptly as practicable (but in any event within five (5) days thereafter) deliver to the relevant holder a certificate in such holder’s name (or the name of such holder’s designee as stated in the written election) for the number of shares of Common Stock to which such holder shall be entitled upon conversion of the applicable Shares. All shares of Common Stock issued hereunder by the Corporation shall be duly and validly issued, fully paid, and nonassessable, free and clear of all taxes, liens, charges, and encumbrances with respect to the issuance thereof.

(c) Effect of Conversion. All Shares of Series A Preferred Stock converted as provided in this Section 7.2 shall no longer be deemed outstanding as of the effective time of the applicable conversion and all rights with respect to such Shares shall immediately cease and terminate as of such time, other than the right of the holder to receive shares of Common Stock in exchange therefor.

(d) Fractional Shares. No fractional shares or scrip representing fractional shares of Common Stock shall be issued upon the conversion of the Series A Preferred Stock. As to any fraction of a share which a Holder would otherwise be entitled to receive upon such conversion, the Corporation shall round up to the next whole share.

7.3 Reservation of Stock. The Corporation shall at all times when any Shares of Series A Preferred Stock are outstanding reserve and keep available out of its authorized but unissued shares of capital stock, solely for the purpose of issuance upon the conversion of the Series A Preferred Stock, such number of shares of Common Stock issuable upon the conversion of all outstanding Series A Preferred Stock pursuant to this Section 7.3. The Corporation shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any applicable law or governmental regulation or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance which shall be immediately delivered by the Corporation upon each such issuance). The Corporation shall not close its books against the transfer of any of its capital stock in any manner which would prevent the timely conversion of the Shares of Series A Preferred Stock.

7.4 No Charge or Payment. The issuance of certificates for shares of Common Stock upon conversion of Shares of Series A Preferred Stock pursuant to Section 7.1 shall be made without payment of additional consideration by, or other charge, cost, or tax to, the holder in respect thereof.

7.5 Conversion Price; Certain Adjustment. The initial conversion price per share (the “Conversion Price”) shall be fixed at the quotient of (A) either (i) $1.00 per share if the Nasdaq Minimum Price of the Common Stock immediately preceding the execution of the definitive transaction documents for the applicable closing is less than $0.91, or (ii) a price equal to $0.10 above the Nasdaq Minimum Price immediately preceding the execution of the definitive transaction documents for the applicable closing if such Nasdaq Minimum Price is equal to or greater than $0.91 divided by (B) one hundred (100). The Conversion Price shall be subject solely to proportional adjustment for stock splits, stock combinations, stock dividends, recapitalizations and similar events affecting the Common Stock, as set forth in this Section 7.5.

(a) Adjustment upon Dividend, Subdivision, or Combination of Common Stock. If the Corporation shall, at any time or from time to time after the Date of Issuance, (i) pay a dividend or make any other distribution upon the Common Stock payable in shares of Common Stock, or (ii) subdivide (by any stock split, recapitalization, or otherwise) its outstanding shares of Common Stock into a greater number of shares, the Conversion Price in effect immediately prior to any such dividend, distribution, or subdivision shall be proportionately reduced and the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock shall be proportionately increased. If the Corporation at any time combines (by combination, reverse stock split, or otherwise) its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect immediately prior to such combination shall be proportionately increased and the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock shall be proportionately decreased. Any adjustment under this Section 7.5(a) shall become effective at the close of business on the date the dividend, subdivision, or combination becomes effective.

(b) Certain Events. If any event of the type contemplated by the provisions of this Section 7.5 but not expressly provided for by such provisions occurs, then the Board shall make an appropriate adjustment in the Conversion Price so as to protect the rights of the holders of Series A Preferred Stock in a manner consistent with the provisions of this Section 7; provided, that no such adjustment pursuant to this Section 7.5 shall increase the Conversion Price or decrease the number of shares of Common Stock issuable upon conversion as otherwise determined pursuant to this Section 7.

(c) Certificate as to Adjustment.

(i) As promptly as reasonably practicable following any adjustment of the Conversion Price, but in any event not later than ten (10) days thereafter, the Corporation shall furnish to each holder of record of Series A Preferred Stock a certificate of an executive officer setting forth in reasonable detail such adjustment and the facts upon which it is based and certifying the calculation thereof.

(ii) As promptly as reasonably practicable following the receipt by the Corporation of a written request by any holder of Series A Preferred Stock, but in any event not later than ten (10) days thereafter, the Corporation shall furnish to such holder a certificate of an executive officer certifying the Conversion Price then in effect and the number of shares of Common Stock then issuable to such holder upon conversion of the Shares of Series A Preferred Stock held by such holder.

(d) Notices. In the event:

(i) that the Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon conversion of the Series A Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, to vote at a meeting (or by written consent), to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or

(ii) of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, any consolidation or merger of the Corporation with or into another Person, or sale of all or substantially all of the Corporation’s assets to another Person; or

(iii) of the voluntary or involuntary dissolution, liquidation, or winding-up of the Corporation;

then, and in each such case, the Corporation shall send or cause to be sent to each holder of record of Series A Preferred Stock at least ten (10) days prior to the applicable record date or the applicable expected effective date, as the case may be, for the event, a written notice specifying, as the case may be, (A) the record date for such dividend, distribution, meeting or consent, or other right or action, and a description of such dividend, distribution, or other right or action to be taken at such meeting or by written consent, or (B) the effective date on which such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding-up is proposed to take place, and the date, if any is to be fixed, as of which the books of the Corporation shall close or a record shall be taken with respect to which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon conversion of the Series A Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding-up, and the amount per share and character of such exchange applicable to the Series A Preferred Stock.

7.6 Beneficial Ownership Limitation.

(a) The Corporation shall not effect any conversion of the Series A Preferred Stock, and no Holder shall have the right to convert any Shares of Series A Preferred Stock, pursuant to this Section 7 or otherwise, to the extent that after giving effect to such issuance after conversion, such Holder (together with such Holder’s affiliates (as defined under Rule 144 promulgated under the Securities Act, “Affiliates”), and any other persons acting as a group together with such Holder or any of such Holder’s Affiliates (such persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares of Common Stock beneficially owned by a Holder and its Affiliates and Attribution Parties shall include the number of shares of Common Stock issuable upon conversion of the Shares of Series A Preferred Stock with respect to which such determination is being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) conversion of the remaining, unconverted Shares of Series A Preferred Stock beneficially owned by such Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or unconverted portion of any other securities of the Corporation (including, without limitation, any Options or Convertible Securities) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by such Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 7.6, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, it being acknowledged by each Holder that the Corporation is not representing to such Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and such Holder is solely responsible for any schedules required to be filed in accordance therewith.

