Exhibit 10.4


 


 


 


May 5, 2015


 


STRICTLY CONFIDENTIAL


 


Stevia First Corp.


5225 Carlson Rd.


Yuba City, CA 95993


Attn: Robert Brooke


 


Dear Sirs:


 


This letter agreement
(this “Agreement”) constitutes the agreement between Stevia First Corp. (the “Company”) and
H.C. Wainwright & Co., LLC (“HCW”) that HCW shall serve as the exclusive (i) placement agent for the Company
(“Direct Placement”) on a reasonable best efforts basis or (ii) underwriter for the Company, on a firm commitment
basis (“Underwritten Placement”), in connection with the proposed transaction, or series of transactions, to
occur during the term of this Agreement (each, a “Placement”). The Placement shall consist of registered or
unregistered securities (the “Securities”) of the Company, which Securities may include one or any combination
of the following: common stock of the Company, par value $.001 per share (the “Common Stock”), warrants to purchase
shares of Common Stock (“Warrants”) or securities of the Company convertible into shares of Common Stock of
the Company (“Convertible Securities”). Additionally, in the event that the Company undertakes a restructuring
of its outstanding debt or equity securities during the Term, HCW shall, at its option, be the exclusive investment banking firm
in respect of such restructuring on commercially reasonable terms to be determined at the time of such restructuring. The terms
of such Placement and the Securities issued in connection therewith shall be mutually agreed upon by the Company, HCW and, if a
Direct Placement, the purchasers (each, a “Purchaser” and collectively, the “Purchasers”)
and nothing herein implies that HCW would have the power or authority to bind the Company or any Purchaser, and the Company shall
not, and nothing herein implies that the Company shall, have an obligation to issue any Securities or complete a Direct Placement.
This Agreement and the documents executed and delivered by the Company and the Purchasers in connection with a Placement shall
be collectively referred to herein as the “Transaction Documents.” The date of a closing of a Placement (including
any subsequent closings that occur pursuant to a Placement, whether at the discretion of the Company, the Purchasers (through additional
investment rights or otherwise), milestones or otherwise) shall be referred to herein as a “Closing Date.” The
Company expressly acknowledges and agrees that the execution of this Agreement does not constitute a commitment by HCW or any Purchaser
to purchase the Securities and does not ensure the successful placement of the Securities or any portion thereof or the success
of HCW with respect to securing any other financing on behalf of the Company. In the event the Placement will consist of unregistered
securities of the Company Sections 2 and 3 (unless otherwise indicated) of Annex A will apply in addition to the provisions
set forth herein and in the event that the Placement will consist of registered securities of the Company, Sections 1, 2 and 3
of Annex A will apply in addition to the provisions set forth herein.


 


In the event that a
Placement is an Underwritten Placement, prior to the commencement of the Underwritten Placement, the Company shall negotiate the
terms of an underwriting agreement with HCW containing such terms, covenants, conditions, representations, warranties, and providing
for the delivery of legal opinions, comfort letters and officer’s certificates, all in form and substance satisfactory to
HCW and its counsel and the Company.


 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC


 








    	 



    	 



    




 


In the event that a
Placement is a Direct Placement, the sale of Securities to any Purchaser will be evidenced by a purchase agreement (“Purchase
Agreement”) between the Company and such Purchaser in a form reasonably satisfactory to the Company and HCW. Prior to
the signing of any Purchase Agreement, officers of the Company with responsibility for financial affairs will be available to answer
inquiries from prospective Purchasers.


 


Notwithstanding anything
herein to the contrary, in the event that HCW determines that any of the terms provided for hereunder shall not comply with a FINRA
rule, including but not limited to FINRA Rule 5110, then the Company shall agree to amend this Agreement in writing upon the request
of HCW to comply with any such rules; provided that any such amendments shall not provide for terms that are less favorable to
the Company.


 


A.                
Fees. In connection with the services described above, the Company shall pay to HCW the following compensation:


 


1.     
HCW’s Fee. The Company shall pay to HCW a cash placement fee (the “HCW’s Fee”) on
each Closing Date equal to 10% of the aggregate purchase price paid by each purchaser of Securities that are placed in a Placement
on such Closing Date during the Term (and 8% of any proceeds received upon exercise of any “greenshoe”, “additional
investment” option or short-term warrant (i.e., a warrant having a term of exercise of two years or less) granted to the
Purchasers). Other than through an Underwritten Placement, HCW’s Fee shall be paid at the closing of the Placement (the “Closing”)
through a third party escrow agent from the gross proceeds of the Securities sold.


