Exhibit
10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as of June 18, 2020, and is between IMAC Holdings,
Inc., a corporation incorporated under the laws of the state of Delaware (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 an effective registration statement under the
Securities Act as to the Shares (as such terms are defined below), 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, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:


 


“A.G.P.”
means A.G.P./Alliance Global Partners, placement agent.


 


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


 


“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.


 


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


 


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


 


“Base
Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(iii).


 


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


 


“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 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 generally are open for use by customers on such day.


 




    	 



     


    

 


“Closing”
means the closing of the purchase and sale of the Shares pursuant to Section 2.1.


 


“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii)
the Company’s obligations to deliver the Shares, in each case, have been satisfied or waived, but in no event later than
the second (2nd) Trading Day following the date hereof.


 


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


 


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


 


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


 


“Company
Counsel” means Olshan Frome Wolosky LLP.


 


“Disclosure
Schedules” means the Disclosure Schedules of the Company delivered concurrently herewith.


 


“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 City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following
the date hereof, unless otherwise instructed as to an earlier time by A.G.P., and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the
date hereof, unless otherwise instructed as to an earlier time by A.G.P.


 


“DWAC”
shall have the meaning ascribed to such term in Section 2.2(a)(v).


 


“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.


 


“Environmental
Law” shall have the meaning ascribed to such term in Section 3.1(p).


 


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


 




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


 


“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers, directors, consultants
or advisors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose,
(b) securities upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other securities exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits, combinations
or as otherwise required by the existing terms of such securities) or to extend the term of such securities, and (c) securities
issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company,
provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall
provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities.


 


“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.


 


“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(oo).


 


“Hazardous
Substances” shall have the meaning ascribed to such term in Section 3.1(p).


 


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


 


“Issuer
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(iii).


 


“IT
Systems” shall have the meaning ascribed to such term in Section 3.1(qq).


 


“Lien”
means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance
of any kind whatsoever.


 


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


 


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


 


“Money
Laundering Laws” shall have the meaning assigned to such term in Section 3.1(pp).


 




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“Per
Share Purchase Price” equals $1.50, 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.


 


“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.


 


“Personal
Data” shall have the meaning ascribed to such term in Section 3.1(qq).


 


“Placement
Agency Agreement” means the Placement Agency Agreement, dated as of June 18, 2020, by and between the Company and A.G.P.
with respect to the sale of the Shares.


 


“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial
proceeding, such as a deposition) pending or, to the Company’s knowledge, threatened in writing 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).


 


“Prospectus”
shall have the meaning ascribed to such term in Section 3.1(f)(iii).


 


“Prospectus
Supplement” shall have the meaning ascribed to such term in Section 3.1(f)(iii).


 


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


 


“Registration
Statement” shall have the meaning ascribed to such term in Section 3.1(f)(iii).


 


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


 


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


 


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


 


“Shares”
means the Common Stock issued or issuable to each Purchaser pursuant to this Agreement.


 


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


 


“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares 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.


 




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“Subsidiary”
and “Subsidiaries” shall have the meanings ascribed to such terms in Section 3.1(a).


 


“Trading
Day” means a day on which the New York Stock Exchange is open for trading.


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock are 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,
the New York Stock Exchange (or any successors to any of the foregoing).


 


“Transaction
Documents” means this Agreement and the Placement Agency 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 Equity Stock Transfer, LLC, the current transfer agent of the Company, at its principal office in New York,
New York, and any successor transfer agent of the Company.


 


ARTICLE
II


 


PURCHASE
AND SALE


 


2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell,
and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of 1,764,000 Shares. The Company shall
deliver to each Purchaser its respective Shares as set forth on the Purchaser’s signature page hereto, at price per Share
equal to the Per Share Purchase Price, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2
deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall
occur at the offices of Kelley Drye & Warren LLP, New York, New York, or such other location as the parties shall mutually
agree.