(b) To the extent that the limitation contained in this Section 7.6 applies, the determination of whether the Series A Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of which portion of the Series A Preferred Stock is convertible shall be in the sole discretion of the applicable Holder, and the submission of a conversion election shall be deemed to be such Holder’s determination of whether the Series A Preferred Stock is convertible (in relation to other securities owned by such Holder together with any Affiliates and Attribution Parties) and of which portion of the Series A Preferred Stock is convertible, in each case subject to the Beneficial Ownership Limitation, and the Corporation shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for conversions of the Series A Preferred Stock that are not in compliance with the Beneficial Ownership Limitation; provided, that this limitation of liability shall not apply if such Holder has detrimentally relied on outstanding share information provided by the Corporation or the Corporation’s transfer agent. Notwithstanding anything herein to the contrary, the Corporation shall not be obligated to issue shares of Common Stock upon conversion of the Series A Preferred Stock to the extent such issuance would require stockholder approval pursuant to applicable rules of the Principal Stock Exchange unless and until such approval has been obtained.

(c) For purposes of this Section 7.6, in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the Corporation’s most recent periodic or annual report filed with the SEC, as the case may be, (B) a more recent public announcement by the Corporation, or (C) a more recent written notice by the Corporation or the Corporation’s transfer agent setting forth the number of shares of Common Stock outstanding. Upon the written or oral request of a Holder, the Corporation shall within two (2) Trading Days confirm orally and in writing to such Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Corporation, including the Series A Preferred Stock, by such Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock. A Holder, upon notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 7.6; provided, that the Beneficial Ownership Limitation in no event exceeds 19.99% of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon conversion of the Series A Preferred Stock held by such Holder and the provisions of this Section 7.6 shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the sixty-first (61st) day after such notice is delivered to the Corporation (unless such notice is provided prior to the Date of Issuance).

(d) The provisions of this Section 7.6 shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 7.6 to correct this Section 7.6 (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained in this Section 7.6 shall apply to a successor holder of any Shares of Series A Preferred Stock. Notwithstanding anything to the contrary contained in this Certificate of Designation, the number of shares of Common Stock that may be acquired by any Holder upon any conversion of the Series A Preferred Stock (or otherwise in respect hereof) shall be limited to the extent necessary to ensure that, following such conversion (or other issuance), the total number of shares of Common Stock then beneficially owned by such Holder and its Affiliates and any other persons whose beneficial ownership of Common Stock would be aggregated with such Holder’s for purposes of Section 13(d) of the Exchange Act does not exceed 19.99% of the total number of issued and outstanding shares of Common Stock (including for such purpose the shares of Common Stock issuable upon such conversion). For such purposes, beneficial ownership shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. This restriction may not be waived without stockholder approval.

8. Preemptive Rights.

8.1 For so long as any Shares of Series A Preferred Stock remain outstanding, upon any issuance or incurrence, as applicable, by the Corporation or any of its Subsidiaries of Common Stock, Common Stock equivalents, preferred stock, debt securities or a combination of any of the foregoing for cash (each, a “Subsequent Offering”), the Holders shall have the right to participate on a pro rata basis, based on their as-converted ownership percentage (the “Participation Maximum”) on the same terms, conditions and price provided for in the Subsequent Offering.

8.2 No later than five (5) Trading Days prior to the expected time of pricing of the Subsequent Offering, the Corporation shall deliver to each Holder a written notice of its intention to effect a Subsequent Offering (“Pre-Notice”), which Pre-Notice shall ask such Holder if it wants to review the details of such financing (such additional notice, a “Subsequent Offering Notice”). Upon the request of a Holder, and only upon a request by such Holder, for a Subsequent Offering Notice, the Corporation shall promptly, but no later than one (1) trading day after such request, deliver a Subsequent Offering Notice to such Holder. The Subsequent Offering Notice shall describe in reasonable detail the proposed terms of such Subsequent Offering, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Offering is proposed to be effected and shall include a term sheet and transaction documents relating thereto as an attachment, which information the Holder hereby agrees to keep confidential subject to Section 8.6.

8.3 Any Holder desiring to participate in such Subsequent Offering must provide written notice to the Corporation by not later than 5:30 p.m. (New York City time) on the third (3rd) Trading Day after all of the Holders have received the Pre-Notice that such Holder is willing to participate in the Subsequent Offering, the amount of such Holder’s participation, and representing and warranting that such Holder has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Offering Notice. If the Corporation receives no such notice from a Holder as of such third (3rd) Trading Day, such Holder shall be deemed to have notified the Corporation that it does not elect to participate.

8.4 The Corporation must provide the Holders with a second Subsequent Offering Notice, and the Holders will again have the right of participation set forth above in this Section 8, if the terms of the Subsequent Offering change from those in the initial Subsequent Offering Notice or if the Subsequent Offering subject to the initial Subsequent Offering Notice is not consummated for any reason on the terms set forth in such Subsequent Offering Notice within five (5) Trading Days after the date of the initial Subsequent Offering Notice, unless the Subsequent Offering is abandoned.

8.5 The Corporation and each Holder agree that if any Holder elects to participate in the Subsequent Offering, the transaction documents related to the Subsequent Offering shall not include any term or provision whereby such Holder shall be required to agree to any restrictions on trading as to any of Series A Preferred Stock or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection with, this Certificate of Designation, without the prior written consent of such Holder. In addition, the Corporation and the Holders agree that, in connection with a Subsequent Offering, the transaction documents related to the Subsequent Offering shall include a requirement for the Corporation to issue a widely disseminated press release by 9:30 am (New York City time) on the Trading Day of execution of the transaction documents in such Subsequent Offering (or, if the date of execution is not a Trading Day or if the transaction documents are executed after 9:30 am (New York City time) on a Trading Day, on the immediately following Trading Day) that discloses the material terms of the transactions contemplated by the transaction documents in such Subsequent Offering.

8.6 Notwithstanding anything to the contrary in this Section 8 and unless otherwise agreed to by such Holder, the Corporation shall either confirm in writing to such Holder that the transaction with respect to the Subsequent Offering has been abandoned or shall publicly disclose its intention to issue the securities or incur the indebtedness in the Subsequent Offering, in either case in such a manner such that such Holder will not be in possession of any material, non-public information, by the fifth (5th) Business Day following delivery of the Subsequent Offering Notice. If by such fifth (5th) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Offering has been made, and no notice regarding the abandonment of such transaction has been received by such Holder, such transaction shall be deemed to have been abandoned and such Holder shall not be deemed to be in possession of any material, non-public information with respect to the Corporation or any of its Subsidiaries.

8.7 Notwithstanding the foregoing, this Section 8 shall not apply in respect of (i) an Exempt Issuance, or (ii) any offering, sale or issuance in connection with any “at the market offering” that is or may be established by the Corporation. Notwithstanding the foregoing, the notice time periods set forth in this Section 8 shall not apply in respect of an overnight or intraday Subsequent Offering and instead the Corporation shall only be obligated to provide such notice to the Holders as it determines is reasonably practicable and following receipt of such notice the Holders shall thereupon have one (1) Business Day to indicate their interest with respect to an overnight Subsequent Offering and one (1) Business Day to indicate their interest with respect to an intraday Subsequent Offering.

