8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): May 5, 2020

IDENTIV, INC.

(Exact name of Registrant as Specified in Its Charter)

Delaware	000-29440	77-0444317
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)
	2201 Walnut Avenue, Suite 100, Fremont, California	94538
	(Address of Principal Executive Offices)	(Zip Code)

Registrant’s Telephone Number, Including Area Code: (949) 250-8888

Not Applicable

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

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

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

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

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

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

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

Title of each class	Trading Symbol(s)	Name of exchange on which registered
Common Stock, $0.001 par value per share	INVE	The Nasdaq Stock Market LLC

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

Emerging growth company  ☐

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

Item 1.01 Entry into a Material Definitive Agreement.

On May 5, 2020, Identiv, Inc. (the “Company”) entered into an amendment (the “Thirteenth Amendment”) to its Loan and Security Agreement with East West Bank (the “Bank”) and Thursby Software System, LLC, a wholly owned subsidiary of the Company (such agreement the “Loan Agreement”). Under the Thirteenth Amendment, certain definitions were amended, including the definitions of Permitted Indebtedness and EBITDA; the Company is not required to make monthly principal payments on the term loan portion of its credit facility with the Bank for the three payment dates of May 1, 2020, June 1, 2020 and July 1, 2020; and certain financial covenants were amended, including reducing from $4.0 million to $3.0 million the amount of unrestricted cash that must be held in the Company’s accounts with the Bank during the period from May 1, 2020 through September 30, 2020 and providing for minimum trailing six-month EBITDA of at least $0.6 million during such period and of $0.3 million thereafter.

In connection with the Thirteenth Amendment, the Company also entered into a First Amendment to Warrant with the Bank pursuant to which the exercise price of the warrant previously issued to the Bank was reduced from $3.63857to $3.50 per share and the expiration date of the warrant was extended from February 8, 2022 to February 8, 2023.

The foregoing description of the Thirteenth Amendment is not complete and is qualified in its entirety by reference to the full text of such agreement, which is filed herewith as Exhibit 10.1.

In addition, on May 5, 2020, the “Company issued and sold secured subordinated promissory notes in an aggregate principal amount of $4.0 million (the “Notes”) and issued warrants to purchase 275,000 shares of common stock of the Company (the “Warrants”) to 21 April Fund, LP and 21 April Fund, Ltd. (together, the “Purchasers”) pursuant to a Note and Warrant Purchase Agreement entered into with the Purchasers (the “Note Purchase Agreement”).

The Notes are secured by the Company’s assets, but subordinate to the Company’s obligations to the Bank under the Loan Agreement. Proceeds from the sale of the Notes must be used for expenses incurred by the Company in connection with its provisions of goods and services under a statement of work with a third party. The Notes have an initial term of nine months and do not bear interest during this period. However, if the Notes are not repaid on or before the nine-month anniversary of issuance, (a) the Notes will thereafter bear interest of 8% per annum, payable quarterly, and (b) additional warrants to purchase common stock (the “Extension Warrants”) would be issuable to the Purchasers for each month all or a portion of the Notes remain unpaid, as further detailed in the Note Purchase Agreement. In the event the Notes are not paid in full by the first anniversary of their issuance, May 5, 2021, they shall thereafter bear interest of 12% per annum, payable quarterly, and additional Extension Warrants would be issuable to the Purchasers.

The Warrants have an exercise price of $3.50 per share and a term of three years (subject to early termination upon the closing of an acquisition); provided, that in the event that the Note is not paid in full by the nine-month anniversary of issuance, the term of the Warrants shall be extended for a period of time equal to the period of time from such nine-month anniversary until the date the Note is fully paid. The Extension Warrants have an exercise price of $3.50 per share and a term of three years from the date of issuance of the latest Extension Warrant to be issued (subject to early termination upon an acquisition). The shares of common stock issuable upon exercise of the Warrants and any Extension Warrants that may be issued are entitled to the same resale registration rights granted to the Purchasers under the Stockholders Agreement dated December 21, 2017 in connection with the Purchasers’ previous purchase of certain securities of the Company.

The Notes and the Warrants were issued to the Purchasers, accredited investors, in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act of 1933 (the “Securities Act”) and Regulation D promulgated thereunder. The Company will rely on this exemption from registration based in part on representations made by the Purchasers in the Note Purchase Agreement. The Notes and the Warrants, and any shares issuable upon exercise of the Warrants, have not been registered under the Securities Act or applicable state securities laws and may not be offered or sold in the United States absent registration under the Securities Act or an exemption from such registration requirements.

The foregoing description of the issuance and sale of the Notes and Warrants to the Purchasers is not complete and is qualified in its entirety by reference to the full text of the Note Purchase Agreement and exhibits thereto, which is filed herewith as Exhibit 10.2.

Item 3.02 Unregistered Sales of Equity Securities.

The information provided in Item 1.01 above with respect to the issuance of Warrants to the Purchasers of the Notes is incorporated herein by reference.

Item 9.01 Financial Statements and Exhibits

Exhibit No.	Description
10.1	Thirteenth Amendment to Loan and Security Agreement between Identiv, Inc. Thursby Software LLC and East West Bank
10.2	Note and Warrant Purchase Agreement between Identiv, Inc. and the purchasers named therein

SIGNATURES

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

	Identiv, Inc.
May 7, 2020	By:	/s/ Sandra Wallach
		Sandra Wallach Chief Financial Officer

EX-10.1

Exhibit 10.1

THIRTEENTH AMENDMENT

TO

LOAN AND SECURITY AGREEMENT

This Thirteenth Amendment to Loan and Security Agreement is entered into as of May 5, 2020 (the “Amendment”), by and between EAST WEST BANK (“Bank”), IDENTIV, INC. (“Parent”) and THURSBY SOFTWARE SYSTEMS, LLC (“TSS”). TSS and Parent are also referred to herein individually as a “Borrower” and collectively as the “Borrowers”.