 


2.2
Deliveries.


 


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


 


(i)
this Agreement duly executed by the Company;


 


(ii)
a legal opinion and negative assurance letter of Company Counsel, in a form reasonably acceptable to A.G.P.;


 


(iii)
a certificate executed by the Chief Financial Officer of the Company, in form and substance reasonably satisfactory to A.G.P.;


 


(iv)
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;


 




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(v)
a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent to deliver on an expedited basis via
The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”) Shares equal to such Purchaser’s
Subscription Amount divided by the Per Share Purchase Price, registered in the name of such Purchaser;


 


(vi)
Lock-up Agreements, in the form set forth on Exhibit A, executed by each of the Persons set forth on Exhibit B;


 


(vii)
Officer’s Certificate, in form and substance satisfactory to the Purchasers;


 


(viii)
Secretary’s Certificate, in form and substance satisfactory to the Purchasers;


 


(ix)
the Base Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act);


 


(x)
a certificate of good standing of the Company issued within ten (10) days by the state of incorporation of the Company and the
state where its principal executive office is located;


 


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


 


(i)
this Agreement duly executed by such Purchaser; and


 


(ii)
such Purchaser’s Subscription Amount.


 


2.3
Closing Conditions.


 


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


 


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


 


(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; 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 the Purchasers hereunder in connection with the Closing are subject to the following conditions
being met:


 




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


 


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


 


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


 


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


 


(v)
each of the Lock-Up Agreements shall remain in full force and effect; and


 


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


 


ARTICLE
III



REPRESENTATIONS AND WARRANTIES


 


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


 


(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a) (each, a “Subsidiary”,
and collectively, the “Subsidiaries”). The Company owns, directly or indirectly, all of the capital stock or
other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital
stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe
for or purchase securities. 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 capital stock of any Subsidiary, or contracts, commitments, understandings
or arrangements by which any Subsidiary is or may become bound to issue capital stock.


 




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(b)
Organization and Qualification. The Company and each of the Subsidiaries has been duly organized and validly exists as
a corporation, limited partnership or company in good standing (or the foreign equivalent thereof, if any) under the laws of its
jurisdiction of organization. The Company and each of the Subsidiaries is duly qualified to do business and is in good standing
as a foreign or extra-provincial corporation, partnership, company or limited liability company in each jurisdiction in which
the character or location of its properties (owned, leased or licensed) or the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good standing which (individually and in the aggregate) would not
have a Material Adverse Effect. 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. 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. The term “Material Adverse Effect” means an effect, change, event or occurrence that,
alone or in conjunction with any other or others: (i) has or would reasonably be expected to have a material adverse effect on:
(A) the business, general affairs, management, condition (financial or otherwise), results of operations, shareholders’
equity, properties or prospects of the Company and the Subsidiaries, taken as a whole, (B) the legality, validity or enforceability
of any Transaction Document, or (C) the Company’s ability to perform in any material respect on a timely basis its obligations
under any Transaction Document, or (ii) would result in the Prospectus or any amendment thereto containing a material misrepresentation
within the meaning of applicable securities laws; provided that a change in the market price or trading volume of the Common
Stock alone shall not be deemed, in and of itself, to constitute a Material Adverse Effect.


 


(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of 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 the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered
in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii)
as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (iii)
insofar as indemnification and contribution provisions may be limited by applicable law.


 




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(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Shares 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 (except as may be required pursuant to the terms of any securities issued and outstanding as of the date
hereof and set forth on Schedule 3.1(d)), increase in any principal amount outstanding or other obligation, 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 this Agreement, other than: (i) the
filings required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement,
(iii) the filing with the Financial Industry Regulatory Authority, Inc. (“FINRA”) of the Prospectus Supplement
and (iv) application to the Nasdaq Capital Market for the listing of the Shares for trading thereon in the time and manner required
thereby (collectively, the “Required Approvals”).


 


(f)
Issuance of the Shares; Qualification; Registration.


 


(i)
The Shares 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 non-assessable, free and clear of all Liens imposed by the Company. The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this Agreement.