9. Information Rights. For so long as holders of at least ten percent (10%) of the outstanding shares of Series A Preferred Stock remain outstanding, the Corporation shall provide to such holders: (a) audited annual financial statements within the time period required by applicable U.S. Securities and Exchange Commission (“SEC”) rules; (b) unaudited quarterly financial statements within the time period required by applicable SEC rules; and (c) such other information regarding the business, operations and financial condition of the Corporation as the Corporation may reasonably determine to provide from time to time, subject to applicable confidentiality obligations and applicable law. The Corporation’s obligations under clauses (a) and (b) shall be deemed satisfied by the timely filing of the Corporation’s periodic reports with the SEC. The holders of Series A Preferred Stock shall not be entitled to receive attorney-client privileged materials, materials relating to potential conflicts of interest, board materials, operating budgets, forecasts, projections, competitively sensitive information or other confidential strategic materials, except to the extent otherwise approved by the Board in its sole discretion. The Corporation shall not be required to provide material non-public information except as required by applicable law.

10. Reissuance of Series A Preferred Stock. Any Shares of Series A Preferred Stock 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.

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 day 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 prepaid. Such communications must be sent (a) to the Corporation, at its principal executive offices and (b) to any stockholder, at such holder’s address at 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 11).

12. 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 the Required Holders, and any such written amendment, modification, or waiver will be binding upon the Corporation and each holder of Series A Preferred Stock; provided, that no such action shall change or waive (a) the definition of Liquidation Preference or Original Issue Price, (b) the rate at which or the manner in which PIK Dividends on the Series A Preferred Stock accrue pursuant to Section 4, or (c) this Section 12, without the prior written consent of each holder of outstanding Shares of Series A Preferred Stock; provided, further, that no amendment, modification, or waiver of the terms or relative priorities of the Series A Preferred Stock may be accomplished by the merger, consolidation, or other transaction of the Corporation with another corporation or entity unless the Corporation has obtained the prior written consent of the holders in accordance with this Section 12. Notwithstanding the foregoing, no amendment or waiver shall require consent of the Holders solely to the extent required to comply with applicable law, SEC rules or Principal Stock Exchange rules.

[signature page follows]

IN WITNESS WHEREOF, this Certificate of Designation is executed on behalf of the Corporation by its Chief Financial Officer this July 7, 2026.

Exhibit 10.1

NOTE EXCHANGE AGREEMENT

THIS EXCHANGE AGREEMENT (this “Agreement”) is made as of July 6, 2026, by and between Newton Golf Company, Inc., a Delaware corporation (the “Company”), and the holder identified on the signature page hereto (the “Holder”).

RECITALS

WHEREAS, the Company previously issued to the Holder that certain Convertible Promissory Note, dated [●], 2026, in the original principal amount set forth on the signature page hereto (the “Existing Note”), pursuant to that certain Securities Purchase Agreement, dated as of [●], 2026, by and among the Company and the purchasers party thereto (the “Original Purchase Agreement”);

WHEREAS, the Company has authorized the designation and issuance of shares of Series A Convertible Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”), having the rights, preferences, powers, restrictions, and limitations set forth in that certain Certificate of Designation of Series A Convertible Preferred Stock of Newton Golf Company, Inc. to be filed with the Secretary of State of the State of Delaware prior to or concurrently with the Closing (as defined below);

WHEREAS, the Company desires to issue up to an aggregate of $3 million of Series A Preferred Stock, which may be issued for cash or in exchange for Existing Notes;

WHEREAS, the Company and the Holder desire to exchange the Existing Note for shares of Series A Preferred Stock on the terms and conditions set forth herein (the “Exchange”);

WHEREAS, the Exchange is being made in reliance upon the exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”), which exempts from registration any security exchanged by the issuer with its existing security holders exclusively where no commission or other remuneration is paid or given directly or indirectly for soliciting such exchange;

WHEREAS, capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Certificate of Designation.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, and intending to be legally bound hereby, the parties hereby agree as follows:

ARTICLE I.
DEFINITIONS

Section 1.1 Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings set forth in this Section 1.1:

“Beneficial Ownership Limitation” shall have the meaning set forth in Section 7.6 of the Certificate of Designation.

“Certificate of Designation” means the Certificate of Designation of Series A Convertible Preferred Stock of Newton Golf Company, Inc., substantially in the form attached hereto as Exhibit A.

“Closing” shall have the meaning set forth in Section 2.1.

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

“Conversion Shares” means the shares of Common Stock issuable upon conversion of the Exchange Shares in accordance with the Certificate of Designation.

“Exchange” shall have the meaning set forth in the Recitals.

“Exchange Shares” means the shares of Series A Preferred Stock to be issued to the Holder in exchange for the Existing Note at the Closing, as set forth in Section 2.2 hereof.

“Existing Note” shall have the meaning set forth in the Recitals.

“Material Adverse Effect” means any material adverse effect on the business, operations, properties, prospects, or financial condition of the Company and its subsidiaries and/or any condition, circumstance, or situation that would prohibit or otherwise materially interfere with the ability of the Company to perform any of its obligations under this Agreement in any material respect.

“Original Issue Price” means, with respect to each Exchange Share, $1.00 per share.

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

“Registration Rights Agreement” means the Registration Rights Agreement, dated on or about the date hereof, among the Company and the Holder, substantially in the form attached hereto as Exhibit B.

“Securities Act” means the Securities Act of 1933, as amended, or any successor federal statute, and the rules and regulations thereunder, which shall be in effect at the time.

“Series A Preferred Stock” means the Series A Convertible Preferred Stock, par value $0.01 per share, of the Company, having the rights, preferences, powers, restrictions, and limitations set forth in the Certificate of Designation.

“Trading Day” means a day on which the Common Stock is quoted or traded on a Trading Market.

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

ARTICLE II.
THE EXCHANGE

Section 2.1 Closing. Subject to the satisfaction or waiver of the conditions set forth in Section 5 hereof, the closing of the Exchange (the “Closing”) shall take place remotely via the exchange of documents and signatures, on the date hereof, or at such other time and place as the Company and the Holder mutually agree (the “Closing Date”).

Section 2.2 Deliveries. On or prior to the Closing, pursuant to Section 3(a)(9) of the Securities Act:

(a) The Holder hereby agrees to convey, assign, and transfer the Existing Note to the Company in exchange for which the Company agrees to issue the Exchange Shares to the Holder. The number of Exchange Shares to be issued to the Holder shall be determined by dividing an amount equal to 105% of the outstanding principal amount (including accrued interest to date) of the Existing Note as of the date hereof (as shown on Holder’s signature page hereto) by the Original Issue Price.

(b) The Holder shall deliver or cause to be delivered to the Company the original Existing Note (or an affidavit of lost note, in form reasonably acceptable to the Company). Upon delivery of the Exchange Shares to the Holder (or its assignee), the Holder hereby relinquishes all rights, title, and interest in the Existing Note (including any claims the Holder may have against the Company related thereto, other than with respect to any accrued but unpaid interest on the Existing Note through the Closing Date) and assigns the same to the Company, and the Existing Note shall be deemed cancelled and extinguished.