RECITALS

Borrowers and Bank are parties to that certain Loan and Security Agreement dated as of February 8, 2017, as amended from time to time, including pursuant to that certain First Amendment to Loan and Security Agreement dated as of March 27, 2017, that certain Second Amendment to Loan and Security Agreement dated as of December 19, 2017, that certain Third Amendment to Loan and Security Agreement dated as of January 30, 2018, and that certain Fourth Amendment to Loan and Security Agreement dated as of February 5, 2018, that certain Fifth Amendment to Loan and Security Agreement dated as of March 6, 2018, that certain Sixth Amendment to Loan and Security Agreement dated as of April 14, 2018, that certain Seventh Amendment to Loan and Security Agreement dated as of July 17, 2018, that certain Eighth Amendment to Loan and Security Agreement dated as of November 1, 2018, that certain Ninth Amendment to Loan and Security Agreement dated as of January 2, 2019, that certain Tenth Amendment to Loan and Security Agreement dated as of February 6, 2019, that certain Eleventh Amendment to Loan and Security Agreement dated as of March 28, 2019 and that certain Twelfth Amendment to Loan and Security Agreement dated as of January 28, 2020 (collectively, the “Agreement”). The parties desire to amend the Agreement in accordance with the terms set forth herein.

NOW, THEREFORE, the parties agree as follows:

1.    The following is added as new clauses (l) and (m) to the definition of “Permitted Indebtedness” set forth in Section 1.1 of the Agreement:

(l)     unsecured Indebtedness in an original principal amount of $2,914,500 with respect to the loan provided to Borrower under the Paycheck Protection Program pursuant to the Coronavirus Aid, Relief, and Economic Security Act, dated March 27, 2020 (the “CARES Act”), the proceeds of which are used in compliance with the CARES Act (the “PPP Loan”); and

(m)    Indebtedness of up to $4,000,000 owing to 21 April Fund, Ltd., 21 April Fund, LP and/or other Affiliates of Bleichroder L.P (the “Investor Debt”) that is subject to a fully executed subordination agreement in form and substance satisfactory to Bank.

2.    The following is added as a new clause (k) to the definition of “Permitted Lien” set forth in Section 1.1 of the Agreement:

(k)    Liens securing the Investor Debt that is subject to a fully executed subordination agreement in form and substance satisfactory to Bank.

3.    The following definition is added to Section 1.1 of the Agreement in alphabetical order:

“Leniency Period” means the period beginning on May 1, 2020 and ending on September 30, 2020.

4.    The following definition in Section 1.1 of the Agreement is amended and restated in its entirety to read as follows:

“EBITDA” means, as of any particular measurement period, Borrowers’ earnings (i) before interest, taxes, depreciation and amortization expenses, determined in accordance with GAAP, and excludes provision (benefit) for, net income (loss) attributable to non-controlling interest, foreign currency losses (gains), impairment of goodwill, stock-based compensation, non-cash expense (gains), one-time expenses not to exceed $200,000 per fiscal quarter, and restructuring and severance expenses not to exceed (x) $1,000,000 for quarter ending June 30, 2020, (y) $1,000,000 for quarter ending September 30, 2020, and (z) $300,000 for each fiscal quarter thereafter; minus (ii) non-operating income resulting from any forgiveness of the PPP Loan; and plus (iii) the cash proceeds from the sale and issuance of equity securities and/or the Investor Debt or other Subordinated Debt incurred during such measurement period.

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5.    The following is added immediately after the end of the first sentence set forth in Section 2.1(b)(ii) of the Agreement:

Notwithstanding the foregoing, Borrowers are not required to make monthly principal payments on the Term Loan for the three payment dates of May 1, 2020, June 1, 2020 or July 1, 2020.

6.    Section 6.3(a) of the Agreement is amended and restated in its entirety to read as follows:

(a) as soon as available, but in any event within twenty (20) days after the last day of each month, a Borrowing Base Certificate signed by a Responsible Officer in substantially the form of Exhibit C hereto; and within twenty (20) days after the last day of each month of the Leniency Period, a global cash balance worksheet;

7.    Section 6.9 of the Agreement is amended and restated in its entirety to read as follows:

6.9    Financial Covenants.

(a)    Minimum Cash.

(i)    Borrowers shall maintain a minimum of Four Million Dollars ($4,000,000) in unrestricted cash in their account(s) at Bank at all times; provided however that during the Leniency Period, Borrowers are only required to maintain a minimum of Three Million Dollars ($3,000,000) in unrestricted cash in their account(s) at Bank at all times during such period.

(ii)    The aggregate sum of all of Borrowers’ unrestricted cash shall be at least Three Million Five Hundred Thousand Dollars ($3,500,000) at all times during the Leniency Period.

(b)    Minimum EBITDA. Borrowers’ minimum trailing six-month EBITDA shall be at least $600,000, measured on a monthly basis for all periods during the Leniency Period; and for each month thereafter, Borrowers’ minimum trailing three-month EBITDA shall be at least $300,000.

(c)    Fixed Charge Coverage Ratio. For so long as the Term Loan is outstanding, Borrower shall maintain a Fixed Charge Coverage Ratio of at least 1.15 : 1.00, measured on a quarterly basis, beginning with the calendar quarter ending March 31, 2020.

8.    Section 7.9 of the Agreement is amended and restated in its entirety to read as follows:

7.9    Subordinated Debt. Make any payment in respect of any Subordinated Debt, or permit any of its Subsidiaries to make any such payment, except in compliance with the terms of the subordination agreement governing such Subordinated Debt, or amend any provision contained in any documentation relating to the Subordinated Debt without Bank’s prior written consent. Without limiting the foregoing, and for the sake of clarity, Borrowers shall not make any payments on account of the Investor Debt until after Term Loan has been repaid in full and in any event, no payment shall be made on the Investor Debt if any Event of Default has occurred that is continuing or would exist after giving effect to such payment.