 


(ii)
The Company meets the general eligibility requirements for the use of Form S-3 under the Securities Act and it meets the transaction
requirements as set forth in General Instruction I.B.6 of Form S-3 and the aggregate market value of the outstanding voting and
non-voting common equity (as defined in Rule 405 of the Securities Act Regulations) of the Company held by persons other than
affiliates of the Company (pursuant to Rule 144 of the Securities Act Regulations, those that directly, or indirectly through
one or more intermediaries, control, or are controlled by, or are under common control with, the Company), as of June 17, 2020
was $12,907,161.60 based on 7,592,448 shares of Common Stock held by non-affiliates at a price per share of $1.70 which was the
closing price of the Common Stock reported on the Nasdaq Capital Market on June 17, 2020. The Company has prepared and filed with
the Commission a registration statement under the Securities Act on Form S-3 (File No. 333-237455) on March 27, 2020, providing
for the offer and sale, from time to time, of up to $30,000,000 of the Company’s securities (the “Registration
Statement”). The Registration Statement became effective pursuant to Rule 467(a) under the Securities Act on April 3,
2020. The prospectus included in the Registration Statement at the time it became effective, including documents incorporated
therein by reference, is referred to herein as the “Base Prospectus”. No stop order suspending the effectiveness
of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the Commission and any request on the part of the Commission
for additional information has been complied with.


 




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The
term “Prospectus” means the prospectus supplement complying with Rule 424(b) of the Securities Act (the “Prospectus
Supplement”) relating to the offering and sale of the Shares to filed with the Commission pursuant to General Instructions
of Form S-3, together with the Base Prospectus, including all documents incorporated therein by reference.


 


Any
“issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Shares is hereafter
referred to as an “Issuer Free Writing Prospectus”. Any reference herein to the Base Prospectus and the Prospectus
shall be deemed to refer to and include the documents incorporated by reference therein as of the date of filing thereof; and
any reference herein to any “amendment” or “supplement” with respect to any of the Base Prospectus and
the Prospectus shall be deemed to refer to and include (i) the filing of any document with the Commission incorporated or deemed
to be incorporated therein by reference after the date of filing of such Base Prospectus or Prospectus and (ii) any such document
so filed.


 


All
references in this Agreement to the Registration Statement, the Base Prospectus, or the Prospectus, or any Issuer Free Writing
Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the
Commission on EDGAR.


 


(g)
Securities Act Compliance. The Registration Statement complies, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus or any Issuer Free Writing Prospectus will comply, with the applicable provisions
of the Securities Act. Each part of the Registration Statement, when such part became effective, did not and will not contain
an 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 Prospectus and any Issuer Free Writing Prospectus, as of its filing date, and any amendment
thereof or supplement thereto, did not and will not contain an untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.


 




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(h)
No Stop Orders. No order preventing or suspending the use of the Base Prospectus or any Issuer Free Writing Prospectus
has been issued by the Commission.


 


(i)
Capitalization. The equity capitalization of the Company is as set forth on Schedule 3.1(i). All of the issued and
outstanding shares of Common Stock are fully paid and non-assessable and have been duly and validly authorized and issued, in
compliance with all federal and state securities laws and not in violation of or subject to any preemptive or similar right that
entitles any person to acquire from the Company any Common Stock or other security of the Company or any security convertible
into, or exercisable or exchangeable for, Common Stock or any other such security, except for such rights as may have been fully
satisfied or waived prior to the date hereof. Except as set forth on Schedule 3.1(i), the Company has 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
Common Stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional
Common Stock or Common Stock Equivalents. No Person has any right of first refusal, pre-emptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents. The issuance and sale of the
Shares will not obligate the Company to issue Common Stock or other securities to any Person (other than the Purchasers) and will
not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any
of such securities or require the Company to register its stock. There are no outstanding securities or instruments of the Company
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. There are no outstanding securities or instruments of the Company that contain any redemption or
similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is or may become
bound to redeem a security of the Company. Except for the Required Approvals, no further approval or authorization of any shareholder
of the Company, the Board of Directors or others is required for the issuance and sale of the Shares. There are no shareholders
agreements, voting agreements, investor rights 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.


 


(j)
Reports. The Company has filed all reports, schedules, forms, statements and other ‎documents required to be filed
by the Company under the Securities Act and Exchange ‎Act, including pursuant to Section 13(a) or 15(d) thereof (the foregoing
materials, ‎including the exhibits thereto and documents incorporated by reference therein, together ‎with the Base Prospectus
and the Prospectus Supplement, being collectively referred to ‎herein as the “SEC Reports”) on a timely
basis or has received a valid extension of such ‎time of filing and has filed any such SEC Reports prior to the expiration
of any such ‎extension. As of their respective dates, the SEC Reports complied in all material respects ‎with the requirements
of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement
of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading.


