Exhibit 10.1


 


EXECUTION VERSION


 


SECURITIES PURCHASE
AGREEMENT


 


This SECURITIES PURCHASE
AGREEMENT (the “Agreement”), dated as of April 14, 2022, is by and among American Virtual Cloud Technologies, Inc.,
a Delaware corporation with offices located at 1720 Peachtree Street, Suite 629, Atlanta, GA 30309 (the “Company”),
and each of the investors listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively,
the “Buyers”).


 


RECITALS


 


A. On
February 28, 2022, the Company and an affiliate of the Buyers (the “Feb 2022 Buyer”) entered into that certain Securities
Purchase Agreement (as may be amended from time to time, the “Feb 2022 Securities Purchase Agreement”, pursuant to
which the Company agreed to sell, at one or more closings, shares of Series B Convertible Preferred Stock, $0.0001 par value (the “Feb
2022 Preferred Shares”) pursuant to a certificate of designations with respect thereto (the “Feb 2022 Certificate of
Designations”) and related warrants to purchase Common Stock (as defined below) (the “Feb 2022 Warrants”).


 


B. The
Company and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation D (“Regulation D”)
as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act.


 


C. The
Company has authorized a new series of senior secured convertible notes of the Company, in the aggregate original principal amount of
$12,000,000, substantially in the form attached hereto as Exhibit A (the “Notes”), which Notes shall
be convertible into shares of Common Stock (the shares of Common Stock issuable pursuant to the terms of the Notes, including, without
limitation, upon conversion or otherwise, collectively, the “Conversion Shares”), in accordance with the terms of the
Notes.


 


D. Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, a Note in the aggregate
original principal amount set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers.


 


E. At
the Closing, the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit
B (the “Registration Rights Agreement”), pursuant to which the Company has agreed to provide certain registration
rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933 Act and the rules
and regulations promulgated thereunder, and applicable state securities laws.


 


F. The
Notes and the Conversion Shares are collectively referred to herein as the “Securities.”


 


G. The
Notes will rank senior to all outstanding and future indebtedness of the Company and its Subsidiaries (as defined below), and will be
secured by a first priority perfected security interest in all of the existing and future assets of the Company and each Grantor (as defined
in the Security Agreement), including a pledge of all of the capital stock of each of the Grantors (other than the Excluded Collateral,
as defined in the Security Agreement), as evidenced by (i) a security and pledge agreement in the form attached hereto as Exhibit
D (the “Security Agreement”), (ii) account control agreements with respect to certain accounts described in
the Note and the Security Agreement, in form and substance reasonably acceptable to each Buyer, duly executed by the Company and each
depositary bank (each, an “Controlled Account Bank”) in which each such account is maintained (the “Controlled
Account Agreements”, and together with the Security Agreement and the other security documents and agreements entered into in
connection with this Agreement and each of such other documents and agreements, as each may be amended or modified from time to time,
collectively, the “Security Documents”), and (iii) a guaranty executed by each Guarantor (as defined in the Guaranty),
in the form attached hereto as Exhibit E (the “Guaranty”) pursuant to which each of them guarantees the
obligations of the Company under the Transaction Documents (as defined below).


 






     


     


    

 


AGREEMENT


 


NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and each Buyer hereby agree as follows:


 


1. PURCHASE
AND SALE OF NOTES.


 


(a) Purchase
of Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue
and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined
below) a Note in the original principal amount as is set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers.


 


(b) Closing.
The closing (the “Closing”) of the purchase of the Notes by the Buyers shall occur at the offices of Kelley Drye &
Warren LLP, 3 World Trade Center, 175 Greenwich Street, New York, NY 10007. The date and time of the Closing (the “Closing Date”)
shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and
7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein “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.


 


(c) Purchase
Price. The aggregate purchase price for the Notes to be purchased by each Buyer (the “Purchase Price”) shall be
the amount set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers ($10,000,000 in the aggregate). Each Buyer
shall pay approximately $833 for each $1,000 in aggregate principal amounts of Notes purchased hereunder.


 






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(d) Form
of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts
withheld pursuant to Section 4(g)) to the Company for the Notes to be issued and sold to such Buyer at the Closing, by wire transfer
of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the Company shall deliver
to each Buyer a Note in the aggregate original principal amount as is set forth opposite such Buyer’s name in column (3) of the
Schedule of Buyers, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.


 


(e) Partial
Waiver. Each Feb 2022 Buyer, severally and not jointly, solely with respect to the issuance of Notes hereunder and not with respect
to any other Subsequent Placement, hereby waives any term or condition of the Feb 2022 Securities Purchase Agreement and the Feb 2022
Certificate of Designations solely to the extent necessary to permit the issuance of (and compliance with the terms of) the Notes in accordance
herewith and therewith (including, but not limited to, (x) the Notes constituting “Permitted Indebtedness”, the Liens (as
defined below) with respect thereto constituting “Permitted Liens” (in each case, as defined in the Feb 2022 Certificate of
Designations), (y) Section 4(m) of the Feb 2022 Securities Purchase Agreement and (z) permitting any payments with respect to the Notes
at any time (whether or not a Triggering Event (as defined in the Feb 2022 Certificate of Designations) then exists) pursuant to Section
15(c), 15(d) and 15(f), from time to time, in accordance with the terms of the Notes).


 


(f) Existing
Warrants Waivers. Effective as of the Closing Date, each affiliate of Buyer that holds existing warrants of the Company ("Existing
Warrants"), shall, pursuant to a letter agreement to be entered into between such affiliate and the Company, severally, and not
jointly, (i) represent and warrant to the Company that it has not sold or otherwise transferred any existing warrants of the Company to
any other Person prior to the date hereof, (ii) waive, in part, any adjustment to the exercise price of such Existing Warrants that arises
solely from the issuances of the Securities pursuant to the Transaction Documents such that the exercise price of the Existing Warrants
shall (A) as of the date hereof adjust to $1.00 (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations
and similar events) with a corresponding increase in the aggregate number of shares of Common Stock exercisable thereunder in accordance
with the terms thereof in effect as of the date hereof and (B) not further adjust upon any future issuance of Securities (in accordance
with the terms as in effect as of the Closing Date); provided, that nothing in this Section 1(f) or such letter agreement shall amend,
modify or waive any adjustment to the exercise of the Existing Warrants arising pursuant to any Subsequent Placement, (iii) agree that
the Securities shall constitute “Excluded Securities” for all purposes of the Existing Warrants, (iv) waive any participation
rights such Person may have with respect to the issuance of the Securities and (iii) waive, in part, the definition of "Change of
Control" in the Existing Warrants such that only a Change of Control (as defined in the Warrants) shall be a "Change of Control"
(as defined in the Existing Warrants).


 


2. BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


Each Buyer, severally and
not jointly, represents and warrants to the Company with respect to only itself that, as of the date hereof and as of the Closing Date:


 


(a) Organization;
Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
(as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.


 






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(b) No
Public Sale or Distribution. Such Buyer (i) is acquiring its Note, and (ii) upon conversion of its Note will acquire the Conversion
Shares issuable upon conversion thereof, in each case, for its own account and not with a view towards, or for resale in connection with,
the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted under
the 1933 Act; provided, however, by making the representations herein, such Buyer does not agree, or make any representation or warranty,
to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in
accordance with or pursuant to a registration statement or an exemption from registration under the 1933 Act. Such Buyer does not presently
have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities in violation of applicable
securities laws. For purposes of this Agreement, “Person” means an individual, a limited liability company, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any Governmental Entity or any department
or agency thereof.


 


(c) Accredited
Investor Status. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D.


 


(d) Reliance
on Exemptions. Such Buyer understands that the Securities are being offered and sold to it in reliance on specific exemptions from
the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth
and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and understandings
of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of such Buyer to acquire
the Securities.


 


(e) Information.
Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the Company
and materials relating to the offer and sale of the Securities that have been requested by such Buyer and such Buyer has had the opportunity
to review the Company’s public filings with the SEC. Such Buyer and its advisors, if any, have been afforded the opportunity to
ask questions of the Company in order that such Buyer can make an informed investment decision with respect to the investment. Neither
such inquiries nor any other due diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall
modify, amend or affect such Buyer’s right to rely on the Company’s representations and warranties contained herein. Such
Buyer understands that its investment in the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and
tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.


 


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


 






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(g) Transfer
or Resale. Such Buyer understands that except as provided in the Registration Rights Agreement and Section 4(h) hereof: (i) the Securities
have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned
or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to the Company (if requested by the
Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such Securities to be sold, assigned
or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) such Buyer provides the Company
with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under
the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the Securities made in reliance
on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Securities
under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term
is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC
promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Securities under the
1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing,
the Securities may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by the Securities
and such pledge of Securities, in and of itself, without transfer of Securities upon enforcement of such pledge, shall not be deemed to
be a transfer, sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to provide
the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction
Document (as defined in Section 3(b)), including, without limitation, this Section 2(g).


 


(h) Validity;
Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and delivered on
behalf of such Buyer and shall constitute the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance
with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable
creditors’ rights and remedies.


 


(i) No
Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the Registration Rights Agreement and the consummation
by such Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of
such Buyer, or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which such Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws) applicable to such Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of such Buyer to perform its obligations hereunder.


 






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(j) No
Additional Agreements. Such Buyer does not have any agreement or understanding with the Company with respect to the transactions contemplated
by the Transaction Documents other than as specified in the Transaction Documents.


