Exhibit 10.1


 


FORM OF SECURITIES PURCHASE AGREEMENT


 


This Securities Purchase Agreement
(this “Agreement”) is dated as of ___________, 2022, between Atlis Motor Vehicles, 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 (as defined below), and Rule 506(b) promulgated
thereunder, the Company 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 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: (a) capitalized terms that are not otherwise defined herein have the meanings
given to such terms in the Notes (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 4.7.


 


“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.


 


“Alternative Conversion
Price” shall have the meaning defined in the Notes.


 


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


 


“Business Day”
means any day other than Saturday, Sunday or other day on which commercial banks in the City of New York, NY are authorized or required
by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or
required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in the City of New York, NY are generally
are open for use by customers on such day.


 


“Closing”
means the Closing of the First Tranche, the Second Tranche and the Third Tranche, as applicable.


 






    	 	 	 



    	 



    

 


“Closing Date”
means each of the First Tranche Closing Date, the Second Tranche Closing Date and the Third Tranche Closing Date.


 


“Collateral Agent”
shall have the meaning ascribed to such term in Section 4.20(a).


 


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


 


“Common Stock”
means the Class A common stock of the Company, par value $0.0001 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 Winston & Strawn, with offices located at 800 Capitol Street, Suite 2400, Houston, Texas 77002.


 


“Conversion Price”
shall have the meaning ascribed to such term in the Notes.


 


“Conversion Shares”
shall have the meaning ascribed to such term in the Notes.


 


"Corporate Reorganization”
means any reorganization of the Company and its Subsidiaries that results in the Company becoming a wholly owned Subsidiary of a newly
formed holding company, whether directly or indirectly through one or more intermediate holding companies; provided that (x) such reorganization
does not result in any change to the board of directors of the Company, (y) the percentage of the aggregate voting power of the Company
held by the holders of publicly traded common equity of the Company immediately prior to such reorganization shall be the same percentage
of the aggregate voting power of the applicable successor entity with publicly traded common equity (the “New PubCo”)
immediately following such reorganization and (z) the Company’s ownership percentage of its operating business immediately prior
to such reorganization shall be the same ownership percentage (directly or indirectly, as applicable) held by New Pubco in such operating
business immediately following such reorganization.


 


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


 


“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight
(New York, N.Y. time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, and
(ii) if this Agreement is signed between midnight (New York, N.Y. time) and 9:00 a.m. (New York, N.Y. time) on any Trading Day, no later
than 9:01 a.m. (New York, N.Y. time) on the date hereof.


 






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“Equity Conditions”
means, as of any given date of determination, all of the following have been met:


 


		(i)	 	(i) on fifteen (15) Trading Days during the Equity Conditions Measurement Period (which shall include
the last five (5) Trading Days), the daily dollar trading volume of the Common Stock as reported by Bloomberg L.P. shall be at least $350,000
per Trading Day,



 


		(ii)	 	on each Trading Day during the Equity Conditions Measurement Period the Company has complied with all
of the conversion and other provisions of the Notes and related Transaction Documents,



 


		(iii)	 	on each Trading Day during the Equity Conditions Measurement Period the Company shall be current in filing
required reports with the Commission and there is no pending extension under Rule 12b-25 of the Exchange Act,	 



 


		(iv)	 	on each Trading Day during Equity Conditions Measurement Period the Notes shall not otherwise be in default
or an Event of Default shall not have occurred or be continuing,	 



 


		(v)	 	on each Trading Day during Equity Conditions Measurement Period the Common Stock has not been subject
to a trading suspension by the Commission or the Principal Market or been delisted by the Principal Market nor shall delisting or suspension
by the Principal Market have been threatened (with a reasonable prospect of delisting occurring after giving effect to all applicable
notice, appeal, compliance and hearing periods) or reasonably likely to occur or pending as evidenced by a writing by the Principal Market,



 


		(vi)	 	the Company’s Common Stock must be DWAC Eligible,



 


		(vii)	 	on each Trading Day during Equity Conditions Measurement Period the Common Stock shall have not been subject
to a “chill” or similar event imposed by The Depository Trust Co. other than any temporary “chill” not to exceed
5 Trading Days imposed by the Depository Trust Company in connection with the closing of the Corporate Reorganization; it being understood
and agreed that the Depository Trust Company will impose a permanent “chill” on the Company’s CUSIP in connection with
the Corporate Reorganization, which shall not constitute a failure to meet this Equity Condition, provided that the trading of the Company’s
securities is not materially impacted in connection therewith. For the avoidance of doubt, if the settlement of any open market trading,
whether on the Principal Market or otherwise, is delayed as a result of the temporary or permanent “chill”, trading shall
be deemed to be materially impacted,



 


		(viii)	 	on each Trading Day during Equity Conditions Measurement Period the Company has met each delivery deadline
in connection with prior conversions of the Notes and exercises of the Warrants,



 


		(ix)	 	on each Trading Day during Equity Conditions Measurement Period the Company has complied with all Transaction
Documents in all respects,



 






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		(x)	 	the Company shall not have engaged in the sale of any securities under Section 3(a)(10) of the Securities
Act,



 


		(xi)	 	no Purchaser shall be in possession of any material, non-public information provided to any of them by
the Company, any of its Subsidiaries or any of their respective affiliates, employees, officers, representatives, agents or the like (except,
with respect to a closing hereunder, such material, non-public information that will be disclosed to the public no later than 9:00 AM
on the Trading Day immediately following the date of such closing),



 


		(xii)	 	for the Second Tranche Closing, the Resale Registration Statement covering the First Tranche and Second
Tranche Underlying Shares, has been filed and declared effective and the prospectus contained in such Resale Registration Statement complies
with Sections 5(b) and 10 of the Securities Act (and the Company shall have no knowledge of any fact that would reasonably be expected
to cause such Resale Registration Statement to not be effective or the prospectus thereunder to not be available),



 


		(xiii)	 	any shares of Common Stock underlying the Securities to be issued in connection with the event requiring
determination may be issued in full without violating the rules or regulations of the Principal Market,



 


		(xiv)	 	the Company has available shares of Common Stock as necessary to issue all Underlying Shares,



 


		(xv)	 	no bona fide material dispute shall exist, by and between any of holder of Notes or Warrants, the Company,
the Principal Market and/or FINRA with respect to any term or provision of any Note or any other Transaction Document,



 


		(xvi)	 	the Company shall be in compliance with all SEC regulations and all listing requirements of the Principal
Market, and



 


		(xvii)	 	the minimum share price of the Company’s Common Stock as reported by Bloomberg L.P. shall be at
least $5.15 on fifteen (15) Trading Days during the Equity Conditions Measurement Period (which shall include the last five (5) Trading
Days).