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9.    The Exhibit D to the Agreement is replaced in its entirety with the Exhibit D attached hereto.

10.    Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Each Borrower ratifies and reaffirms the continuing effectiveness of all agreements entered into in connection with the Agreement.

11.    Each Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment, and that no Event of Default has occurred and is continuing, after giving effect to this Amendment.

12.    Bank waives (a) any noncompliance with Section 6.9(c) and/or Section 6.9(d) of the Agreement (in effect prior to the effectiveness of this Amendment) for periods ended March 31, 2020 and April 30, 2020 and (b) any noncompliance prior to the date hereof related to the implementation of the debt facility referred to in clause (l) of the definition of “Permitted Indebtedness” contained in the Agreement (as amended hereby). Bank does not waive Borrower’s obligations under such sections or with respect to such facility or definition after the date hereof and as amended herein, and Bank does not waive any other failure by Borrower to perform its obligations under the Loan Documents.

13.    This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. 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 hereof. Notwithstanding the foregoing, Borrowers shall deliver all original signed documents requested by Bank no later than five (5) Business Days following the date of execution.

14.    As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:

(a)    this Amendment, duly executed by Borrowers;

(b)    amendment to warrant to purchase stock;

(c)    payment of an amendment and waiver fee in the amount of $30,000 plus all Bank Expenses incurred through the date of this Amendment; and

(d)    such other documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the first date above written.

IDENTIV, INC.

By: Sandra Wallach

Name: /s/ Sandra Wallach

Title: CFO

THURSBY SOFTWARE SYSTEMS, LLC

By: Sandra Wallach

Name: /s/ Sandra Wallach

Title: CFO

EAST WEST BANK

By: Kelvin Chan

Name: /s/ Kelvin Chan

Title: Managing Director

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EXHIBIT D

COMPLIANCE CERTIFICATE

TO:	EAST WEST BANK
FROM:	IDENTIV, INC.

The undersigned authorized officer of IDENTIV, INC., on behalf of itself and all other Borrowers, hereby certifies that in accordance with the terms and conditions of the Loan and Security Agreement between Borrowers and Bank (the “Agreement”), (i) each Borrower is in complete compliance for the period ending                      with all required covenants except as noted below and (ii) all representations and warranties of Borrowers stated in the Agreement are true and correct as of the date hereof. Attached herewith are the required documents supporting the above certification. The Officer further certifies that the annual financial statements are prepared in accordance with Generally Accepted Accounting Principles (GAAP) and such other financial information is prepared consistently from one period to the next; except as explained in an accompanying letter or footnotes.

Please indicate compliance status by circling Yes/No under “Complies” column.

Reporting Covenant	Required		Complies
Borrowing Base Certificate	Monthly within 20 days		Yes	No
Global Cash Worksheet	Monthly within 20 days		Yes	No
A/R & A/P Agings	Monthly within 20 days		Yes	No
Inventory report	Monthly within 20 days		Yes	No
Compliance Certificate	Monthly within 20 days		Yes	No
Monthly financial statements with compliance certificate	Monthly within 30 days		Yes	No
Annual financial statements (CPA Audited)	Annually within 180 days of fiscal year end		Yes	No
Annual operating budget, sales projections and operating plans approved by board of directors	Annually no later than 30 days prior to the beginning of each fiscal year		Yes	No
Contact/address list of Borrowers’ account debtors	Within 30 days of FYE		Yes	No
A/R and Collateral Audit	Annual		Yes	No
Deposit balances with Bank	$		Yes	No
Deposit balance outside Bank	$
Financial Covenant	Required	Actual	Complies
Minimum Unrestricted Cash at Bank during Leniency Period	$3,000,000	$	Yes	No
Minimum Unrestricted Cash at Bank after Leniency Period	$4,000,000	$	Yes	No
Minimum Aggregate Unrestricted Cash during Leniency Period	$3,500,000	$	Yes	No
Minimum trailing 6 month EBITDA (during Leniency Period)	$600,000	$	Yes	No
Minimum trailing 3 month EBITDA (10/1/20 and onward)	$300,000	$	Yes	No
Minimum Fixed Charge Coverage Ratio (while Term Loan is outstanding)	1.15 : 1.00	: 1.00	Yes	No
Comments Regarding Exceptions: See Attached.	BANK USE ONLY
	Received by:
Sincerely,	AUTHORIZED SIGNER
	Date:
	Verified:
SIGNATURE	AUTHORIZED SIGNER
	Date:
TITLE
	Compliance Status	Yes	No
DATE

EX-10.2

Exhibit 10.2

Execution Copy

IDENTIV, INC.

NOTE AND WARRANT PURCHASE AGREEMENT

This NOTE AND WARRANT PURCHASE AGREEMENT (this “Agreement”) is entered into as of May 5, 2020 (the “Effective Date”), by and among Identiv, Inc., a Delaware corporation (the “Company”), and the investors listed on Schedule A attached hereto (collectively, the “Investors”).

WHEREAS, on the terms and conditions set forth herein, the Investors are willing to purchase from the Company, and the Company is willing to sell to the Investors, secured subordinated promissory notes in an aggregate principal amount of $4,000,000 and accompanying warrants to purchase shares of the Company’s common stock (the “Common Stock”), the proceeds from which purchase will be used to enable the Company to provide certain goods and services pursuant to a Statement of Work recently entered into with a third party;

WHEREAS, the Company has a credit facility pursuant to a Loan and Security Agreement with East West Bank (“EWB”), as amended to date, which includes a term loan facility in the principal amount of $4,500,000 (the “Term Loan”), and a revolving line of up to an additional $15,500,000 (“the “Revolving Line”) (the Term Loan and the Revolving Line collectively, the “Credit Facility”); and

WHEREAS, the Investors understand and acknowledge that the secured subordinated promissory notes to be issued hereunder will be subordinated to the Company’s obligations to EWB under the Credit Facility as further set forth in a Subordination Agreement to be entered into among EWB, the Investors and the Company (the “Subordination Agreement”).