 


(k) No
Group. Other than affiliates of such Buyer who are also Buyers under this Agreement, such Buyer is not under common control with or
acting in concert with any other Buyer and is not part of a “group” for purposes of the 1934 Act.


 


(l) Disclosure.
Such Buyer understands and confirms that the Company will rely on the foregoing representations in consummating the transactions contemplated
by this Agreement and the other Transaction Documents. Such Buyer acknowledges and agrees that the Company does not make and has not made
any representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in the
Transaction Documents.


 


3. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company represents and
warrants to each of the Buyers that, as of the date hereof and as of the Closing Date:


 


(a) Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing and in good standing
under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their properties and to
carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company and each of its Subsidiaries
is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property
or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified
or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). As used in this Agreement,
“Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets, liabilities, operations
(including results thereof), condition (financial or otherwise) or prospects of the Company or any Subsidiary, individually or taken as
a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other agreements or instruments
to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to
perform any of their respective obligations under any of the Transaction Documents (as defined below). Other than the Persons (as defined
below) set forth on Schedule 3(a), the Company has no Subsidiaries. “Subsidiaries” means any Person in which the
Company, directly or indirectly, (I) owns a majority of the outstanding capital stock or holds a majority equity or similar interest of
such Person or (II) controls or operates all or any part of the business, operations or administration of such Person, and each of the
foregoing, is individually referred to herein as a “Subsidiary.”


 






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(b) Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement
and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. Each Subsidiary has the
requisite power and authority to enter into and perform its obligations under the Transaction Documents to which it is a party. The execution
and delivery of this Agreement and the other Transaction Documents by the Company and its Subsidiaries, and the consummation by the Company
and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Notes and
the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Notes) have been duly authorized by
the Company’s board of directors and each of its Subsidiaries’ board of directors or other governing body, as applicable,
and (other than the filing with the SEC of one or more Registration Statements in accordance with the requirements of the Registration
Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies) no further filing,
consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or other
governing body. This Agreement has been, and the other Transaction Documents to which it is a party will be prior to the Closing, duly
executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company, enforceable against
the Company in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal
or state securities law. Prior to the Closing, the Transaction Documents to which each Subsidiary is a party will be duly executed and
delivered by each such Subsidiary, and shall constitute the legal, valid and binding obligations of each such Subsidiary, enforceable
against each such Subsidiary in accordance with their respective terms, except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be
limited by federal or state securities law. “Transaction Documents” means, collectively, this Agreement, the Notes,
the Security Documents, the Guarantees, the Registration Rights Agreement, the Voting Agreements, the Irrevocable Transfer Agent Instructions
(as defined below) and each of the other agreements and certificates entered into or delivered by any of the parties hereto in connection
with the transactions contemplated hereby and thereby, as may be amended from time to time.


 


(c) Issuance
of Securities. The issuance of the Notes are duly authorized and upon issuance in accordance with the terms of the Transaction Documents
shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens,
pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”)
(other than the Liens arising under the Transaction Documents) with respect to the issuance thereof. As of the Closing, the Company shall
have reserved from its duly authorized capital stock not less than 100% of the maximum number of Conversion Shares issuable upon conversion
of the Notes (assuming for purposes hereof that (x) the Notes are convertible at the Floor Price (as defined in the Notes) assuming an
Alternate Conversion Date (as defined in the Note) as of the date hereof, and (y) any such conversion shall not take into account any
limitations on the conversion of the Notes set forth in the Notes). Upon issuance or conversion in accordance with the Notes, the Conversion
Shares, when issued, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with
respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. Subject to the accuracy
of the representations and warranties of the Buyers in this Agreement, the offer and issuance by the Company of the Securities is exempt
from registration under the 1933 Act.


 






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(d) No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries and the consummation
by the Company and its Subsidiaries of the transactions contemplated hereby and thereby (including, without limitation, the issuance of
the Notes and the Conversion Shares and the reservation for issuance of the Conversion Shares) will not (i) result in a violation of the
Certificate of Incorporation (as defined below) (including, without limitation, any certificate of designation contained therein), Bylaws
(as defined below), certificate of formation, memorandum of association, articles of association, bylaws or other organizational documents
of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries, (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree
(including, without limitation, foreign, federal and state securities laws and regulations and the rules and regulations of the Nasdaq
Capital Market (the “Principal Market”) and including all applicable foreign, federal and state laws, rules and regulations)
applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound
or affected, except in each case referred to in clauses (ii) or (iii), to the extent that such conflict or violation would not reasonably
be expected to have a Material Adverse Effect.


 


(e) Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration
with (other than the filing with the SEC of one or more Registration Statements in accordance with the requirements of the Registration
Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies), any Governmental Entity
(as defined below) or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any
of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or
thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary is required to obtain pursuant
to the preceding sentence have been or will be obtained or effected on or prior to the Closing Date, and neither the Company nor any of
its Subsidiaries are aware of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or
effecting any of the registration, application or filings contemplated by the Transaction Documents. The Company is not in violation of
the requirements of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or
suspension of the Common Stock in the foreseeable future. “Governmental Entity” means any nation, state, county, city,
town, village, district, or other political jurisdiction of any nature, federal, state, local, municipal, foreign, or other government,
governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or entity
and any court or other tribunal), multi-national organization or body; or body exercising, or entitled to exercise, any administrative,
executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing,
including any entity or enterprise owned or controlled by a government or a public international organization or any of the foregoing.


 


(f) Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the capacity
of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and
that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate” (as defined in
Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the
shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)).
The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries
(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and any advice
given by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated
hereby and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company further represents to each Buyer
that the Company’s and each Subsidiary’s decision to enter into the Transaction Documents to which it is a party has been
based solely on the independent evaluation by the Company, each Subsidiary and their respective representatives.


 






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(g) No
General Solicitation; Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person
acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation
D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s
fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor) relating
to or arising out of the transactions contemplated hereby, including, without limitation, placement agent fees payable to Northland Securities,
Inc., as placement agent (the “Placement Agent”) in connection with the sale of the Securities. The fees and expenses
of the Placement Agent to be paid by the Company or any of its Subsidiaries are as set forth on Schedule 3(g) attached hereto. The Company
shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, attorney’s fees
and out-of-pocket expenses) arising in connection with any such claim. The Company acknowledges that it has engaged the Placement Agent
in connection with the sale of the Securities. Other than the Placement Agent, neither the Company nor any of its Subsidiaries has engaged
any placement agent or other agent in connection with the offer or sale of the Securities.


 


(h) No
Integrated Offering. None of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that
would require registration of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings
or otherwise, or cause this offering of the Securities to require approval of stockholders of the Company for purposes of the 1933 Act
or under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company are listed or designated for quotation. None of the Company,
its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would require registration
of the issuance of any of the Securities under the 1933 Act or cause the offering of any of the Securities to be integrated with other
offerings of securities of the Company.


 


(i) Dilutive
Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances. The
Company further acknowledges that its obligation to issue the Conversion Shares pursuant to the terms of the Notes in accordance with
this Agreement and the Notes is, in each case, absolute and unconditional regardless of the dilutive effect that such issuance may have
on the ownership interests of other stockholders of the Company.


 






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(j) Application
of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill (including, without limitation,
any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover provision under the Certificate of
Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation or otherwise which is or
could become applicable to any Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the
Company’s issuance of the Securities and any Buyer’s ownership of the Securities. The Company and its board of directors have
taken all necessary action, if any, in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations
of beneficial ownership of shares of Common Stock or a change in control of the Company or any of its Subsidiaries.


 


(k) SEC
Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has filed all reports, schedules,
forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements
of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements,
notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”).
The Company has delivered or has made available to the Buyers or their respective representatives true, correct and complete copies of
each of the SEC Documents not available on the EDGAR system. As of their respective dates, or as of the respective dates of any amendments
thereto, as applicable, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations
of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the
SEC, 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. As of their respective
dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial
statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied,
during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the
case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present
in all material respects the financial position of the Company as of the dates thereof and the results of its operations and cash flows
for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material,
either individually or in the aggregate). The reserves, if any, established by the Company or the lack of reserves, if applicable, are
reasonable based upon facts and circumstances known by the Company on the date hereof and there are no loss contingencies that are required
to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided
for by the Company in its financial statements or otherwise. No other information provided by or on behalf of the Company to any of the
Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e) of this
Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made.
The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes
or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial
Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend or restate
any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with GAAP and the rules
and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend that the Company amend
or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial Statements.