 


“Equity Conditions
Measurement Period” means the 20 Trading Day period immediately preceding any applicable date of determination.


 


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


 


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


 






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“Exempt Issuance”
means the issuance of (a) shares of Common Stock or options not to exceed 10% of the shares of Common Stock outstanding at any given time
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 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 (i) any Securities issued hereunder, (ii) any
warrants issued to the Placement Agent in connection with the transactions pursuant to this Agreement, and/or (iii) other securities exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement (without regard to
any vesting requirements), provided that such securities have not been amended since the date of this Agreement (other than any amendments
to such securities in connection with the Corporate Reorganization) 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 the contemplated
holding company merger) or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions
approved by a majority of the disinterested directors of the Company, provided that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period in Section 4.13(a) herein, and provided that any such issuance shall only be to a Person (or to
the equity holders 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.


 


“First Tranche”
means $10,000,000 in face value of Notes issuable upon the First Tranche Closing Date.


 


“First Tranche Closing”
means the Closing of the First Tranche.


 


“First Tranche 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 (i) the Purchaser’s obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities to be issued and sold, in each case, have been satisfied or waived.


 


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


 


“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(bb).


 


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


 


“Key Executives”
means all of the Company’s officers and directors as of the date hereof.


 


“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.


 






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“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(m).


 


“Maximum Rate”
shall have the meaning ascribed to such term in Section 5.17.


 


“Notes”
means the Senior Secured Original Issue 10% Discount Senior Convertible Notes due, subject to the terms therein, 24 months from their
date of issuance, issued by the Company to the Purchasers hereunder, in the form of Exhibit A attached hereto.


 


“Nason Yeager”
means Nason Yeager Gerson Harris & Fumero, P.A., with offices located at 3001 PGA Boulevard, Suite 305, Palm Beach Gardens, Florida
33410.


 


“Net Short Position”
by a person means a position whereby such person has executed one or more sales of Common Stock that is marked as a short sale (but not
including any sale marked “short exempt”) and that is executed at a time when such Purchaser has no equivalent offsetting
long position in the Common Stock (or is deemed to have a long position hereunder or otherwise in accordance with Regulation SHO of the
Exchange Act); provided, that, for purposes of such calculations, any short sales either (x) consummated at a price greater than or equal
to (A) the Conversion Price, (y) that is a result of a bona-fide trading error on behalf of such Purchaser (or its affiliates) or (z)
that would otherwise be marked as a “long” sale, but for the occurrence of a breach of any term of the Notes and/or the Warrants
and/or any other breach by the Company of any Transaction Document, in each case, shall be excluded from such calculations. For purposes
of determining whether a Purchaser has an equivalent offsetting “long” position in the Common Stock, (A) all Common Stock
that is owned by such Purchaser shall be deemed held “long” by such Purchaser, (B) all Common Stock that would be issuable
upon conversion in full of all Securities then held by such Purchaser (assuming that such Securities were then fully convertible, notwithstanding
any provisions to the contrary, and giving effect to any conversion price adjustments that would take effect given only the passage of
time) shall be deemed to be held long by such Purchaser, and (C) at any other time the Company is required (or has elected (or is deemed
to have elected)) to issue shares of Common Stock to such Purchaser pursuant to the terms of the Notes, any shares of Common Stock issued
or issuable to such Purchaser (or its designee, if applicable) in connection therewith shall be deemed held “long” by such
Purchaser from and after the date that is two (2) Trading Days prior to the deadline for delivery of such shares of Common Stock to such
Purchaser, as set forth in the Notes, until such time as such Purchaser shall no longer beneficially own such shares of Common Stock.


 


“Participation Maximum”
shall have the meaning ascribed to such term in Section 4.12(a).


 


“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 Agent”
means Maxim Group LLC.


 






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“Pledge Agreement”
means the Pledge Agreement among the Company and the Purchasers, in the form of Exhibit B attached hereto


 


“Pledged Securities”
means any and all certificates and other instruments representing or evidencing all of the capital stock and other equity interests of
the Subsidiaries.


 


“Pre-Notice”
shall have the meaning ascribed to such term in Section 4.12(b).


 


“Principal Amount”
means, as to each Purchaser, the amounts set forth below such Purchaser’s signature block on the signature pages hereto next to
the heading “Principal Amount,” in United States Dollars.


 


“Principal Market”
means the Nasdaq Capital Market.


 


“Pro Rata Portion”
shall have the meaning ascribed to such term in Section 4.12(e).


 


“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 4.3(b).


 


“Public Information
Failure Payments” shall have the meaning ascribed to such term in Section 4.3(b).


 


“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.10.


 


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


 


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


 


“Required Holders”
means (i) prior to the First Tranche Closing Date, each of the Purchasers and (ii) on or after the First Tranche Closing Date, holders
of at least 66.0% of the aggregate Principal Amount of Notes issued and shall include each Purchaser so long as each Purchaser or any
of its affiliates holds any Securities issued hereunder.


 


“Required Minimum”
means, as of any date, the 200% of the maximum aggregate number of shares of Common Stock then issued or potentially issuable in the future
pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants or conversion in
full of all Notes (including Underlying Shares issuable as payment of interest on the Notes), ignoring any conversion or exercise limits
set forth therein (including, without limitation, the Floor Price or the Event Market Price (each as defined in the Notes)), and assuming
that the Conversion Price is at all times on and after the date of determination equal to the Floor Price.


 






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“Resale Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale of the Underlying Shares by each Purchaser as provided for in the Registration Rights Agreement.


 


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


 


“Rule 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.


 


“Second Tranche”
means $10,000,000 in face value of Notes issuable upon the Second Tranche Closing.


 


“Second Tranche Closing”
means the Closing of the Second Tranche.


 


“Second Tranche Closing
Date” means the Trading Day upon (i) which the applicable portion of the Subscription Amount is transmitted to the Company from
a bank in the United States and (ii) the Company’s obligations to deliver the corresponding Securities to be issued and sold, in
each case, have been satisfied or waived, but in no event later than the second Trading Day following the date hereof.


 


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


 


“Securities”
means the Notes, the Warrants, the Conversion Shares, the Warrant Shares and the Underlying Shares.


 


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


 


“Security Agreement”
means the Security Agreement, dated the date hereof, among the Company and the Purchasers, in the form of Exhibit D attached hereto


 


“Security Documents”
shall mean the Security Agreement, the Subsidiary Guarantees, the original Pledged Securities, along with medallion guaranteed executed
blank stock powers to the Pledged Securities, and any other documents and filing required thereunder in order to grant the Purchasers
a first priority security interest in the assets of the Company and the Subsidiaries as provided in the Security Agreement, including
all UCC-1 filing receipts.


