Exhibit
10.3


 


SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as of October 30, 2018, between Ritter Pharmaceuticals,
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each,
including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 506(b) of Regulation D promulgated thereunder, the Company (i)
desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the Company,
securities of the Company and (ii) desires to issue and exchange with certain Purchasers, and each such Purchaser, severally and
not jointly, desires to deliver and exchange with the Company, securities of the Company, in each case as more fully described
in this Agreement.


 


NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement, and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the Company and each Purchaser agree as follows:


 


ARTICLE
I.

DEFINITIONS


 


1.1
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement: (a) capitalized
terms that are not otherwise defined herein have the meanings given to such terms in the Series B Certificate of Designation (as
defined herein), and (b) the following terms have the meanings set forth in this Section 1.1:


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.


 


“Action”
shall have the meaning ascribed to such term in Section 3.1(j).


 


“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.


 


“Base
Share Price” shall have the meaning ascribed to such term in Section 4.12(b).


 


“Board
of Directors” means the board of directors of the Company.


 


“Business
Day” means any day except any Saturday, any Sunday, any day which is 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.


 


“Closing”
means the simultaneous closing of the Purchase and the Exchange pursuant to Section 2.1.


 




    	 



    	 



    

 


“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (a) (i) the Purchasers’ obligations to pay the Subscription Amount to the
Company in the Purchase and (ii) the Company’s obligations to deliver the Purchased Securities to such Purchasers in the
Purchase, and (b) (i) the obligations of the Purchasers who are participating in the Exchange to deliver and exchange their Exchanged
Series A Preferred Shares and (ii) the Company’s obligations to deliver the Exchanged Series C Preferred Shares to such
Purchasers participating, severally and not jointly, in the Exchange, in each case, have been satisfied or, where legally permissible,
waived.


 


“Commission”
means the United States Securities and Exchange Commission.


 


“Common
Stock” means the common stock of the Company, par value $0.001 per share, and any other class of securities into which
such securities may hereafter be reclassified or changed.


 


“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.


 


“Company
Counsel” means Reed Smith LLP, with offices located at 1901 Avenue of the Stars, Suite 700, Lost Angeles, CA 90067-6708.


 


“Dilutive
Issuance” shall have the meaning ascribed to such term in Section 4.12(b).


 


“Disclosure
Schedules” shall have the meaning ascribed to such term in Section 3.1.


 


“Effective
Date” means the earliest of the date that (a) the initial Registration Statement has been declared effective by the
Commission, (b) all of the Series B Conversion Shares, Series C Conversion Shares and Warrant Shares have been sold pursuant to
Rule 144 or may be sold pursuant to Rule 144 without the requirement for the Company to be in compliance with the current public
information required under Rule 144 and without volume or manner-of-sale restrictions, (c) following the one year anniversary
of the Closing Date provided that a holder of Series B Conversion Shares, Series C Conversion Shares or Warrant Shares is not
an Affiliate of the Company, or (d) all of the Series B Conversion Shares, Series C Conversion Shares and Warrant Shares may be
sold pursuant to an exemption from registration under Section 4(a)(1) of the Securities Act without volume or manner-of-sale restrictions
and Company Counsel has delivered to such holders a standing written unqualified opinion that resales may then be made by such
holders of the Series B Conversion Shares, Series C Conversion Shares and Warrant Shares pursuant to such exemption which opinion
shall be in form and substance reasonably acceptable to such holders.


 




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“EMA”
shall have the meaning ascribed to such term in Section 3.1(kk).


 


“Escrow
Agent” means Collegiate Peaks Bank.


 


“Escrow
Agreement” means the escrow agreement entered into prior to the date hereof, by and among the Company, the Escrow Agent,
the Escrow Manager and the Placement Agent, pursuant to which the Purchasers shall deposit Subscription Amounts with the Escrow
Agent to be applied to the Purchase contemplated hereunder.


 


“Escrow
Manager” means Corporate Stock Transfer, Inc.


 


“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).


 


“Exchange”
means the exchange of all of the Exchanged Series A Securities by the Purchasers who are participating, severally and not jointly,
in the Exchange, for all of the Exchanged Series C Securities pursuant to this Agreement on the Closing Date.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.


 


“Exchanged
Securities” means, collectively, the Exchanged Series A Securities and the Exchanged Series C Securities.


 


“Exchanged
Series A Preferred Shares” means, collectively, the aggregate number of shares of Series A Preferred Stock that each
Purchaser participating, severally and not jointly, in the Exchange, has elected to exchange in the Exchange as specified below
such Purchaser’s name on the signature page of this Agreement.


 


“Exchanged
Series A Securities” means, collectively, the Exchanged Series A Preferred Shares and the Series A Conversion Shares
into which such Exchanged Series A Preferred Shares are convertible as of the Closing Date.


 


“Exchanged
Series C Preferred Shares” means, collectively, the aggregate number of shares of Series C Preferred Stock to be issued
by the Company in the Exchange to the Purchasers who are participating, severally and not jointly, in the Exchange pursuant to
this Agreement.


 


“Exchanged
Series C Securities” means, collectively, the Exchanged Series C Preferred Shares and the Series C Conversion Shares
into which such Exchanged Series C Preferred Shares are convertible as of the Closing Date.


 




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“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company
pursuant to any stock 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 Company, (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 this
Agreement, provided that such securities have not been amended since the date of this Agreement 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, and (c) securities issued pursuant to acquisitions
or strategic transactions approved by a majority of the disinterested directors of the Company, 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 Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities
primarily for the purpose of raising capital or to an entity whose primary business is investing in securities.


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.


 


“FDA”
shall have the meaning ascribed to such term in Section 3.1(kk).


 


“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).


 


“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(ss).


 


“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).


 


“Legend
Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).


 


“Liens”
means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


“Lock-Up
Period” shall have the meaning assigned to such term in Section 4.12(a).


 


“Material
Adverse Effect” shall have the meaning assigned to such term in Section 3.1(b).


 


“Material
Permits” shall have the meaning ascribed to such term in Section 3.1(n).


 


“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.


 


“Placement
Agency Agreement” means the Placement Agency Agreement, dated as of the date hereof, by and between the Company and
the Placement Agent.


 


“Placement
Agent” means A.G.P./Alliance Global Partners.


 




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“Placement
Agent’s Counsel” means Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with offices located at 666 Third
Avenue, New York, New York 10017.


 


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


 


“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.2(b).


 


“Public
Information Failure Payments” shall have the meaning ascribed to such term in Section 4.2(b).


 


“Purchase”
means the issuance and sale by the Company, and the purchase by the Purchasers, severally and not jointly, of all of the Purchased
Securities pursuant to this Agreement on the Closing Date.


 


“Purchased
Series B Preferred Shares” means, collectively, the aggregate number of shares of Series B Preferred Stock to be issued
and sold by the Company to the Purchasers in the Purchase pursuant to this Agreement.


 


“Purchased
Securities” means, collectively, the Purchased Series B Preferred Shares, the Series B Conversion Shares into which
such Purchased Series B Preferred Shares are convertible, the Warrants and the Warrant Shares.


 


“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated the date hereof, among the Company and the Purchasers,
substantially in the form of Exhibit C attached hereto.


 


“Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and
covering the resale by the Purchasers of the Series B Conversion Shares, the Series C Conversion Shares and the Warrant Shares.


 


“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).


 


“Required
Holders” means, as of the applicable date of determination, the Purchasers holding 60% of the then outstanding shares
of Series B Preferred Stock.


 


“Required
Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable
in the future pursuant to the Transaction Documents, including (i) the maximum number of Series B Conversion Shares issuable upon
conversion in full of all shares of Series B Preferred Stock, ignoring any conversion limits set forth therein and assuming that
any previously unconverted shares of Series B Preferred Stock are held until the third anniversary of the Closing Date, (ii) the
maximum number of Series C Conversion Shares issuable upon conversion in full of all shares of Series C Preferred Stock, ignoring
any conversion limits set forth therein and assuming that any previously unconverted shares of Series C Preferred Stock are held
until the third anniversary of the Closing Date, and (iii) the maximum number of Warrant Shares issuable upon exercise in full
of all Warrants, ignoring any exercise limits set forth therein.


