Common use of Series C Preferred Clause in Contracts

Series C Preferred. Contemporaneous with the closing of the PIPE Offering, the Holder will deliver (i) the Notice of Conversion attached hereto as Exhibit A (the “Preferred Stock Notice of Conversion”), pursuant to which, all of the Holder’s shares of the Series C Preferred will convert (the “Conversion”), without any further action on the part of the Holder, into shares of Common Stock at a conversion price per share at the lower of (i) $0.175, or (ii) the per share purchase price in the PIPE Offering (the “Conversion Price”), but otherwise pursuant to the terms of the Certificate of Designation for the Series C Preferred dated December 1, 2021 (the “Series C Certificate of Designation”), without any further action on the part of the Holder, into shares of Common Stock at the Conversion Price, on the following terms and conditions: (a) If the Holder declines to invest in the PIPE Offering an amount equal to or greater than 50% of the aggregate amount of cash funded by the Holder pursuant to the SPAs, notwithstanding anything to the contrary in the terms and conditions set forth in the Series C Certificate of Designation, upon such conversion, the Company shall deliver to the Holder 50% of the shares of Common Stock otherwise deliverable upon conversion of such Series C Preferred held by the Holder at the Conversion Price so that Series C Preferred held by the Holder will be deemed converted and no longer outstanding. (b) If the Holder invests in the PIPE Offering an amount equal to or greater than 50% of the aggregate amount of cash funded by the Holder pursuant to the SPAs, H▇▇▇▇▇’s rights under the Series C Preferred shall remain unchanged by this Agreement except as set forth in the first paragraph of this Section 4. (c) Holder shall be given the opportunity to invest in PIPE Offering. (d) The Conversion shall be subject to the Beneficial Ownership Limitation set forth in the Series C Certificate of Designation. In the event the Conversion would result in the Holder acquiring shares of Common Stock in excess of the Beneficial Ownership Limitation, such portion of the Conversion exceeding the Beneficial Ownership Limitation shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation. (e) In the event that the PIPE Offering is not consummated on or before August 31, 2023, the provisions of this Agreement shall be voided ab initio and the rights and privileges of any outstanding Series C Preferred shall remain intact without modification. (f) This Agreement shall only be effective upon the execution of agreements by the holders of all preferred stock and debt of the Company (the “Other Support Agreement Parties”) to convert such preferred stock and debt into shares of Common Stock on such terms and conditions which shall be no more favorable to the Other Support Agreement Parties than the terms and conditions set forth herein, including but not limited to Section 4 hereof, contemporaneous with the closing of the PIPE Offering (the “Other Support Agreements”). The Company shall enforce the Other Support Agreements as to each Other Support Agreement Party. The Company shall equally treat the Holder and all the Other Support Agreement Parties under the Other Support Agreements and this Agreement. No Other Support Agreement may be modified, amended or waived, without the consent of the Holder.

Series C Preferred. Contemporaneous with At the closing Effective Time, each share of the PIPE Offering, the Holder will deliver (i) the Notice of Conversion attached hereto as Exhibit A (the “Preferred Stock Notice of Conversion”), pursuant to which, all of the Holder’s shares of the Series C Preferred will convert (the “Conversion”), without any further action on the part of the Holder, into shares of Common Stock at a conversion price per share at the lower of (i) $0.175, or (ii) the per share purchase price in the PIPE Offering (the “Conversion Price”), but otherwise pursuant issued and outstanding immediately prior to the terms of Effective Time (other than Dissenting Shares which shall have only those rights specified in Section 1.8 and shares owned by NMI) shall be automatically converted into the Certificate of Designation for the Series C Preferred dated December 1right to receive, 2021 (the “Series C Certificate of Designation”)subject to and in accordance with Section 4.4 and this Agreement, without any further action on the part of the Holder, into shares of Common Stock at the Conversion Price, on the following terms and conditions: (a) If the Holder declines to invest in the PIPE Offering an amount equal to or greater than 50% of the aggregate amount of cash funded by (without interest) equal to (1) the Holder pursuant to the SPAs, notwithstanding anything to the contrary in the terms and conditions set forth in the Per Share Series C Certificate Closing Consideration, plus (2) the Per Share Series C Escrow Amount, plus (3) the Per Share Series C Representative Expense Amount. The amount of Designation, upon such conversion, the Company shall deliver cash each holder of NMI Capital Stock is entitled to the Holder 50% of receive for the shares of Common Stock otherwise deliverable upon conversion of such Series C Preferred held by such holder shall be rounded down to the Holder at the Conversion Price so that nearest cent and computed after aggregating cash amounts payable for all shares of Series C Preferred held by such holder. Notwithstanding anything herein to the Holder will contrary, for purposes of the Merger, and this Agreement, (i) the parties intend, to the extent that holders of Series C Preferred elect in writing to convert their shares of Series C Preferred into shares of NMI Common Stock on or prior to the Closing, that such Series C Preferred shall be deemed converted characterized and no longer outstanding. treated as NMI Common Stock, and that the Aggregate Merger Consideration and Earnout Payments, if any, payable in respect of such NMI Common Stock shall be determined in accordance with, and subject to, Section 1.7(f), and such Series C Preferred shall not be entitled to the Series C Liquidation Preference, and (bii) If the Holder invests in the PIPE Offering an amount equal event that the Series C Preferred accept, or are otherwise paid, the Series C Liquidation Preference , and do not elect in writing to convert their shares of Series C Preferred into shares of NMI Common Stock on or greater than 50% of the aggregate amount of cash funded by the Holder pursuant prior to the SPAsClosing, H▇▇▇▇▇’s rights under as contemplated by clause (i), then the Series C Preferred shall remain unchanged by this Agreement except as set forth in the first paragraph of this Section 4. (c) Holder shall not be given the opportunity entitled to invest in PIPE Offering. (d) The Conversion shall be subject receive, or to the Beneficial Ownership Limitation set forth in the Series C Certificate of Designation. In the event the Conversion would result in the Holder acquiring shares of Common Stock in excess participate in, any of the Beneficial Ownership Limitation, such portion Earnout Payments or any other payment or consideration in respect of the Conversion exceeding Merger or the Beneficial Ownership Limitation shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitationtransactions contemplated hereby. (e) In the event that the PIPE Offering is not consummated on or before August 31, 2023, the provisions of this Agreement shall be voided ab initio and the rights and privileges of any outstanding Series C Preferred shall remain intact without modification. (f) This Agreement shall only be effective upon the execution of agreements by the holders of all preferred stock and debt of the Company (the “Other Support Agreement Parties”) to convert such preferred stock and debt into shares of Common Stock on such terms and conditions which shall be no more favorable to the Other Support Agreement Parties than the terms and conditions set forth herein, including but not limited to Section 4 hereof, contemporaneous with the closing of the PIPE Offering (the “Other Support Agreements”). The Company shall enforce the Other Support Agreements as to each Other Support Agreement Party. The Company shall equally treat the Holder and all the Other Support Agreement Parties under the Other Support Agreements and this Agreement. No Other Support Agreement may be modified, amended or waived, without the consent of the Holder.