 


“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Notes and Warrants purchased hereunder 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, which Subscription Amount shall be 90% of the Principal Amount.


 


“Subsequent Financing”
shall have the meaning ascribed to such term in Section 4.12(a).


 






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“Subsequent Financing
Notice” shall have the meaning ascribed to such term in Section 4.12(b).


 


“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.


 


“Subsidiary Guarantee”
means the Subsidiary Guarantee by each Subsidiary in favor of the Purchasers, in the form of Exhibit E attached hereto.


 


“Third Tranche”
means up to $10,000,000 in face value of Notes issuable upon the Third Tranche Closing.


 


“Third Tranche Closing”
means the Closing of the Third Tranche.


 


“Third Tranche Closing
Date” means the Trading Day upon which (i) the applicable portion of the Subscription Amount is transmitted to the Company from
a bank in the United States and (ii) Company’s obligations to deliver the corresponding Securities to be issued and sold, in each
case, have been satisfied or waived, but in no event later than the second Trading Day following the date hereof.


 


“Third Tranche Equity
Closing Requirement” means the equity requirements associated with disbursement of the Third Tranche. The Third Tranche Closing
shall only occur if the total outstanding Principal Amount of the then outstanding Notes and the Third Tranche Notes shall not be greater
than 20% of the market capitalization of the Company’s Common Stock on the Third Tranche Closing Date and during the preceding Equity
Conditions Measurement Period ending 30 Trading Days following Resale Registration Statement effectiveness and assuming all Underlying
Shares have been registered for resale in the Resale Registration Statement.


 


“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
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange (or
any successors to any of the foregoing).


 


“Transaction Documents”
means this Agreement, the Notes, the Warrants, the Registration Rights Agreement, the Security Agreement, the Pledge Agreement, the Subsidiary
Guarantee, the Voting Agreement, all exhibits and schedules thereto and hereto and any other documents or agreements executed in connection
with the transactions contemplated hereunder.


 


“Transfer Agent”
means American Stock Transfer, the current transfer agent of the Company, and any successor transfer agent of the Company.


 


“Underlying Shares”
means the Warrant Shares, the Conversion Shares and shares of Common Stock issued and issuable pursuant to the terms of the Note, including
without limitation, shares of Common Stock issued and issuable in lieu of the cash payment of interest on the Notes in accordance with
the terms of the Notes, in each case without respect to any limitation or restriction on the conversion of the Notes or the exercise of
the Warrants.


 






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“Variable Rate Transaction”
shall have the meaning ascribed to such term in Section 4.13(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, N.Y. time) to 4:02 p.m. (New York, N.Y. 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 on the Pink Open Market
(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 delivered to the Purchasers at each Closing in accordance with Section 2.2(a)
hereof, which Warrants shall be exercisable upon Shareholder Approval and have a term of exercise equal to five years, in the form of
Exhibit F attached hereto.


 


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


 


ARTICLE II.


PURCHASE AND SALE


 


2.1       Closing.


 


(a)       First
Tranche Closing. On the First Tranche Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent
with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and
not jointly, agree to purchase, an aggregate of $10,000,000 of Principal Amount of Notes and Warrants. Each Purchaser shall deliver to
the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as to the First Tranche
Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective
Note and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth
in Section 2.2 deliverable at the First Tranche Closing. Within two days of the satisfaction of the covenants and conditions set forth
in Sections 2.2 and 2.3 and subject to the Equity Conditions, the First Closing shall occur at the offices of Nason, Yeager, Gerson, Harris
& Fumero, P.A. or such other location as the parties shall mutually agree.


 






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(b)       Second
Tranche Closing. On the third Trading Day following the effectiveness of the Resale Registration Statement, subject to the satisfaction
of the terms and conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
an aggregate of $10,000,000 of Principal Amount of Notes and Warrants. Each Purchaser shall deliver to the Company, via wire transfer,
immediately available funds equal to such Purchaser’s Subscription Amount as to the Second Tranche Closing as set forth on the signature
page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Note and a Warrant, as determined
pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the
Second Tranche Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, but only to the extent the
Company shall also previously complied with all Transaction Documents prior to and as of the Second Tranche Closing Date prior and as
of such Second Tranche Closing Date, the Second Tranche Closing shall occur at the offices of NYG or such other location as the parties
shall mutually agree. The obligation of the Purchasers to fund the Second Tranche shall be subject to all Registrable Securities, as defined
by the Registration Rights Agreement, underlying the Notes and Warrants sold to each Purchaser at the First Tranche Closing and the Second
Tranche Closing being included for public sale in the Prospectus that is part of the initial Resale Registration Statement. Notwithstanding
the foregoing, if the Second Tranche Closing has not occurred prior to April 30, 2024, no Second Tranche Closing shall occur hereunder.


 


(c)       Third
Tranche Closing. On the thirtieth Trading Day following the Second Tranche Closing, subject to the satisfaction of the Equity Conditions
in full and the conditions to closing set forth herein and the other the terms and conditions set forth herein, the Company agrees to
sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of up to $10,000,000 of Principal Amount of Notes
and Warrants. Each Purchaser shall deliver to the Company, via wire transfer immediately available funds equal to such Purchaser’s
Subscription Amount as to the Third Tranche Closing as set forth on the signature page hereto executed by such Purchaser, and the Company
shall deliver to each Purchaser its respective Notes and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each
Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Third Tranche Closing. Upon satisfaction of the covenants
and conditions set forth in Sections 2.2 and 2.3 and, but only to the extent the Company shall also previously complied with all Transaction
Documents prior and as of such Third Tranche Closing Date, the Third Tranche Closing shall occur at the offices of Nason Yeager or such
other location as the parties shall mutually agree. Notwithstanding the foregoing, if the Third Tranche Closing has not occurred prior
to April 30, 2024 no Third Tranche Closing shall occur hereunder.