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth in this Agreement, the parties agree as follows:

1. The Loans, Notes and Warrants; Security Agreement.

1.1 Loans. Subject to the terms and conditions of this Agreement, the Investors agree to make loans (the “Loans”) to the Company in an aggregate principal amount of $4,000,000. The individual commitment of each Investor is set forth on Schedule A attached hereto.

1.2 Notes. The Loans made by each Investor shall be evidenced by one or more secured subordinated promissory notes (collectively, the “Notes”) of the Company in the form attached hereto as Exhibit A.

1.3 Warrants. In connection with each Note issued to an Investor, the Company shall issue to such Investor a warrant to purchase shares of its Common Stock pursuant to the terms therein (collectively, the “Warrants”), in substantially the form attached hereto as Exhibit B.

1.4 Security Interest. The indebtedness represented by the Notes shall be secured in accordance with the terms and conditions of that certain Security Agreement of even date herewith by and between the Company and the Investors (the “Security Agreement”) and attached hereto as Exhibit C.

1.5 Closing. The purchase and sale of the Notes (the “Closing”) shall take place by physical or electronic exchange of documents and signatures, at 10:00 am local time on the date hereof or at such time or times as the Company and the Investors shall agree.

1.6 Delivery. Within a reasonable time following the Closing, the Company shall deliver to each Investor participating in the Closing a Note, the original principal amount of which shall be in such amount as is purchased by such Investor at the Closing as set forth on Schedule A attached hereto, and a Warrant.

1.7 Use of Proceeds for Project. The proceeds from the sale and issuance of the Notes shall be used by the Company and its subsidiaries for expenses incurred, directly or indirectly, in connection with the Company’s provision of goods and services pursuant to a Statement of Work effective as of February 7, 2020 and associated Master Development and Supply Agreement with a third party purchaser.

2. Representations and Warranties of the Company. The Company hereby represents and warrants to each Investor that, as of the date of this Agreement and the Closing:

2.1 Organization; Good Standing; Qualification. The Company and each of its wholly-owned subsidiaries is duly incorporated, validly existing, and in good standing under the laws of the jurisdiction of its organization. Each of the Company and its subsidiaries has all requisite power and authority to own and operate its respective properties and assets and to carry on its respective business as presently conducted and as proposed to be conducted. The Company and each of its wholly-owned subsidiaries is qualified to do business as a foreign entity in every jurisdiction in which the failure to be so qualified would have, or would reasonably be expected to have, a material adverse effect, individually or in the aggregate, upon the business, properties, tangible and intangible assets, liabilities, operations, condition (financial or otherwise) or results of operation of the Company and its subsidiaries or the ability of the Company or any of its subsidiaries to timely perform their respective obligations under the Transaction Documents (as defined below) (a “Material Adverse Effect”).

2.2 Subsidiaries. As used in this Agreement, references to any “subsidiary” of a specified Person shall refer to an Affiliate controlled by such Person directly, or indirectly through one or more intermediaries, as such terms are used in and construed under Rule 405 under the Securities Act of 1933, as amended (the “Securities Act”) (which, for the avoidance of doubt, shall include the Company’s controlled joint ventures, including shared-controlled joint ventures). The Company’s significant subsidiaries, as of the date hereof, are listed in the Company’s Annual Report on Form 10-K for the year ended December 31, 2019 and are the only significant subsidiaries, direct or indirect, of the Company as of the date hereof. All the issued and outstanding shares of each subsidiary’s capital stock have been duly authorized and validly issued, are fully paid and nonassessable, have been issued in compliance with all applicable securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities. As used herein, “Person” shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity, and an “Affiliate” means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with, such Person.

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2.3 Power. The Company has all requisite corporate power and authority to execute and deliver this Agreement, the Notes, the Warrants, the Security Agreement and any ancillary agreements and instruments to be entered into by the Company hereunder (together, the “Transaction Documents”), to sell and issue the Securities, and to carry out and perform its obligations under the Transaction Documents.

2.4 Authorization. The execution, delivery, and performance of the Transaction Documents by the Company, including the authorization, issuance and delivery of the Notes, the Warrants and the Security Agreement, has been duly authorized by all requisite corporate or other action on the part of the Company and its officers, directors and stockholders, and this Agreement constitutes, and the other Transaction Documents will constitute, legal, valid, and binding obligations of the Company enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

2.5 Capitalization. The Company has not issued any capital stock since its most recently filed SEC Document (as defined below) under the Exchange Act, other than (a) pursuant to the exercise of stock options, restricted stock units or other similar awards under the Company’s stock option plans, (b) to consultants, employees and other service providers of the Company in transactions approved by the Company’s Board of Directors, or (c) as disclosed in the most recently filed SEC Document under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. Other than as disclosed in the SEC Documents, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.

2.6 Consents and Approvals. Except for any Current Report on Form 8-K or Notice of Exempt Offering of Securities on Form D to be filed by the Company in connection with the transactions contemplated by the Transaction Documents, the Company is not required to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any regulatory body, self-regulatory organization, stock exchange or market government or governmental agency in order to consummate the transactions contemplated by the Transaction Documents.