(c) For the avoidance of doubt, any warrants previously issued to the Holder in connection with the Existing Note shall remain outstanding in accordance with their existing terms and shall not be affected by this Agreement.

Section 2.3 Delivery. At the Closing:

(a) The Company shall deliver to the Holder: (i) a stock certificate (or evidence of book-entry issuance) representing the Exchange Shares, registered in the name of the Holder; and (ii) the Company’s executed counterpart signature pages to this Agreement and the Registration Rights Agreement.

(b) The Holder shall deliver to the Company: (i) the Holder’s executed counterpart signature pages to this Agreement and the Registration Rights Agreement; and (ii) the original Existing Note (or an affidavit of lost note as provided in Section 2.2(b)).

Section 2.4 Section 3(a)(9) Exchange; Holding Period. The parties acknowledge and agree that the Exchange is being completed in accordance with Section 3(a)(9) of the Securities Act. No commission or other remuneration has been or will be paid or given, directly or indirectly, by the Company or the Holder to any person for soliciting the Exchange. The Company acknowledges that the holding period of the Exchange Shares and the Conversion Shares issuable upon conversion thereof shall be tacked onto the holding period of the Existing Note for purposes of Rule 144 under the Securities Act (“Rule 144”). The Company agrees not to take a position contrary to this Section 2.4.

ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company hereby represents and warrants to the Holder as follows:

Section 3.1 Organization, Good Standing, and Qualification. The Company is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware. The Company has the requisite corporate power to own and operate its properties and assets and to carry on its business as now conducted and as proposed to be conducted. The Company is duly qualified and is authorized to do business and is in good standing as a foreign corporation in all jurisdictions in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except for those jurisdictions in which failure to do so would not have a Material Adverse Effect.

Section 3.2 Corporate Power. The Company has all requisite corporate power to execute and deliver this Agreement, the Registration Rights Agreement, and the Certificate of Designation, to issue the Exchange Shares and to carry out and perform its obligations under the terms of this Agreement, the Registration Rights Agreement, and the Certificate of Designation (collectively, the “Transaction Documents”). The Company’s Board of Directors has approved the Transaction Documents and the transactions contemplated hereby and thereby.

Section 3.3 Authorization. All corporate action on the part of the Company, its directors, and its stockholders necessary for the authorization, execution, delivery, and performance of this Agreement and the other Transaction Documents by the Company and the performance of the Company’s obligations hereunder and thereunder, including the issuance and delivery of the Exchange Shares and the reservation of the Conversion Shares, has been taken or will be taken prior to the issuance of such Exchange Shares and Conversion Shares. This Agreement and the other Transaction Documents, when executed and delivered by the Company, shall constitute valid and binding obligations of the Company enforceable in accordance with their terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors, and, with respect to rights to indemnity, subject to federal and state securities laws.

Section 3.4 Valid Issuance of Exchange Shares. The Exchange Shares, when issued in compliance with the provisions of this Agreement and the Certificate of Designation, will be validly issued, fully paid, and nonassessable and free of any liens or encumbrances, and, subject to the accuracy of the representations and warranties of the Holder in Section 4, issued in compliance with all applicable federal and state securities laws. The Conversion Shares, when issued upon conversion of the Exchange Shares in accordance with the Certificate of Designation, will be validly issued, fully paid, and nonassessable and free from all preemptive or similar rights, taxes, liens, and charges with respect to the issue thereof, subject to applicable Nasdaq rules and stockholder approval requirements, if any.

Section 3.5 Governmental Consents. No consent, approval, or authorization of, or designation, declaration, or filing with, any governmental authority is required on the part of the Company in connection with the valid execution and delivery of this Agreement or the other Transaction Documents, the offer, sale, or issuance of the Exchange Shares, or the consummation of any other transaction contemplated by this Agreement, except for (i) the filing of the Certificate of Designation with the Secretary of State of the State of Delaware (ii) the filings required under the Registration Rights Agreement, (iii) application(s) or notification(s) to each applicable Trading Market for quotation of the Conversion Shares thereon, if any are required, and (iv) any stockholder approval required pursuant to applicable Nasdaq rules.

Section 3.6 Non-Contravention. The execution and delivery by the Company of the Transaction Documents and the performance and consummation of the transactions contemplated hereby, including the issuance of the Exchange Shares and the reservation and issuance of the Conversion Shares, will not (i) violate the Certificate of Incorporation or bylaws of the Company or the Certificate of Designation or any material judgment, order, writ, decree, statute, rule, or regulation applicable to the Company provided, however, that the issuance of Conversion Shares shall at all times remain subject to compliance with applicable Nasdaq rules and stockholder approval requirements, if any; (ii) violate any provision of, or result in the breach or the acceleration of, or entitle any other Person to accelerate (whether after the giving of notice or lapse of time or both), any material mortgage, indenture, agreement, instrument, or contract to which the Company is a party or by which it is bound; or (iii) result in the creation or imposition of any lien upon any property, asset, or revenue of the Company, or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization, or approval applicable to the Company, its business or operations, or any of its assets or properties, except in the case of clauses (ii) and (iii) above, for such breaches, violations, or conflicts as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.

Section 3.7 Section 3(a)(9) Exemption. Assuming the accuracy of the representations and warranties of the Holder contained herein, the Exchange is exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(9) thereof, and applicable state securities laws. The Company has not paid, and shall not pay, any commission or other remuneration, directly or indirectly, to any third party for the solicitation of the Exchange. Other than the Existing Note being exchanged by the Holder, the Company has not received any additional consideration for the Exchange Shares.

Section 3.8 No General Solicitation. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell, or solicit offers to buy any of the Exchange Shares or Conversion Shares, or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any Person, or has taken or will take any action so as to bring the issuance of any of the Exchange Shares or Conversion Shares under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or issuance of the Exchange Shares.

Section 3.9 Compliance with Securities Laws. The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance, and delivery of the Exchange Shares hereunder.

Section 3.10 No Litigation. There is no action, suit, proceeding, or, to the knowledge of the Company, inquiry or investigation, before any court, public board, government agency, self-regulatory organization, or body pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its subsidiaries that would reasonably be expected to have a Material Adverse Effect.

Section 3.11 Certificate of Designation. The Certificate of Designation has been duly authorized by all necessary corporate action on the part of the Company and, upon filing with the Secretary of State of the State of Delaware, will be a valid and binding obligation of the Company.

Section 3.12 No Commissions. The Company represents that it has not paid, and shall not pay, any commissions or other remuneration, directly or indirectly, to any third party for the solicitation of the Exchange.

ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE HOLDER

The Holder hereby represents and warrants to the Company as follows:

Section 4.1 Organization; Authority. The Holder is a natural person or an entity duly organized, validly existing, and in good standing under the laws of the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated by this Agreement and the other Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.