 




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(k)
Financial Statements. The consolidated financial statements, including the notes thereto, included or incorporated by reference
in the Registration Statement and the Prospectus 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.


 


(l)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest consolidated financial
statements included in or incorporated by reference into the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, (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) neither the Company nor any Subsidiary has 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, (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP
or (C) liabilities disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased,
redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity
securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not
have pending before the Commission any request for confidential treatment of information. Except for the issuance of the Shares
contemplated by this Agreement, 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 one (1) Trading Day
prior to the date that this representation is made.


 


(m)
Litigation. There is no material 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 Shares, or (ii) is expected to result in a Material Adverse Effect.
The Company has disclosed, in the documents filed by the Company pursuant to Sections 12, 13, 14 or 15 of the Exchange Act and
incorporated or deemed to be incorporated by reference into the Prospectus, all such information that it is required to disclose
in respect of any Action pursuant to the requirements of the Securities Act and the Exchange Act, as applicable. 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 material investigation by the Commission involving the Company
or any current or former director or officer of the Company which is required to be disclosed in the SEC Reports. 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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(n)
Labor Relations. 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.


 


(o)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in breach 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 breach 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 breach 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 of (i), (ii) and (iii) as could not have or reasonably be expected to result in a Material Adverse Effect.


 




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(p)
Environmental Law. There has been no storage, generation, transportation, handling, use, treatment, disposal, discharge,
emission, contamination, release or other activity involving any kind of hazardous, toxic or other wastes, pollutants, contaminants,
petroleum products or other hazardous or toxic substances, chemicals or materials (“Hazardous Substances”)
by, due to, on behalf of, or caused by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for
whose acts or omissions the Company is or may be liable) upon any property now or previously owned, operated, used or leased by
the Company or any Subsidiary, or upon any other property, which would be a violation of or give rise to any liability under any
applicable law, rule, regulation, order, judgment, decree or permit, common law provision or other legally binding standard relating
to pollution or protection of human health and the environment (“Environmental Law”), except for violations
and liabilities which, individually or in the aggregate, would not have a Material Adverse Effect. There has been no disposal,
discharge, emission contamination or other release of any kind at, onto or from any such property or into the environment surrounding
any such property of any Hazardous Substances with respect to which the Company or any Subsidiary has knowledge, except as would
not, individually or in the aggregate, have a Material Adverse Effect. There is no pending or, to the best of the Company’s
knowledge, threatened administrative, regulatory or judicial action, claim or notice of noncompliance or violation, investigation
or proceedings relating to any Environmental Law against the Company or any Subsidiary, except as would not, individually or in
the aggregate, have a Material Adverse Effect. No property of the Company or any Subsidiary is subject to any Lien under any Environmental
Law. Except as disclosed in the Prospectus, neither the Company nor any Subsidiary is subject to any order, decree, agreement
or other individualized legal requirement related to any Environmental Law, which, in any case (individually or in the aggregate),
would have a Material Adverse Effect. The Company and each Subsidiary has all permits, authorizations and approvals required under
any applicable Environmental Laws and are each in compliance with their requirements. In the ordinary course of its business,
the Company periodically reviews the effect of Environmental Laws on the business, operations and properties of the Company and
the Subsidiaries, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation,
any capital or operating expenditures required for clean-up, closure or remediation of properties or compliance with Environmental
Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect.


 


(q)
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 generally accepted accounting principles 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 in all material respects.


 


(r)
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.