2.7 Non-Contravention. The execution and delivery of the Transaction Documents, the issuance, sale and delivery of the Notes and Warrants to be sold by the Company, the performance by the Company of its obligations under the Transaction Documents and the consummation of the transactions contemplated thereby will not (a) conflict with, result in the breach or violation of, or constitute (with or without the giving of notice or the passage of time or both) a violation of, or default under, (i) any bond, debenture, note or other evidence of indebtedness, or under any lease, license, franchise, permit, indenture, mortgage, deed of trust,

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loan agreement, joint venture or other agreement or instrument to which the Company or any subsidiary is a party or by which it or its properties may be bound or affected, (ii) the Company’s Fourth Amended and Restated Certificate of Incorporation, as amended and as in effect on the date hereof, the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), or the equivalent document with respect to any subsidiary, as amended and as in effect on the date hereof, or (iii) any statute or law, judgment, decree, rule, regulation, ordinance or order of any court or governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration panel or authority applicable to the Company, any of its subsidiaries or their respective properties, except in the case of clause (i) for such conflicts, breaches, violations or defaults that would not be likely to have, individually or in the aggregate, a Material Adverse Effect, or (b) except as described herein and in the Security Agreement, result in the creation or imposition of any lien, encumbrance, claim, security interest or restriction whatsoever upon any of the material properties or assets of the Company or any of its subsidiaries or an acceleration of indebtedness pursuant to any obligation, agreement or condition contained in any material bond, debenture, note or any other evidence of indebtedness or any material indenture, mortgage, deed of trust or any other agreement or instrument to which the Company or any if its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company is subject. For purposes of this Section 2.7 the term “material” shall apply to agreements, understandings, instruments, contracts or proposed transactions to which the Company is a party or by which it is bound involving obligations (contingent or otherwise) of, or payments to, the Company in excess of $500,000 in a consecutive 12-month period.

2.8 Shares. The shares of Common Stock underlying the Warrants and any Extension Warrants have been duly and validly reserved for issuance, have been duly authorized by all necessary corporate action and such shares of Common Stock, when issued pursuant to the terms of the applicable Warrant or Extension Warrant, will be validly issued, fully paid, and nonassessable, and will be free of any lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other material restriction with respect to the issuance thereof; provided, however, that such shares shall be subject to restrictions on transfer under state or federal securities laws as set forth in this Agreement, or as otherwise may be required under state or federal securities laws as set forth in this Agreement at the time a transfer is proposed.

2.9 No Registration. Assuming the accuracy of each of the representations and warranties of the Investors herein, the issuance by the Company of the Warrants and the Extension Warrants, and any shares of Common Stock issuable upon the exercise thereof, are or will be, as applicable, exempt from registration under the Securities Act.

2.10 Reporting Status. The Company is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Company has, in a timely manner, filed all schedules, forms, statements, reports and other documents that the Company was required to file pursuant to Section I.A.3.b of the General Instructions to Form S-3 promulgated under the Securities Act in order for the Company to be eligible to use Form S-3 preceding the date of the Closing (the foregoing materials, together with any materials filed by the Company under the Exchange Act, whether or not required, collectively, the “SEC Documents”). The SEC Documents complied in all material respects with requirements of the Securities Act and Exchange Act and the rules and regulations of the SEC promulgated thereunder, and none of the SEC Documents and the information contained therein, as of their respective filing dates,

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contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. As used in this Agreement, “Previously Disclosed” means information set forth in or incorporated by reference into the SEC Documents filed with the SEC prior to the date hereof (except for risks and forward-looking information set forth in the “Risk Factors” section of the applicable SEC Documents or in any forward-looking statement disclaimers or similar statements that are similarly non-specific and are predictive or forward-looking in nature).

2.11 Material Changes. Since the date of the latest audited financial statements included within the SEC Documents, except as specifically disclosed in a subsequent SEC Document filed prior to the date hereof, there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect. Except for (i) the issuance of the Notes and Warrants contemplated by this Agreement and (ii) the Thirteenth Amendment to Loan and Security Agreement between the Company, a subsidiary of the Company and East West Bank entered into on or about the date hereof and a copy of which has been provided to the Investors (the “LSA Amendment’), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) business day prior to the date that this representation is made.

2.12 Legal Proceedings. Except as Previously Disclosed, there is no action, suit or proceeding before any court, governmental agency or body, domestic or foreign, now pending or, to the knowledge of the Company, threatened against the Company or its subsidiaries wherein an unfavorable decision, ruling or finding would reasonably be expected to, individually or in the aggregate, (i) materially adversely affect the validity or enforceability of, or the authority or ability of the Company to perform its obligations under, this Agreement or (ii) have a Material Adverse Effect. The Company is not a party to or subject to the provisions of any injunction, judgment, decree or order of any court, regulatory body, administrative agency or other governmental agency or body that might have, individually or in the aggregate, a Material Adverse Effect.

2.13 No Violations. Neither the Company nor any of its subsidiaries is or, since January 1, 2017, has been in violation of its respective certificate of incorporation, bylaws or other organizational documents, or any statute or law, judgment, decree, rule, regulation, ordinance or order of any court or governmental or regulatory body (including The NASDAQ Stock Market), governmental agency, arbitration panel or authority applicable to the Company or any of its

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subsidiaries, which violation, individually or in the aggregate, would be reasonably likely to have a Material Adverse Effect. Neither the Company nor any of its subsidiaries is in default (and there exists no condition which, with or without the passage of time or giving of notice or both, would constitute a default) in the performance of any bond, debenture, note or any other evidence of indebtedness in any indenture, mortgage, deed of trust or any other material agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or by which the properties of the Company are bound, which would be reasonably likely to have a Material Adverse Effect.

2.14 Listing Compliance. The Company is in compliance with the requirements of The NASDAQ Stock Market LLC for continued listing of the Common Stock thereon and has no knowledge of any facts or circumstances that could reasonably lead to delisting of its Common Stock from The NASDAQ Stock Market. The Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or the listing of the Common Stock on The NASDAQ Stock Market, nor has the Company received any notification that the SEC or The NASDAQ Stock Market is contemplating terminating such registration or listing. The transactions contemplated by the Transaction Documents will not contravene the rules and regulations of The NASDAQ Stock Market. The Company will comply with all requirements of The NASDAQ Stock Market with respect to the issuance of the Securities, including the filing of any listing notice with respect to the issuance of the Securities.