Section 4.2 Ownership of Existing Note. The Holder owns and holds, beneficially and of record, the entire right, title, and interest in and to the Existing Note free and clear of all liens, claims, security interests, encumbrances, and other rights or interests of any person (collectively, “Liens”). The Holder has the full power and authority to transfer and dispose of the Existing Note free and clear of any Liens, other than restrictions under the Securities Act and applicable state securities laws. Other than the transactions contemplated by this Agreement, there is no outstanding vote, plan, pending proposal, or other right of any person to acquire all or any of the Existing Note.

Section 4.3 Investment Intent. The Holder represents that it is acquiring the Exchange Shares solely for the Holder’s own account and beneficial interest for investment and not for sale or with a view to distribution of the Exchange Shares or any part thereof, has no present intention of selling (in connection with a distribution or otherwise), granting any participation in, or otherwise distributing the same, and does not presently have reason to anticipate a change in such intention.

Section 4.4 Information and Sophistication. Without lessening or obviating the representations and warranties of the Company set forth in Section 3, the Holder hereby: (i) acknowledges that it has received all the information it has requested from the Company and it considers necessary or appropriate for deciding whether to acquire the Exchange Shares, (ii) represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the Exchange and to obtain any additional information necessary to verify the accuracy of the information given the Holder, and (iii) further represents that it has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of this investment.

Section 4.5 Ability to Bear Economic Risk. The Holder acknowledges that investment in the Exchange Shares involves a high degree of risk, and represents that it is able, without materially impairing its financial condition, to hold the Exchange Shares for an indefinite period of time and to suffer a complete loss of its investment.

Section 4.6 Reliance on Section 3(a)(9) Exemption. The Holder understands that the Exchange Shares are being offered and issued in reliance on specific provisions of federal and state securities laws, specifically Section 3(a)(9) of the Securities Act, and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments, and understandings of the Holder set forth herein for purposes of qualifying for such exemption from registration under the Securities Act and applicable state securities laws.

Section 4.7 Accredited Investor Status. The Holder is an “accredited investor” as such term is defined in Rule 501 under the Securities Act.

Section 4.8 Validity; Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed, and delivered by the Holder and shall constitute valid and binding obligations of the Holder enforceable in accordance with their terms, subject to laws of general application relating to bankruptcy, insolvency, the relief of debtors, and, with respect to rights to indemnity, subject to federal and state securities laws.

Section 4.9 No Conflicts. The execution, delivery, and performance by the Holder of this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of the Holder, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration, or cancellation of, any agreement, indenture, or instrument to which the Holder is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment, or decree (including federal and state securities laws) applicable to the Holder, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights, or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Holder to perform its obligations hereunder.

Section 4.10 No Commissions. The Holder has not paid, and shall not pay, any commission, fee, or other remuneration, directly or indirectly, to any person in connection with the transactions contemplated by this Agreement.

Section 4.11 [Reserved]

Section 4.12 Acknowledgment of Exchange Terms. The Holder acknowledges that the terms of the Exchange have been established by negotiation between the Company and the Holder. The Holder acknowledges that the Company has not made any representation to the Holder about the advisability of this decision or the potential future value of the Existing Note. THE HOLDER ACKNOWLEDGES THAT, BY EXCHANGING THE EXISTING NOTE FOR THE EXCHANGE SHARES PURSUANT TO THIS AGREEMENT, THE HOLDER WILL NOT BENEFIT FROM ANY FUTURE APPRECIATION IN THE VALUE OF THE EXISTING NOTE AND RELINQUISHES ALL RIGHTS UNDER THE EXISTING NOTE, INCLUDING BUT NOT LIMITED TO ANY RIGHT TO REPAYMENT OF PRINCIPAL OR INTEREST THEREUNDER.

Section 4.13 Further Assurances. The Holder agrees and covenants that at any time and from time to time it will promptly execute and deliver to the Company such further instruments and documents and take such further action as the Company may reasonably require in order to carry out the full intent and purpose of this Agreement and to comply with state or federal securities laws or other regulatory approvals.

ARTICLE V.
CONDITIONS TO CLOSING

Section 5.1 Conditions to Obligations of the Holder. The obligation of the Holder to consummate the Exchange at the Closing is subject to the satisfaction (or waiver by the Holder) of the following conditions:

(a) The representations and warranties of the Company contained in Section 3 hereof shall be true and correct in all material respects as of the Closing Date.

(b) The Company shall have filed the Certificate of Designation with the Secretary of State of the State of Delaware, and the Certificate of Designation shall be in full force and effect.

(c) The Company shall have performed and complied in all material respects with all agreements, obligations, and conditions contained herein that are required to be performed or complied with by the Company on or before the Closing Date.

(d) The Company and the Holder shall have entered into the Registration Rights Agreement.

(e) No Material Adverse Effect shall have occurred with respect to the Company since the date hereof.

Section 5.2 Conditions to Obligations of the Company. The obligation of the Company to consummate the Exchange at the Closing is subject to the satisfaction (or waiver by the Company) of the following conditions:

(a) The representations and warranties of the Holder contained in Section 4 hereof shall be true and correct in all material respects as of the Closing Date.

(b) The Holder shall have performed and complied in all material respects with all agreements, obligations, and conditions contained herein that are required to be performed or complied with by the Holder on or before the Closing Date.

(c) The Holder shall have delivered or caused to be delivered to the Company the original Existing Note (or an affidavit of lost note in form reasonably acceptable to the Company).

(d) The Holder shall have entered into the Registration Rights Agreement.

ARTICLE VI.
OTHER AGREEMENTS OF THE PARTIES

Section 6.1 Removal of Legends.

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

(b) The Holder agrees to the imprinting, so long as is required by this Section 6.1, of a legend on each of the Securities in substantially the following form:

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

(c) The Company shall remove the legends described in Section 6.1(b) (or instruct the Transfer Agent to so remove such legend) from the book-entry account evidencing the Securities if (i) such Securities are sold pursuant to an effective and available registration statement under the Securities Act, as certified by the holder of such Securities to the Company and its counsel in a customary representation letter to such effect, (ii) such Securities are sold or transferred pursuant to Rule 144, as certified by the holder of such Securities to the Company and its counsel in a customary representation letter to such effect, or (iii) such Securities are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable) as to such securities and without volume or manner of sale restrictions and the Company has received such certificates or other documentation or evidence as the Company and its counsel may reasonably require to determine that the holder and/or beneficial owner of such Security has satisfied the applicable holding period requirement in respect of such Securities under Rule 144 and is not, and has not been during the immediately preceding three (3) months, an affiliate (as such term is used in Rule 144) of the Company.

Section 6.2 Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities.

Section 6.3 [Reserved].

Section 6.4 Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue the Conversion Shares pursuant to the Certificate of Designation, subject to compliance with applicable Nasdaq rules and stockholder approval requirements, if any.