 


2.     
Warrants.As additional compensation for the services performed hereunder, the Company shall issue to HCW or its
designees at the Closing, warrants (the “HCW Warrants”) to purchase that number of shares of common stock of
the Company equal to 8% of the aggregate number of shares of Common Stock placed in the Placement (the “Shares”)
(or, if Convertible Securities, shares of Common Stock underlying any Convertible Securities sold in the Placement to such Purchasers,
but excluding shares of Common Stock issuable upon the exercise of any Warrants issued to Purchasers in the Placement). The HCW
Warrants shall have the same terms as the warrants issued to investors (“Investors”) in the Placement, except
that the exercise price shall be 125% of the offering price per share and they shall have an exercise period of five years from
issuance except that if the offering is registered 5 years from the effective date of the registration statement referred to in
Section 1.A of Annex A, attached hereto if applicable. If no warrants are issued to Investors, the HCW Warrants shall be in a customary
form reasonably acceptable to HCW. If required by FINRA Rule 5110, the HCW Warrants shall not be transferable for six months from
the date of the Placement, and further, the number of shares of Common Stock underlying the HCW Warrants shall be reduced if necessary
to comply with FINRA rules or regulations.


 


B.Term and Termination
of Engagement. The term (the “Term”) of HCW’s exclusive engagement will begin on the date hereof and
end 15 business days after the receipt by either party hereto of written notice of termination; provided that no such notice may
be given by the Company for a period of 12 months after the date hereof. Notwithstanding anything to the contrary contained herein,
the provisions concerning confidentiality, indemnification and contribution contained herein and the Company’s obligations
contained in Section J hereof will survive any expiration or termination of this Agreement, and the Company’s obligation
to pay fees actually earned and payable and to reimburse expenses actually incurred and reimbursable pursuant to Section A and
Section C hereof, if any, will survive any expiration or termination of this Agreement, as permitted by FINRA Rule 5110(f)(2)(d).
Upon any expiration or termination of this Agreement, the Company's obligation to reimburse HCW for out of pocket expenses actually
incurred by HCW and reimbursable upon closing of the Placement pursuant to Section C, if any, or otherwise due under Section A
hereof, will survive any expiration or termination of this Agreement, as permitted by FINRA Rule 5110(f)(2)(d).


 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC







 






    	 



    	 



    

 


C.Expense Reimbursement.
Out of the proceeds of the Closing the Company also agrees to pay HCW a non-accountable expense allowance of $25,000 on each Closing
Date; provided, however, that, in connection with a Placement of registered securities or an Underwritten Placement,
such non-accountable expense allowance shall be the greater of 1.0% of the aggregate gross proceeds raised on the Closing Date
or $25,000 (provided, however, that such expense cap in no way limits or impairs the indemnification and contribution
provisions of this Agreement). For purposes of clarity, if a Placement has more than one closing, the expense allowance payable
hereunder is payable only on the initial Closing Date of such Placement.


 


D.[RESERVED]


 


E.Use of Information.
The Company will furnish HCW such written information as HCW reasonably requests in connection with the performance of its services
hereunder. The Company understands, acknowledges and agrees that, in performing its services hereunder, HCW will use and rely entirely
upon such information as well as publicly available information regarding the Company and other potential parties to a Placement
and that HCW does not assume responsibility for independent verification of the accuracy or completeness of any information, whether
publicly available or otherwise furnished to it, concerning the Company or otherwise relevant to a Placement, including, without
limitation, any financial information, forecasts or projections considered by HCW in connection with the provision of its services.


 


F.Confidentiality.
In the event of the consummation or public announcement of any Placement, HCW shall have the right to disclose its participation
in such Placement, including, without limitation, the placement at its cost of “tombstone” advertisements in financial
and other newspapers and journals.


 


G.Securities
Matters. The Company shall be responsible for any and all compliance with the securities laws applicable to it, including Regulation
D and the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 promulgated thereunder, and
unless otherwise agreed in writing, all state securities (“blue sky”) laws. HCW agrees to cooperate with counsel to
the Company in that regard.


 


H.Company Acknowledgement.
The Company acknowledges that the Placement of convertible Securities may create significant risks, including the risk that the
Company may have insufficient cash resources and/or registered shares to timely meet its payment and conversion obligations. The
Company further acknowledges that, depending on the number and price of new shares issued, such transaction may result in substantial
dilution which could adversely affect the market price of the Company’s shares. The Company agrees that it will perform and
comply with the covenants and other obligations set forth in the Transaction Documents and that HCW will be entitled to rely on
the representations, warranties, agreements and covenants of the Company contained in such Transaction Documents as if such representations,
warranties, agreements and covenants were made directly to HCW by the Company hereunder.