2.15 Application of Takeover Protections. The Company has taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement), or other similar anti-takeover provision pursuant to its charter documents or the laws of its state of incorporation (including, without limitation, under Section 203 of the Delaware General Corporation Law) that is applicable to the Investors as a result of the Investors and the Company fulfilling their obligations or exercising their rights pursuant to the Transaction Documents.

2.16 Regulatory Permits. The Company possess all material certificates, authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct its businesses as described in the SEC Documents (the “Material Permits”), and the Company has not received any notice of proceedings relating to the revocation or modification of any Material Permit.

2.17 Rights of Registration. Except as provided in the Stockholders Agreement, dated as of December 21, 2017, by and among the Company and the “Investors” party thereto, or disclosed in the SEC Documents, the Company is not under any obligation to register under the Securities Act any of its currently outstanding securities or any securities issuable upon exercise or conversion of its currently outstanding securities

2.18 Intellectual Property. The Company owns or possesses adequate rights to use all patents, patent applications, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, trademark registrations, service marks, service mark registrations, trade names, mask work rights and other intellectual property necessary to carry on the business now operated by it or proposed to be operated by it as described in the SEC

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Documents (collectively, the “Intellectual Property”), except where the lack of such ownership or rights to use would not have a Material Adverse Effect. The Company has not received a notice (written or otherwise) that any of the Intellectual Property material to the Company’s business has expired, terminated or been abandoned, or is essential for the Company’s business and is expected to expire or terminate or be abandoned within one (1) year from the date of this Agreement. Except as disclosed in the SEC Documents, or as would not, individually or in the aggregate, have a Material Adverse Effect, to the best of the Company’s knowledge, (i) there is no infringement by third parties engaged in commercial activity of any Intellectual Property of the Company relating to the Company’s business and (ii) there are no non-commercial activities being performed by any third parties which, upon commercialization thereof, could reasonably be expected to infringe on the Intellectual Property of the Company. The Company has taken all commercially reasonable actions necessary to perfect its ownership of and interest in the Intellectual Property.

2.19 Tax Status. Except for the matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect, the Company (i) has made or filed all United States federal, state and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply.

2.20 Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents and the material terms and conditions of the LSA Amendment, which shall be timely reported on a Form 8-K under the Exchange Act, the Company confirms that neither it nor any other Person acting on its behalf has provided the Investors or its agents or counsel with any information that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the Investors will rely on the foregoing representation in effecting transactions in securities of the Company. The Company acknowledges and agrees that no Investor makes or has made any representations or warranties with respect to the transactions contemplated by the Transaction Agreements other than those specifically set forth in Section 3.

3. Representations and Warranties of the Investors. Each Investor hereby represents and warrants severally, and not jointly, that:

3.1 Authorization. Such Investor has full power and authority to enter into the Transaction Documents, and the Transaction Documents constitute valid and legally binding obligations of such Investor, enforceable in accordance with their respective terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies.

3.2 Purchase Entirely for Own Account. This Agreement is made with such Investor in reliance upon such Investor’s representation to the Company, which by such Investor’s execution of this Agreement such Investor hereby confirms, that the Notes, the Warrants and any capital stock issuable upon exercise of the Warrants (collectively, the “Securities”) will be

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acquired for investment for such Investor’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and that such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Such Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation in any of the Securities to any third person.

3.3 Reliance upon Investors’ Representations. Such Investor understands that the Notes and the Warrants are not, and any capital stock acquired on exercise thereof at the time of issuance may not be, registered under the Securities Act on the ground that the sale provided for in this Agreement and the issuance of securities hereunder is exempt from registration under the Securities Act and that the Company’s reliance on such exemption is based on the Investors’ representations set forth herein. Such Investor realizes that the basis for such exemption may not be present if, notwithstanding such representations, such Investor has in mind merely acquiring the Securities for a fixed or determinable period in the future, or for a market rise, or for sale if the market does not rise. Such Investor has no such intention.

3.4 Receipt of Information. Such Investor believes it has received all the information it considers necessary or appropriate for deciding whether to purchase the Securities. Such Investor further represents that it has had an opportunity to ask questions and receive answers from the Company regarding the terms and conditions of the offering of the Securities, and the business, properties, prospects and financial condition of the Company and to obtain additional information (to the extent the Company possessed such information or could acquire it without unreasonable effort or expense) necessary to verify the accuracy of any information furnished to it or to which it had access. The foregoing, however, does not limit or modify the representations and warranties of the Company in Section 2 of this Agreement or the right of the Investors to rely thereon.

3.5 Investment Experience. Such Investor is experienced in evaluating and investing in securities of companies in the development stage and is able to fend for itself, can bear the economic risk of its investment, and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the investment in the Securities and is able, without impairing such Investor’s financial condition, to hold the Securities for an indefinite period of time and to suffer a complete loss of such Investor’s investment. If other than an individual, such Investor also represents it has not been organized for the purpose of acquiring the Securities.

3.6 Accredited Investor. Such Investor is an “accredited investor,” as such term is defined in Rule 501(a) of Regulation D under the Securities Act.

3.7 Restricted Securities. Such Investor understands that the Securities must be held indefinitely unless subsequently registered under the Securities Act or unless an exemption from registration is otherwise available.

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3.8 Legends. Each of the Investors understands and agrees that the Securities shall be endorsed with the legend set forth below, and such Investor covenants that, except to the extent such restrictions are waived by the Company, such Investor shall not transfer the Securities represented by any such certificate without complying with the restrictions on transfer described in such legend (except that the Company shall not require an opinion of counsel in connection with a transfer to an affiliated entity or pursuant to Rule 144):

“THESE SECURITIES HAVE NOT BEEN REGISTERED OR QUALIFIED UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE, AND MAY BE OFFERED AND SOLD ONLY IF REGISTERED AND QUALIFIED PURSUANT TO THE RELEVANT PROVISIONS OF FEDERAL AND STATE SECURITIES LAWS OR IF THE COMPANY IS PROVIDED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT REGISTRATION AND QUALIFICATION UNDER FEDERAL AND STATE SECURITIES LAWS IS NOT REQUIRED.”