ARTICLE VII.
MISCELLANEOUS

Section 7.1 Binding Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties. Nothing in this Agreement, expressed or implied, is intended to confer upon any third party any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

Section 7.2 Governing Law and Venue. This Agreement shall be governed by and construed under the laws of the State of New York, without giving effect to conflicts of laws principles. Each of the parties hereby submits to the exclusive jurisdiction of the Federal and state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby. Each of the parties irrevocably and unconditionally waives any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in Federal and state courts in the Borough of Manhattan in the City of New York and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum.

Section 7.3 Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

Section 7.4 Notices. All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, if not, then on the next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to the Company and to the Holder at the address(es) set forth on their respective signature pages hereto or at such other address(es) as the Company or the Holder may designate by ten (10) calendar days’ advance written notice to the other parties hereto.

Section 7.5 Modification; Waiver. No modification or waiver of any provision of this Agreement or consent to departure therefrom shall be effective unless in writing and signed by the Company and the Holder.

Section 7.6 Delays or Omissions. It is agreed that no delay or omission to exercise any right, power, or remedy accruing to the Holder, upon any breach or default of the Company under this Agreement, shall impair any such right, power, or remedy, nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. It is further agreed that any waiver, permit, consent, or approval of any kind or character by the Holder of any breach or default under this Agreement, or any waiver by the Holder of any provisions or conditions of this Agreement must be in writing and shall be effective only to the extent specifically set forth in writing, and that all remedies, either under this Agreement, or by law or otherwise afforded to the Holder, shall be cumulative and not alternative.

Section 7.7 Entire Agreement. This Agreement, together with the Registration Rights Agreement, the Certificate of Designation, and the exhibits and schedules hereto and thereto, constitute the full and entire understanding and agreement between the parties with regard to the subjects hereof and thereof, and no party shall be liable or bound to any other party in any manner by any representations, warranties, covenants, and agreements except as specifically set forth herein and therein.

Section 7.8 Counterparts. This Agreement may be executed by electronic signature and in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Counterparts may be delivered via electronic mail (including .pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (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.

Section 7.9 Severability. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid, or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof.

Section 7.10 Survival. The representations, warranties, and covenants of the Company and the Holder contained herein shall survive the Closing and delivery of the Exchange Shares.

Section 7.11 Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments, and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.

Section 7.12 No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against any party.

Section 7.13 Termination. Notwithstanding anything contained in this Agreement to the contrary, if the Closing has not occurred on or before the fifth (5th) Trading Day immediately following the date of this Agreement, then, at the election of either party delivered in writing to the other party, this Agreement shall be terminated and be null and void ab initio and the Existing Note shall not be cancelled hereunder and shall remain outstanding as if this Agreement never existed.

Section 7.14 Independent Nature of Holder’s Obligations and Rights. The obligations of the Holder under this Agreement are several and not joint with the obligations of any other holder who may enter into a similar exchange agreement with the Company, and the Holder shall not be responsible in any way for the performance of the obligations of any other such holder. Nothing contained herein or in any other agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and any other holder as a partnership, an association, a joint venture, or any other kind of entity, or create a presumption that the Holder and any other holder are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement for purposes of Section 13(d) of the Exchange Act or otherwise.

[Signature Pages Follow]

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

COMPANY:

Address for Notices: [●]

Email: [●]

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

Address for Notices: [●]

Email: [●]

Outstanding Principal Amount of Existing Note (including accrued interest): $[●]

Number of Exchange Shares: [●]

Exhibit 10.2

REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “Agreement”) is made and entered into as of July 6, 2026, between Newton Golf Company, Inc., a Delaware corporation (the “Company”), and the holder of Series A Preferred Stock signatory hereto (the “Holder”).

This Agreement is made pursuant to the Exchange Agreement or Subscription Agreement, dated as of July 6, 2026, between the Company and the Holder (the “Preferred Agreement”).

The Company and the Holder hereby agree as follows:

1. Definitions.

Capitalized terms used and not otherwise defined herein that are defined in the Preferred Agreement shall have the meanings given such terms in the Preferred Agreement. As used in this Agreement, the following terms shall have the following meanings:

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

“Certificate of Designation” means that certain Certificate of Designation of Series A Convertible Preferred Stock of the Company, substantially in the form attached as Exhibit A to the Preferred Agreement, to be filed with the Secretary of State of the State of Delaware prior to or concurrently with the Closing.

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

“Conversion Price” means the conversion price per share of Common Stock as determined pursuant to Section 7.5 of the Certificate of Designation, as adjusted from time to time in accordance therewith.

“Conversion Shares” means the shares of Common Stock issuable upon conversion of the Series A Preferred Stock in accordance with the Certificate of Designation (including conversion pursuant to optional conversion under Section 7.1(a), forced conversion under Section 7.1(b) or Change of Control conversion under Section 7.1(c) thereof).

“Effectiveness Date” means, with respect to the Initial Registration Statement required to be filed hereunder, the 45^th calendar day following the Filing Date for such Initial Registration Statement (or, in the event of a “full review” by the Commission, the 90^th calendar day following the Filing Date for such Initial Registration Statement and with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the 45^th calendar day following the date on which an additional Registration Statement is required to be filed hereunder (or, in the event of a “full review” by the Commission, the 90^th calendar day following the date such additional Registration Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the Effectiveness Date as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Date falls on a day that is not a Trading Day, then the Effectiveness Date shall be the next succeeding Trading Day.

“Effectiveness Period” shall have the meaning set forth in Section 2(a).

“Filing Date” means, with respect to the Initial Registration Statement required hereunder, the thirtieth (30th) day after the date hereof, and, with respect to any additional Registration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest reasonably practical date following the date on which the Company is permitted by SEC Guidance to file such additional Registration Statement related to the Registrable Securities.

“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.

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

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

“Initial Registration Statement” means the initial Registration Statement filed pursuant to this Agreement.

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

“Plan of Distribution” shall have the meaning set forth in Section 2(a).

“Prospectus” means 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 by the Commission pursuant to 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.

“Registrable Securities” means, as of any date of determination, (a) all Conversion Shares then issued or issuable upon conversion of the Series A Preferred Stock (assuming on such date the Series A Preferred Stock is converted in full in accordance with the Certificate of Designation without regard to any limitations on conversion therein) and (b) any securities issued or then issuable upon any stock split, stock dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) if (x) a Registration Statement with respect to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder in accordance with such effective Registration Statement, (y) such Registrable Securities have been sold in accordance with Rule 144, or (z) such Registrable Securities have become eligible for resale without volume or manner-of-sale restrictions and without the requirement for the Company to be in compliance with the current public information requirement under Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders, assuming that the Company has no knowledge that such securities and any securities issuable upon exercise, conversion or exchange of which, or as a dividend upon which, such securities were issued or are issuable, were at no time held by any Affiliate of the Company (other than officers (or former officers) or directors (or former directors) of the Company), after consideration of the advice of counsel to the Company.