 




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“Restricted
Period” shall have the meaning ascribed to such term in Section 4.12(b).


 


“Rule
144” means Rule 144 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
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.


 


“SEC
Reports” shall have the meaning ascribed to such term in Section 3.1(h).


 


“Securities”
means the Series B Preferred Stock, the Series B Conversion Shares, the Series C Preferred Stock, the Series C Conversion Shares,
the Warrants and the Warrant Shares.


 


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


 


“Series
A Certificate of Designation” means the Certificate of Designation of Preferences, Rights and Limitations of the Series
A Preferred Stock filed by the Company with the Secretary of State of the State of Delaware on September 29, 2017.


 


“Series
A Conversion Shares” shall have the meaning ascribed to the term “Conversion Shares” in the Series A Certificate
of Designation.


 


“Series
A Preferred Stock” means the Company’s Series A Convertible Preferred Stock, $0.001 par value per share, having
the rights, preferences and privileges set forth in the Series A Certificate of Designation.


 


“Series
B Certificate of Designation” means the Certificate of Designation of Preferences, Rights and Limitations of the Series
B Preferred Stock to be filed prior to the Closing by the Company with the Secretary of State of the State of Delaware, substantially
in the form of Exhibit A attached hereto.


 




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“Series
B Conversion Price” shall have the meaning ascribed to the term “Conversion Price” in the Series B Certificate
of Designation, and shall initially be $1.30 (subject to adjustment as described therein).


 


“Series
B Conversion Shares” shall have the meaning ascribed to the term “Conversion Shares” in the Series B Certificate
of Designation.


 


“Series
B Preferred Stock” means the aggregate of up to 6,000 shares of the Company’s Series B Convertible Preferred Stock
to be issued and sold in the Purchase hereunder, having the rights, preferences and privileges set forth in the Series B Certificate
of Designation.


 


“Series
C Certificate of Designation” means the Certificate of Designation of Preferences, Rights and Limitations of the Series
C Preferred Stock to be filed prior to the Closing by the Company with the Secretary of State of the State of Delaware, substantially
in the form of Exhibit B attached hereto.


 


“Series
C Conversion Price” shall have the meaning ascribed to the term “Conversion Price” in the Series C Certificate
of Designation, and shall initially be $1.64 (subject to adjustment as described therein).


 


“Series
C Conversion Shares” shall have the meaning ascribed to the term “Conversion Shares” in the Series C Certificate
of Designation.


 


“Series
C Preferred Stock” means the aggregate of up to 1,880 shares of the Company’s Series C Convertible Preferred Stock
to be issued and exchanged in the Exchange hereunder, having the rights, preferences and privileges set forth in the Series C
Certificate of Designation.


 


“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include locating and/or borrowing shares of Common Stock).


 


“Stated
Value” means $1,000 per share of Series B Preferred Stock.


 


“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Purchased Securities purchased by such Purchaser
hereunder in the Purchase, severally and not jointly, as specified below such Purchaser’s name on the signature page of
this Agreement and next to the heading “Subscription Amount,” in United States dollars and in immediately available
funds.


 


“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable, also include any direct
or indirect subsidiary of the Company formed or acquired after the date hereof.


 




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


 


“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 Nasdaq Capital Market, The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock
Exchange, the NYSE American, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any successors to any of the foregoing).


 


“Transaction
Documents” means this Agreement, the Series B Certificate of Designation, the Series C Certificate of Designation, the
Warrants, the Registration Rights Agreement, all exhibits and schedules hereto and thereto and any other documents or agreements
executed in connection with the transactions contemplated hereunder.


 


“Transfer
Agent” means Corporate Stock Transfer, Inc., the current transfer agent of the Company, with a mailing address of 3200
Cherry Creek South Drive, Suite 430, Denver, Colorado 80209 and a facsimile number of (303) 282-5800, and any successor transfer
agent of the Company.


 


“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.12(b).


 


“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then
listed or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based
on a Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading
Market, the volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX
as applicable, (c) if the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common
Stock are then reported in the “Pink Sheets” published by OTC Markets Group, Inc. (or a similar organization or agency
succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d)
in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected in good
faith by the Purchasers of a majority in interest of the Securities then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.


 


“Warrants”
means, collectively, the Common Stock purchase warrants, substantially in the form of Exhibit D attached hereto, delivered
to the Purchasers in the Purchase at the Closing in accordance with Section 2.2(a) hereof, which Warrants shall be exercisable
for a period of five (5) years commencing on the Closing Date.


 


“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.


 




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ARTICLE
II.

PURCHASE AND EXCHANGE


 


2.1
Purchase of Purchased Securities; Exchange of Exchanged Securities.


 


(a)
Purchase of Purchased Series B Preferred Shares and Warrants. On the Closing Date, upon the terms and subject to the conditions
set forth herein, the Company shall issue and sell to each Purchaser, and each Purchaser shall, severally and not jointly, purchase
from the Company, such number of Purchased Series B Preferred Shares equal to the quotient resulting from dividing (i) the Subscription
Amount for such Purchaser by (ii) the Stated Value, rounded down to the nearest whole share. In addition, each Purchaser shall
receive a Warrant to purchase a number of Warrant Shares equal to the product of (A) 0.5 multiplied by (B) the quotient resulting
from dividing (x) the total aggregate Stated Value of all Purchased Series B Preferred Shares purchased by such Purchaser in the
Purchase by (y) the initial Series B Conversion Price set forth in the Series B Certificate of Designation, rounded to the nearest
whole share, and ignoring any conversion limits set forth in the Series B Certificate of Designation), with an exercise price
equal to $1.30, subject to adjustment therein.


 


(b)
Exchange of Exchanged Securities. On the Closing Date, upon the terms and subject to the conditions set forth herein, each
Purchaser participating, severally and not jointly, in the Exchange shall exchange such Purchaser’s Exchanged Series A Preferred
Shares, if any, for the Exchanged Series C Preferred Shares to be issued by the Company in exchange for such Purchaser’s
Exchanged Series A Preferred Shares, on a 1-for-1 share basis.


 


2.2
Section 4(a)(2) and Rule 506(b) of Regulation D. (i) The offer, issuance and sale of the Purchased Securities by the Company
to the Purchasers in the Purchase and (ii) the issuance and exchange of the Exchanged Series C Securities by the Company for the
Exchanged Series A Securities in the Exchange, in each case pursuant to this Agreement, will be effected without registration
under the Securities Act in reliance upon the exemption therefrom provided by Section 4(a)(2) of the Securities Act and Rule 506(b)
of Regulation D promulgated thereunder. Each Purchaser, severally for itself and for no other Purchaser, acknowledges that the
Company is relying upon the truth and accuracy of, and such Purchaser’s compliance with, such Purchaser’s respective
representations, warranties, agreements, acknowledgments and understandings set forth herein in order to determine the availability
of such exemptions and the eligibility of such Purchaser to participate, severally and not jointly, in the Purchase and, if applicable
to such Purchaser, the Exchange.


 


2.3
Closing of Purchase and Exchange. On the Closing Date, upon satisfaction of the covenants and conditions set forth in Sections
2.4 and 2.5, the Closing of both the Purchase and the Exchange shall occur simultaneously at the offices of Placement Agent’s
Counsel or such other location as the parties shall mutually agree.


 




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2.4
Deliveries.