 


2.2       Deliveries.


 


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


 


(i)       as
to the First Tranche Closing, this Agreement duly executed by the Company;


 






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(ii)       as
to the First Tranche Closing, an irrevocable stockholder written consent, duly executed by the holders of a majority of the total outstanding
voting power of the Company approving the issuance of the Underlying Shares (the “Required Consent”), which Required Consent
shall constitute the approval required by the applicable rules and regulations of the Principal Market;


 


(iii)       as
to each Closing, a legal opinion of Company Counsel dated as of the applicable Closing Date, in a form acceptable to each Purchaser;


 


(iv)       as
to each Closing, a Note registered in the name of such Purchaser with the Principal Amount reflected on to such Purchaser’s s signature
page;


 


(v)       as
to each Closing, a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 30%
of such Purchaser’s Principal Amount divided by the VWAP of the Common Stock on the date prior to such Closing, with an initial
exercise price equal to the Fixed Conversion Price of $15.00, subject to adjustment therein. The exercise price may reset at 120% of the
Closing VWAP on the 6-month anniversary following its Closing Date;


 


(vi)       as
to each Closing, the Company shall have provided each Purchaser with the Company’s wire instructions, on Company letterhead and
executed by the Chief Executive Officer or Chief Financial Officer;


 


(vii)       as
to each Closing, the Security Agreement, duly executed by the Company and each Subsidiary, including the Subsidiary Guarantee, duly executed
by the parties thereto, in each case in favor of the Collateral Agent as agent for the Secured Parties referenced therein;


 


(viii)       as
to the First Tranche Closing, a letter executed by the Company and the Transfer Agent reserving the Required Minimum for the benefit of
all Purchasers;


 


(ix)       as
to the First Tranche Closing, the Pledge Agreement the original Pledged Securities and corresponding stock powers;


 


(x)       as
to the First Tranche Closing, the Registration Rights Agreement duly executed by the Company;


 


(xi)       as
to each Closing, an officer’s certificate certifying that the representations and warranties of the Company in the Purchase Agreement
are true and correct as of the applicable Closing Date as though originally made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied
and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the
Company at or prior to the applicable Closing Date and no Event of Default has occurred;


 


(xii)       as
to the First Tranche Closing, a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in
each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation
as of a date within ten (10) days of the First Tranche Closing Date;


 






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(xiii)       as
to the First Tranche Closing, a certificate evidencing the Company's and each Subsidiary's qualification as a foreign corporation and
good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and each Subsidiary conducts
business and is required to so qualify, as of a date within ten (10) days of the applicable First Tranche Closing Date;


 


(xiv)       as
to the First Tranche Closing, a certified copy of the Certificate of Incorporation (or such equivalent organizational document) of the
Company and each Subsidiary, dated within ten (10) days of the applicable First Tranche Closing Date;


 


(xv)       as
to each Closing, an officer’s certificate, in the form acceptable to each Purchaser, executed by an officer of the Company and each
Subsidiary and dated as of the applicable Closing Date, as to (i) the resolutions adopted by the Company’s and each Subsidiary’s
board of directors authorizing the transactions contemplated hereby in a form reasonably acceptable to such Purchaser, and (ii) the Certificate
of Incorporation of the Company and the organizational documents of each Subsidiary, each as in effect at the applicable Closing;


 


(xvi)       as
to each Closing, a letter from the Transfer Agent certifying the number of Common Stock outstanding on the applicable Closing Date immediately
prior to the applicable Closing;


 


(xvii)       as
to the First Tranche Closing, a copy of the application for the listing of the shares of Common Stock underlying the Notes on the Nasdaq
Capital Market;


 


(xviii)       as
to the First Tranche Closing, certified copies of requests for copies of information on Form UCC-11 dated within two (2) days prior to
the applicable Closing Date, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries and
which are filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent or the Purchasers, desirable
to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements,
none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral (as defined in the Security
Agreement), and the results of searches for any tax Lien and judgment Lien filed against such Person or its property, which results, except
as otherwise agreed to in writing by the Collateral Agent and the Purchasers, shall not show any such Liens; and


 


(xix)       such
other documents, instruments or certificates relating to the transactions contemplated by this Agreement as each Purchaser or its counsel
may reasonably request.


 


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


 


(i)       as
to the First Tranche Closing, this Agreement duly executed by such Purchaser;


 


(ii)       as
to each Closing, such Purchaser’s Subscription Amount by wire transfer to the account specified in writing by the Company;


 


(iii)       as
to the First Tranche Closing, the Security Agreement duly executed by such Purchaser; and


 






    	 	13	 



    	 



    

 


(iv)       as
to the First Tranche Closing, the Registration Rights Agreement duly executed by such Purchaser.


 


2.3       Closing
Conditions.


 


(a)       The
obligations of the Company hereunder in connection with each 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 each 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 is required to be performed at or prior to each Closing Date shall have been performed;
and


 


(iii)       the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.


 


(b)       The
respective obligations of each Purchaser hereunder in connection with each 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 each 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);


 


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


 


(iii)       the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;


 


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


 


(v)       from
the date hereof to each Closing Date, as applicable, 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 applicable 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 Securities at each applicable Closing.


 






    	 	14	 



    	 



    

 


(vi)       the
Company shall have filed with the Nasdaq Capital Market an application for the listing of the shares of Common Stock underlying the Notes
on the Nasdaq Capital Market, a copy of which shall have been provided to the Purchasers, and the Nasdaq Capital Market shall have raised
no objection with respect thereto; and


 


(vii)             no statute, rule,
regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental
entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated hereby.





 


2.4       Conditions
Subsequent to First Tranche Closing. As an accommodation to the Company, the Collateral Agent and the Purchasers have agreed to execute
this Agreement and to consummate the transactions contemplated herein on the First Tranche Closing Date notwithstanding the failure by
the Company to satisfy the conditions set forth in Section 2.4(a) and (b) on or before the First Tranche Closing Date. In consideration
of such accommodation, the Company agrees that, in addition to all other terms, conditions and provisions set forth in this Agreement
and the other Transaction Documents, the Company shall satisfy each of the conditions subsequent set forth below on or before the date
applicable thereto (it being understood that the failure by the Company to perform or cause to be performed any such condition subsequent
on or before the date applicable thereto shall constitute an Event of Default (as defined under the Notes):


 


(a)       Pursuant
to the Security Agreement, within 30 days after the First Tranche Closing Date (or such later date as may be permitted by the Collateral
Agent in its sole discretion), the Collateral Agent shall have received a control agreement in form and substance reasonably satisfactory
to is with respect to the deposit account maintained at ____________, account number __________________.


 


(b)       Pursuant
to Section 6(e) of the Security Agreement, within 30 days after the First Closing Date (or such later date as may be permitted by the
Collateral Agent in its sole discretion), the Collateral Agent shall have received insurance certificates and endorsements in form and
substance reasonably satisfactory to it.


 


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 which representations
shall be true and correct on each respective Closing Date:


 






    	 	15	 



    	 



    

 


(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 except as indicated in the Disclosure Schedules, Subsidiary free and clear
of any Liens, except for Liens created hereunder, 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.


 


(b)       Organization
and Qualification. The Company and each of the Subsidiaries is an entity incorporated, 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 nor 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, could 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.


 


(i)       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 this Agreement and each of 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 shareholders 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, assuming due authorization by the other parties thereto, 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.