 




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(s)
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”). None of, and neither the Company nor any Subsidiary has received a written notice 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 except as would not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements included within
the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe
upon the rights of any Person and neither is aware of any facts which would form a reasonable basis for any such claim, 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. None of the Intellectual Property Rights used
by the Company or any of its Subsidiaries in their respective businesses has been obtained or is being used by the Company or
such Subsidiary in breach of any contractual obligation binding on the Company or any of its subsidiaries in violation of the
rights of any person. The Company and its subsidiaries have taken reasonable steps in accordance with normal industry practice
to protect and maintain the Intellectual Property Rights including, without limitation, the execution of appropriate nondisclosure
and invention assignment agreements. The consummation of the transactions contemplated by this Agreement will not result in the
loss or impairment of, or payment of any additional material amounts with respect to, the Intellectual Property Rights, nor will
it require the consent of any other person regarding the Company’s or any of its Subsidiaries’ right to own or use
any of the Intellectual Property Rights as owned or used in the conduct of such party’s business as currently conducted.
To the knowledge of the Company and its Subsidiaries, no employee of any of the Company or its Subsidiaries is the subject of
any pending claim or proceeding involving a breach of any term relating to the ownership or use of Intellectual Property Rights
of any employment contract, invention disclosure agreement, patent disclosure agreement, noncompetition agreement, non-solicitation
agreement, nondisclosure agreement or restrictive covenant to or with a former employer, where the basis of such breach relates
to such employee’s employment with the Company or its Subsidiaries or actions undertaken by the employee while employed
with the Company or its Subsidiaries.


 


(t)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries
are engaged, including, but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary
has 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.


 




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(u)
Transactions With Affiliates and Employees. Except as set forth on Schedule 3.1(u), 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.


 


(v)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries and their respective officers and directors
are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002, as amended. The Company and the Subsidiaries
maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e)
and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized
and reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers
have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of applicable
dates specified under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed annual report on Form 10-K the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Except as set forth in the Prospectus, since the
Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined in the Exchange
Act) of the Company and the Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal
control over financial reporting of the Company and the Subsidiaries.


 


(w)
Certain Fees. Except for fees payable to A.G.P as will be as set forth in the Prospectus, no brokerage or finder’s
fees or commissions are or will be payable by the Company, any Subsidiary or Affiliate of 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.


 




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(x)
Investment Company. The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares,
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.


 


(y)
‎Registration Rights. Except for that certain Registration Rights Agreement, dated July 15, 2019, by and between the
Company and Lincoln Park Capital Fund, LLC, as disclosed in the Company’s Current Report on Form 8-K filed with the Commission
on July 16, 2020, 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 Subsidiary.


 


(z)
Listing and Maintenance Requirements. The Company is subject to the reporting requirements of Section 13 of the Exchange
Act and files periodic reports with the SEC; the Shares are registered with the SEC under Section 12(b) of the Exchange Act and
the Company is not in breach of any filing or other requirements under the Exchange Act. The Company has not received any notice
from that the Commission is contemplating terminating such registration Except as disclosed in the SEC Reports, the Company has
not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock are or have
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.


 


(aa)
‎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 ‎articles of incorporation
(or similar charter documents) or the laws of its jurisdiction 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 Shares and the
Purchasers’ ownership of the Shares.


 


(bb)
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
which is not otherwise disclosed in the Prospectus Supplement. 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.


 




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(cc)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly,
made any sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering
of the Shares to be integrated with prior offerings by the Company for purposes of (i) 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.


 


(dd)
Insolvency; Indebtedness. Based on the consolidated financial condition of the Company as of the Closing Date, after giving
effect to the receipt by the Company of the proceeds from the sale of the Shares 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 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. Schedule 3.1(dd) 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 by the Company in excess of $50,000 (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 to third parties, 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 $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.


 




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(ee)
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 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.


 


(ff)
Foreign Corrupt Practices; Criminal Acts. 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.


 


(gg)
Accountants. The Company’s independent registered public accounting firm is as set forth in the Prospectus. To the
knowledge and belief of the Company, 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
on Form 10-K for the fiscal year ended December 31, 2020.


 


(hh)
Acknowledgment Regarding Purchasers’ Purchase of Shares. 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 Shares. 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.


 


(ii)
[Intentionally Omitted].


 




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(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 Shares, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Shares, 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 A.G.P.


 


(kk)
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”) and the Company will not, directly
or indirectly, use the proceeds of this offering of Shares, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently
subject to any U.S. sanctions administered by OFAC.


 


(ll)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan or omnibus long-term
incentive plan was granted (i) in accordance with the terms of such 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 or omnibus long-term incentive 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 the Subsidiaries or their financial results or prospects.


 


(mm)
[Intentionally Omitted].


 


(nn)
[Intentionally Omitted].