 


(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:


 


(i)
this Agreement duly executed by the Company;


 


(ii)
a legal opinion of Company Counsel, addressed to the Purchasers and the Placement Agent, in the form and substance reasonably
satisfactory to the Purchasers and the Placement Agent;


 


(iii)
evidence of the filing and acceptance of the Series B Certificate of Designation and the Series C Certificate of Designation from
the Secretary of State of the State of Delaware;


 


(iv)
for each Purchaser, as applicable, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent
to deliver, within three (3) Trading Days of the Closing, a certificate or in book entry form, at the Purchaser’s election
(unless a Purchaser indicates otherwise, shares of Series B Preferred Stock and shares of Series C Preferred Stock, as applicable,
shall be delivered in book entry form), registered in the name of such Purchaser (1) the number of Purchased Series B Shares such
Purchaser is purchasing, as determined in accordance with Section 2.1(a) of this Agreement and (2) if such Purchaser is participating,
severally and not jointly, in the Exchange hereunder, the number of Exchanged Series C Preferred Shares such Purchaser is entitled
to receive for its Exchanged Series A Preferred Shares, as determined in accordance with Section 2.1(b) of this Agreement;


 


(v)
a Warrant registered in the name of such Purchaser to purchase the number of Warrant Shares, as determined in accordance with
Section 2.1(a) of this Agreement;


 


(vi)
wire instructions from the Escrow Agent for payment of each Purchaser’s Subscription Amount to the Escrow Agent;


 


(vii)
for each Purchaser participating, severally and not jointly, in the Exchange, instructions from the Transfer Agent for delivery
of such Purchaser’s Exchanged Series A Preferred Shares; and


 


(viii)
the Registration Rights Agreement duly executed by the Company.


 


(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the Transfer Agent, or
the Escrow Agent, as applicable, the following:


 


(i)
this Agreement duly executed by such Purchaser;


 


(ii)
to the Escrow Agent, such Purchaser’s Subscription Amount by wire transfer in accordance with the wire instructions provided
by the Company pursuant to Section 2.4(a)(vi) of this Agreement;


 




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(iii)
if such Purchaser is participating in the Exchange, to the Transfer Agent, (A) such Purchaser’s Exchanged Series A Preferred
Shares to be exchanged by such Purchaser hereunder, by instructing such Purchaser’s broker to transfer and deliver, in accordance
with the written delivery instructions of the Transfer Agent referred to in Section 2.4(a)(vii), such Purchaser’s Exchanged
Series A Preferred Shares, and (B) all documentation related to the right, title and interest in and to all of such Purchaser’s
Exchanged Series A Preferred Shares, and whatever documents of conveyance or transfer may be necessary or reasonably required
by the Transfer Agent to transfer to and confirm in the Company all right, title and interest in and to (free and clear of any
mortgage, lien, pledge, charge, security interest, encumbrance, title retention agreement, option, equity or other adverse claim
thereto) such Purchaser’s Exchanged Series A Shares; and


 


(iv)
the Registration Rights Agreement duly executed by such Purchaser.


 


2.5
Closing Conditions.


 


(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:


 


(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) on the Closing Date of the representations and warranties of the Purchasers contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);


 


(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed;


 


(iii)
the delivery by each Purchaser of the items set forth in Section 2.4(b) of this Agreement, as applicable; and


 


(iv)
each of the Series B Certificate of Designation and the Series C Certificate of Designation shall have been filed and be effective
in the State of Delaware.


 


(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions
being met:


 


(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained
herein (unless as of a specific date therein in which case they shall be accurate as of such date);


 




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(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;


 


(iii)
the delivery by the Company of the items set forth in Section 2.4(a) of this Agreement, as applicable;


 


(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof;


 


(v)
the Company shall have filed with Nasdaq a Notification Form: Listing of Additional Shares for the listing of Series B Conversion
Shares, Series C Conversion Shares and Warrant Shares on Nasdaq;


 


(vi)
each of the Series B Certificate of Designation and the Series C Certificate of Designation shall have been filed and be effective
in the State of Delaware; and


 


(vii)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are
reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national
or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in
each case, in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Purchased Securities
and/or, if such Purchaser is also participating, severally and not jointly, in the Exchange, inadvisable to exchange the Exchanged
Securities, in each case at the Closing.


 


ARTICLE
III.

REPRESENTATIONS AND WARRANTIES


 


3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof and shall qualify any representation or otherwise made herein to the extent of the disclosure contained
in the corresponding section of the Disclosure Schedules, the Company hereby makes the following representations and warranties
to each Purchaser and the Placement Agent:


 


(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company
owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens,
and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities. If the Company has no subsidiaries, all other
references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.


 




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(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, would not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in
any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 


(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of each of this Agreement and the other Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action
on the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.


 




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(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Purchased Securities, the issuance and Exchange of the Exchanged Series C
Securities and the consummation by it of the transactions contemplated hereby and thereby, including, without limitation, the
Purchase and the Exchange, do not and will not: (i) conflict with or violate any provision of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any
Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities
laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case
of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in a Material Adverse Effect.


 


(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of,
give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission pursuant to the
Registration Rights Agreement, (iii) the notice and/or application(s) to each applicable Trading Market for the issuance and sale
of the Purchased Securities, the issuance and Exchange of the Exchanged Series C Securities, and the listing of the Series B Conversion
Shares, the Series C Conversion Shares and the Warrant Shares for trading thereon in the time and manner required thereby, (iv)
the filing of Form D with the Commission and such filings as are required to be made under applicable state securities laws, and
(v) the filing of each of the Series B Certificate of Designation and the Series C Certificate of Designation with the office
of the Secretary of State of the State of Delaware (collectively, the “Required Approvals”).


 


(f)
Issuance of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company other than restrictions on transfer provided for in the Transaction Documents. The Series B Conversion Shares, when issued
in accordance with the terms of the Series B Certificate of Designation, will be validly issued, fully paid and nonassessable,
free and clear of all Liens imposed by the Company other than restrictions on transfer provided for in the Series B Certificate
of Designation and this Agreement. The Series C Conversion Shares, when issued in accordance with the terms of the Series C Certificate
of Designation, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other
than restrictions on transfer provided for in the Series C Certificate of Designation and this Agreement. The Warrant Shares,
when issued in accordance with the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear
of all Liens imposed by the Company other than restrictions on transfer provided for in the Warrants and this Agreement. The Company
has reserved from its duly authorized capital stock a total number of shares of Common Stock for issuance as Series B Conversion
Shares upon conversion of the Series B Preferred Stock, for issuance as Series C Conversion Shares upon conversion of the Series
C Preferred Stock and for issuance as Warrant Shares upon exercise of the Warrants in an aggregate amount at least equal to the
Required Minimum as of the date hereof.


 




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(g)
Capitalization. The capitalization of the Company is as set forth on Schedule 3.1(g). The Company has not issued
any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of
employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant
to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic report 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. Except as a result of the Purchase of the Purchased Securities and the Exchange of the Exchanged Securities,
and as described on Schedule 3.1(g), there are no outstanding options, warrants, scrip rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable
for, or giving any Person any right to subscribe for or acquire any shares of Common Stock or the capital stock of any Subsidiary,
or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue
additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. Except as described on Schedule
3.1(g), the issuance and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common
Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under any of such securities. There are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security
of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans
or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized, validly issued,
fully paid and nonassessable, have been issued in compliance with all applicable federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
No further approval or authorization of any stockholder, the Board of Directors or others is required for the Purchase of the
Purchased Securities and the Exchange of the Exchanged Securities. 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.


 




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(h)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation
to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective
dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as
applicable, and none of the SEC Reports, when filed, 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 the light of the circumstances under
which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The
financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission 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 and its consolidated Subsidiaries 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.


 


(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Since December 31, 2017, except as specifically disclosed
in an SEC Report filed with the Commission after December 31, 2017 and prior to the date hereof: (i) there has been no event,
occurrence or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its
method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its
stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company
has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans.
The Company does not have pending before the Commission any request for confidential treatment of information. Except for the
Purchase of the Purchased Securities and the Exchange of the Exchanged Securities contemplated by this Agreement or as set forth
on Schedule 3.1(i), 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 Subsidiaries or their respective businesses, 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 1 Trading Day prior to the date that
this representation is made.