“Registration Statement” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus, including pre- and post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in any such registration statement.

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

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

“Selling Stockholder Questionnaire” shall have the meaning set forth in Section 3(a).

“SEC Guidance” means (i) any publicly available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission staff and (ii) the Securities Act.

“Series A Preferred Stock” means the Series A Convertible Preferred Stock, par value $0.01 per share, of the Company, having the rights, preferences, powers, restrictions and limitations set forth in the Certificate of Designation.

2. Shelf Registration.

(a) On or prior to each Filing Date, the Company shall prepare and file with the Commission a Registration Statement covering the resale of all of the Registrable Securities that are not then registered on an effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement filed hereunder shall be on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on another appropriate form (including Form S-1)) and shall contain (unless otherwise directed by at least 85% in interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A and substantially the “Selling Stockholder” section attached hereto as Annex B. Subject to the terms of this Agreement, the Company shall use its commercially reasonable efforts to cause a Registration Statement filed under this Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act as promptly as reasonably possible after the filing thereof, but in any event no later than the applicable Effectiveness Date, and shall use its commercially reasonable efforts to keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such Registration Statement no longer constitute Registrable Securities, subject to applicable SEC rules, Nasdaq rules and stockholder approval requirements, if any (the “Effectiveness Period”). The Company shall telephonically 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 facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such Registration Statement. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such Registration Statement, file a final Prospectus with the Commission as required by Rule 424.

(b) Notwithstanding the registration obligations set forth in Section 2(a), if 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 inform each of the Holders thereof and use its commercially reasonable efforts to file amendments to the Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission, on Form S-3 (except if the Company is not then eligible to register for resale the Registrable Securities on Form S-3, then such registration shall be on another appropriate form (including Form S-1)); provided, however, that prior to filing such amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.

(c) Notwithstanding any other provision of this Agreement, if the Commission or any SEC Guidance sets forth a limitation on 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 portion of Registrable Securities), unless otherwise directed in writing by a Holder as to its Registrable Securities or otherwise directed by the staff of the Commission, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:

i. First, the Company shall reduce or eliminate any securities to be included other than Registrable Securities;

ii. Second, the Company shall reduce Registrable Securities represented by Conversion Shares (applied, in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered Conversion Shares held by such Holders).

In the event of a cutback hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such Holder’s allotment, and the Company’s obligations. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, the Company will use its commercially reasonable efforts to file with the Commission, as promptly as reasonably possible after the time allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more registration statements on Form S-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.

(d) [Reserved]

(e) Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name any Holder or affiliate of a Holder as any Underwriter without the prior written consent of such Holder; provided that, if the Commission staff requests that a Holder or affiliate thereof be identified as a statutory underwriter in a Registration Statement, then such Holder will have the option, in its sole and absolute discretion, to either (i) have the opportunity to withdraw its Registrable Securities from the Registration Statement upon its prompt written request to the Company, in which case the Company’s obligation to register such Holder’s Registrable Securities shall be deemed satisfied in full, or (ii) be included as such (or have its affiliate included as such) in the Registration Statement; provided, further, that nothing herein shall require the Company to take any action inconsistent with applicable SEC rules, interpretations or guidance.

3. Registration Procedures.

In connection with the Company’s registration obligations hereunder, the Company shall:

(a) Not less than one (1) Trading Day prior to the filing of the Initial Registration Statement and not less than three (3) Trading Days prior to the filing of each additional Registration Statement and not less than one (1) Trading Day prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent registered public accountants to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file a Registration Statement or any such Prospectus or any amendments or supplements thereto to which the Holders of a majority of the Registrable Securities shall reasonably object in good faith, provided that, the Company is notified of such objection in writing no later than three (3) Trading Days after the Holders have been so furnished copies of a Registration Statement or one (1) Trading Day after the Holders have been so furnished copies of any related Prospectus or amendments or supplements thereto. Each Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex C (a “Selling Stockholder Questionnaire”) on a date that is not later than the earlier of (i) three (3) Trading Days prior to the Filing Date or (iii) the end of the third (3^rd) Trading Day following the date on which such Holder receives draft materials in accordance with this Section. In addition to the Selling Stockholder Questionnaire, each Holder shall furnish such other information as shall be reasonably required to effect the registration of such Registrable Securities, and shall execute such documents in connection with such registration as the Company may reasonably request.

(b)

i. Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register for resale under the Securities Act all of the Registrable Securities,

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, and

iii. respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration Statement or any amendment thereto and provide as promptly as reasonably possible to the Holders true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (provided that, the Company shall excise any information contained therein which would constitute material non-public information regarding the Company or any of its Subsidiaries including but not limited to, confidential financing information, strategic transaction information or information subject to attorney-client privilege); and

iv. comply in all material respects with the provisions of the Securities Act and the Exchange Act applicable to the Company with respect to the disposition by the Holders of all Registrable Securities covered by a Registration Statement during the applicable period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth in such Registration Statement as so amended or in such Prospectus as so supplemented.

(c) If during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the applicable Filing Date, an additional Registration Statement covering the resale by the Holders of not less than the number of such Registrable Securities.

(d) Notify the Holders of Registrable Securities to be sold (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 possible (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 such Registration Statement, and (C) with respect to a 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,

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 in a Registration Statement ineligible for inclusion therein or any statement made in a 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 a Registration Statement, Prospectus or other documents so that, in the case of a 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 the Prospectus, 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, however, that in no event shall any such notice contain any information which would constitute material, non-public information regarding the Company or any of its Subsidiaries, including but not limited to pending financing transactions, acquisition discussions, strategic transactions or other commercially sensitive matters.

(e) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or 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, at the earliest reasonably practicable moment.

(f) Furnish to each Holder, at such Holder’s written request, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by such Person, 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 any such item which is available on the EDGAR system (or successor thereto) need not be furnished.

(g) Subject to the terms of this Agreement (including Section 3(j)), consent to the use of such Prospectus and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendment or supplement thereto, except after the giving of any notice pursuant to Section 3(d).

(h) Prior to any resale of Registrable Securities by a Holder, use its commercially reasonable efforts to register or qualify or cooperate with the selling Holders 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 any material tax in any such jurisdiction where it is not then so subject or file a general consent to service of process in any such jurisdiction.

(i) If requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of Registrable Securities to be delivered to a transferee pursuant to a Registration Statement, which Registrable Securities shall be free, to the extent permitted by the Preferred Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered in such names as any such Holder may request.

(j) Upon the occurrence of any event contemplated by Section 3(d), if required to do so, as promptly as reasonably possible, as determined by the Company under the circumstances taking into account the Company’s good faith assessment of any adverse consequences to the Company and its shareholders of the premature disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement 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, neither a Registration Statement nor such 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 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(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the Holders shall so suspend use of such Prospectus. The Company shall be entitled to exercise its right under this Section 3(j) to suspend the availability of a Registration Statement and Prospectus for periods not to exceed an aggregate of 60 calendar days (which need not be consecutive days) in any 12-month period (“Permitted Suspension Periods”); provided, however, that such period may be extended to the extent reasonably necessary to comply with applicable law, SEC rules or Nasdaq rules.