 


(oo)
[Intentionally Omitted].


 


(pp)
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, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.


 




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(qq)
Information Technology. The Company’s and the Subsidiaries’ information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) are
adequate in all material respects for, and operate and perform in all material respects as required in connection with the operation
of the business of the Company, the Subsidiaries and the Related Entities as currently conducted free and clear of all material
bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and the Subsidiaries have implemented
and maintain commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their material confidential
information and the integrity, continuous operation, redundancy and security of all IT Systems and data, including all personal,
personally identifiable, sensitive, confidential or regulated data (“Personal Data”), used in connection with
its business, and to the knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises or
unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty
to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and the
Subsidiaries are presently in compliance in all material respects with all applicable laws or statutes and all applicable 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 Personal Data and to the protection of such IT Systems and
Personal Data from unauthorized use, access, misappropriation or modification, except for any such noncompliance that would not
have a Material Adverse Effect.


 


(rr)
Other Covered Persons. Other than A.G.P., the Company is not aware of any person that has been or will be paid (directly
or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Shares.


 


(ss)
Regulatory. Except as described in the Registration Statement and the Prospectus, as applicable, the Company and its Subsidiaries
(i) are and at all times have been in material compliance with all statutes, rules and regulations applicable to its business
(collectively, the “Applicable Laws”); (ii) have not received any notice from any court or arbitrator
or governmental or regulatory authority or third party alleging or asserting noncompliance with any Applicable Laws or any licenses,
exemptions, certificates, approvals, clearances, authorizations, permits, registrations and supplements or amendments thereto
required by any such Applicable Laws (“Authorizations”); (iii) possess all material Authorizations
and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations;
(iv) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation arbitration
or other action from any court or arbitrator or governmental or regulatory authority or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations nor is any such claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action threatened; (v) have not received any written notice that any
court or arbitrator or governmental or regulatory authority has taken, is taking or intends to take, action to limit, suspend,
materially modify or revoke any Authorizations nor is any such limitation, suspension, modification or revocation threatened;
(vi) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims,
submissions and supplements or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents,
forms, notices, applications, records, claims, submissions and supplements or amendments were complete and accurate on the date
filed (or were corrected or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity agreements,
monitoring agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory
authority.


 




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(tt)
Material Agreements. The agreements and documents described in the Registration Statement or Prospectus conform in all
material respects to the descriptions thereof contained or incorporated by reference therein conformed
in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable at the time filed, and were
filed on a timely basis with the Commission. There are no agreements or other documents required by the Securities Act
and the rules and regulations thereunder to be described in the Prospectus or to be filed with the Commission as exhibits to the
Registration Statement or to be incorporated by reference in the Registration Statement or Prospectus, that have not been so described
or filed or incorporated by reference.


 


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 the 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 or thereof, 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)
Understandings or Arrangements. Such Purchaser is acquiring the Shares as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Shares (this
representation and warranty not limiting such Purchaser’s right to sell the Shares pursuant to the Registration Statement
or otherwise in compliance with applicable federal and state securities laws). Such Purchaser is acquiring the Shares hereunder
in the ordinary course of its business. Such Purchaser is acquiring such Shares as principal for his, her or its own account and
not with a view to or for distributing or reselling such Shares 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 Shares 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 Shares in violation of the Securities Act or any applicable state securities law (this representation
and warranty not limiting such Purchaser’s right to sell such Shares pursuant to a registration statement or otherwise in
compliance with applicable federal and state securities laws).


 




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(c)
Purchaser Status. At the time such Purchaser was offered the Shares, it was, and as of the date hereof it is 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 Shares, 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 Shares and, at the present time, is able to afford a complete loss of such investment.


 


(e)
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 reports filed with the Commission 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 Shares and the merits and risks of investing in the Shares; (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 A.G.P., nor any Affiliate of A.G.P. has provided such Purchaser
with any information or advice with respect to the Shares nor is such information or advice necessary or desired. Neither A.G.P.,
nor any Affiliate has made or makes any representation as to the Company or the quality of the Shares and A.G.P., 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 Shares to such Purchaser, neither A.G.P., nor any of its Affiliates has acted as a financial
advisor or fiduciary to such Purchaser.