 




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(j)
Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the knowledge
of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by
any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or enforceability
of any of the Transaction Documents or the Securities or (ii) would, if there were an unfavorable decision, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or officer thereof
(in his or her capacity as such), is or has been the subject of any Action involving a claim of violation of or liability under
federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or officer of the Company (in his or her capacity as such). The Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities
Act.


 


(k)
Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any
of the employees of the Company, which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s
or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company
or such Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the
Company and its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company,
no executive officer of the Company or any Subsidiary is, or is now expected to be, in violation of any material term of any employment
contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement, or any other contract
or agreement or any restrictive covenant in favor of any third party, and, to the Company’s knowledge, the continued employment
of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of
the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state, local and foreign
laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours,
except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.


 


(l)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary
under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation
of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree,
or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance
or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating
to taxes, environmental protection, occupational health and safety, product quality and safety and employment and labor matters,
except in each case as would not have or reasonably be expected to result in a Material Adverse Effect.


 




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(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws
relating to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land
surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials that are applicable to the Company’s business, as well as all authorizations, codes,
decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans or regulations,
issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii)
are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii),
the failure to so comply would be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(n)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described
in the SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material
Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material Permit.


 


(o)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and
the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries
and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance
with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company
and the Subsidiaries are in compliance.


 




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(p)
Intellectual Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights as described in the SEC Reports as necessary or required for use in connection with their respective
businesses and which the failure to so have would have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2)
years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited
financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual
Property Rights violate or infringe upon the rights of any Person, except as would not have or reasonably be expected to not have
a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except
where failure to do so would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(q)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries
are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary
has been notified in writing that it will not be able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase
in cost.


 


(r)
Transactions With Affiliates and Employees. Except as set forth in the Company’s definitive proxy statement on Schedule
14A filed with the Commission on May 15, 2018, none of the officers or directors of the Company or any Subsidiary and, to the
knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or
from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000
other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf
of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.


 




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(s)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and
all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing
Date. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance
that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken
with respect to any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and
procedures to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange
Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s rules and forms.
The Company’s certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company
and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such
date, the “Evaluation Date”). The Company presented in its most recently filed periodic report under the Exchange
Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or
is reasonably likely to materially affect, the internal control over financial reporting of the Company or its Subsidiaries.


 


(t)
Certain Fees. Other than fees to the Placement Agent, no brokerage or finder’s fees or commissions are or will be
payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker,
bank or other Person with respect to the transactions contemplated by the Transaction Documents. No Purchasers shall have any
obligation with respect to any fees or with respect to any claims (other than such fees or commissions owed by such Purchaser
pursuant to agreements entered into by such Purchaser, which fees or commissions shall be the sole responsibility of such Purchaser)
made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions
contemplated by the Transaction Documents due to an arrangement or agreement made by the Company.


 


(u)
Private Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
no registration under the Securities Act is required for (i) the offer, issuance and sale of the Purchased Securities by the Company
to the Purchasers in the Purchase and (ii) the issuance and exchange of the Exchanged Series C Securities by the Company for the
Exchanged Series A Securities in the Exchange as contemplated hereby pursuant to the exemptions from the registration requirements
of the Securities Act provided by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D promulgated thereunder.
Neither (i) the offer, issuance and sale of the Purchased Securities by the Company to the Purchasers in the Purchase or (ii)
the issuance and exchange of the Exchanged Series C Securities by the Company for the Exchanged Series A Securities in the Exchange,
contravenes the rules and regulations of the Trading Market or requires any registration or qualification to be made under any
applicable state securities or “blue sky” laws.


 




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(v)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Purchased
Securities, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company
Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.


 


(w)
Registration Rights. Other than each of the Purchasers and except as set forth on Schedule 3.1(w), no Person has any right
to cause the Company to effect the registration under the Securities Act of any securities of the Company or any Subsidiary.


 


(x)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the
registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. Except as described on Schedule 3.1(x), the Company has not, in the 12 months preceding the date
hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is, and has no reason
to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance requirements.
The Common Stock is currently eligible for electronic transfer through the Depository Trust Company or another established clearing
corporation and the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing
corporation) in connection with such electronic transfer.


 


(y)
Application of Takeover Protections. Except as described on Schedule 3.1(y), the Company and the Board of Directors have
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 under the Company’s
certificate of incorporation, as amended to date (or similar charter documents), or the laws of its state of incorporation that
is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance
of the Securities and the Purchasers’ ownership of the Securities, as applicable.


 




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(z)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or might constitute material, non-public information.
The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in
securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company
and its Subsidiaries, their respective businesses and the transactions contemplated hereby is true and correct in all material
respects and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges
and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof.


 


(aa)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the
transactions contemplated hereunder, including, without limitation, the Purchase and the Exchange, to be integrated with prior
offerings by the Company for purposes of (i) the Securities Act which would require the registration of any such securities under
the Securities Act, or (ii) any applicable stockholder approval provisions of any Trading Market on which any of the securities
of the Company are listed or designated.


 


(bb)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (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, other than those being contested in good faith for which adequate reserves
have been established by the Company 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. There are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or
of any Subsidiary know of no basis for any such claim.


 


(cc)
No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of
the Securities by any form of general solicitation or general advertising. The Company has offered the Purchased Securities for
sale only to the Purchasers and certain other “accredited investors” within the meaning of Rule 501 under the Securities
Act and has offered the Exchanged Series C Securities only to those Purchasers who hold shares of Series A Preferred Stock.


 




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(dd)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any
unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns
from corporate funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person
acting on its behalf of which the Company is aware) which is in violation of law or (iv) violated in any material respect any
provision of FCPA.


 


(ee)
Accountants. To the Company’s knowledge, the Company’s accounting firm, Mayer Hoffman McCann P.C., who have
expressed their opinion with respect to the financial statements included in the Company’s Annual Report on Form 10-K for
the fiscal year ended December 31, 2017, is an independent registered public accounting firm as required by the Exchange Act.


 


(ff)
No Disagreements with Accountants and Lawyers.To the Company’s knowledge, there are no disagreements of any kind
presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants and lawyers formerly
or presently employed by the Company which would reasonably be likely to affect the Company’s ability to perform any of
its obligations under any of the Transaction Documents. The Company is current with respect to any fees owed to its accountants
or lawyers which would reasonably be expected to adversely affect the Company’s ability to perform any of its obligations
under any of the Transaction Documents. 


 


(gg)
Acknowledgment Regarding Purchasers’ Investment in Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the
transactions contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby
and any advice given by any Purchaser or any of their respective representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to the Purchasers’ investment in the Securities.
The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company
and its representatives.


 




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(hh)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(g) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none
of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling,
long and/or short, securities of the Company, or “derivative” securities based on securities issued by the Company
or to hold the Securities for any specified term, (ii) past or future open market or other transactions by any Purchaser, specifically
including, without limitation, Short Sales or “derivative” transactions, before or after the closing of this or future
private placement transactions, may negatively impact the market price of the Company’s publicly-traded securities, (iii)
any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a party, directly or
indirectly, may presently have a “short” position in the Common Stock and (iv) each Purchaser shall not be deemed
to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various times
during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the
Series B Conversion Shares issuable upon conversion of the Series B Preferred Stock, the Series C Conversion Shares issuable upon
conversion of the Series C Preferred Stock or the Warrant Shares issuable upon exercise of the Warrants are being determined,
and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company
at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging
activities do not constitute a breach of any of the Transaction Documents.


 


(ii)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation
for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting
another to purchase any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid
to the Placement Agent in connection with the transactions contemplated hereby.