 






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(l) Absence
of Certain Changes. Except as disclosed in the SEC Documents, since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, there has been no material adverse change and no material adverse development in the business, assets,
liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any
of its Subsidiaries. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, neither
the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate,
outside of the ordinary course of business or (iii) made any capital expenditures, individually or in the aggregate, outside of the ordinary
course of business. Neither the Company nor any of its Subsidiaries (other than Immaterial Subsidiaries) has taken any steps to seek protection
pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the
Company or any Subsidiary (other than Immaterial Subsidiaries) have any knowledge or reason to believe that any of their respective creditors
intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do
so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect
to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section
3(l), “Insolvent” means, (i) with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present
fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s
and its Subsidiaries’ total Indebtedness (as defined below), (B) the Company and its Subsidiaries (other than Immaterial Subsidiaries)
are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and
matured or (C) the Company and its Subsidiaries (other than Immaterial Subsidiaries) intend to incur or believe that they will incur debts
that would be beyond their ability to pay as such debts mature; and (ii) with respect to the Company and each Subsidiary (other than Immaterial
Subsidiaries), individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s (as the case may be)
assets is less than the amount required to pay its respective total Indebtedness, (B) the Company or such Subsidiary (as the case may
be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become
absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to incur or believes that it will incur debts
that would be beyond its respective ability to pay as such debts mature. After giving effect to the transactions contemplated hereby,
neither the Company nor any of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business
or in any transaction, for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital
with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted. “Immaterial
Subsidiary” means each Subsidiary of Company now existing or hereafter acquired or formed and each successor thereto, which
accounts for not more than (i) 3.0% of the net income (after intercompany eliminations) of Company and its Subsidiaries, or (ii) 3.0%
of the consolidated assets (after intercompany eliminations) of Company and its Subsidiaries; provided that, ) no liabilities or other
Indebtedness (other than any Indebtedness owed to Company), in the aggregate, of any Immaterial Subsidiary shall exceed the gross assets
of such Immaterial Subsidiary, in each case, as of the last day of the most recently completed fiscal quarter as reflected on the financial
statements for such quarter, provided, further that, any Subsidiary may be designated and re-designated as an Immaterial Subsidiary from
time to time, subject to the terms set forth in this definition.


 






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(m) No
Undisclosed Events, Liabilities, Developments or Circumstances. To the Company’s knowledge, other than as disclosed in the SEC
Documents, no event, liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect
to the Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including
results thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under applicable securities
laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by the Company of its Common Stock and
which has not been publicly announced, (ii) could have a material adverse effect on any Buyer’s investment hereunder or (iii) would
reasonably be expected to have a Material Adverse Effect.


 


(n) Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under
its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding series of preferred stock
of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation, memorandum of association,
articles of association, Certificate of Incorporation or certificate of incorporation or bylaws, respectively. Neither the Company nor
any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the
Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any
of the foregoing, except in all cases for possible violations which would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Without limiting the generality of the foregoing, the Company is not in violation of any of the rules,
regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting
or suspension of the Common Stock by the Principal Market in the foreseeable future. During the two years prior to the date hereof, (i)
the Common Stock has been listed or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended
by the SEC or the Principal Market and (iii) the Company has received no communication, written or oral, from the SEC or the Principal
Market regarding the suspension or delisting of the Common Stock from the Principal Market. The Company and each of its Subsidiaries possess
all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary to conduct their respective businesses,
except where the failure to possess such certificates, authorizations or permits would not have, individually or in the aggregate, a Material
Adverse Effect, and neither the Company nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification
of any such certificate, authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon
the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be
expected to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any
acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries
as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected
to have a Material Adverse Effect.


 






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(o) Foreign Corrupt Practices.
Neither the Company, any of the Company’s Subsidiaries or, to the knowledge of the Company, any director, officer, agent, employee,
nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”)
have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption
laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised
to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for
any Governmental Entity to any political party or official thereof or to any candidate for political office (individually and collectively,
a “Government Official”) or to any person under circumstances where such Company Affiliate knew or was aware of a
high probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to
any Government Official, for the purpose of:


 


(i) (A)
influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do
or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official
to influence or affect any act or decision of any Governmental Entity, or


 


(ii) assisting
the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.


 


(p) Sarbanes-Oxley
Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley Act of 2002,
as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.


 


(q) Transactions
With Affiliates. Except as disclosed in the SEC Documents, no current or, to the knowledge of the Company, former employee, partner,
director, officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the
Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing, is
presently, or has ever been, (i) a party to any transaction with the Company or its Subsidiaries (including any contract, agreement or
other arrangement providing for the furnishing of services by, or rental of real or personal property from, or otherwise requiring payments
to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries (other than for ordinary course
services as employees, officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct or indirect owner of an interest
in any corporation, firm, association or business organization which is a competitor, supplier or customer of the Company or its Subsidiaries
(except for a passive investment (direct or indirect) in less than 5% of the common stock of a company whose securities are traded on
or quoted through an Eligible Market (as defined in the Notes)), nor does any such Person receive income from any source other than the
Company or its Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company
or its Subsidiaries. No director, executive officer, or 10% or greater stockholder of the Company or any of its Subsidiaries or member
of his or her immediate family is indebted to the Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries
indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services
rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits
made generally available to all employees or executives (including stock option agreements outstanding under any stock option plan approved
by the Board of Directors of the Company).


 






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(r) Equity
Capitalization. 


 


(i) Definitions:


 


(A) “Common
Stock” means (x) the Company’s shares of common stock, $0.0001 par value per share, and (y) any capital stock into
which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(B) “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.0001 par value per share, the terms of which may be designated
by the board of directors of the Company in a certificate of designations and (y) any capital stock into which such preferred stock shall
have been changed or any share capital resulting from a reclassification of such preferred stock (other than a conversion of such preferred
stock into Common Stock in accordance with the terms of such certificate of designations).


 


(ii) Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 500,000,000 shares
of Common Stock, of which, 91,192,436 are issued and outstanding and 112,765,760 shares are reserved for issuance pursuant to Convertible
Securities (as defined below) (other than the Notes) exercisable or exchangeable for, or convertible into, shares of Common Stock and
(B) 5,000,000 shares of Preferred Stock, 16,125 of which are issued and outstanding. No shares of Common Stock are held in the treasury
of the Company. “Convertible Securities” means any capital stock or other security of the Company or any of its Subsidiaries
that is at any time and under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise
entitles the holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock)
or any of its Subsidiaries.


 


(iii) Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance will be,
validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of shares of Common Stock that are
(A) reserved for issuance pursuant to Convertible Securities (other than the Notes) and (B) as of the date hereof, owned by Persons who
are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors
and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding
that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries.
To the Company’s knowledge, except as disclosed in the SEC Documents, no Person owns 10% or more of the Company’s issued and
outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently exercisable
or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on exercise or
conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder for
purposes of federal securities laws).


 






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(iv) Existing
Securities; Obligations. Except as disclosed on Schedule 3(r)(iv): (A) none of the Company’s or any Subsidiary’s shares,
interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company or
any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into,
or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) there are no
agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities
under the 1933 Act (except pursuant to the Registration Rights Agreement); (D) there are no outstanding securities or instruments of the
Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its
Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the
issuance of the Securities; and (F) neither the Company nor any Subsidiary has any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement.


 


(v) Organizational
Documents. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company’s Certificate
of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s
bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all Convertible Securities
and the material rights of the holders thereof in respect thereto.


 






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(s) Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed on Schedule 3(s), has any
outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness
of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii) is a party to
any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement
or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements securing obligations
in any amounts filed in connection with the Company or any of its Subsidiaries (other than in connection with any Indebtedness disclosed
pursuant to clause (i) of this Section 3(s), or any financing statements evidencing equipment financing liens); (iv) is in violation of
any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and
defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract, agreement
or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or is expected
to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations required to be
disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the
Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate, do not or could not have
a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication
(A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property
or services (including, without limitation, “capital leases” in accordance with GAAP) (other than trade payables entered into
in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters
of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness
created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect
to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under
such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing
or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital
lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and contract
rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment
of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to
in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any direct or indirect liability,
contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the
primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee
of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that
the holders of such liability will be protected (in whole or in part) against loss with respect thereto.


 






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(t) Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public board,
other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting
the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors,
whether of a civil or criminal nature or otherwise, in their capacities as such, which is outside of the ordinary course of business or
individually or in the aggregate material to the Company or any of its Subsidiaries. No director, officer or employee of the Company or
any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation of litigation.
Without limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any
investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer of the Company or
any of its Subsidiaries. The SEC has not issued any stop order or other order suspending the effectiveness of any registration statement
filed by the Company under the 1933 Act or the 1934 Act. After reasonable inquiry of its employees, the Company is not aware of any fact
which might result in or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the
Company nor any of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental
Entity.


 


(u) Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries
are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for, and neither the
Company nor any such Subsidiary has any reason to believe that it will be unable 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 at a cost that
would not have a Material Adverse Effect.


 


(v) Employee
Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member
of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer (as defined
in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has notified the Company
or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such officer’s
employment with the Company or any such Subsidiary. No current (or former) executive officer or other key employee of the Company or any
of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure
or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant, and the
continued employment of each such executive officer or other key employee (as the case may be) 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 federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms and
conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.


 


(w) Title.


 


(i) Real
Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities or other
interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”) owned by the
Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject to any rights
of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for (a) Liens for current
taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or anticipated use of the property
subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such
property and buildings by the Company or any of its Subsidiaries.


 






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(ii) Fixtures
and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in, the tangible
personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used by the Company or its
Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”). The Fixtures and Equipment
are structurally sound, are in good operating condition and repair (other than ordinary wear and tear), are adequate for the uses to which
they are being put, are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient
for the conduct of the Company’s and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior to the
Closing. Each of the Company and its Subsidiaries owns all of its owned Fixtures and Equipment free and clear of all Liens except for
(a) Liens for current taxes not yet due,(b) zoning laws and other land use restrictions that do not impair the present or anticipated
use of the property subject thereto, and (c) Liens in connection with the Company’s outstanding Indebtedness.