(k) Otherwise use commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act and the Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplement or amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holders 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 Holders are required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.

(l) Use its commercially reasonable efforts to obtain and thereafter maintain eligibility for use of Form S-3 (or any successor form thereto) for the registration of the resale of the Registrable Securities.

(m) The Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares For the avoidance of doubt, nothing herein shall be deemed to create or imply the existence of any “group” within the meaning of Section 13(d) of the Exchange Act.

4. Registration Expenses. All fees and expenses incident to the performance of or compliance with this Agreement by the Company 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 of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission, (B) with respect to filings required to be made with any Trading Market on which the shares of Common Stock are then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities), (ii) printing expenses (including expenses of printing certificates for Registrable Securities), (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 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 broker or similar commissions of any Holder or, except to the extent expressly provided for in the Transaction Documents, any legal fees or other costs of the Holders.

5. Indemnification.

(a) Indemnification by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a result of a pledge or any failure to perform under a margin call of shares of Common Stock), investment advisors and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of 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, members, shareholders, partners, agents and employees (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of 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 attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any form of 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 of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the Securities Act, the 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 (i) such untrue statements or omissions or violations are based solely upon information regarding such Holder furnished in writing to the Company by any Holder expressly for use therein, or to the extent that such information relates to any Holder or any Holder’s proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement, such Prospectus or in any amendment or supplement thereto (it being understood that each Holder has approved Annex A hereto for this purpose) or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 6(c). The Company shall notify the Holders promptly of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person and shall survive the transfer of any Registrable Securities by any of the Holders in accordance with Section 6(f). Notwithstanding anything herein to the contrary, the Company shall not be liable for any special, indirect, consequential or punitive damages except to the extent awarded to a third party in connection with a claim subject to indemnification hereunder.

(b) Indemnification by Holders. Each Holder shall, 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 controlling Persons (and any other Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title), to the fullest extent permitted by applicable law, from and against all Losses, as incurred, to the extent arising out of or based solely upon: 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 of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (i) to the extent, but only to the extent, that such untrue statement or omission is contained in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such Prospectus or (ii) to the extent, but only to the extent, that such information relates to such Holder’s information provided in the Selling Stockholder Questionnaire or the proposed method of distribution of Registrable Securities and was reviewed and expressly approved in writing by such Holder expressly for use in a Registration Statement (it being understood that each Holder has approved Annex A hereto for this purpose), such Prospectus or in any amendment or supplement thereto. In no event shall the liability of a selling Holder be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue statement or omission) received by such Holder upon the sale of the Registrable Securities included in the Registration Statement 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 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 counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely to exist 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 the reasonable fees and expenses of no more than one separate counsel for all Indemnified Parties shall be at the expense of the Indemnifying Party). 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 or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, 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 reasonable 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) shall be paid to the Indemnified Party, as incurred, within ten 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 determined by a court of competent jurisdiction not to be entitled to indemnification hereunder.

(d) Contribution. If the 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 shall contribute to the amount paid or payable by such Indemnified Party, 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 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 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. In no event shall the contribution obligation of a Holder of Registrable Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such Holder in connection with any claim relating to this Section 5 and the amount of any damages such Holder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to such contribution obligation.

The indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may otherwise have to the Indemnified Parties.

6. Miscellaneous.

(a) Remedies. In the event of a breach by the Company or by a Holder of any of its 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, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder agrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.

(b) [Reserved]

(c) 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(d)(iii) through (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. Subject to Section 3(j), the Company will use its commercially reasonable efforts to ensure that the use of the Prospectus may be resumed as promptly as is reasonably practicable, subject to the first sentence of Section 3(j).

(d) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the Company and the Holders of 50.1% or more of the then outstanding Registrable Securities (for purposes of clarification, this includes any Registrable Securities issuable upon exercise or conversion of any Security); provided, however, that no amendment or waiver shall be required to the extent necessary to comply with applicable law, SEC rules or Nasdaq rules; provided that, if any amendment, modification or waiver disproportionately and adversely impacts a Holder (or group of Holders), the consent of such disproportionately impacted Holder (or group of Holders) shall be required. If a Registration Statement does not register all of the Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then the number of Registrable Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall have the right to designate which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder or some Holders and that does not directly or indirectly affect the rights of other Holders may be given only by such Holder or Holders of all of the Registrable Securities to which such waiver or consent relates; provided, however, that the provisions of this sentence may not be amended, modified, or supplemented except in accordance with the provisions of the first sentence of this Section 6(d). No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.

(e) 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 Preferred Agreement.

(f) 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. The Company may not assign (except by merger) its rights or obligations hereunder without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective rights hereunder in connection with any transfer of Registrable Securities by such Holder in accordance with the Preferred Agreement and applicable securities laws.

(g) 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 of this Agreement, enter into any agreement with respect to its securities, that would have the effect of impairing the rights granted to the Holders in this Agreement or otherwise conflicts with the provisions hereof. Except as set forth on Schedule 6(g), neither the Company nor any of its Subsidiaries has previously entered into any agreement granting any registration rights with respect to any of its securities to any Person that have not been satisfied in full.

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

(i) Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement, and all matters arising hereunder and in connection herewith, shall be determined in accordance with Section 7.2 of the Preferred Agreement.

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

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

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

(m) Interpretation. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement unless the context requires otherwise. The words “date hereof” when used in this Agreement shall refer to the date of this Agreement. The terms “or,” “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to, and all payments hereunder shall be made in, the lawful money of the United States. References to a Person are also to its successors and permitted assigns. When calculating the period of time between which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded (and, unless otherwise required by law, if the last day of such period is not a Trading Day, the period in question shall end on the next succeeding Trading Day).

(n) Independent Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to such obligations or the transactions contemplated by this Agreement, and the Company acknowledges that the Holders are not acting in concert or as a group in connection with the transactions contemplated by this Agreement, and the Company shall not assert any such claim, for purposes of Section 13(d) of the Exchange Act or otherwise, with respect to such obligations or transactions. Each Holder 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 Holder to be joined as an additional party in any proceeding for such purpose. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder, solely, and not between the Company and the Holders collectively and not between and among Holders.

(o) Termination. This Agreement shall be effective as of the Closing (as defined in the Preferred Agreement), and if the Closing has not occurred on or prior to fifth (5th) Trading Day following the date of the Preferred Agreement, unless otherwise mutually agreed, then this Agreement shall be null and void.

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

(Signature Pages Follow)

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

[SIGNATURE PAGE OF HOLDER FOLLOWS]

[SIGNATURE PAGE OF HOLDER TO RRA]

Name of Holder: _________________________

Signature of Authorized Signatory of Holder: __________________________

Name of Authorized Signatory: _________________________

Title of Authorized Signatory: __________________________