 


J.Indemnity.


 


1.In connection with
the Company’s engagement of HCW as placement agent, the Company hereby agrees to indemnify and hold harmless HCW and its
affiliates, and the respective controlling persons, directors, officers, members, shareholders, agents and employees of any of
the foregoing (collectively the “Indemnified Persons”), from and against any and all claims, actions, suits,
proceedings (including those of shareholders), damages, liabilities and expenses incurred by any of them (including the reasonable
fees and expenses of counsel), as incurred, (collectively a “Claim”), that are (A) related to or arise out of
(i) any actions taken or omitted to be taken (including any untrue statements made or any statements omitted to be made) by the
Company, or (ii) any actions taken or omitted to be taken by any Indemnified Person in connection with the Company’s engagement
of HCW, or (B) otherwise relate to or arise out of HCW’s activities on the Company’s behalf under HCW’s engagement,
and the Company shall reimburse any Indemnified Person for all expenses (including the reasonable fees and expenses of counsel)
as incurred by such Indemnified Person in connection with investigating, preparing or defending any such claim, action, suit or
proceeding, whether or not in connection with pending or threatened litigation in which any Indemnified Person is a party. The
Company will not, however, be responsible for any Claim that is finally judicially determined to have resulted from the gross negligence
or willful misconduct of any person seeking indemnification for such Claim. The Company further agrees that no Indemnified Person
shall have any liability to the Company for or in connection with the Company’s engagement of HCW except for any Claim incurred
by the Company as a result of such Indemnified Person’s gross negligence or willful misconduct.


 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC







 






    	 



    	 



    

 


2.The Company further
agrees that it will not, without the prior written consent of HCW, settle, compromise or consent to the entry of any judgment in
any pending or threatened Claim in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person
is an actual or potential party to such Claim), unless such settlement, compromise or consent includes an unconditional, irrevocable
release of each Indemnified Person from any and all liability arising out of such Claim.


 


3.Promptly upon receipt
by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which indemnification
is being sought hereunder, such Indemnified Person shall notify the Company in writing of such complaint or of such assertion or
institution but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except
and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company
so elects or is requested by such Indemnified Person, the Company will assume the defense of such Claim, including the employment
of counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses of such counsel. In the
event, however, that legal counsel to such Indemnified Person reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and the
Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it or
other Indemnified Persons different from or in addition to those available to the Company, then such Indemnified Person may employ
its own separate counsel to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees
and expenses of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to defend,
contest, or otherwise protect against any Claim, the relevant Indemnified Party shall have the right, but not the obligation, to
defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be fully
indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and all
amounts paid as a result of such Claim or the compromise or settlement thereof. In addition, with respect to any Claim in which
the Company assumes the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her
or its own counsel therefor at his, her or its own expense.


 


4.The Company agrees
that if any indemnity sought by an Indemnified Person hereunder is held by a court to be unavailable for any reason then (whether
or not HCW is the Indemnified Person), the Company and HCW shall contribute to the Claim for which such indemnity is held unavailable
in such proportion as is appropriate to reflect the relative benefits to the Company, on the one hand, and HCW on the other, in
connection with HCW’s engagement referred to above, subject to the limitation that in no event shall the amount of HCW’s
contribution to such Claim exceed the amount of fees actually received by HCW from the Company pursuant to HCW’s engagement.
The Company hereby agrees that the relative benefits to the Company, on the one hand, and HCW on the other, with respect to HCW’s
engagement shall be deemed to be in the same proportion as (a) the total value paid or proposed to be paid or received by the Company
pursuant to the Placement (whether or not consummated) for which HCW is engaged to render services bears to (b) the fee paid or
proposed to be paid to HCW in connection with such engagement.


  


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC


 










    	 



    	 



    

 


5.The Company’s
indemnity, reimbursement and contribution obligations under this Agreement (a) shall be in addition to, and shall in no way limit
or otherwise adversely affect any rights that any Indemnified Party may have at law or at equity and (b) shall be effective whether
or not the Company is at fault in any way.