 


(x) Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names, service
marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and registrations therefor
(“Intellectual Property Rights”) necessary to conduct their respective businesses as now conducted and presently proposed
to be conducted. Each of patents owned by the Company or any of its Subsidiaries is listed on Schedule 3(x)(i). Except as set forth in
Schedule 3(x)(ii), none of the Company’s material Intellectual Property Rights have expired or terminated or have been abandoned
or are expected to expire or terminate or are expected to be abandoned, within three years from the date of this Agreement. The Company
does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual Property Rights of others. There is
no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries, being threatened,
against the Company or any of its Subsidiaries regarding its Intellectual Property Rights. Neither the Company nor any of its Subsidiaries
is aware of any facts or circumstances which might give rise to any of the foregoing infringements or claims, actions or proceedings.
The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their
Intellectual Property Rights.


 


(y) Environmental Laws.
(i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined below), (B) have received all
permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C)
are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses (A), (B)
and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The
term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection of human
health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata),
including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants,
or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials,
as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.


 






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(ii) No
Hazardous Materials:


 


(A) have
been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or


 


(B) are
present on, over, beneath, in or upon any Real Property or any portion thereof in quantities that would constitute a violation of any
Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates any Environmental
Laws, which violation would have a material adverse effect on the business of the Company or any of its Subsidiaries.


 


(iii) Neither
the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed of or otherwise
located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and polychlorinated biphenyls.


 


(iv) None
of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens.


 


(z) Subsidiary
Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed by applicable
law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such Subsidiary.


 


(aa) Tax Status.
The Company and each of its Subsidiaries (other than Immaterial Subsidiaries) (i) has timely made or filed (allowing for all lawful extensions)
all foreign, federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is
subject, (ii) has timely 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, except those being contested in good faith and (iii) has set aside on its books provision
reasonably adequate for the payment of all 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 and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify as
a passive foreign investment company, as defined in Section 1297 of the Internal Revenue Code of 1986, as amended (the “Code”).
The net operating loss carryforwards (“NOLs”) for United States federal income tax purposes of the consolidated group
of which the Company is the common parent, if any, shall not be adversely effected by the transactions contemplated hereby. The transactions
contemplated hereby do not constitute an “ownership change” within the meaning of Section 382 of the Code, thereby preserving
the Company’s ability to utilize such NOLs.


 






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(bb) Internal Accounting
and Disclosure Controls. Except as disclosed in the SEC Documents, the Company and each of its Subsidiaries maintains internal control
over financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with
generally accepted accounting principles, including 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 and liability accountability, (iii) access to assets or incurrence of liabilities is permitted only in accordance
with management’s general or specific authorization and (iv) the recorded accountability for assets and liabilities is compared
with the existing assets and liabilities at reasonable intervals and appropriate action is taken with respect to any difference. The Company
maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the 1934 Act) that are effective in ensuring
that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed,
summarized and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls
and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under
the 1934 Act is accumulated and communicated to the Company’s management, including its principal executive officer or officers
and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure. Except as disclosed
in the SEC Documents, neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental
Entity or other Person relating to any potential material weakness or significant deficiency in any part of the internal controls over
financial reporting of the Company or any of its Subsidiaries.


 


(cc) Off Balance Sheet
Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries and an unconsolidated
or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is not so disclosed or that
otherwise could be reasonably likely to have a Material Adverse Effect.


 


(dd) Investment Company
Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment company,”
an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms
are defined in the Investment Company Act of 1940, as amended.


 






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(ee) Acknowledgement
Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that (i) following the public disclosure
of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none of the Buyers have been asked
by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its Subsidiaries, to desist from
effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short) any securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold any of the Securities for
any specified term; (ii) any Buyer, and counterparties in “derivative” transactions to which any such Buyer is a party, directly
or indirectly, presently may have a “short” position in the Common Stock which was established prior to such Buyer’s
knowledge of the transactions contemplated by the Transaction Documents; (iii) each Buyer shall not be deemed to have any affiliation
with or control over any arm’s length counterparty in any “derivative” transaction; and (iv) each Buyer may rely on
the Company’s obligation to timely deliver shares of Common Stock upon conversion or exchange, as applicable, of the Securities
as and when required pursuant to the Transaction Documents for purposes of effecting trading in the Common Stock of the Company. The Company
further understands and acknowledges that following the public disclosure of the transactions contemplated by the Transaction Documents
pursuant to the Press Release (as defined below) one or more Buyers may engage in hedging and/or trading activities (including, without
limitation, the location and/or reservation of borrowable shares of Common Stock) at various times during the period that the Securities
are outstanding, including, without limitation, during the periods that the value and/or number of the Conversion Shares deliverable with
respect to the Securities are being determined and such hedging and/or trading activities (including, without limitation, the location
and/or reservation of borrowable shares of Common Stock), if any, can reduce the value of the existing stockholders’ equity interest
in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges that such
aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Notes or any other Transaction Document
or any of the documents executed in connection herewith or therewith.


 


(ff) Manipulation of
Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting on their behalf
has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of the price of
any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
purchased, or paid any compensation for soliciting purchases of, any of the Securities (other than the Placement Agent), (iii) paid or
agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company or any of its Subsidiaries
or (iv) paid or agreed to pay any Person for research services with respect to any securities of the Company or any of its Subsidiaries.


 


(gg) U.S. Real Property
Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any of the Securities are
held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section 897 of the Code,
and the Company and each Subsidiary shall so certify upon any Buyer’s request.


 






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(hh) Registration Eligibility.
The Company is eligible to register the Registrable Securities for resale by the Buyers using Form S-3 promulgated under the 1933 Act.


 


(ii) Transfer
Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in
connection with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully
paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


(jj) Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956, as amended (the “BHCA”)
and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”). Neither the Company
nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent (5%) or more of the outstanding shares
of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity that is subject to
the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or affiliates exercises a controlling
influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve.


 


(kk) Illegal or Unauthorized
Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s knowledge
(after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents or other representatives of
the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company or any Subsidiary is or has been
affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services,
whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person or (ii) to any political organization, or
the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving the
direct or indirect use of funds of the Company or any of its Subsidiaries.


 


(ll) Money Laundering.
The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all other applicable
U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations and Executive Orders
and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive Order 13224
of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.


 


(mm) Management.
During the past five year period, no current or former officer or director or, to the knowledge of the Company, no current ten percent
(10%) or greater stockholder of the Company or any of its Subsidiaries has been the subject of:


 


(i) a
petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent or
similar officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing
of such petition or such appointment, or any corporation or business association of which such person was an executive officer at or within
two years before the time of the filing of such petition or such appointment;


 






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(ii) a
conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not relate
to driving while intoxicated or driving under the influence);


 


(iii) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining any such person from, or otherwise limiting, the following activities:


 


(1) Acting
as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction
merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person of any of the foregoing,
or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment
company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with
such activity;


 


(2) Engaging
in any particular type of business practice; or


 


(3) Engaging
in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of securities
laws or commodities laws;


 


(iv) any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph, or to be
associated with persons engaged in any such activity;


 


(v) a
finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities law, regulation
or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed, suspended
or vacated; or


 


(vi) a
finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated.


 


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


 






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(oo) No Disagreements
with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and the Company
is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability to perform any
of its obligations under any of the Transaction Documents. In addition, on or prior to the date hereof, the Company had discussions with
its accountants about its financial statements previously filed with the SEC. Based on those discussions, the Company has no reason to
believe that it will need to restate any such financial statements or any part thereof.


 


(pp) No Disqualification
Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“Regulation
D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other
officer of the Company participating in the offering contemplated hereby, or, to the knowledge of the Company, any beneficial owner of
20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as
that term is defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of sale (each, an “Issuer
Covered Person” and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor”
disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “Disqualification Event”), except
for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer
Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations
under Rule 506(e), and has furnished to the Buyers a copy of any disclosures provided thereunder.


 


(qq) Other Covered Persons.
The Company is not aware of any Person (other than the Placement Agent) that has been or will be paid (directly or indirectly) remuneration
for solicitation of Buyers or potential purchasers in connection with the sale of any Regulation D Securities.


 


(rr) No Additional Agreements.
The Company does not have any agreement or understanding with any Buyer with respect to the transactions contemplated by the Transaction
Documents other than as specified in the Transaction Documents.


 


(ss) Public Utility
Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate” of
a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.


 


(tt) Federal Power Act.
None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under the Federal Power Act,
as amended.


 


(uu) Ranking of Notes.
No Indebtedness of the Company, at the Closing, will be senior to, or pari passu with, the Notes in right of payment, whether with
respect to payment or redemptions, interest, damages, upon liquidation or dissolution or otherwise.


 






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(vv) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants that would reasonably be
expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries have implemented and maintained
commercially reasonable physical, technical and administrative 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
“Personal Data,” used in connection with their businesses. “Personal Data” means (i) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (ii) any information which would
qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (iii) “personal
data” as defined by the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (iv) any information
which would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996,
as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v)
any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages 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 or such, nor any incidents under internal review or investigations relating to the same except in each
case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The
Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification except in each case, where such would not, either individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.


 


(ww) Compliance with
Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in compliance with all applicable state and
federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its Subsidiaries have
taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance with,
the GDPR (EU 2016/679) (collectively, the “Privacy Laws”) except in each case, where such would not, either individually
or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance with the Privacy Laws, the Company
and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance in all material respects
with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure, handling, and analysis
of Personal Data (the “Policies”). The Company and its Subsidiaries have at all times made all disclosures to users
or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures made or contained in any Policy
have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in
any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential
liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge of any event or condition
that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for, in whole or in part, any investigation,
remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any order, decree, or agreement that imposes
any obligation or liability under any Privacy Law.