 


(jj)
Regulatory. All preclinical and clinical studies conducted by or on behalf of the Company that are material to the Company
have been adequately described in the SEC Reports, in all material respects. The clinical and preclinical studies conducted by
or on behalf of the Company that are described in the SEC Reports or the results of such studies which are referred to in the
SEC Reports were and, if still ongoing, are, to the best of the Company’s knowledge, being conducted in material compliance
with all laws and regulations applicable thereto in the jurisdictions in which they are being conducted. The descriptions in the
SEC Reports of the results of such studies are accurate and complete in all material respects and fairly present the data derived
from such studies, and the Company has no knowledge of any large well-controlled clinical study the aggregate results of which
are inconsistent with or otherwise call into question the results of any clinical study conducted by or on behalf of the Company
that are described in the SEC Reports or the results of which are referred to in the SEC Reports. Except as disclosed in the SEC
Reports, the Company has not received any written notices or statements from the FDA, the European Medicines Agency (“EMA”)
or any other governmental agency or authority imposing, requiring, requesting or suggesting a clinical hold, termination, suspension
or material modification of any clinical or preclinical studies that are described in the SEC Reports or the results of which
are referred to in the SEC Reports. Except as disclosed in the SEC Reports, the Company has not received any written notices or
statements from the FDA, the EMA or any other governmental agency, and otherwise has no knowledge of, or reason to believe that,
(i) any investigational new drug application for potential product of the Company is or has been rejected or determined to be
non-approvable or conditionally approvable; and (ii) any license, approval, permit or authorization to conduct any clinical trial
of any potential product of the Company has been, will be or may be suspended, revoked, modified or limited.


 




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(kk)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i)
in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair
market value of the Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock
option granted under the Company’s stock option plan has been backdated. The Company has not knowingly granted, and there
is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate
the grant of stock options with, the release or other public announcement of material information regarding the Company or its
Subsidiaries or their financial results or prospects.


 


(ll)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 


(mm)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.


 


(nn)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding
Company Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls,
directly or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent
or more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Subsidiaries or Affiliates exercises a controlling influence over the management or policies of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


(oo)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company or any Subsidiary, threatened.


 




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(pp)
No Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506 under
the Securities Act, none of the Company, any of its predecessors, or any affiliated issuer, nor any director, executive officer,
other officer of the Company participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule
405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered
Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor”
disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”),
except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine
whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable,
with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a copy of any disclosures provided thereunder.


 


(qq)
Other Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered
Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with
the transactions contemplated hereby.


 


(rr)
Notice of Disqualification Events. The Company will notify the Purchasers and the Placement Agent in writing, prior to
the Closing Date of (i) any Disqualification Event of which it becomes aware relating to any Issuer Covered Person and (ii) any
event that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.


 


(ss)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the net proceeds from the sale of the Purchased Series B Preferred Shares and Warrants to the Purchasers
in the Purchase hereunder, the fair saleable value of the Company’s assets exceeds the amount that will be required to be
paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as
they mature, and (ii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate
all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its liabilities when such amounts are required to be paid. The Company does not presently intend to incur material
debts beyond its ability to pay such material debts as they mature (taking into account the timing and amounts of cash to be payable
on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will
file for voluntary reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within six (6)
months from the Closing Date. As of the date hereof, neither the Company nor any Subsidiary is in default with respect to any
Indebtedness. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money
or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all
guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or
should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present
value of any lease payments in excess of $100,000 due under leases required to be capitalized in accordance with GAAP.


 




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3.2
Representations and Warranties of the Purchasers. Each Purchaser, severally for itself and for no other Purchaser, hereby
represents and warrants as of the date hereof and as of the Closing Date to the Company and the Placement Agent (and solely with
respect to the representations and warranties contained in Section 3.2(n) below made only by each Purchaser who is participating
in the Exchange, to each other Purchaser participating in the Purchase hereunder) as follows (unless as of a specific date therein,
in which case they shall be accurate as of such date):


 


(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership,
limited liability company or similar power and authority to enter into and to consummate the transactions contemplated by the
Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction
Documents and performance by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized
by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part of such Purchaser.
Each Transaction Document to which it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser
in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against
it in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.


 


(b)
Own Account. Such Purchaser understands that the Securities are “restricted securities” and have not been registered
under the Securities Act or any applicable state securities law and is acquiring the Securities as principal for its own account
and not with a view to or for distributing or reselling such Securities or any part thereof in violation of the Securities Act
or any applicable state securities law, has no present intention of distributing any of such Securities in violation of the Securities
Act or any applicable state securities law and has no direct or indirect arrangement or understandings with any other persons
to distribute or regarding the distribution of such Securities in violation of the Securities Act or any applicable state securities
law (this representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration
Statement or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Securities
hereunder in the ordinary course of its business.


 




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(c)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on
each date on which it exercises any Warrants or converts any Series B Preferred Stock or any Series C Preferred Stock (as applicable),
it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under
the Securities Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under the Securities Act.


 


(d)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk
of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment. Such Purchaser
and its advisors, if any, have been furnished with all materials relating to the business, financial condition and results of
operations of the Company, and materials relating to the offer and sale of the Securities, that have been requested by such Purchaser
or its advisors, if any. Such Purchaser acknowledges and understands that its investment in the Securities involves a significant
degree of risk.


 


(e)
General Solicitation. Such Purchaser is not purchasing or acquiring the Securities as a result of any advertisement, article,
notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to such Purchaser’s knowledge, any other general solicitation or general
advertisement.


 


(f)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents
(including all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions
as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions
of the Purchase of the Purchased Securities and the Exchange of the Exchanged Securities and the merits and risks of investing
in the Securities; (ii) access to information about the Company and its financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such
additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement
Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the
Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired
non-public information with respect to the Company which such Purchaser agrees need not be provided to it. In connection with
the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial
advisor or fiduciary to such Purchaser.


 




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(g)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that
such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting
forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions
made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall
only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase
or acquire the Securities covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s
representatives (including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents
and Affiliates), bound by a duty of confidentiality to such Purchaser and whom such Purchaser has taken reasonable actions to
cause them to maintain such confidentiality, such Purchaser has maintained the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for the
avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions
with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities
of the Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar
transactions in the future.


 


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


 


(i)
No Conflicts. The execution, delivery and performance by such Purchaser of this Agreement and the consummation by such
Purchaser of the transactions contemplated hereby will not (i) result in a violation of the organizational documents of such Purchaser
or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which such Purchaser 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 such Purchaser, except in the case of clauses (ii) and (iii) above, for such
that are not material and do not otherwise affect the ability of such Purchaser to consummate the transactions contemplated hereby.


 




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(j)
No Legal, Tax or Investment Advice. Such Purchaser understands that nothing in this Agreement or any other materials presented
by or on behalf of the Company to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment
advice. Such Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary
or appropriate in connection with its purchase of the Securities. Such Purchaser understands that the Placement Agent has acted
solely as the agents of and advisors to the Company in this placement of the Securities and not as agents to or advisors of the
Purchaser, and that the Placement Agent makes no representation or warranty with regard to the merits of this transaction or as
to the accuracy of any information such Purchaser may have received in connection therewith. Such Purchaser acknowledges that
he/she has not relied on any information or advice furnished by or on behalf of the Placement Agent.


 


(k)
Title to Exchanged Series A Securities. If such Purchaser is participating, severally and not jointly, in the Exchange,
such Purchaser (i) has good and valid title to the Exchanged Series A Securities , free and clear of any mortgage, lien, pledge,
charge, security interest, encumbrance, title retention agreement, option, equity or other adverse claim thereto, and (ii) has
not, in whole or in part, (A) assigned, transferred, hypothecated, pledged or otherwise disposed of the Exchanged Series A Securities
or its rights in such Exchanged Series A Securities or (B) given any Person any transfer order, power of attorney or other authority
of any nature whatsoever with respect to such Exchanged Series A Securities, which would limit such Purchaser’s power to
transfer the Exchanged Series A Securities hereunder.


 


(l)
Affiliate Status. Such Purchaser is not, and has not been during the preceding three months, an “affiliate”
of the Company as such term is defined in Rule 144 under the Securities Act.