3.9 Foreign Investor. If such Investor is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as amended), such Investor hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with the purchase of the Securities and this Agreement, including (a) any foreign exchange restrictions applicable to such purchase, (b) any governmental or other consents that may be required, and (c) any tax consequences that may be relevant to the purchase, holding, redemption, sale or transfer of the Securities. Such Investor’s subscription and payment for and continued beneficial ownership of the Securities will not violate any applicable securities or other laws of such Investor’s jurisdiction.

3.10 Disqualification. Such Investor represents that such Investor is not subject to any Disqualification Event (as defined in Rule 506(d)(1)(i) through (viii) under the Securities Act), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Securities Act and disclosed reasonably in advance of the Closing in writing in reasonable detail to the Company.

4. Pari Passu with All Notes. Each Note shall rank equally without preference or priority of any kind with each of the Notes issued by the Company to the Investors. All payments of principal and interest with respect to the Notes shall be applied ratably and proportionately on each such Note on the basis of the original principal amount of outstanding indebtedness represented by such Note.

5. Conditions to Closing; Covenants of the Company.

5.1 Conditions of Each Investor’s Obligations. The obligations of each Investor at the Closing are subject to the fulfillment, on or prior to the date of the Closing, of each of the following conditions, any of which may be waived in whole or in part by the Investors:

(a) The representations and warranties of the Company contained in Section 2 hereof shall be true and correct in all respects as of the date of this Agreement and as of the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing.

(b) The Company shall have performed and complied with all agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it on or prior to the date of the Closing.

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(c) The Company is validly existing as a corporation in good standing under the laws of Delaware as evidenced by a certificate of the Secretary of State of the State of Delaware, a copy of which was provided to the Investors at least one (1) business day prior to the date of the Closing.

(d) The Company shall have executed and delivered to each Investor a Note and a Warrant in the respective amounts set forth on Schedule A.

(e) EWB and the Company shall have executed and delivered the Subordination Agreement in the form of Exhibit D.

(f) Except for any notices required or permitted to be filed after the Closing pursuant to applicable federal and state securities laws, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes and Warrants.

5.2 Conditions to Obligations of the Company. The obligations of the Company at the Closing are subject to the fulfillment, on or prior to the date of the Closing, of the following conditions, any of which may be waived in whole or in part by the Company:

(a) The representations and warranties of each Investor contained in Section 3 shall be true and correct on and as of the Closing with the same force and effect as if they had been made on and as of such Closing.

(b) Except for any notices required or permitted to be filed after the Closing pursuant to applicable federal or state securities laws, the Company shall have obtained all governmental approvals required in connection with the lawful sale and issuance of the Notes and Warrants.

(c) Each Investor shall have executed and delivered the Subordination Agreement.

(d) Each Investor shall have delivered to the Company the purchase price of the Note and Warrant being purchased by such Investor as noted on Schedule A hereto.

5.3 Covenants of the Company.

(a) Reservation of Stock. The Company covenants that during the term the Warrants are exercisable, the Company will reserve from its authorized and unissued capital stock a sufficient number of shares to provide for the issuance of Common Stock upon the exercise of all outstanding Warrants, including shares issuable under any Extension Warrants (as defined below) that may be issued.

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(b) Additional Warrants. In the event that any Note is not repaid in full prior to the Initial Maturity Date or the Extended Maturity Date (each as defined in the Note), as applicable, the Company shall promptly (and in any event within five (5) business days) issue to the Investor to whom such Note was issued an additional warrant in the form attached hereto as Exhibit E (each an “Extension Warrant”), for each additional month in which the Note remains outstanding. Each Extension Warrant shall be issued on, and exercisable for, the number of shares of Common Stock determined as follows:

a) On the first day following each of the Initial Maturity Date, the ten-month anniversary of the Effective Date and the eleven-month anniversary of the Effective Date, an Extension Warrant exercisable for the number of shares equal to:

    (Note balance then outstanding)                                 x                 (15,000 shares)

    (initial principal amount of Note)

b) On the first day following the twelve-month anniversary of the Effective Date and on each one-month anniversary thereafter, an Extension Warrant exercisable for the number of shares equal to:

    (Note balance then outstanding)                                 x                 (25,000 shares)

    (initial principal amount of Note)

(c) Securities Laws Disclosure. The Company will file a Current Report on Form 8-K with the SEC describing the terms of the Transaction Documents (the “8-K Filing”) within the time required by the Exchange Act. Neither the Company, its subsidiaries nor the Investors shall issue any press releases or any other public statements with respect to the transactions contemplated hereby without the prior consent of the other; provided, however, the Company or the Investors each shall be entitled, without the prior approval of the other, to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations.

6. Miscellaneous.

6.1 Entire Agreement. This Agreement and the documents referred to herein constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and no party shall be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth herein or therein.

6.2 Survival of Warranties. The warranties, representations and covenants of the Company and each Investor contained in or made pursuant to this Agreement with respect to the Closing shall survive the execution and delivery of this Agreement and such Closing.

6.3 Assignment; Successors and Assigns. This Agreement may not be assigned by either party without the prior written consent of the other party; provided, that this Agreement may be assigned by any Investor to the valid transferee of any Security purchased hereunder if such Security remains a “restricted security” under the Securities Act. Except as otherwise provided herein, 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, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under this Agreement, except as expressly provided in this Agreement.

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6.4 Governing Law; Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Delaware as applied to agreements among Delaware residents entered into and to be performed entirely within Delaware. With respect to any disputes arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of the Delaware Court of Chancery or, in the event that such court does not have jurisdiction over the dispute, to the federal district court of the District of Delaware or to the courts of the State of Delaware.