 






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(xx) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents or counsel
with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company
or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents.
The Company understands and confirms that each of the Buyers will rely on the foregoing representations in effecting transactions in securities
of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries, their businesses and the transactions
contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries is
true and correct 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. All of the written information
furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries to each Buyer pursuant to or in connection with
this Agreement and the other Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date
on which such information is so provided and will 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.
No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business,
properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable
law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been
so publicly disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 2.


 


4. COVENANTS.


 


(a) Best
Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by
it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 7 of this Agreement.


 


(b) Form
D and Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation D and shall provide a
copy thereof to each Buyer promptly after such filing. The Company shall, on or before the Closing Date, take such action as the Company
shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to the Buyers at the
Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to
obtain an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to the
Closing Date. Without limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and
reports relating to the offer and sale of the Securities required under all applicable securities laws (including, without limitation,
all applicable federal securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable
foreign, federal, state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities
to the Buyers.


 






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(c) Reporting
Status. Until the earliest of (i) the date on which the Buyers shall have sold all of the Registrable Securities, (ii) such date on
which the Company is acquired, is liquidated or completes a going private transaction in a transaction where the Common Stock is no longer
outstanding and (iii) the later of (A) the fifth (5th) anniversary of the Closing Date and (B) the date no Notes remain outstanding
(the “Reporting Period”), the Company shall use reasonable best efforts to timely file all reports required to be filed
with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the
1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.


 


(d) Use
of Proceeds. The Company will use the proceeds from the sale of the Securities for general corporate purposes, but not, directly or
indirectly, for (i) except as set forth on Schedule 4(d), the satisfaction of any indebtedness of the Company or any of its Subsidiaries,
(ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement of any outstanding
litigation.


 


(e) Financial
Information. The Company agrees to send the following to each Investor (as defined in the Registration Rights Agreement) during the
Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system,
within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports on
Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash
flow statements for any period other than annual, any Current Reports on Form 8-K and any registration statements (other than on Form
S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with the SEC through EDGAR or are otherwise
widely disseminated via a recognized news release service (such as PR Newswire), on the same day as the release thereof, e-mail copies
of all press releases issued by the Company or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR,
copies of any notices and other information made available or given to the stockholders of the Company generally, contemporaneously with
the making available or giving thereof to the stockholders.


 


(f) Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Registrable Securities upon
each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or designated for
quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation for quotation (as
the case may be) of all Registrable Securities from time to time issuable under the terms of the Transaction Documents on such national
securities exchange or automated quotation system. The Company shall maintain the Common Stock’s listing or authorization for quotation
(as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the Nasdaq Global
Market or the Nasdaq Global Select Market (each, an “Eligible Market”). Neither the Company nor any of its Subsidiaries
shall take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on an Eligible Market.
The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(f).


 






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(g) Fees.
The Company shall reimburse the lead Buyer a non-accountable amount of $75,000 for all costs and expenses incurred by it or its affiliates
in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents
(including, without limitation, as applicable, all legal fees of outside counsel and disbursements of Kelley Drye & Warren LLP, counsel
to the lead Buyer, any other fees and expenses in connection with the structuring, documentation, negotiation and closing of the transactions
contemplated by the Transaction Documents and due diligence and regulatory filings in connection therewith) (the “Transaction
Expenses”) and shall be withheld by the lead Buyer from its Purchase Price at the Closing; provided, that the Company shall
promptly reimburse Kelley Drye & Warren LLP on demand for all Transaction Expenses not so reimbursed through such withholding at the
Closing. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, Controlled Account
Bank fees, transfer agent fees, DTC (as defined below) fees or broker’s commissions (other than for Persons engaged by any Buyer)
relating to or arising out of the transactions contemplated hereby (including, without limitation, any fees or commissions payable to
the Placement Agent, who is the Company’s sole placement agent in connection with the transactions contemplated by this Agreement).
The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable
attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise
set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities
to the Buyers.


 


(h) Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the
Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that is
secured by the Securities. The pledge of Securities, in and of itself, without any transfer of Securities upon enforcement of such pledge,
shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Investor effecting a pledge of Securities
shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement
or any other Transaction Document, including, without limitation, Section 2(g) hereof; provided that an Investor and its pledgee
shall be required to comply with the provisions of Section 2(g) hereof in order to effect a sale, transfer or assignment of Securities
to such pledgee. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request
in connection with a pledge of the Securities to such pledgee by a Buyer.


 


(i) Disclosure
of Transactions and Other Material Information.


 


(i) Disclosure
of Transaction. The Company shall, on or before 9:30 a.m., New York time, on the first (1st) Business Day after the date of this
Agreement, issue a press release (the “Press Release”) reasonably acceptable to the Buyers disclosing all the material
terms of the transactions contemplated by the Transaction Documents. On or before 9:30 a.m., New York time, on the first (1st)
Business Day after the date of this Agreement, the Company shall file a Current Report on Form 8-K describing all the material terms of
the transactions contemplated by the Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction
Documents (including, without limitation, this Agreement, the form of Notes, the form of Security Agreement, the form of Guaranty, the
form of Voting Agreement and the form of the Registration Rights Agreement) (including all attachments, the “8-K Filing”).
From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided to
any of the Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection
with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the 8-K Filing, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand,
and any of the Buyers or any of their affiliates, on the other hand, shall terminate.


 






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(ii) Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company or any of its
Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be granted or withheld
in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants or any of the covenants or agreements
contained in any other Transaction Document, by the Company, any of its Subsidiaries, or any of its or their respective officers, directors,
employees and agents (as determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein
or in the Transaction Documents, such Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement
or otherwise, of such breach or such material, non-public information, as applicable, without the prior approval by the Company, any of
its Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer shall have any liability to the
Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, affiliates, stockholders or agents,
for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer without such Buyer’s
consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty
not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries nor
any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided,
however, the Company shall be entitled, without the prior approval of any Buyer, to make the Press Release and any press release or other
public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith
and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the
Company in connection with any such press release or other public disclosure prior to its release). Without the prior written consent
of the applicable Buyer (which may be granted or withheld in such Buyer’s sole discretion), the Company shall not (and shall cause
each of its Subsidiaries and affiliates to not) disclose the name of such Buyer in any filing, announcement, release or otherwise. Notwithstanding
anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly
acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written
definitive and binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer may bind
any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material,
non-public information regarding the Company or any of its Subsidiaries.


 


(j) Additional
Registration Statements. Until the Applicable Date (as defined below) and at any time thereafter while any Registration Statement
is not effective or the prospectus contained therein is not available for use or any Current Public Information Failure (as defined in
the Registration Rights Agreement) exists, the Company shall not file a registration statement or an offering statement under the 1933
Act relating to securities that are not the Registrable Securities (other than a registration statement on Form S-8 or such supplements
or amendments to registration statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely
to the extent necessary to keep such registration statements effective and available and not with respect to any Subsequent Placement)).
“Applicable Date” means the earlier of (x) the first date on which the resale by the Buyers of all the Registrable
Securities required to be filed on the initial Registration Statement (as defined in the Registration Rights Agreement) pursuant to the
Registration Rights Agreement is declared effective by the SEC (and each prospectus contained therein is available for use on such date)
or (y) the first date on which all of the Registrable Securities are eligible to be resold by the Buyers pursuant to Rule 144 (or, if
a Current Public Information Failure has occurred and is continuing, such later date after which the Company has cured such Current Public
Information Failure).


 






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(k) Additional
Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written consent
of the Required Holders (as defined below), issue any Notes (other than to the Buyers as contemplated hereby) and the Company shall not
issue any other securities that would cause a breach or default under the Notes. The Company agrees that for the period commencing on
the date hereof and ending on the date immediately following the 90th calendar day after the Applicable Date (provided that
such period shall be extended by the number of calendar days during such period and any extension thereof contemplated by this proviso
on which any Registration Statement is not effective or any prospectus contained therein is not available for use or any Current Public
Information Failure exists) (the “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly
or indirectly issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale,
grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including,
without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible
Securities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring
during the applicable Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding
the foregoing, this Section 4(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase
Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined
below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after
the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately
prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options are amended to increase the
number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner
that adversely affects any of the Buyers; (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities
(other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above)
issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible
Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible
Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of
any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are
covered by clause (i) above) is not lowered, none of such Convertible Securities (other than standard options to purchase Common Stock
issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are amended to increase the number of shares issuable
thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock
issued pursuant to an Approved Stock Plan that are covered by clause (i) above) are otherwise materially changed in any manner that adversely
affects any of the Buyers; or (iii) the Conversion Shares (each of the foregoing in clauses (i) through (iii), collectively the “Excluded
Securities”). “Approved Stock Plan” means any employee benefit plan which has been approved by the board
of directors of the Company prior to or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to
purchase Common Stock may be issued to any employee, officer or director for services provided to the Company in their capacity as such.