 


(f)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that
such Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting
forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions
made by the portfolio managers managing other portions of such Purchaser’s assets, the representation set forth above shall
only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase
the Shares covered by this Agreement. Other than to other Persons party to this Agreement or to such Purchaser’s representatives,
including, without limitation, its officers, directors, partners, legal and other advisors, employees, agents and Affiliates,
such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including
the existence and terms of this transaction).


 




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(g)
General Solicitation. Such Purchaser is not purchasing the Shares as a result of any advertisement, article, notice or
other communication regarding the Shares 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.


 


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. Notwithstanding the foregoing, for the avoidance
of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating
or borrowing shares in order to effect Short Sales or similar transactions in the future.


 


ARTICLE
IV


 


OTHER
AGREEMENTS OF THE PARTIES


 


4.1
Legends. The Shares shall be issued free of legends.


 


4.2
[Reserved].


 


4.3
[Reserved].


 


4.4
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, (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 the 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 obligations under any agreement, whether
written or oral, between the Company, any of the 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 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).


 




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


 


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


 


4.7
Use of Proceeds. The Company shall use the net proceeds from the sale of the Shares hereunder for working capital purposes
and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than (i) as required
under the terms of the Secured Promissory Note issued to Iliad Research & Trading, L.P. pursuant to the Note Purchase Agreement,
dated March 25, 2020, as disclosed in the Company’s Current Report on Form 8-K filed with the Commission on March 30, 2020,
or (ii) with respect to 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.


 




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4.8
Indemnification of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each
‎Purchaser and its directors, officers, shareholders, members, partners, employees and agents (and ‎any other Persons
with a functionally equivalent role of a Person holding such titles ‎notwithstanding a lack of such title or any other title),
each Person who controls such Purchaser ‎‎(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), ‎and the directors, officers, shareholders, agents, members, partners or employees (and any other ‎Persons
with a functionally equivalent role of a Person holding such titles notwithstanding a lack ‎of such title or any other title)
of such controlling persons (each, a “Purchaser Party”) harmless ‎from any and all losses, liabilities,
obligations, claims, contingencies, damages, reasonable, documented, out-of-pocket 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 ‎caused by or based upon (a) any breach of any of the representations or warranties made by the
‎Company in this Agreement or in the other Transaction Documents, or (b) any action instituted ‎against the Purchaser
Parties in any capacity, or any of them or their respective Affiliates, by any ‎shareholder of the Company who is not an Affiliate
of such Purchaser Party, 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 shareholder 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). The Company will indemnify each
‎Purchaser Party, to the fullest extent permitted by applicable law, from and against any and all ‎losses, claims, damages,
liabilities, reasonable, documented, out-of-pocket costs (including, without limitation, reasonable attorneys’ fees) ‎and
expenses, as incurred, caused by or based upon (i) any untrue or alleged untrue statement of ‎a material fact contained in
the Registration Statement or any amendment thereto, any Issuer ‎Free Writing Prospectus, the Prospectus or any amendment
or supplement thereto, or caused by ‎or based upon any omission or alleged omission of a material fact required to be stated
therein or ‎necessary to make the statements therein (in the case of any prospectus or supplement thereto, in ‎the light
of the circumstances under which they were made) not misleading, except to the extent, ‎but only to the extent, that such
untrue statements or omissions are based solely upon information ‎regarding such Purchaser Party furnished in writing to the
Company by such Purchaser Party ‎expressly for use therein, or (ii) any violation or alleged violation by the Company of the
‎Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder ‎in connection therewith‎.
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 (x) the employment thereof has been specifically authorized
by the Company in writing, (y) the Company has failed after a reasonable period of time to assume such defense and to employ counsel
or (z) 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
(1) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (2) 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 4.8 shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as and when bills are received or are incurred.
The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party
against the Company or others and any liabilities the Company may be subject to pursuant to law.


 




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4.9
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve
and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue the Shares pursuant to this Agreement.


 


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


 


4.11
Intentionally Omitted.


 


4.12
Subsequent Equity Sales.


 


(a)
From the date hereof until 90 days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock Equivalents.