 


K.Limitation
of Engagement to the Company. The Company acknowledges that HCW has been retained only by the Company, that HCW is providing
services hereunder as an independent contractor (and not in any fiduciary or agency capacity) and that the Company’s engagement
of HCW is not deemed to be on behalf of, and is not intended to confer rights upon, any shareholder, owner or partner of the Company
or any other person not a party hereto as against HCW or any of its affiliates, or any of its or their respective officers, directors,
controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)), employees or agents. Unless otherwise expressly agreed in writing by HCW,
no one other than the Company is authorized to rely upon this Agreement or any other statements or conduct of HCW, and no one other
than the Company is intended to be a beneficiary of this Agreement. The Company acknowledges that any recommendation or advice,
written or oral, given by HCW to the Company in connection with HCW’s engagement is intended solely for the benefit and use
of the Company’s management and directors in considering a possible Placement, and any such recommendation or advice is not
on behalf of, and shall not confer any rights or remedies upon, any other person or be used or relied upon for any other purpose.
HCW shall not have the authority to make any commitment binding on the Company. The Company, in its sole discretion, shall have
the right to reject any investor introduced to it by HCW.


 


L.Limitation
of HCW’s Liability to the Company. HCW and the Company further agree that neither HCW nor any of its affiliates or any
of its their respective officers, directors, controlling persons (within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act), employees or agents shall have any liability to the Company, its security holders or creditors, or any
person asserting claims on behalf of or in the right of the Company (whether direct or indirect, in contract, tort, for an act
of negligence or otherwise) for any losses, fees, damages, liabilities, costs, expenses or equitable relief arising out of or relating
to this Agreement or the services rendered hereunder, except for losses, fees, damages, liabilities, costs or expenses that arise
out of or are based on any action of or failure to act by HCW and that are finally judicially determined to have resulted solely
from the gross negligence or willful misconduct of HCW.


 


M.Governing
Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements
made and to be fully performed therein. Any disputes that arise under this Agreement, even after the termination of this Agreement,
will be heard only in the state or federal courts located in the City of New York, State of New York. The parties hereto expressly
agree to submit themselves to the jurisdiction of the foregoing courts in the City of New York, State of New York. The parties
hereto expressly waive any rights they may have to contest the jurisdiction, venue or authority of any court sitting in the City
and State of New York. In the event of the bringing of any action, or suit by a party hereto against the other party hereto, arising
out of or relating to this Agreement, the party in whose favor the final judgment or award shall be entered shall be entitled to
have and recover from the other party the costs and expenses incurred in connection therewith, including its reasonable attorneys’
fees. Any rights to trial by jury with respect to any such action, proceeding or suit are hereby waived by HCW and the Company.


 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC


 










    	 



    	 



    

 


N.Notices.
All notices hereunder will be in writing and sent by certified mail, hand delivery, overnight delivery or fax, if sent to HCW,
to H.C. Wainwright & Co., LLC, at the address set forth on the first page hereof, or by email to notices@hcwco.com, Attention:
Head of Investment Banking, and if sent to the Company, to the address set forth on the first page hereof, or by e-mail to brooke@stevia-first.com,
Attention: Robert Brooke, Chief Executive Officer. Notices sent by certified mail shall be deemed received five days thereafter,
notices sent by hand delivery or overnight delivery shall be deemed received on the date of the relevant written record of receipt,
and notices delivered by fax shall be deemed received as of the date and time printed thereon by the fax machine.


 


O.Miscellaneous.
This Agreement shall not be modified or amended except in writing signed by HCW and the Company. This Agreement shall be binding
upon and inure to the benefit of both HCW and the Company and their respective assigns, successors, and legal representatives.
This Agreement constitutes the entire agreement of HCW and the Company with respect to this Placement and supersedes any prior
agreements with respect to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable
in any respect, such determination will not affect such provision in any other respect, and the remainder of this Agreement shall
remain in full force and effect. This Agreement may be executed in counterparts (including facsimile counterparts), each of which
shall be deemed an original but all of which together shall constitute one and the same instrument.


 


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


 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC






 






    	 



    	 



    






In acknowledgment that
the foregoing correctly sets forth the understanding reached by HCW and the Company, please sign in the space provided below, whereupon
this letter shall constitute a binding agreement as of the date indicated above.


 








	 	 	 	Very truly yours,	 
	 	 	 	 	 	 
	 	 	 	H.C. WAINWRIGHT & CO., LLC	 
	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	By 	 	 
	 	 	 	 	Name:	 
	 	 	 	 	Title:	 
	 	 	 	 	 	 
	Accepted and Agreed:	 	 	 	 
	 	 	 	 	 	 
	STEVIA FIRST CORP.	 	 	 	 
	 	 	 	 	 	 