 


(l) Reservation
of Shares. So long as any of the Notes remain outstanding, the Company shall take all action necessary to at all times have authorized,
and reserved for the purpose of issuance, no less than 100% of the maximum number of shares of Common Stock issuable upon conversion of
all the Notes then outstanding (assuming for purposes hereof that (x) the Notes are convertible at the Floor Price (as defined in the
Notes), and (y) any such conversion shall not take into account any limitations on the conversion of the Notes set forth in the Notes),
(collectively, the “Required Reserve Amount”); provided that at no time shall the number of shares of Common Stock
reserved pursuant to this Section 4(l) be reduced other than proportionally in connection with any conversion, exercise and/or redemption,
as applicable of Notes. If at any time the number of shares of Common Stock authorized and reserved for issuance is not sufficient to
meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a sufficient
number of shares, including, without limitation, calling a special meeting of stockholders to authorize additional shares to meet the
Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient number of authorized shares, obtain
stockholder approval of an increase in such authorized number of shares, and voting the management shares of the Company in favor of an
increase in the authorized shares of the Company to ensure that the number of authorized shares is sufficient to meet the Required Reserve
Amount.


 






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(m) Conduct
of Business. During the Reporting Period, the business of the Company and its Subsidiaries shall not be conducted in violation of
any law, ordinance or regulation of any Governmental Entity, except where such violations would not reasonably be expected to result,
either individually or in the aggregate, in a Material Adverse Effect.


 


(n) Other
Notes; Variable Securities. So long as any Notes remain outstanding, the Company and each Subsidiary shall be prohibited from effecting
or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion,
exercise 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 Convertible 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 Convertible Securities 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, other than pursuant
to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation,
an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future
determined price (other than standard and customary “preemptive” or “participation” rights). Each Buyer shall
be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be
in addition to any right to collect damages.


 


(o) [Intentionally
Omitted]


 


(p) Dilutive
Issuances. For so long as any Notes remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive Issuance
(as defined in the Notes) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon conversion of any
Notes any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue upon conversion of the
Notes without breaching the Company’s obligations under the rules or regulations of the Principal Market.


 


(q) Passive
Foreign Investment Company. During the Reporting Period, the Company shall conduct its business, and shall cause its Subsidiaries
to conduct their respective businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign
investment company within the meaning of Section 1297 of the Code.


 


(r) Restriction
on Redemption and Cash Dividends. So long as any Notes are outstanding, the Company shall not, directly or indirectly, redeem (other
than redemption from employees or directors of the Company in connection with equity grants under the Company’s equity plans in
effect from time to time), or declare or pay any cash dividend or distribution on, any securities of the Company without the prior express
written consent of the Required Holders.


 


(s) Corporate
Existence. So long as any Buyer beneficially owns any Notes, the Company shall not be party to any Fundamental Transaction (as defined
in the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Notes.


 






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(t) Stock
Splits. Until the first anniversary of the Closing, the Company shall not effect any stock combination, reverse stock split or other
similar transaction (or make any public announcement or disclosure with respect to any of the foregoing) without the prior written consent
of the Required Holders (not to be unreasonably withheld if necessary to prevent the delisting of the Common Stock from the Principal
Market).


 


(u) Conversion
Procedures. Each of the form of Conversion Notice (as defined in the Notes) included in the Notes set forth the totality of the procedures
required of the Buyers in order to convert the Notes. Except as provided in Section 5(d), no additional legal opinion, other information
or instructions shall be required of the Buyers to convert their Notes. The Company shall honor conversions of the Notes and shall deliver
the Conversion Shares in accordance with the terms, conditions and time periods set forth in the Notes.


 


(v) Collateral
Agent. Each Buyer hereby (i) appoints ____, as the collateral agent hereunder and under the Security Documents (in such capacity,
the “Collateral Agent”), and (ii) authorizes the Collateral Agent (and its officers, directors, employees and agents)
to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral Agent shall not have,
by reason hereof or any of the Security Documents, a fiduciary relationship in respect of any Buyer. Neither the Collateral Agent nor
any of its officers, directors, employees or agents shall have any liability to any Buyer for any action taken or omitted to be taken
in connection hereof or any Security Document except to the extent caused by its own gross negligence or willful misconduct, and each
Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers, directors, employees and agents
(collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages, liabilities, obligations,
penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’ fees, costs
and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in connection with
the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto or any of the Security
Documents. The Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions of the Required Holders,
and such instructions shall be binding upon all holders of Notes; provided, however, that the Collateral Agent shall not be required to
take any action which, in the reasonable opinion of the Collateral Agent, exposes the Collateral Agent to liability or which is contrary
to this Agreement or any other Transaction Document or applicable law. The Collateral Agent shall be entitled to rely upon any written
notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith to be genuine and correct
and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this Agreement or any of the
other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.


 


(w) Successor
Collateral Agent.


 


(i) The
Collateral Agent may resign from the performance of all its functions and duties hereunder and under the other Transaction Documents at
any time by giving at least ten (10) Business Days’ prior written notice to the Company and each holder of Notes. Such resignation
shall take effect upon the acceptance by a successor Collateral Agent of appointment pursuant to clauses (ii) and (iii) below or as otherwise
provided below. If at any time the Collateral Agent (together with its affiliates) beneficially owns less than $100,000 in aggregate principal
amount of Notes, the Required Holders may, by written consent, remove the Collateral Agent from all its functions and duties hereunder
and under the other Transaction Documents.


 






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(ii) Upon
any such notice of resignation or removal, the Required Holders shall appoint a successor collateral agent. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor agent, such successor collateral agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the collateral agent, and the Collateral Agent shall be discharged from its
duties and obligations under this Agreement and the other Transaction Documents. After the Collateral Agent’s resignation or removal
hereunder as the collateral agent, the provisions of this Section 4(w) shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Collateral Agent under this Agreement and the other Transaction Documents.


 


(iii) If
a successor collateral agent shall not have been so appointed within ten (10) Business Days of receipt of a written notice of resignation
or removal, the Collateral Agent shall then appoint a successor collateral agent who shall serve as the Collateral Agent until such time,
if any, as the Required Holders appoint a successor collateral agent as provided above.


 


(iv) In
the event that a successor Collateral Agent is appointed pursuant to the provisions of this Section 4(w) that is not a Buyer or an affiliate
of any Buyer (or the Required Holders or the Collateral Agent (or its successor), as applicable, notify the Company that they or it wants
to appoint such a successor Collateral Agent pursuant to the terms of this Section 4(w)), the Company and each Subsidiary thereof covenants
and agrees to promptly take all actions reasonably requested by the Required Holders or the Collateral Agent (or its successor), as applicable,
from time to time, to secure a successor Collateral Agent satisfactory to the requesting part(y)(ies), in their sole discretion, including,
without limitation, by paying all reasonable and customary fees and expenses of such successor Collateral Agent, by having the Company
and each Subsidiary thereof agree to indemnify any successor Collateral Agent pursuant to reasonable and customary terms and by each of
the Company and each Subsidiary thereof executing a collateral agency agreement or similar agreement and/or any amendment to the Security
Documents reasonably requested or required by the successor Collateral Agent.


 


(x) Regulation
M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the distribution of the
Securities contemplated hereby.


 


(y) General Solicitation.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any person acting on behalf of the Company
or such affiliate will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation or general
advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising.


 






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(z) Integration.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of the Company
or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration of the Securities
under the 1933 Act or require stockholder approval under the rules and regulations of the Principal Market and the Company will take all
action that is appropriate or necessary to assure that its offerings of other securities will not be integrated for purposes of the 1933
Act or the rules and regulations of the Principal Market, with the issuance of Securities contemplated hereby.


 


(aa) Notice of Disqualification
Events. The Company will notify the Buyers in writing, prior to the Closing Date of (i) any Disqualification Event relating
to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating to any
Issuer Covered Person.


 


(bb) Subsidiary Guarantee.
For so long as any Notes remain outstanding, upon any entity becoming a direct, or indirect, Subsidiary (other than the Excluded Subsidiaries)
of the Company, the Company shall cause each such Subsidiary to become party to the Guaranty by executing a joinder to the Guaranty reasonably
satisfactory in form and substance to the Required Holders. “Excluded Subsidiaries” means (a) each Immaterial Subsidiary,
(b) each Subsidiary hereafter acquired that is prohibited by any applicable contractual obligation in effect on the Closing Date or the
date such entity became a Subsidiary (but not entered into in contemplation of becoming a Subsidiary) or applicable law from guaranteeing
the obligations at the time such Subsidiary becomes a Subsidiary, (c) each CFC and U.S. Foreign HoldCo (to the extent that making such
CFC or U.S. Foreign HoldCo a Subsidiary guarantor could be expected to give rise to material adverse tax consequences to Company, its
Subsidiaries, and/or the direct or indirect holders of the capital stock of Company as a reasonably determined by Company and (d) each
other Subsidiary with respect to which, in the reasonable judgement of the Required Holders and the Company, guaranteeing the Obligations
hereunder could reasonably be expected to result in a material adverse tax consequences to Company or any indirect beneficial owner thereof
as a result hereof that outweigh the benefits of such guarantee to the holders of Notes. “CFC” means any Subsidiary
that is a “controlled foreign corporation” for United States federal income tax purposes within the meaning of Section 975
of the Code and any direct or indirect subsidiary of a CFC. “U.S. Foreign HoldCo” means (i) any Domestic Subsidiary
that is treated as a corporation for federal income tax purposes substantially all the assets of which consist (directly or indirectly)
of stock or securities of one or more CFCs and (ii) any Domestic Subsidiary that is treated as either a partnership or disregarded entity
for federal income tax purposes substantially all of the assets of which consist (directly or indirectly) of stock or securities of one
or more CFCs.