 


(m)
Beneficial Ownership. Following the Closing Date, such Purchaser (together with such Purchaser’s Affiliates, and
any other Persons acting as a group together with the Purchaser or any of the Purchaser’s Affiliates) will not beneficially
own in excess of 19.9% of the number of shares of Common Stock outstanding immediately after the Closing Date. Beneficial ownership
shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder.


 


(n)
Acquisition Date of Exchanged Series C Preferred Securities. Each Purchaser receiving Exchanged Series C Preferred Securities
in the Exchange acknowledges and agrees that, for purposes of Rule 144, the Exchanged Series C Preferred Securities will be deemed
to have been acquired on the Closing Date and shall not assume the registered character of the Exchanged Series A Preferred Shares.
The Company, the Placement Agent and each of the Purchasers of the Purchased Securities (other than such Purchaser) are relying
upon the truth and accuracy of such Purchaser’s acknowledgment and understanding contained in this Section 3.2(n) in deciding
whether to participate in the Purchase hereunder.


 


The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transactions contemplated hereby.


 




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ARTICLE
IV.

OTHER AGREEMENTS OF THE PARTIES


 


4.1
Transfer Restrictions.


 


(a)
The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of
Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser
or in connection with a pledge as contemplated in Section 4.1(b), 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 the Registration Rights Agreement and shall have the rights and obligations of
a Purchaser under this Agreement and the Registration Rights Agreement.


 


(b)
The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in the
following form:


 


[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE] [CONVERTIBLE]] HAS [NOT] 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. THIS
SECURITY [AND THE SECURITIES ISSUABLE UPON [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA
FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR”
AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.


 


The
Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a
registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited
investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement
and the Registration Rights Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged
or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company
and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further,
no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver
such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or
transfer of the Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement,
the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of Selling Stockholders (as defined in the Registration Rights
Agreement) thereunder.


 




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(c)
Instruments, whether certificated or uncertificated, evidencing the Series B Conversion Shares, the Series C Conversion Shares
and the Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof), (i) while a registration
statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii)
following any sale of such Series B Conversion Shares, Series C Conversion Shares or Warrant Shares pursuant to Rule 144, (iii)
if such Series B Conversion Shares, Series C Conversion Shares or Warrant Shares 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 as to such Series
B Conversion Shares, Series C Conversion Shares and Warrant Shares and without volume or manner-of-sale restrictions, or (iv)
if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements
issued by the staff of the Commission). Promptly after the Effective Date, the Company shall cause its counsel to issue a legal
opinion to the Transfer Agent if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any Series
B Preferred Stock or Series C Preferred Stock is converted or all or any portion of a Warrant is exercised at a time when there
is an effective registration statement to cover the resale of the Series B Conversion Shares, Series C Conversion Shares or Warrant
Shares, as applicable, or if such Series B Conversion Shares, Series C Conversion Shares or Warrant Shares, as applicable, may
be sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if
the Series B Conversion Shares, Series C Conversion Shares or Warrant Shares, as applicable, may be sold under Rule 144 without
the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such Series
B Conversion Shares, Series C Conversion Shares or Warrant Shares or if such legend is not otherwise required under applicable
requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission)
then such Series B Conversion Shares, Series C Conversion Shares and Warrant Shares, as applicable, shall be issued free of all
legends. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this
Section 4.1(c), it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising
the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the Transfer Agent of
a certificate or book entry (at the election of such Purchaser, provided absent instructions to the contrary the default shall
be book-entry) representing Series B Conversion Shares, Series C Conversion Shares or Warrant Shares, as the case may be, issued
with a restrictive legend (such third Trading Day, the “Legend Removal Date”), deliver or cause to be delivered
to such Purchaser a certificate or book entry (at the election of such Purchaser, provided absent instructions to the contrary
the default shall be book-entry) representing such shares that is free from all restrictive and other legends. The Company may
not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set
forth in this Section 4. Instruments, whether certificated or uncertificated, for Securities subject to legend removal hereunder
shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with
the Depository Trust Company System as directed by such Purchaser. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with
respect to the Common Stock as in effect on the date of delivery of a certificate or book entry (at the election of such Purchaser,
provided absent instructions to the contrary the default shall be book-entry) representing Series B Conversion Shares, Series
C Conversion Shares or Warrants Shares, as the case may be, issued with a restrictive legend.


 




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(d)
In addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial
liquidated damages and not as a penalty, for each $1,000 of Series B Conversion Shares and Warrant Shares (based on the VWAP of
the Common Stock on the date such Series B Conversion Shares and Warrant Shares are submitted to the Transfer Agent) delivered
for removal of the restrictive legend (as applicable) and subject to Section 4.1(c), $5 per Trading Day (increasing to $10 per
Trading Day ten (10) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date
until such evidence representing the Series B Conversion Shares or Warrant Shares (as applicable), whether certificated or uncertificated,
is delivered without a legend and (ii) if the Company fails to (A) issue and deliver (or cause to be delivered) to a Purchaser
by the Legend Removal Date evidence, whether certificated or uncertificated, representing the Series B Conversion Shares or Warrant
Shares (as applicable) so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (B)
if after the Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale
of a number of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser
anticipated receiving from the Company without any restrictive legend, then, an amount equal to the excess of such Purchaser’s
total purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the shares of Common Stock
so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”)
over the product of (1) such number of Series B Conversion Shares and Warrant Shares (as the case may be) that the Company was
required to deliver to such Purchaser by the Legend Removal Date multiplied by (2) the lowest closing sale price of the Common
Stock on any Trading Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable
Series B Conversion Shares and Warrant Shares (as the case may be) and ending on the date of such delivery and payment under this
clause (d).


 




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(e)
With respect to a Purchaser that is participating in the Exchange, in addition to such Purchaser’s other available remedies,
the Company shall pay to a Purchaser that has participated in the Exchange, in cash, (i) as partial liquidated damages and not
as a penalty, for each $1,000 of Series C Conversion Shares (based on the VWAP of the Common Stock on the date such Series C Conversion
Shares are submitted to the Transfer Agent) delivered for removal of the restrictive legend (as applicable) and subject to Section
4.1(c), $5 per Trading Day (increasing to $10 per Trading Day ten (10) Trading Days after such damages have begun to accrue) for
each Trading Day after the Legend Removal Date until such evidence representing the Series C Conversion Shares, whether certificated
or uncertificated, is delivered without a legend and (ii) if the Company fails to (A) issue and deliver (or cause to be delivered)
to a Purchaser by the Legend Removal Date evidence, whether certificated or uncertificated, representing the Series C Conversion
Shares so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (B) if after the
Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in
satisfaction of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number
of shares of Common Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated
receiving from the Company without any restrictive legend, then, an amount equal to the Buy-In Price over the product of (1) such
number of Series C Conversion Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied
by (2) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery
by such Purchaser to the Company of the applicable Series C Conversion Shares and ending on the date of such delivery and payment
under this clause (e).


 


(f)
Each Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any
Securities pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold
in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from
instruments representing Securities as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this
understanding.


 


4.2
Furnishing of Information; Public Information.


 


(a)
Until the earliest of the time that (i) no Purchaser owns Securities or (ii) the Warrants have expired, the Company covenants
to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after
the date hereof pursuant to the Exchange Act, even if the Company is not then subject to the reporting requirements of the Exchange
Act.


 




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(b)
At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all
of the Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without
restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information
requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future,
and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”)
then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial
liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities, an
amount in cash equal to one-and-a-half percent (1.5%) of the aggregate Subscription Amount of such Purchaser’s Securities
on the day of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than
thirty days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such
public information is no longer required for the Purchasers to transfer the Series B Conversion Shares, the Series C Conversion
Shares and the Warrant Shares pursuant to Rule 144, subject to a maximum cap of eight percent (8.0%). The payments to which a
Purchaser shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure Payments.”
Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public
Information Failure Payments are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise
to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments
in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1.0% per month (prorated for partial
months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information
Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief.