 






    	 	16	 



    	 



    

 


(ii)       With
respect to the Subsidiary Guarantee, each of the Subsidiaries has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by such agreement and otherwise to carry out its obligations thereunder. The execution and delivery of the
Subsidiary Guarantee and the consummation by the Company of the transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company, and no further action is required by the respective Subsidiary, its managers or its members in connection
therewith. The Subsidiary Guarantee has been (or upon delivery will have been) duly executed by the respective Subsidiaries and, when
delivered in accordance with the terms thereof, will constitute the valid and binding obligation of the respective Subsidiary enforceable
against such Subsidiary in accordance with its terms, except (A) as listed by general equitable principals and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally,
(B) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (C) insofar
as indemnification and contribution provisions may be limited by applicable law.


 


(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 Securities and the consummation by it of the transactions contemplated hereby and thereby 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, or (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, anti-dilution or similar adjustments, 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 could 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 4.6 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 Securities and the listing of the Conversion
Shares and 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) Shareholder Approval (collectively, the “Required
Approvals”).


 






    	 	17	 



    	 



    

 


(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 or by law. The Underlying Shares, when issued in accordance with the
terms of the Transaction Documents, 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 Transaction Documents or by law. The Company has reserved from its duly authorized
capital stock a number of shares of Common Stock for issuance of the Underlying Shares at least equal to the Required Minimum on the date
hereof.


 


(g)       Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof.
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 and sale of the Securities, 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. 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).
There are no outstanding securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion,
exchange or reset price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. 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 agreements
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 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 issuance and sale of the Securities. There are no shareholders
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 shareholders other than as disclosed in Schedule
3.1(g).


 






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(h)       SEC
Reports; Financial Statements. Except as set forth on Schedule 3.1(h), the Company has filed all material 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 or obtained
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 the date of the latest audited financial statements included within
the SEC Reports, except as set forth on Schedule 3.1(i), (i) there has been no event, occurrence or development that has had or
that could 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, except as required by GAAP, and (iv) the Company
has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock. Except for the issuance of the 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, prospects, properties,
operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the
time this representation is made or deemed made that has not been publicly disclosed at least 1 Trading Day prior to the date that this
representation is made.


 


(j)       Litigation.
Except as set forth on Schedule 3.1(j), 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”) that could be reasonably expected to have a Material Adverse Effect. None of the Actions
set forth on Schedule 3.1(j), (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Securities or (ii) could, 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, 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. 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.


 






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(k)       Labor
Relations. Except as set forth in Schedule 3.1(k), no labor dispute exists or, to the knowledge of the Company, is imminent with respect
to any of the employees of the Company, which could 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 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 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 could 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 could not have or reasonably be expected to result in a Material Adverse
Effect.


 


(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, 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 could be reasonably expected
to have, individually or in the aggregate, a Material Adverse Effect.


 






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(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 could 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.


 


(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
necessary or required for use in connection with their respective businesses as described in the SEC Reports and which the failure to
so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Except as set forth
in Schedule 3.1(p), none of, and 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, any other 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 could 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 could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 






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(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 at least equal to the aggregate Subscription Amount. Neither the Company nor any Subsidiary
has any reason to believe 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 on Schedule 3.1(r), 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.


 


(s)       Sarbanes-Oxley;
Internal Accounting Controls. Except as disclosed in the SEC Reports and Schedule 3.1(s), the Company and the Subsidiaries
are in 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 SEC thereunder that are effective as of the date hereof and as of
each 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 SEC’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) that have materially affected,
or is reasonably likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.


 






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(t)       Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any Subsidiaries 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 other than the fee payable to the Placement Agent. The Purchasers shall have no obligation with respect to
any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section 3.1(t) that
may be due in connection with the transactions contemplated by the Transaction Documents.


 


(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 the offer and sale of the Securities by the Company to the Purchasers as contemplated hereby.
The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.


 


(v)       Investment
Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the 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, no Person has any right to cause the Company or any Subsidiary to effect the registration
under the Securities Act of any securities of the Company or any Subsidiaries, with the exception of the Share Subscription Facility between
the Company and GEM Global Yield, LLC SCS and GEM Yield Bahamas Limited dated June 25, 2021


 


(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 set forth 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.


 






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(y)       Application
of Takeover Protections. 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 (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.


 


(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, including the Disclosure Schedules to this Agreement, 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
the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under
which they were made and when 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 each Purchaser’s 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 this offering of the Securities 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 shareholder approval provisions of any Trading Market on which any of the securities of the
Company are listed or designated.


 


(bb)      Solvency. Based
on the consolidated financial condition of the Company as of each Closing Date, after giving effect to the receipt by the Company of the
proceeds from the sale of the Securities hereunder, (i) 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, (ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted
and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted
by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii) 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 intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts
of cash to


 






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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 reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from
each Closing Date. Schedule 3.1(bb) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the
Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. 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. Neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.


 


(cc)      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 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.


 


(dd)      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 Securities for sale only to the Purchasers and certain other “accredited investors”
within the meaning of Rule 501 under the Securities Act.


 


(ee)      Foreign Corrupt Practices.
Neither the Company nor any Subsidiary, nor 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.


 


(ff)      Accountants. The
Company’s accounting firm is set forth on Schedule 3.1(ff) of the Disclosure Schedules. Such accounting firm (i) is a registered
public accounting firm as required by the Exchange Act and (ii) shall express its opinion with respect to the financial statements to
be included in the Company’s Annual Report for the fiscal year ending December 31, 2022.


 






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(gg)      Seniority. As
of each Closing Date, no Indebtedness or other claim against the Company is senior to the Notes in right of payment, whether with respect
to interest or upon liquidation or dissolution, or otherwise.


 


(hh)      No Disagreements with
Accountants and Lawyers. 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 and the Company is current with respect
to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under
any of the Transaction Documents.


 


(ii)       Acknowledgment
Regarding Purchasers’ Purchase of 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’ purchase of 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.


 


(jj)      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 Company’s placement agent in connection with the placement of the
Securities.


 


(kk)      Stock 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.


 






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(ll)      Cybersecurity.
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information
technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are
presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as
would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented
and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and disaster
recovery technology consistent with industry standards and practices.


 


(mm)      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”).


 


(nn)      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.


 


(oo)       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, any affiliated issuer, 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 each Purchaser a copy
of any disclosures provided thereunder.


 


(pp)      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 sale of any Securities.


 


(qq)      Notice of Disqualification
Events. The Company will notify each Purchaser and the Placement Agent in writing, prior to each Closing Date of (i) any Disqualification
Event 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.


 






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3.2       Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of each Closing Date to the Company 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 Resale 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.


 


(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 its Note it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) 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.


 






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(e)       General
Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing 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 the knowledge of such Purchaser, 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 offering of the 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.


 


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.





 


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.