	By  	 	 	 	 	 
		Name:	 	 	 	 
		Title:	 	 	 	 







 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC






 




    	 



    	 



    

 


Annex A


 


SECTION 1. REGISTRATION STATEMENT


 


As of the date of a registered Placement
on Form S-1 and as of the Closing Date for such registered Placement, the Company represents and warrants to, and agrees with,
HCW that:


 


(A)The Company
has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1
(Registration File No._______________ ) under the Securities Act of 1933, as amended (the “Securities Act”).
At the time of such filing, the Company met the requirements of Form S-1 under the Securities Act. The Company will file with the
Commission pursuant to Rules 430A and 424(b) under the Securities Act, and the rules and regulations (the “Rules and Regulations”)
of the Commission promulgated thereunder, a final prospectus included in such registration statement relating to the placement
of the Shares and the plan of distribution thereof and has advised the Placement Agent of all further information (financial and
other) with respect to the Company required to be set forth therein. Such registration statement, including the exhibits thereto,
as amended at the date of this Agreement, is hereinafter called the “Registration Statement”; such prospectus
in the form in which it appears in the Registration Statement is hereinafter called the “Base Prospectus”; and
the amended or supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rules 430A
and 424(b) (including the Base Prospectus as so amended or supplemented) is hereinafter called the “Prospectus Supplement.”
Any reference in this Agreement to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed
to refer to and include the documents incorporated by reference therein (the “Incorporated Documents”) pursuant
to Item 12 of Form S-1 which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus Supplement, as the case may
be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement” with
respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or
the Prospectus Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement
to financial statements and schedules and other information that is “contained,” “included,” “described,”
“referenced,” “set forth” or “stated” in the Registration Statement, the Base Prospectus or
the Prospectus Supplement (and all other references of like import) shall be deemed to mean and include all such financial statements
and schedules and other information that is or is deemed to be incorporated by reference in the Registration Statement, the Base
Prospectus or the Prospectus Supplement, as the case may be. For purposes of this Agreement, “free writing prospectus”
has the meaning set forth in Rule 405 under the Securities Act. Following FINRA approval of the compensation arrangements set forth
in Section 1, the Company has no reason to believe that the Registration Statement will not be declared effective by the Commission.


 


(B)The Registration
Statement (and any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities
Act. Each of the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in
all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as
amended or supplemented, if applicable, will not, contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading. The Base Prospectus, and the Prospectus
Supplement, each as of its respective date, comply in all material respects with the Securities Act and the Exchange Act and the
applicable Rules and Regulations. Each of the Base Prospectus and the Prospectus Supplement, as amended or supplemented, did not
and will not contain as of the date thereof any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Incorporated
Documents, if any, when they were filed with the Commission, conformed in all material respects to the requirements of the Exchange
Act and the applicable Rules and Regulations, and none of such documents, when they were filed with the Commission, contained
any untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein (with respect
to Incorporated Documents incorporated by reference in the Base Prospectus or Prospectus Supplement), in light of the circumstances
under which they were made not misleading; and any further documents so filed and incorporated by reference in the Base Prospectus
or Prospectus Supplement, when such documents are filed with the Commission, will conform in all material respects to the requirements
of the Exchange Act and the applicable Rules and Regulations, as applicable, and will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading. As of the Closing Date, no post-effective amendment to the Registration Statement reflecting any facts
or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change in the information
set forth therein is required to be filed with the Commission. There are no documents required to be filed with the Commission
in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities Act
or (y) will not be filed within the requisite time period. There are no contracts or other documents required to be described
in the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, that
have not been described or filed as required.


 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC






 






    	 



    	 



    

 


(C)Subject to the
provisions of Rules 164 and 433 under the Securities Act, the Company is eligible to use free writing prospectuses in connection
with the Placement. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities
Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to
file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf of or used by the Company complies or
will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the
Commission thereunder. The Company will not, without the prior consent of the Placement Agent, prepare, use or refer to, any free
writing prospectus.


 


(D)The Company
has delivered, or will as promptly as practicable deliver, to the Placement Agent complete conformed copies of the Registration
Statement and of each consent and certificate of experts, as applicable, filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits), the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, in such quantities
and at such places as the Placement Agent reasonably requests. Neither the Company nor any of its directors and officers has distributed
and none of them will distribute, prior to the Closing Date, any offering material in connection with the offering and sale of
the Shares other than the Base Prospectus, the Prospectus Supplement, the Registration Statement, copies of the documents incorporated
by reference therein and any other materials permitted by the Securities Act.


 


In the event that a
Direct Placement occurs off a registration statement other than the Registration Statement, prior to the commencement of any such
Placement, the Company shall make written representations, warranties and covenants to HCW as to such subsequent registration statement
(and other offering documents) that are substantially the same as the representations, warranties and covenants made under this
Section, which representations, warranties and covenants shall be reasonably satisfactory to HCW.