 


4.3
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, sale or exchange of the Securities
in the Purchase and the Exchange hereunder in a manner that would require the registration under the Securities Act of such offer,
sale or exchange of the Securities or that would be integrated with such offer, sale or exchange of the Securities for purposes
of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such
other transaction unless shareholder approval is obtained before the closing of such subsequent transaction.


 




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4.4
Securities Laws Disclosure; Publicity. The Company shall (a) by 9:00 a.m. (New York City time) on the Trading Day immediately
following the date hereof, issue a press release disclosing the material terms of the transactions contemplated hereby, and (b)
file a Current Report on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission within the time
required by the Exchange Act. From and after the issuance of such press release, the Company represents to the Purchasers that
it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers by the Company or any
of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions contemplated
by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges and agrees
that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any
of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and any of
the Purchasers or any of their Affiliates on the other hand, shall terminate (unless otherwise agreed between such parties in
separate written confidentiality or similar agreements, the terms of which shall not otherwise be modified by this provision).
The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such
public statement without the prior consent of the Company, with respect to any press release of any Purchaser, or without the
prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably be withheld
or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly
disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency
or Trading Market, without the prior written consent of such Purchaser, except: (a) as required by federal securities law in connection
with (i) any registration statement contemplated by the Registration Rights Agreement and (ii) the filing of final Transaction
Documents with the Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which
case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).


 


4.5
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue
of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.


 


4.6
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.4, the Company covenants and agrees that neither it, nor
any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes,
or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have
consented to the receipt of such information and agreed with the Company to keep such information confidential. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
To the extent that the Company delivers any material, non-public information to a Purchaser without such Purchaser’s consent,
the Company hereby covenants and agrees that such purchaser shall not have any duty of confidentiality to Company, any of its
Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company, and of
its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that
any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding
the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting
transactions in securities of the Company.


 




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4.7
Use of Proceeds. Except as set forth on Schedule 4.7 attached hereto, the Company shall use the net proceeds from
the sale of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of
any portion of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business
and prior practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding
litigation or (d) in violation of FCPA or OFAC regulations.


 


4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each
Purchaser and its directors, officers, shareholders, members, partners, employees and agents (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), each Person who controls
such Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors,
officers, shareholders, agents, members, partners or 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 such controlling persons (each, a “Purchaser
Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses,
including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation
that any such Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action
instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of
the Company who is not an Affiliate of such Purchaser Parties, with respect to any of the transactions contemplated by the Transaction
Documents (unless such action is based upon a breach of such Purchaser Party’s representations, warranties or covenants
under the Transaction Documents or any agreements or understandings such Purchaser Parties may have with any such stockholder
or any violations by such Purchaser Parties of state or federal securities laws or any conduct by such Purchaser Parties which
constitutes fraud, gross negligence, willful misconduct or malfeasance). If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company
in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable
to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the
extent that (i) the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed
after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable
opinion of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser
Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected
without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent,
but only to the extent that a loss, claim, damage or liability is attributable to (A) any Purchaser Party’s breach of any
of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction
Documents, or (B) any conduct by such Purchaser Party which constitutes gross negligence or willful misconduct. The indemnification
required by this Section 4.8 shall be made by periodic payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any
cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject
to pursuant to law.


 




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4.9
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 from its duly authorized capital stock a total number of shares of Common Stock for issuance as
Series B Conversion Shares upon conversion of the Series B Preferred Stock, for issuance as Series C Conversion Shares upon conversion
of the Series C Preferred Stock and for issuance as Warrant Shares upon exercise of the Warrants in an aggregate amount at least
equal to the Required Minimum.


 


4.10
Listing of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation
of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall
apply to list or quote all of the Series B Conversion Shares, the Series C Conversion Shares and the Warrant Shares on such Trading
Market and promptly secure the listing of all of the Series B Conversion Shares, the Series C Conversion Shares and the Warrant
Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other
Trading Market, it will then include in such application all of the Series B Conversion Shares, the Series C Conversion Shares
and the Warrant Shares, and will take such other action as is necessary to cause all of the Series B Conversion Shares, the Series
C Conversion Shares and the Warrant Shares to be listed or quoted on such other Trading Market as promptly as possible. The Company
will then take all action reasonably necessary to continue the listing or quotation and trading of its Common Stock on a Trading
Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules
of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the
Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees
to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.


 


4.11
Conversion and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants, the form of Notice
of Conversion included in the Series B Certificate of Designation and the form of Notice of Conversion included in the Series
C Certificate of Designation set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants,
to convert the Series B Preferred Stock or to convert the Series C Preferred Stock, respectively. Without limiting the preceding
sentences, no ink-original Notice of Exercise or Notice of Conversion shall be required, nor shall any medallion guarantee (or
other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion form be required in order to exercise
the Warrants, to convert the Series B Preferred Stock or to convert the Series C Preferred Stock, unless required by the Transfer
Agent. No additional legal opinion, other information or instructions shall be required of the Purchasers to exercise their Warrants,
to convert their Series B Preferred Stock or to convert their Series C Preferred Stock, as applicable. The Company shall honor
exercises of the Warrants, conversions of the Series B Preferred Stock and conversions of the Series C Preferred Stock, shall
deliver Series B Conversion Shares in accordance with the terms, conditions and time periods set forth in the Series B Certificate
of Designation and this Agreement, shall deliver Series C Conversion Shares in accordance with the terms, conditions and time
periods set forth in the Series C Certificate of Designation and this Agreement, and shall deliver Warrant Shares in accordance
with the terms, conditions and time periods set forth in the Warrants and this Agreement.


 




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4.12
Subsequent Equity Sales. 


 


(a)
From the date hereof until ninety (90) days after the Effective Date (the “Lock-Up Period”), without the prior
written consent of the Required Holders, neither the Company nor any Subsidiary shall issue, enter into any agreement to issue
or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents.


 


(b)
From the date hereof until the later of (i) the first Business Day next following the date of expiration of the Lock-Up Period
and (ii) the first Business Day next following the date that is the 135th day immediately after the date on which the
Company first publicly announces (through the issuance of a press release or other public announcement or by filing or furnishing
a current report on Form 8-K or other filing, report or statement with the Commission under the Exchange Act) topline data from
its Phase 3 clinical trial (G28-006) of the Company’s RP-G28 drug candidate for the treatment of lactose intolerance (the
“Restricted Period”), without the prior written consent of the Required Holders, the Company shall be prohibited
from: (A) effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock
or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction, and (B) selling or granting
any option to purchase, or selling or granting any right to reprice, or otherwise disposing of or issuing (or announcing any offer,
sale, grant or any option to purchase or other disposition of) any Common Stock or Common Stock Equivalents, at an effective price
per share less than $1.64 (subject to adjustment as provided in Section 5.20 for reverse and forward stock splits, stock dividends,
stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement) (the “Base
Share Price” and any such issuance, a “Dilutive Issuance”) (it being understood and agreed that (x)
if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation of purchase price
adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights
per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price
per share that is less than the Base Share Price then in effect, such issuance shall be deemed to have occurred for less than
the Base Share Price on such date of the Dilutive Issuance and (y) if the Company enters into a Variable Rate Transaction, the
Company shall be deemed to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion, exercise or
exchange price at which such securities may be converted, exercised or exchanged). “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable
or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise
price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations for the shares
of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion, exercise or
exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security or
upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market
for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity
line of credit, whereby the Company may issue securities at a future determined price; provided, however, that (I)
from and after the first Business Day next following the date of expiration of the Lock-Up Period (and notwithstanding whether
the Restricted Period has then expired), the Company may issue and sell shares of Common Stock at a per share price that exceeds
the Base Share Price then in effect (and not otherwise constituting a Dilutive Issuance), pursuant to that certain Purchase Agreement,
dated as of May 4, 2017, by and between the Company and Aspire Capital Fund, LLC (as may be amended, supplemented or replaced
from time to time, the “Aspire ELOC Agreement”), (II) any issuance or sale by the Company of any of its Common
Stock or other securities under the Aspire ELOC Agreement or in connection with the transactions contemplated thereby at any time
during the Lock-Up Period shall constitute a “Variable Rate Transaction” for all purposes of this Agreement, including
this Section 4.12, and (III) any issuance or sale by the Company, at any time from and after the date of this Agreement and prior
to the expiration of the Restricted Period, of any of its Common Stock or other securities under the Aspire ELOC Agreement or
in connection with the transactions contemplated thereby at a per share price less than the Base Share Price then in effect (or
otherwise constituting a Dilutive Issuance) shall also constitute a “Variable Rate Transaction” for all purposes of
this Agreement, including this Section 4.12. Any Purchaser shall be entitled to obtain injunctive relief against the Company to
preclude any such issuance, which remedy shall be in addition to any right to collect damages.