 






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(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, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured
Securities to the pledgees or secured parties. Such a transfer would be subject to compliance with the terms of this Section 4.1. 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)       Certificates
evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a Resale
Registration Statement covering the resale of such security is effective under the Securities Act, (ii) if such Underlying Shares are
eligible to be sold, assigned or transferred under, when available (assuming cashless exercise of the Warrants which cashless exercise,
for the avoidance of doubt, shall be available only in the event that a Resale Registration Statement covering the resale of Underlying
Shares is not available) (provided that a Purchaser provides the Company with reasonable assurances that such Securities are eligible
for sale, assignment or transfer under Rule 144 which shall not include an opinion of Purchaser’s counsel), or (iii) if such legend
is not required (other than under Rule 144) under applicable requirements of the Securities Act (including judicial interpretations and
pronouncements issued by the staff of the Commission). For the avoidance of doubt the Company shall pay all costs associated with such
opinions and counsel to the Company, counsel to the Company shall provide all opinions with respect to any resales pursuant to Rule 144,
and the Company shall provide confirmation to the transfer agent that all such opinions are acceptable. If all or any portion of a Note
is converted or Warrant is exercised at a time when there is an effective Resale Registration Statement to cover the resale of the Underlying
Shares, or if such Underlying Shares may be sold under Rule 144 without the requirement for the Company to be in compliance with the current
public information requirements of Rule 144(c) and without volume or manner of sale restrictions or if such legend is not otherwise required
under applicable requirements of the Securities Act (including Sections 4(a)(1) or 4(a)(7), judicial interpretations and pronouncements
issued by the staff of the SEC including what is known as Section 4(a)(11⁄2)) then such Underlying Shares shall be issued free of
all legends. For avoidance of doubt, the Company agrees that after the requisite holding period to comply with Rule 144, the legend may
be removed under Rule 144 of the Securities Act, assuming the holder satisfies the requirements of Rule 144. The Company agrees that 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 Trading Days and
(ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by any Purchaser to
the Company or the Transfer Agent of a certificate (or stock power if issued in book entry form) representing Shares or Warrant Shares,
as applicable, issued without a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to be delivered
to such Purchaser a certificate representing such shares that is free from all restrictive and other legends (or provide evidence of issuance
in book entry form).  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. Certificates for Underlying Shares subject to legend removal hereunder
shall be transmitted by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository
Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s Principal Market with respect to the Common Stock as
in effect on the date of delivery of a certificate representing Shares and Warrant Shares, as applicable, issued with a restrictive legend.
Certificates for the Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by the transfer agent to such Purchaser
by crediting the account of the Purchaser’s prime broker with the Depository Trust Company System as directed by the Purchaser.


 


(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 Underlying Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day
(increasing to $20 per Trading Day five ) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend; provided that such Purchaser, in good faith, cooperates reasonably
with, and takes such customary actions as may be reasonably requested by the Company in connection with the delivery of such certificate
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


 






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Removal
Date a certificate representing the Securities 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 (A)
such number of Underlying Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by (B)
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 Underlying Shares (as the case may be) and ending on the date of such delivery and payment
under this clause (ii


 


(e)       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 certificates representing Securities as set forth
in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.


 


4.2       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 Underlying 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 shareholders of the Company.


 


4.3       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 month anniversary of the date hereof (and also following the Second and Third Tranche
Closing Dates, as applicable, 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 two percent of the aggregate Subscription Amount of such Purchaser’s Securities on the day of a Public
Information Failure and on every 30th day (pro-rated for periods totaling less than 30 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 Underlying Shares pursuant to Rule 144. The payments to which a Purchaser shall be entitled pursuant to this Section 4.3(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 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 one and one-half percent 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.


 


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


 


4.5       Conversion
and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion included
in the Notes set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants or convert the Notes.
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 or convert the Notes. No additional legal opinion, other information or instructions shall be required
of the Purchasers to exercise their Warrants or convert their Notes. The Company shall honor exercises of the Warrants and conversions
of the Notes and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction
Documents.


 






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4.6       Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms of the
transactions contemplated hereby including the fact that there was a placement agent, 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. 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).


 


4.7       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.


 


4.8       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 4.6, 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, any of its Subsidiaries, or
any of their respective officers, director, agents, employees or Affiliates 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 the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to
the Company, any 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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4.9       Use
of Proceeds. Except as set forth on Schedule 4.9 attached hereto, the Company shall use the net proceeds from the sale of the
Securities hereunder for working capital and general corporate 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.


 


4.10       Indemnification
of Purchasers. Subject to the provisions of this Section 4.10, 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 by the Company or its affiliates or representatives or agents against
the Purchaser Parties in any capacity, or any of them or their respective Affiliates, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is solely based upon a material breach of such Purchaser Party’s representations,
warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such
stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which
is finally judicially determined to constitute fraud, gross negligence or willful misconduct). 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 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. The indemnification required by this Section 4.10
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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4.11       Reservation
and Listing of Securities.


 


(a)       The
Company shall maintain a reserve of the Required Minimum from its duly authorized shares of Common Stock for issuance pursuant to the
Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.


 


(b)       If,
on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum
on such date, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles
of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time,
as soon as possible and in any event not later than the 75th day after such date.


 


(c)       The
Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with such Trading
Market an additional shares listing application covering a number of shares of Common Stock at least equal to the Required Minimum on
the date of such application, (ii) take all steps necessary to cause such shares of Common Stock to be approved for listing or quotation
on such Trading Market as soon as possible thereafter, (iii) provide to the Purchasers evidence of such listing or quotation and (iv)
maintain the listing or quotation of such Common Stock on any date at least equal to the Required Minimum on such date on such Trading
Market or another Trading Market.


 


4.12       Participation
in Future Financing.


 


(a)       From
the date hereof until the 12 month anniversary of the date of this Agreement, upon any issuance by the Company or any of its Subsidiaries
of Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of units thereof (a “Subsequent
Financing”), the Purchasers shall have the right to participate in aggregate up to an amount of the Subsequent Financing equal
to 25% of the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for
in the Subsequent Financing.


 


(b)       At
least 10 Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice of
its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it wants
to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request
of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later
than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice
shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder
and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or
similar document relating thereto as an attachment.


 






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


 


(d)       If
by 5:30 p.m. (New York, N.Y. time) on the fifth Trading Day after the Purchaser has received the Pre-Notice, notifications by the Purchaser
of their willingness to participate in the Subsequent Financing (or to cause their designees to participate) is, in the aggregate, less
than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such Subsequent Financing on the
terms and with the Persons set forth in the Subsequent Financing Notice.