 


 





430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC






 






    	 



    	 



    

 


SECTION 2.REPRESENTATIONS
AND WARRANTIES. Except as set forth under the corresponding section of the Disclosure Schedules, which Disclosure Schedules
shall be deemed a part hereof, the Company hereby makes the representations and warranties set forth below to HCW as of the date
of the Placement and as of the Closing Date.


 


(A)Organization
and Qualification. All of the direct and indirect subsidiaries (individually, a “Subsidiary”) of the Company
are set forth on Schedule 2(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of
each Subsidiary free and clear of any “Liens” (which for purposes of this Agreement shall mean a lien, charge,
security interest, encumbrance, right of first refusal, preemptive right or other restriction), and all 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. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise
organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable),
with the requisite power and authority to own and use its properties and assets and to carry on its business as currently conducted.
Neither the Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of
the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, 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”
(which for purposes of this Agreement shall mean any action, claim, suit, investigation or proceeding (including, without limitation,
an investigation or partial proceeding, such as a deposition), whether commenced or threatened) has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


 


(B)Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by each of the Transaction Documents and otherwise to carry out its obligations thereunder. The execution and delivery of the Transaction
Documents by the Company and the consummation by it 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 Company, its board of directors or its stockholders
in connection therewith other than in connection with the “Required Approvals” (as defined in subsection 3(D)
below). The Transaction Documents have been, or upon delivery will be, duly executed by the Company and, when delivered in accordance
with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company
in accordance with its terms except (i) as limited by 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.


 


(C)No Conflicts.
The execution, delivery and performance of the Transaction Documents by the Company, the issuance and sale of the Securities and
the consummation by the Company of the other 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, 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 reasonably
be expected to result in a Material Adverse Effect.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(D)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” (defined as 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, including, without limitation, any “Trading Market” (which, for purposes of this Agreement shall
mean the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: NYSE
MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, the OTC
Bulletin Board or the OTCQB (or any successors to any of the foregoing) in connection with the execution, delivery and performance
by the Company of the Transaction Documents, other than such filings as are required to be made under applicable Federal and state
securities laws and the rules and regulations of the Financial Industry Regulatory Authority (FINRA) (collectively, the “Required
Approvals”).


 


(E)Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company other than restrictions on transfer provided for in the Transaction Documents. The Company has reserved from its duly authorized
capital stock the maximum number of shares of Common Stock issuable pursuant to the Transaction Documents. The issuance by the
Company of the Securities has been registered under the Securities Act and all of the Securities are freely transferable and tradable
by the Purchasers without restriction (other than any restrictions arising solely from an act or omission of a Purchaser). Upon
receipt of the Securities, the Purchasers will have good and marketable title to such Securities and the Securities will be freely
tradable on the Trading Market.


 


(F)Capitalization.
The capitalization of the Company is as set forth in the SEC Reports and Prospectus Supplement. 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 plan and pursuant to the conversion or exercise of securities exercisable, exchangeable
or convertible into Common Stock (“Common Stock Equivalents”). 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, script 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 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. The issuance and sale of the Securities will not obligate the Company to issue shares of Common
Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any holder of Company securities
to adjust the exercise, conversion, exchange or reset price under such securities. All of the outstanding shares of capital stock
of the Company are 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. Except for the Required Approvals, no further approval or authorization of any stockholder, the Board of Directors
of the Company or others is required for the issuance and sale of the Securities. There are no stockholders agreements, voting
agreements or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to
the knowledge of the Company, between or among any of the Company’s stockholders.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(G)SEC Reports;
Financial Statements. The Company has complied in all material respects with requirements to file all reports, schedules, forms,
statements and other documents required to be filed by it 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 to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid
extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their
respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act and the rules and regulations of the Commission promulgated thereunder, 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 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.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(H)Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as specifically disclosed in the SEC Reports, (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 required to be disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or “Affiliate” (defined as 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 144 under the Securities Act), except pursuant to existing Company stock option plans. The Company does not
have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Securities
contemplated by this Agreement or as set forth in the SEC Reports, no event, liability or development has occurred or exists with
respect to the Company or its Subsidiaries or their respective business, properties, operations or financial condition, that would
be required to be disclosed by the Company under applicable securities laws at the time this representation is made that has not
been publicly disclosed one (1) Trading Day prior to the date that this representation is made.


 


(I)Litigation.
There is no action, suit, inquiry, notice of violation, Proceeding or investigation pending or, to the knowledge of the Company,
threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator,
governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the Securities
or (ii) 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. 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, 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. No executive officer, to the
knowledge of the Company, 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, 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.