 


(c)
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate
Transaction shall be an Exempt Issuance.


 




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4.13
Equal Treatment of Purchasers. After the Closing Date, no consideration (including any modification of any Transaction
Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction
Documents unless the same consideration is also offered to all of the parties to the Transaction Documents. For clarification
purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each
Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the Purchasers
acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.


 


4.14
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or
sales, including Short Sales, of any of the Company’s securities during the period commencing with the execution of this
Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to
the initial press release as described in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the
initial press release as described in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms
of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the
foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees
that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions
in any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced
pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting
any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the
transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in
Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company
to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions
made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only
apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the
Securities covered by this Agreement.


 


4.15
Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation
D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall
reasonably determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale or exchange (as
applicable) to the Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states of the United
States, and shall provide evidence of such actions promptly upon request of any Purchaser.


 


4.16
Acknowledgment of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the
outstanding shares of Common Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges
that its obligations under the Transaction Documents, including, without limitation, its obligation to issue the Series B Conversion
Shares, the Series C Conversion Shares and the Warrant Shares pursuant to the Transaction Documents, are unconditional and absolute
and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution or any
claim the Company may have against any Purchaser and regardless of the dilutive effect that such issuance may have on the ownership
of the other stockholders of the Company.


 




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ARTICLE
V.

MISCELLANEOUS


 


5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before November 5, 2018; provided, however, that the right
to terminate this Agreement under this Section 5.1 shall not be available to a Purchaser whose failure to fulfill any obligation
under this Agreement has been the proximate cause of or resulted in the failure of the transactions contemplated hereunder to
occur on or before such date; provided further, however, that such termination will not affect the right of any party to sue for
any breach by any other party (or parties).


 


5.2
Fees and Expenses. At the Closing, the Company has agreed to reimburse the Placement Agent up to of $35,000 for its legal
fees and other out of pocket expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party
shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall
pay all Transfer Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter
delivered by the Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Purchasers.


 


5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding
of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral
or written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.


 


5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached hereto at
or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages
attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second
(2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or
(d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices and communications
shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction
Document constitutes, or contains material, non-public information regarding the Company or any of the Subsidiaries, the Company
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.


 




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5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Required Holders, or, in the case of a waiver, by the party
against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group
of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement of this
Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any
manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers
shall require the prior written consent of such adversely affected Purchaser, Any amendment effected in accordance with this Section
5.5 shall be binding upon each Purchaser and holder of Securities and the Company.


 


5.6
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.


 


5.7
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written
consent of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any
Person to whom such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”


 


5.8
No Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended
for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor
may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.


 




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5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard
to the principles of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be
commenced exclusively in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication
of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such Action
or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably waives personal service
of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party hereto shall
commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations
of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Action or Proceeding.


 


5.10
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.


 


5.11
Execution. 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 each other
party, 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.


 


5.12
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.


 




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5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under
a Transaction Document and the Company does not timely perform its related obligations within the periods therein provided, then
such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant
notice, demand or election in whole or in part without prejudice to its future actions and rights; provided, however,
that in the case of a rescission of an exercise of a Warrant or a conversion of the Series B Preferred Stock or the Series C Preferred
Stock, as applicable, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
conversion or exercise notice concurrently, in the case of a rescinded Warrant exercise, with the return to such Purchaser of
the aggregate exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire
such shares pursuant to such Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such
restored right).


 


5.14
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory
to the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances
shall also pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement
Securities.


 


5.15
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The
parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations
contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance of any
such obligation the defense that a remedy at law would be adequate.


 


5.16
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other
Person under any law (including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of
action), then to the extent of any such restoration the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been made or such enforcement or setoff had not occurred.


 




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5.17
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way
for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained
herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereof or thereto, shall be deemed
to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights, including, without
limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not be necessary
for any other Purchaser to be joined as an additional party in any proceeding for such purpose. Each Purchaser has been represented
by its own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons of administrative convenience
only, each Purchaser and its respective counsel have chosen to communicate with the Company through Placement Agent Counsel. Placement
Agent Counsel does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide
all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required
or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement
and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers
collectively and not between and among the Purchasers.


 


5.18
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under
the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated
damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial
liquidated damages or other amounts are due and payable shall have been canceled.


 


5.19
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next
succeeding Business Day.


 


5.20
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity
to revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments
thereto. In addition, each and every reference to share prices and shares of Common Stock in any Transaction Document shall be
subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions
of the Common Stock that occur after the date of this Agreement.


 


5.21
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER
PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.


 


(Signature
Pages Follow)


 




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IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.


 


	RITTER
    PHARMACEUTICALS, INC. 	 	Address
                                         for Notice:

         

        Ritter
        Pharmaceuticals, Inc.

	By:	                           	 	1880
    Century Park East, Suite 1000
	Name:	Andrew
    J. Ritter	 	Los
    Angeles, CA 90067
	Title:	President
    and Chief Executive Officer	 	Facsimile:
    (310) 919-1600
	 	 	 	Attention:


 


With
a copy to (which shall not constitute notice):


 


Reed
Smith LLP


1901
Avenue of the Stars


Suite
700


Los
Angeles, CA 90067-6708


Facsimile:
(310) 734-5299


Attention:
Michael Sanders, Esq.


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 




    	46



    	 



    

 


[PURCHASER
SIGNATURE PAGES TO SECURITIES PURCHASE AGREEMENT]


 


IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement to be duly executed by their respective authorized
signatories as of the date first indicated above.


 


Name
of Purchaser: ________________________________________________________


 


Signature
of Authorized Signatory of Purchaser: __________________________________


 


Name
of Authorized Signatory: ____________________________________________________


 


Title
of Authorized Signatory: _____________________________________________________


 


Email
Address of Authorized Signatory: ______________________________________________


 


Facsimile
Number of Authorized Signatory: _____________________________________________


 


Address
for Notice to Purchaser:


 





Address
for Delivery of Securities to Purchaser (if not same as address for notice):





 


Purchase:


 


Subscription
Amount: $_________________


 


Number
of Purchased Series B Preferred Shares: _________________


 


Number
of Warrant Shares underlying Warrants (calculated per Section 2.2(iv)): __________________


 


EIN
Number: _______________________


 


Exchange
(if applicable):


 


Number
of Exchanged Series A Preferred Shares to be exchanged by Purchaser: _________________


 


[SIGNATURE
PAGES CONTINUE]


 




    	47



    	 



    

 


EXHIBIT
A


 


SERIES
B CERTIFICATE OF DESIGNATION


 




    	48



    	 



    

 


EXHIBIT
B


 


SERIES
C CERTIFICATE OF DESIGNATION


 




    	49



    	 



    

 


EXHIBIT
C


 


REGISTRATION
RIGHTS AGREEMENT


 




    	50



    	 



    

 


EXHIBIT
D


 


FORM
OF COMMON STOCK WARRANT


 




    	51