 


(e)       If
by 5:30 p.m. (New York, N.Y. time) on the fifth Trading Day after all of the Purchasers have received the Pre-Notice, the Company receives
responses to a Subsequent Financing Notice from a Purchaser seeking to purchase more than the aggregate amount of the Participation Maximum,
each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation Maximum. “Pro
Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on each Closing Date by a Purchaser participating
under this Section 4.12 and (y) the sum of the aggregate Subscription Amounts of Securities purchased on each Closing Date by all Purchasers
participating under this Section 4.12.


 


(f)       The
Company must provide each Purchaser with a second Subsequent Financing Notice, and each Purchaser will again have the right of participation
set forth above in this Section 4.12, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated
for any reason on the terms set forth in such Subsequent Financing Notice within 30 Trading Days after the date of the initial Subsequent
Financing Notice.


 


(g)       The
Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related
to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one
or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser
shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment
to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written
consent of such Purchaser.


 






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(h)       Notwithstanding
anything to the contrary in this Section 4.12 and unless otherwise agreed to by each Purchaser, the Company shall either confirm in writing
to each Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention
to issue the securities in the Subsequent Financing, in either case in such a manner such that each Purchaser will not be in possession
of any material, non-public information, by the 10th Business Day following delivery of the Subsequent Financing Notice. If by such 10th
Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and no notice regarding
the abandonment of such transaction has been received by each Purchaser, such transaction shall be deemed to have been abandoned and each
Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.


 


(i)       Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.


 


4.13       Subsequent
Equity Sales.


 


(a)       From
the date hereof until 30 days after the effectiveness of the Resale Registration Statement(s) covering all of the Underlying Shares, neither
the Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any
shares of Common Stock or Common Stock Equivalents or (ii) file any registration statement or any amendment or supplement thereto, in
each case other than as contemplated pursuant to the Registration Rights Agreement.


 


(b)       From
the date hereof until such time as no Purchaser any of the Notes, the Company shall be prohibited from 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. “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 or an “at-the-market” offering, whereby the Company may issue securities at a future
determined price. 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 4.13 shall not apply in respect of (i) an Exempt Issuance, or any adjustments or revisions relating to derivative
securities of the Company that are outstanding at the time of closing, except that no Variable Rate Transaction shall be an Exempt Issuance
and (ii) the Company’s existing Share Subscription Facility with GEM Global Yield, LLC SCS and GEM
Yield Bahamas Limited dated June 25, 2021 (the “GEM Facility”);provided, that at any time any Notes remain outstanding the
Company shall not issue any shares of Common Stock (or Common Stock Equivalents) pursuant to the GEM Facility; provided, however, the
Company may issue warrants (and shares of Common Stock underlying such warrants upon exercise) as required by the GEM Facility.


 






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4.14       Equal
Treatment of Purchasers. 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 such Transaction Documents. Further, the Company shall not make any payment of principal or interest
on the Notes in amounts which are disproportionate to the respective principal amounts outstanding on the Notes at any applicable time.
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.


 


4.15       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 has and will not have and will cause its Affiliates to not have
a Net Short Position. 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 4.6,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in 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 4.6, (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 4.6 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 4.6. 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.


 


4.16       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 to the Purchasers at each 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.


 






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4.17       Capital
Changes. From the date hereof until such time as no Purchaser holds any of the Warrants, other than in connection with the Corporate
Reorganization, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without the prior
written consent of each Purchaser holding a majority in principal amount outstanding of the Notes.


 


4.18       Subsequent
Registrations. If as result of an SEC Staff policy, rule or regulation or for any other reason, the Company is unable to register
all of a Purchaser’s Registrable Securities (as defined in the Registration Rights Agreement), then upon the earlier of (i) 30 days
(or such earlier time as is permitted by the Staff of the SEC or any rule of the SEC) after any Resale Registration Statement filed pursuant
to the Registration Rights Agreement is declared effective by the SEC, or (ii) when the registered but not issued Underlying shares fall
below 50% of the amount covered by the effective Resale Registration Statement(s), the Company shall file another Resale Registration
Statement including all of the remaining Registrable Securities of each Purchaser and comply with the terms and conditions set forth in
the Registration Rights Agreement.


 


4.19       Minimum
Cash Covenant. (a) Until all Underlying Shares are subject to an effective Resale Registration Statement, the Company shall maintain
a minimum cash balance at United States banks (which includes money market accounts at such banks) equal to at least 19% of the outstanding
Principal Amount. (b) The Collateral Agent may appoint a cash monitoring agent (the “Cash Agent”) reasonably acceptable
to the Company who shall be provided full access on a daily basis to all bank accounts maintained by the Company in order to verify compliance
with Section 4.19(a). If at any time the Company has been advised by the Cash Agent that it is not in compliance with Section 4.19(a),
it shall file a Current Report on Form 8-K prior to 9:00 am Eastern Time on the next Trading Day. (c) The Company shall pay the Cash Agent
a weekly fee of up to $1,000.


 


4.20        Collateral
Agent.


 


(a)       Each
Purchaser hereby (a) appoints _____________ as the collateral agent hereunder and under the Security Agreement (in such capacity, the
“Collateral Agent”), and (b) authorizes the Collateral Agent (and its officers, directors, employees and agents) to
take such action on such Purchaser’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have,
by reason hereof or pursuant to any Security Agreement, a fiduciary relationship in respect of any Purchaser. Neither the Collateral Agent
nor any of its officers, directors, employees and agents shall have any liability to any Purchaser for any action taken or omitted to
be taken in connection hereof or the Security Agreement except to the extent caused by its own gross negligence or willful misconduct,
and each Purchaser agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees
and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations,
penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs
and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with
the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or the Security
Agreement.


 






    	 	40	 



    	 



    

 


(b)       The
Collateral Agent shall be entitled to rely upon any written notices, statements, certificates, orders or other documents or any telephone
message believed by it in good faith to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect
to all matters pertaining to this Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice
of counsel selected by it.


 


(c)       The
Collateral Agent may resign from the performance of all its functions and duties hereunder and under the Notes and the Security Agreement
at any time by giving at least ten (10) Business Days prior written notice to the Company and each holder of the Notes. Such resignation
shall take effect upon the acceptance by a successor Collateral Agent of appointment as provided below. Upon any such notice of resignation,
the Required Holders shall appoint a successor Collateral Agent. Upon the acceptance of the appointment as Collateral Agent, such successor
Collateral Agent shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent,
and the retiring Collateral Agent shall be discharged from its duties and obligations under this Agreement, the Notes and the Security
Agreement. After any Collateral Agent’s resignation hereunder, the provisions of this Section 4.20 shall inure to its benefit. If
a successor Collateral Agent shall not have been so appointed within said 10 Business Day period, the retiring Collateral Agent shall
then appoint a successor Collateral Agent who shall serve until such time, if any, as the Required Holders appoints a successor Collateral
Agent as provided above.