 


(cc) Stockholder Approval.
The Company shall either (x) if the Company shall have obtained the prior written consent of the requisite stockholders (the “Stockholder
Consent”) to obtain the Stockholder Approval (as defined below), inform the stockholders of the Company of the receipt of the
Stockholder Consent by preparing and filing with the SEC, as promptly as practicable after the date hereof, but prior to the forty-fifth
(45th) calendar day after the Initial Closing Date, an information statement with respect thereto or (y) provide each stockholder
entitled to vote at a special meeting of stockholders of the Company (the “Stockholder Meeting”), which shall be promptly
called and held not later than the forty-fifth (45th) calendar day after the Initial Closing (the “Stockholder Meeting
Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Buyers and Kelley Drye & Warren LLP,
at the expense of the Company, with the Company obligated to reimburse the expenses of Kelley Drye & Warren LLP incurred in connection
therewith in an amount not exceed $5,000. The proxy statement, if any, shall solicit each of the Company’s stockholder’s
affirmative vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for
the approval of the issuance of all of the Securities in compliance with the rules and regulations of the Principal Market (without regard
to any limitations on conversion set forth in the Notes) (such affirmative approval being referred to herein as the “Stockholder
Approval”, and the date such Stockholder Approval is obtained, the “Stockholder Approval Date”), and the
Company shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions and to cause the Board
of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall be obligated to seek
to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable best efforts the Stockholder
Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional Stockholder Meeting to
be held on or prior to the 150th calendar day after the Initial Closing Date. If, despite the Company’s reasonable best
efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder
Meeting to be held semi-annually thereafter until such Stockholder Approval is obtained.


 






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(dd) No Waiver of Voting
Agreement. The Company shall not amend, waive, modify or fail to use best efforts to enforce any provision of the Voting Agreement.
For the avoidance of doubt, no Buyer shall be a third party beneficiary of any Voting Agreement.


 


(ee) Closing Documents.
On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered, to each Buyer
and Kelley Drye & Warren LLP a complete closing set of the executed Transaction Documents, Securities and any other document required
to be delivered to any party pursuant to Section 7 hereof or otherwise.


 


(ff) Participation Right.
At any time after May 5, 2023 until the later of (x) January 5, 2025, and (y) the date that the Note is fully repaid, neither the Company
nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied
with this Section 4(ff). The Company acknowledges and agrees that the right set forth in this Section 4(ff) is a right granted by
the Company, separately, to each Buyer.


 


(i) At
least five (5) Trading Days (or one (1) Trading Day with respect to any SEC registered offering of securities of the Company) prior to
any proposed or intended Subsequent Placement, the Company shall deliver to each Buyer a written notice (each such notice, a “Pre-Notice”),
which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if
the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether the
Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material,
non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the
statement in clause (x) above does not constitute material, non-public information and (z) a statement informing such Buyer that it is
entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written
request of a Buyer within three (3) Trading Days after the Company’s delivery to such Buyer of such Pre-Notice, and only upon a
written request by such Buyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Buyer
an irrevocable written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”)
of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A)
identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged,
and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with
which the Offered Securities are to be offered, issued, sold or exchanged and (D) offer to issue and sell to or exchange with such Buyer
in accordance with the terms of the Offer such Buyer’s pro rata portion of 35% of the Offered Securities, provided that the number
of Offered Securities which such Buyer shall have the right to subscribe for under this Section 4(ff) shall be (x) based on such Buyer’s
pro rata portion of the aggregate number of Common Shares purchased hereunder by all Buyers (the “Basic Amount”), and
(y) with respect to each Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable
to the Basic Amounts of other Buyers as such Buyer shall indicate it will purchase or acquire should the other Buyers subscribe for less
than their Basic Amounts (the “Undersubscription Amount”), which process shall be repeated until each Buyer shall have
an opportunity to subscribe for any remaining Undersubscription Amount.


 






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(ii) To
accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the fifth (5th)
Business Day (or one (1) Business Day with respect to any SEC registered offering of securities of the Company) after such Buyer’s
receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such Buyer’s Basic Amount that
such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any,
that such Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for
by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has set forth an Undersubscription Amount in its
Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has
subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the
Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), each Buyer who has subscribed
for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic
Amount of such Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts, subject to rounding
by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the
terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each Buyer a new Offer Notice
and the Offer Period shall expire on the fifth (5th) Business Day (or the first (1st) Business Day with respect
to any SEC registered offering of securities of the Company) after such Buyer’s receipt of such new Offer Notice.


 


(iii) The
Company shall have five (5) Business Days (or one (1) Business Day with respect to any SEC registered offering of securities of the Company)
from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which
a Notice of Acceptance has not been given by a Buyer (the “Refused Securities”) pursuant to a definitive agreement(s)
(the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein)
and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the
acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x)
the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent
Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report
on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.


 






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(iv) In
the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified
in Section 4(ff)(iii) above), then each Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance
or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than
the number or amount of the Offered Securities that such Buyer elected to purchase pursuant to Section 4(ff)(ii) above multiplied
by a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue,
sell or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section 4(ff) prior to such reduction)
and (B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Buyer so elects to reduce
the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than
the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Buyers in accordance
with Section 4(ff) above.


 


(v) Upon
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Buyer shall acquire from the Company,
and the Company shall issue to such Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced
pursuant to Section 4(ff)(iii) above if such Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase
by such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Buyer
of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Buyer and its
counsel.


 


(vi) Any
Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(ff) may not be issued, sold or exchanged
until they are again offered to such Buyer under the procedures specified in this Agreement.


 


(vii) The
Company and each Buyer agree that if any Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with
respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”)
shall include any term or provision whereby such Buyer shall be required to agree to any restrictions on trading as to any securities
of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection
with, any agreement previously entered into with the Company or any instrument received from the Company, (y) shall include any representation,
warranty or covenant more adverse to such Buyer than as set forth in the Transaction Documents and (z) any registration rights set forth
in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the Registration
Rights Agreement.


 






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(viii)
Notwithstanding anything to the contrary in this Section 4(ff) and unless otherwise agreed to by such Buyer, the Company shall
either confirm in writing to such Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall
publicly disclose its intention to issue the Offered Securities, in either case, in such a manner such that such Buyer will not be
in possession of any material, non-public information, by the fifth (5th) Business Day (or the first (1st)
Business Day with respect to any SEC registered offering of securities of the Company) following delivery of the Offer Notice. If by
such fifth (5th) Business Day (or the first (1st) Business Day with respect to any SEC registered offering of
securities of the Company), no public disclosure regarding a transaction with respect to the Offered Securities has been made, and
no notice regarding the abandonment of such transaction has been received by such Buyer, such transaction shall be deemed to have
been abandoned and such Buyer shall not be in possession of any material, non-public information with respect to the Company or any
of its Subsidiaries. Should the Company decide to pursue such transaction with respect to the Offered Securities, the Company shall
provide such Buyer with another Offer Notice and such Buyer will again have the right of participation set forth in this Section
4(ff). The Company shall not be permitted to deliver more than one such Offer Notice to such Buyer in any sixty (60) day period,
except as expressly contemplated by the last sentence of Section 4(ff)(ii).


 


(ix) The
restrictions contained in this Section 4(ff) shall not apply in connection with the issuance of any Excluded Securities. The Company shall
not circumvent the provisions of this Section 4(ff) by providing terms or conditions to one Buyer that are not provided to all.


 


(gg) Controlled
Account Agreements. On or prior to the twenty (20) calendar day anniversary of the Closing Date, each Controlled Account Bank
(as defined in the Notes) and the Collateral Agent shall have duly executed and delivered to such Buyer a Controlled Account
Agreement (as defined in the Notes) with respect to each account of the Company or any of the other Grantors held at such Controlled
Account Bank.


 


5. REGISTER;
TRANSFER AGENT INSTRUCTIONS; LEGEND.


 


(a) Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice
to each holder of Securities), a register for the Notes in which the Company shall record the name and address of the Person in whose
name the Notes have been issued (including the name and address of each transferee), the principal amount of the Notes held by such Person
and the number of Conversion Shares issuable pursuant to the terms of the Notes. The Company shall keep the register open and available
at all times during business hours for inspection of any Buyer or its legal representatives.


 






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(b) Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer agent (as applicable,
the “Transfer Agent”) in a form acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”)
to issue certificates or credit shares to the applicable balance accounts at The Depository Trust Company (“DTC”),
registered in the name of each Buyer or its respective nominee(s), for the Conversion Shares in such amounts as specified from time to
time by each Buyer to the Company upon conversion of the Notes. The Company represents and warrants that no instruction other than the
Irrevocable Transfer Agent Instructions referred to in this Section 5(b), and stop transfer instructions to give effect to Section
2(g) hereof, will be given by the Company to its transfer agent with respect to the Securities, and that the Securities shall otherwise
be freely transferable on the books and records of the Company, as applicable, to the extent provided in this Agreement and the other
Transaction Documents. If a Buyer effects a sale, assignment or transfer of the Securities in accordance with Section 2(g), the Company
shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates or credit shares to the applicable
balance accounts at DTC in such name and in such denominations as specified by such Buyer to effect such sale, transfer or assignment.
In the event that such sale, assignment or transfer involves Conversion Shares sold, assigned or transferred pursuant to an effective
registration statement or in compliance with Rule 144, the transfer agent shall issue such shares to such Buyer, assignee or transferee
(as the case may be) without any restrictive legend in accordance with Section 5(d) below. The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law
for a breach of its obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach
by the Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies,
to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic
loss and without any bond or other security being required. The Company shall cause its counsel to issue the legal opinion referred to
in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent on each Effective Date (as defined in the Registration
Rights Agreement). Any fees (with respect to the transfer agent, counsel to the Company or otherwise) associated with the issuance of
such opinion or the removal of any legends on any of the Securities shall be borne by the Company.