6.5 Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed and delivered by facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act or other applicable law) or other transmission method and upon such delivery any such signature shall be deemed to have the same effect as if the original signature had been delivered to the other party.

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

6.7 Notices. Unless otherwise provided, any notice required or permitted under this Agreement shall be given in writing, addressed (a) if to an Investor, as indicated on the Schedule of Investors attached hereto as Schedule A, or at such other address as such Investor shall have furnished to the Company in writing at least five (5) days prior to any notice to be given hereunder, or (b) if to the Company, at its principal office, Attention: Chief Executive Officer, or at such other address as the Company shall furnish to each Investor in writing at least five (5) days prior to any notice to be given hereunder. All such notices and other written communications shall be deemed effectively given upon personal delivery to the party to be notified (or upon the date of attempted delivery where delivery is refused) or, if sent by facsimile, upon receipt of appropriate written confirmation of receipt, or five (5) days after deposit with the United States Postal Service, by registered or certified mail, or one (1) day after deposit with next day air courier, with postage and fees prepaid and addressed to the party entitled to such notice, or, if sent by electronic mail, when directed to any electronic mail address set forth on the Schedule of Investors attached hereto as Schedule A.

6.8 Finders’ Fees. Each party represents that it neither is nor will be obligated for any finders’ fee or commission in connection with this transaction. Each Investor agrees to indemnify and to hold harmless the Company and each other Investor from any liability for any commission or compensation in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which such Investor is responsible. The Company agrees to indemnify and hold harmless each Investor from any liability for any commission or compensation in the nature of a finder’s fee (and the costs and expenses of defending against such liability or asserted liability) for which the Company or any of its officers, employees or representatives is responsible.

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6.9 Attorneys’ Fees. If any action at law or in equity is necessary to enforce or interpret the terms of the Transaction Documents, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and disbursements in addition to any other relief to which such party may be entitled.

6.10 Amendments and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally or in a particular instance and either retroactively or prospectively) only with the written consent of the Company and the Investors. Any amendment or waiver so effected shall be binding upon each holder of any securities purchased under this Agreement at the time outstanding (including securities into which such securities have been converted), each future holder of all such securities and the Company.

6.11 Expenses. Each Investor shall individually bear such Investor’s full costs and expenses incurred with respect to the negotiation, execution, delivery and performance of this Agreement.

6.12 Delays or Omissions. No delay or omission to exercise any right, power or remedy accruing to any party to this Agreement, upon any breach or default of any other party under this Agreement shall impair any such right, power or remedy of such non-defaulting party, nor shall it be construed to be a waiver of any such breach or default, or an 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 therefore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement or any waiver on the part of any party of any provisions or conditions of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement or by law or otherwise afforded to any party, shall be cumulative and not alternative.

6.13 Further Assurances. The parties agree to execute and deliver all such further documents, agreements and instruments and take such other and further action as may be necessary or appropriate to carry out the purposes and intent of this Agreement.

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

6.15 California Corporate Securities Law. THE SALE OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION FOR SUCH SECURITIES PRIOR TO SUCH QUALIFICATION IS UNLAWFUL, UNLESS THE SALE OF SECURITIES IS EXEMPT FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO EXEMPT.

[Remainder of this page intentionally left blank.]

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

COMPANY:

IDENTIV, INC.

By:	/s/ Sandra Wallach
Name:	Sandra Wallach
Title:	Chief Financial Officer

Address:                                                                      

INVESTORS:

21 APRIL FUND, LTD.

By:	/s/ Michael Kellan
Name:	Michael Kellen
Title:	Portfolio Manager
21 APRIL FUND, LP.

By:	/s/ MichaelKellan
Name:	Michael Kellen
Title:	Portfolio Manager

IDENTIV, INC.

NOTE AND WARRANT PURCHASE AGREEMENT

SIGNATURE PAGE

SCHEDULE A

LIST OF INVESTORS

Closing May 5, 2020

Name and Address	Principal Amount of Note		Shares of Common Stock underlying Initial Warrant
21 April Fund, Ltd. Bank of America Merrill Lynch F/A/O 21 April Fund, LTD (843-26315D9) Asset Management Services 222 Broadway, 11th Floor New York, NY 10038 Attn: William J. Leggio william.j.leggio@bofa.com with a copy to: Bleichroeder LP 1345 Avenue of the Americas, 47th Fl New York, NY 10105 Attn: Michael Kellen 212-698-3191 Michael.kellen@bleichroederlp.com; ag@bleichroederlp.com; ops@bleichroederlp.com with a copy (which shall not constitute notice) to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 Attn: Mark Cognetti; Michael Brandt Email: mcognetti@willkie.com; mbrandt@willkie.com;	$	2,800,000		192,500

21 April Fund, LP Bank of America Merrill Lynch F/A/O 21 April Fund, LP (843-25315D0) Asset Management Services 222 Broadway, 11th Floor New York, NY 10038 Attn: William J. Leggio william.j.leggio@bofa.com with a copy to: Bleichroeder LP 1345 Avenue of the Americas, 47th Fl New York, NY 10105 Attn: Michael Kellen 212-698-3191 Michael.kellen@bleichroederlp.com; ag@bleichroederlp.com; ops@bleichroederlp.com with a copy (which shall not constitute notice) to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, NY 10019 Attn: Mark Cognetti; Michael Brandt Email: mcognetti@willkie.com; mbrandt@willkie.com;	$	1,200,000	82,500
Total:	$	4,000,000	275,000

EXHIBIT A

FORM OF CONVERTIBLE PROMISSORY NOTE

A-1

EXHIBIT B

FORM OF WARRANT

B-1

EXHIBIT C

SECURITY AGREEMENT

C-1

EXHIBIT D

SUBORDINATION AGREEMENT

D-1

EXHIBIT E

FORM OF EXTENSION WARRANT

E-1