 


(d)       The
Company hereby covenants and agrees to take all actions as promptly as practicable reasonably requested by either the Required Holders
or the Collateral Agent (or its successor), from time to time pursuant to the terms of this Section 4.20, to secure a successor Collateral
Agent satisfactory to such requesting part(y)(ies), in their sole discretion, including, without limitation, by paying all fees of such
successor Collateral Agent, by having the Company agree to indemnify any successor Collateral Agent and by each of the Company executing
a collateral agency agreement or similar agreement and/or any amendment to the Security Agreement reasonably requested or required by
the successor Collateral Agent


 


4.21       Voting
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Voting Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Voting Agreement in accordance with its terms. If any party to
a Voting Agreement breaches any provision of a Voting Agreement, the Company shall promptly use its best efforts to seek specific performance
of the terms of such Voting Agreement. Notwithstanding the foregoing, no Purchaser shall be a third party beneficiary of any Voting Agreement.


 


4.22       No
Amendment of Existing Registration Rights. The Company shall not amend the registration rights presently in existence in any manner
which adversely affects the rights of the Purchasers.


 


4.23       Information
Statement. Within 15 days following the First Tranche Closing, the Company shall prepare and file with the Securities and Exchange
Commission (the “SEC”) in preliminary form an Information Statement on Schedule 14C. The Company shall promptly provide responses
to the SEC with respect to any comments received on such Information Statement from the SEC, and the Company shall cause the definitive
Information Statement to be mailed promptly after the date the SEC staff advises that it has no further comments thereof or that the Company
may commence mailing the Information Statement.


 






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4.24       Corporate
Reorganization. Notwithstanding anything to the contrary contained in this Agreement or in any other Transaction Document, the Company
shall in no way be prohibited or restricted from effecting the Corporate Reorganization at any time from and after the date hereof. Any
holding company formed in connection with the Corporate Reorganization will assume the obligations under the Transaction Documents. The
Company will cause any Subsidiaries formed in connection with the Corporate Reorganization to guarantee all obligations of the Company
under the Transaction Documents, substantially in the form of the Subsidiary Guarantee.


 


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 First Closing has not
been consummated on or before the fifth Trading Day following the date hereof, provided, however, that no such termination
will affect the right of any party to sue for any breach by any other party (or parties).


 


5.2       Fees
and Expenses. At the First Tranche Closing, the Company has agreed to reimburse (i) the Collateral Agent up to $45,000 for its legal
fees and expenses, $20,000 of which has been paid prior to the First Tranche Closing, and (ii) __________ up to $15,000 for its legal
fees and expenses. The Company shall deliver to each Purchaser, prior to the First Tranche Closing, a completed and executed copy of the
Closing Statement, attached hereto as Annex A. 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 conversion or exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with
the delivery of any Securities to each Purchaser and costs necessary to provide the Purchasers with a lien on all of the assets of the
Company.


 


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 time of transmission, if such notice or communication is delivered via facsimile
at the facsimile number or email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30
p.m. (New York, N.Y. time) on a Trading Day, (b) the next Trading Day after the time 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, N.Y. time) on any Trading Day, (c) the second 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.


 






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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 each Purchaser (or, after the Third Tranche Closing Date, 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. Such amendment provision shall not be construed to mean that the Beneficial Ownership
Limitation of the Note may be amended.


 


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 4.10 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 Illinois, 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
located in Chicago, Illinois. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located
in Wilmington, Delaware 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 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 4.10, 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 each 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.


 


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 a conversion
of a Note or exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such
rescinded conversion or exercise notice concurrently 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).


 






    	 	44	 



    	 



    

 


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.


 


5.17       Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter
in force, in connection with any Action or Proceeding that may be brought by any Purchaser in order to enforce any right or remedy under
any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed
and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without limiting the foregoing,
in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums in the nature of interest
that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum contract
rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by statute or any official governmental
action subsequent to the date hereof, the new maximum contract rate of interest allowed by law will be the Maximum Rate applicable to
the Transaction Documents from the effective date thereof forward, unless such application is precluded by applicable law. If under any
circumstances whatsoever, interest in excess of the Maximum Rate is paid by the Company to any Purchaser with respect to indebtedness
evidenced by the Transaction Documents, such excess shall be applied by such Purchaser to the unpaid principal balance of any such indebtedness
or be refunded to the Company, the manner of handling such excess to be at such Purchaser’s election.


 






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5.18       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 hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert 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
Nason Yeager. Nason Yeager does not represent any of the Purchasers and only represents the Collateral 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.


 


5.19       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.


 


5.20       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.


 


5.21       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.


 






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5.22       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)


 






    	 	47	 



    	 



    

 


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.


 


	
    ATLIS MOTOR VEHICLES, INC.

     

     
	Address for Notice:
	By:	___________________________	Email:
	 	Name: 	Fax:
	 	Title: 	 
	 	 	 
	With a copy to (which shall not constitute notice):	 



 


 


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 






    	 	48	 



    	 



    

 


[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:  	


 


	Address for Notice to Purchaser:	 




 


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


 


 


Principal Amount for each of First Tranche, Second Tranche and Third
Tranche: $_____________


 


Subscription Amount for each of First Tranche, Second Tranche and Third
Tranche (90% of Principal Amount):


 


First Tranche Warrant Shares: _________________


 


EIN Number: _______________________


 


Wire Instructions to Purchaser for Interest Payments or Note Repayment:


 


Bank Name:


 


Routing No. __________________


Account No:


SWIFT


Bank Address:


 


Phone Number:


 






    	 	49	 



    	 



    

 


[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:  	


 


	Address for Notice to Purchaser:	 


 


 


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


 


 


Principal Amount for each of First Tranche, Second Tranche and Third
Tranche: $_____________


 


Subscription Amount for each of First Tranche, Second Tranche and Third
Tranche (90% of Principal Amount):


 


First Tranche Warrant Shares: _________________


 


EIN Number: _______________________


 


Wire Instructions to Purchaser for Interest Payments or Note Repayment:


 


Bank Name:


 


Routing No. __________________


Account No:


SWIFT


Bank Address:


 


Phone Number:


 






    	 		 



    	 



    




 


EXHIBIT A


 


See attached.


 






    	 		 



    	 



    




 


EXHIBIT B


 


See attached.


 



    	 		 



    	 



    




 


EXHIBIT C


 


See attached.


 






    	 		 



    	 



    

 


EXHIBIT D


 


See attached.


 






    	 		 



    	 



    

 


EXHIBIT E


 


See attached.


 






    	 		 



    	 



    

 


EXHIBIT F


 


See attached.