 


(J)Labor Relations.
No material labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company
which could reasonably be expected to result in a Material Adverse Effect.


 


(K)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 order of any court, arbitrator or
governmental body, or (iii) is or has been in violation of any statute, rule or regulation of any governmental authority, including
without limitation all foreign, federal, state and local laws applicable to its business and all such laws that affect the environment,
except in each case as could not have a Material Adverse Effect.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(L)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 have or 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.


 


(M)Title to
Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them that
is material to the business of the Company and the Subsidiaries 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
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 Liens for the payment of federal, state or other taxes, 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 of which the Company and the Subsidiaries are in compliance.


 


(N)Patents and
Trademarks. 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 similar intellectual property
rights necessary or material 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”).
Neither the Company nor any Subsidiary has received a notice (written or otherwise) that the Intellectual Property Rights used
by the Company or any Subsidiary violates or infringes upon the rights of any third party. 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.


 


(O)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. To the knowledge of the Company, such insurance contracts and policies
are accurate and complete. 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.


 


(P)Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the officers or directors of the Company and,
to the knowledge of the Company, none of the employees of the Company 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, 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 or partner, other than (i) for payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii)
for other employee benefits, including stock option agreements under any stock option plan of the Company.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(Q)Sarbanes-Oxley.
The Company is in material compliance with all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the
date hereof and of the closing date of the Placement.


 


(R) Certain
Fees. Except as otherwise provided in this Agreement, no brokerage or finder’s fees or commissions are or will be payable
by the Company 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. 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
that may be due in connection with the transactions contemplated by the Transaction Documents.


 


(S)Trading Market
Rules. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.


 


(T)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 subject to the Investment Company Act.


 


(U)Registration
Rights. No Person has any right to cause the Company to effect the registration under the Securities Act of any securities
of the Company.


 


(V)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. 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.


 


(W)Application
of Takeover Protections. The Company and its 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.


 


(X)Solvency.
Based on the financial condition of the Company as of the Closing Date after giving effect to the receipt by the Company of the
proceeds from the sale of the Securities hereunder, (i) the Company’s fair saleable value of its 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 for the current fiscal year 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, 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 debt 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 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 the Closing Date. The SEC Reports set forth
as of the dates thereof 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” shall mean (a) any liabilities
for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the ordinary course of business),
(b) 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 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 (c) the present value of
any lease payments in excess of $50,000 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.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(Y)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 each Subsidiary has filed all necessary federal, state and foreign income and franchise tax returns and
has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a tax deficiency which has been asserted
or threatened against the Company or any Subsidiary.


 


(Z)Foreign Corrupt
Practices. Neither the Company, nor to the knowledge of the Company, any agent or other person acting on behalf of the Company,
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 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 the Foreign Corrupt Practices Act of 1977, as amended.


 


(AA)Accountants.
The Company’s accountants are set forth on the Prospectus Supplement. To the knowledge of the Company, such accountants,
who the Company expects will express their opinion with respect to the financial statements to be included in the Company’s
next Annual Report on Form 10-K, are a registered public accounting firm as required by the Securities Act.


 


(BB)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 (other than for HCW’s placement 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.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(CC)Approvals.
The issuance and listing on the Trading Market of the Shares and the shares of Common Stock underlying the Warrants and HCW Warrants
requires no further approvals, including but not limited to, the approval of shareholders.


 


(DD)FINRA Affiliations.
There are no affiliations with any FINRA member firm among the Company’s officers, directors or, to the knowledge of the
Company, any five percent (5%) or greater stockholder of the Company.


 


SECTION 3.CLOSING. The
obligations of HCW and the Purchasers, and the closing of the sale of the Securities under the Transaction Documents are subject
to the accuracy, when made and on the Closing Date, of the representations and warranties on the part of the Company and its Subsidiaries
contained herein, to the accuracy of the statements of the Company and its Subsidiaries made in any certificates pursuant to the
provisions hereof, to the performance by the Company and its Subsidiaries of their obligations hereunder, and to each of the following
additional terms and conditions:


 


(A)[REGISTERED
OFFERINGS ONLY] No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been initiated or threatened by the Commission, and any request for additional information on the part
of the Commission (to be included in the Registration Statement, the Base Prospectus or the Prospectus Supplement or otherwise)
shall have been complied with to the reasonable satisfaction of HCW.


 


(B)[REGISTERED
OFFERINGS ONLY] HCW shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration
Statement, the Base Prospectus or the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of counsel for HCW, is material or omits to state any fact which, in the opinion of such counsel,
is material and is required to be stated therein or is necessary to make the statements therein not misleading.