 




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


 


(c)
From the date hereof until 15 days after the Closing Date, 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 an at-the-market offering or Variable Rate Transaction, except for offerings with A.G.P. “Variable
Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock either (A)
at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the trading prices
of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities, or (B)
with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of
such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business
of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including,
but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. 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. The Purchasers acknowledge that the Company has an outstanding equity line of credit with Lincoln
Park Capital Fund, LLC pursuant to a Purchase Agreement, dated July 15, 2019, as disclosed in the Company’s Current Report
on Form 8-K filed with the Commission on July 16, 2020; provided, that such equity line of credit shall be subject in all respects
to the provisions of this Section 4.12(c).


 


4.13
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. 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 Shares or otherwise.


 


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


 




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ARTICLE
V


 


MISCELLANEOUS


 


5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other
parties, if the Closing has not been consummated on or before June 30, 2020; 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. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer
Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the
Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the
delivery of any Shares to the Purchasers.


 


5.3
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, and the Prospectus 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 City 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 at the email address as
set forth on the signature pages attached hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time)
on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight
courier service or (d) upon actual receipt by the party to whom such notice is required to be given. The address for such notices
and communications shall be as set forth on the signature pages attached hereto. To the extent that any notice provided pursuant
to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries,
the Company shall disclose such information in accordance with applicable law and file such notice with the Commission pursuant
to a Current Report on Form 8-K by the Disclosure Time.


 




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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 Purchasers which purchased a majority in interest of the Shares
based on the initial Subscription Amounts hereunder or, in the case of a waiver, by the party against whom enforcement of any
such waived provision is sought. 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.


 


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 Shares, provided that such transferee agrees in writing to be bound, with
respect to the transferred Shares, by the provisions of the Transaction Documents that apply to the “Purchasers.”


 


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


 


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


 




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


 


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.


 


5.14
Replacement of Shares. If any certificate or instrument evidencing any Shares 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
Shares.


 




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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
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 the legal counsel of A.G.P.
The legal counsel of A.G.P. does not represent any of the Purchasers and only represents A.G.P. 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.


 




    	32



     


    

 


5.18
[Reserved].


 


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


 


5.20
Currency. Unless otherwise stated, all dollar amounts and references to ‎‎”$” in this Agreement refer
to the lawful currency of the United States.


 


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 Common Stock in any Transaction Document shall be subject to
adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common
Stock that occur after the date of this Agreement.


 


5.22
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)





 




    	33



     


    

 


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.


 


	IMAC
    HOLDINGS, INC.	 	Address
    for Notice:
	 	 	 
	By:	
	 	1605
    Westgate Circle
	Name: 	 Jeffrey S. Ervin	 	Brentwood,
    Tennessee 37027
	Title:	 Chief Executive Officer	 	E-mail:
    jervin@imacrc.com
	 	 	 	 
	 	 	 	Copy
    to Olshan Frome Wolosky LLP
	 	 	 	 
	 	 	 	1325
    Avenue of the Americas 
	 	 	 	15th
    Floor New 
	 	 	 	York,
    NY 10019
	 	 	 	Attn.:
    Spencer G. Feldman, Esq.
	 	 	 	Email:
    sfeldman@olshanlaw.com


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 




    	 



     


    

 


[PURCHASER
SIGNATURE PAGES TO IMAC HOLDINGS, INC.


SECURITIES
PURCHASE AGREEMENT]


 


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


 


Name
of Purchaser: _______________________________________________________________


Signature
of Authorized Signatory of Purchaser: _________________________________________


Name
of Authorized Signatory: _______________________________________________________


Title
of Authorized Signatory: ________________________________________________________


Email
Address of Authorized Signatory: ________________________________________________


Facsimile
Number of Authorized Signatory: _____________________________________________


Address
for Notice to Purchaser:


 


DWAC
for Shares:


 


Subscription
Amount: $_________________


 


Shares:
_________________


 


EIN
Number: ____________________


 




    	 



     


    

 


Exhibit
A


 


Form
of Lock-Up


 




    	 



     


    

 


Exhibit
B


 


Persons
Subject to Lock-Up


 


Jeffrey
S. Ervin


 


Matthew
C. Wallis, DC


 


Sheri
Gardzina


 


George
Hampton


 


David
Ellwanger


 


Gerard
M. Hayden, Jr.