 


(C)All corporate
proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each Transaction Document,
and the Securities, and, if the Securities are registered, the Registration Statement, the Base Prospectus and the Prospectus Supplement,
and all other legal matters relating to the Transaction documents and the transactions contemplated thereby shall be reasonably
satisfactory in all material respects to counsel for HCW, and the Company shall have furnished to such counsel all documents and
information that they may reasonably request to enable them to pass upon such matters.


 


(D)HCW shall have
received from outside counsel to the Company such counsel’s written opinion, addressed to HCW and the Purchasers dated as
of the Closing Date, in form and substance reasonably satisfactory to HCW, which opinion shall include a “10b-5” representation
from such counsel.


 


(E)Neither the
Company nor any of its Subsidiaries shall have sustained since the date of the latest audited financial statements, any loss or
interference with its business from fire, explosion, flood, terrorist act or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated by the
Base Prospectus and (ii) since such date there shall not have been any change in the capital stock or long-term debt of the Company
or any of its Subsidiaries or any change, or any development involving a prospective change, in or affecting the business, general
affairs, management, financial position, stockholders’ equity, results of operations or prospects of the Company and its
Subsidiaries, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of HCW, so material and
adverse as to make it impracticable or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the
manner contemplated under the Transaction Documents or, if pursuant to an Underwritten Placement, pursuant to the Prospectus Supplement.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(F)The Common Stock
is registered under the Exchange Act and, as of the Closing Date, the Shares shall be listed and admitted and authorized for trading
on the Trading Market, and satisfactory evidence of such actions shall have been provided to HCW. The Company shall have taken
no action designed to, or likely to have the effect of terminating the registration of the Common Stock under the Exchange Act
or delisting or suspending from trading the Common Stock from the Trading Market, nor has the Company received any information
suggesting that the Commission or the Trading Market is contemplating terminating such registration or listing.


 


(G)Subsequent to
the execution and delivery of the Transaction Documents or underwriting agreement, as applicable, there shall not have occurred
any of the following: (i) trading in securities generally on any trading market or in the over-the-counter market, or trading in
any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or minimum or maximum
prices or maximum ranges for prices shall have been established on any such exchange or such market by the Commission, by such
exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a banking moratorium shall have been
declared by federal or state authorities or a material disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, (iii) the United States shall have become engaged in hostilities in which it is not currently
engaged, the subject of an act of terrorism, there shall have been an escalation in hostilities involving the United States, or
there shall have been a declaration of a national emergency or war by the United States, or (iv) there shall have occurred any
other calamity or crisis or any change in general economic, political or financial conditions in the United States or elsewhere,
if the effect of any such event in clause (iii) or (iv) makes it, in the sole judgment of HCW, impracticable or inadvisable to
proceed with the sale or delivery of the Securities.


 


(H)No action shall
have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect
or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would
prevent the issuance or sale of the Securities or materially and adversely affect or potentially and adversely affect the business
or operations of the Company.


 


(I)The Company
shall have prepared and filed with the Commission a Current Report on Form 8-K with respect to the Placement, including as an exhibit
thereto this Agreement.


 


(J)If a Direct
Placement, the Company shall have entered into subscription agreements with each of the Purchasers and such agreements shall be
in full force and effect and shall contain representations and warranties of the Company as agreed between the Company and the
Purchasers.


 


(K)FINRA shall
have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company
shall, if requested by HCW, make or authorize HCW’s counsel to make on the Company’s behalf, an Issuer Filing with
FINRA pursuant to FINRA Rule 5110 with respect to the Registration Statement and pay all filing fees required in connection therewith.


 


(L)Prior to the
Closing Date, the Company shall have furnished to HCW such further information, certificates and documents as HCW may reasonably
request.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC



 






    	 



    	 



    

 


(M)The
Company and HCW shall have entered into an escrow agreement with a commercial bank or trust company reasonably satisfactory to
both parties pursuant to which the Purchasers shall deposit their subscription funds in an escrow account and the Company and
HCW shall jointly authorize the disbursement of the funds from the escrow account on the Closing Date. All fees payable to HCW
hereunder shall be paid from such escrow account. The Company shall pay the reasonable fees of the escrow agent.


 


All opinions, letters,
evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions
hereof only if they are in form and substance reasonably satisfactory to counsel for HCW.


 


 


430 Park Avenue | New York,
New York 10022 | 212.356.0500 | www.hcwco.com


Member: FINRA/SIPC