 


(c) Legends.
Each Buyer understands that the Securities have been issued (or will be issued in the case of the Conversion Shares) pursuant to an exemption
from registration or qualification under the 1933 Act and applicable state securities laws, and except as set forth below, the Securities
shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of such stock certificates):


 


NEITHER THE ISSUANCE AND SALE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN][THE SECURITIES REPRESENTED BY
THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE
144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 






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(d) Removal
of Legends. Certificates evidencing Securities shall not be required to contain the legend set forth in Section 5(c) above or
any other legend (i) while a registration statement (including a Registration Statement) covering the resale of such Securities is effective
under the 1933 Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor is not an affiliate of the
Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144 (provided that a Buyer provides the
Company with reasonable assurances that such Securities are eligible for sale, assignment or transfer under Rule 144 which shall not include
an opinion of Buyer’s counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144), provided
that such Buyer provides the Company with an opinion of counsel to such Buyer, in a generally acceptable form, to the effect that such
sale, assignment or transfer of the Securities may be made without registration under the applicable requirements of the 1933 Act or (v)
if such legend is not required under applicable requirements of the 1933 Act (including, without limitation, controlling judicial interpretations
and pronouncements issued by the SEC). If a legend is not required pursuant to the foregoing, the Company shall no later than two (2)
Trading Days (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the settlement
of a trade initiated on the date such Buyer delivers such legended certificate representing such Securities to the Company) following
the delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of a legended certificate representing such
Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or
transfer, if applicable), together with any other deliveries from such Buyer as may be required above in this Section 5(d), as directed
by such Buyer, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated Securities Transfer
Program (“FAST”) and such Securities are Conversion Shares, credit the aggregate number of shares of Common Stock to
which such Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system or (B) if the Company’s transfer agent is not participating in FAST, issue and deliver (via reputable overnight
courier) to such Buyer, a certificate representing such Securities that is free from all restrictive and other legends, registered in
the name of such Buyer or its designee (the date by which such credit is so required to be made to the balance account of such Buyer’s
or such Buyer’s designee with DTC or such certificate is required to be delivered to such Buyer pursuant to the foregoing is referred
to herein as the “Required Delivery Date”, and the date such shares of Common Stock are actually delivered without
restrictive legend to such Buyer or such Buyer’s designee with DTC, as applicable, the “Share Delivery Date”).
The Company shall be responsible for any transfer agent fees or DTC fees with respect to any issuance of Securities or the removal of
any legends with respect to any Securities in accordance herewith.


 






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(e) Failure
to Timely Deliver; Buy-In. If the Company fails to fail, for any reason or for no reason, to issue and deliver (or cause to be delivered)
to a Buyer (or its designee) by the Required Delivery Date, either (I) if the Transfer Agent is not participating in FAST, a certificate
for the number of Conversion Shares to which such Buyer is entitled and register such Conversion Shares on the Company’s share register
or, if the Transfer Agent is participating in FAST, to credit the balance account of such Buyer or such Buyer’s designee with DTC
for such number of Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above or (II) if the Registration
Statement covering the resale of the Conversion Shares submitted for legend removal by such Buyer pursuant to Section 5(d) above (the
“Unavailable Shares”) is not available for the resale of such Unavailable Shares and the Company fails to promptly,
but in no event later than as required pursuant to the Registration Rights Agreement (x) so notify such Buyer and (y) deliver the Conversion
Shares electronically without any restrictive legend by crediting such aggregate number of Conversion Shares submitted for legend removal
by such Buyer pursuant to Section 5(d) above to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal
At Custodian system (the event described in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure”
and together with the event described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies
available to such Buyer, the Company shall pay in cash to such Buyer on each day after the Share Delivery Date and during such Delivery
Failure an amount equal to 1% of the product of (A) the sum of the number of shares of Common Stock not issued to such Buyer on or prior
to the Required Delivery Date and to which such Buyer is entitled, and (B) any trading price of the Common Stock selected by such Buyer
in writing as in effect at any time during the period beginning on the date of the delivery by such Buyer to the Company of the applicable
Conversion Shares and ending on the applicable Share Delivery Date. In addition to the foregoing, if on or prior to the Required Delivery
Date either (I) if the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver a certificate to a Buyer
and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in FAST, credit
the balance account of such Buyer or such Buyer’s designee with DTC for the number of shares of Common Stock to which such Buyer
submitted for legend removal by such Buyer pursuant to Section 5(d) above (ii) below or (II) a Notice Failure occurs, and if on or after
such Trading Day such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by such Buyer of shares of Common Stock submitted for legend removal by such Buyer pursuant to Section 5(d) above that such Buyer
is entitled to receive from the Company (a “Buy-In”), then the Company shall, within two (2) Trading Days after such
Buyer’s request and in such Buyer’s discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s
total purchase price (including brokerage commissions and other out-of-pocket expenses, if any, for the shares of Common Stock so purchased)
(the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit such Buyer’s
balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to such Buyer
a certificate or certificates or credit the balance account of such Buyer or such Buyer’s designee with DTC representing such number
of shares of Common Stock that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash
to such Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Conversion
Shares that the Company was required to deliver to such Buyer by the Required Delivery Date multiplied by (B) the lowest Closing Sale
Price (as defined in the Notes) of the Common Stock on any Trading Day during the period commencing on the date of the delivery by such
Buyer to the Company of the applicable Conversion Shares and ending on the date of such delivery and payment under this clause (ii). Nothing
shall limit such Buyer’s right to pursue any other remedies available to it hereunder, at law or in equity, including, without limitation,
a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver certificates representing
shares of Common Stock (or to electronically deliver such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding
anything herein to the contrary, with respect to any given Notice Failure and/or Delivery Failure, this Section 5(e) shall not apply to
the applicable Buyer the extent the Company has already paid such amounts in full to such Buyer with respect to such Notice Failure and/or
Delivery Failure, as applicable, pursuant to the analogous sections of the Note held by such Buyer.


 






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(f) FAST
Compliance. While any Notes remain outstanding, the Company shall maintain a transfer agent that participates in FAST.


 


6. CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.


 


(a) The
obligation of the Company hereunder to issue and sell the Notes to each Buyer at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may
be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: 


 


(i) Such
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(ii) Such
Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of any Buyer, the amounts withheld
pursuant to Section 4(g)) for the Note being purchased by such Buyer at the Closing by wire transfer of immediately available funds
in accordance with the Flow of Funds Letter.


 


(iii) The
representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and as of the
Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which
shall be true and correct as of such specific date), and such Buyer shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at
or prior to the Closing Date.


 


7. CONDITIONS
TO EACH BUYER’S OBLIGATION TO PURCHASE.


 


(a) The
obligation of each Buyer hereunder to purchase its Note at the Closing is subject to the satisfaction, at or before the Closing Date,
of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such
Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: 


 


(i) The
Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction Documents
to which it is a party and the Company shall have duly executed and delivered to such Buyer a Note in such original principal amount as
is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers as being purchased by such Buyer at the Closing
pursuant to this Agreement.


 






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(ii) Such
Buyer shall have received the opinion of Greenberg Traurig, LLP, the Company’s counsel, dated as of the Closing Date, in form reasonably
acceptable to such Buyer.


 


(iii) The
Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in form reasonably acceptable to such
Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.


 


(iv) The
Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries
in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of
formation as of a recent date prior to the Closing Date.


 


(v) The
Company shall have delivered to such Buyer a certificate evidencing the Company’s and each Subsidiary’s qualification as a
foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company
and each Subsidiary conducts business and is required to so qualify, as of a recent date prior to the Closing Date.


 


(vi) Each
Grantor shall have delivered to such Buyer a certified copy of its Certificate of Incorporation (or such equivalent organizational document)
as certified by the Secretary of State (or comparable office) of such Grantor’s jurisdiction of incorporation as of a recent date
prior to the Closing Date.


 


(vii) The
Company and each Domestic Subsidiary shall have delivered to such Buyer a certificate, in the form reasonably acceptable to such Buyer,
executed by the Secretary of the Company and each Domestic Subsidiary and dated as of the Closing Date, as to (i) the resolutions consistent
with Section 3(b) as adopted by the Company’s and each Domestic Subsidiary’s board of directors in a form reasonably
acceptable to such Buyer, (ii) the Certificate of Incorporation and the applicable organizational documents of each such Domestic Subsidiary
and (iii) the Bylaws of the Company and the bylaws and limited liability company agreement of each such Domestic Subsidiary, each
as in effect on the Closing Date.


 


(viii) Each
and every representation and warranty of the Company shall be true and correct in all material respects (or, in the case of any such representation
or warranty already qualified by materially, in all respects) as of the date when made and as of the Closing Date as though originally
made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such
specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions
required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. Such Buyer shall have received a
certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as
to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.


 






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(ix) The
Company shall have delivered to such Buyer a letter or electronic mail from the Company’s transfer agent confirming the number of
shares of Common Stock outstanding on the Closing Date immediately prior to the Closing.


 


(x) The
Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended,
as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the
Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling
below the minimum maintenance requirements of the Principal Market.


 


(xi) The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the
Securities, including without limitation, those required by the Principal Market, if any.


 


(xii) No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by
the Transaction Documents.


 


(xiii) Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect.


 


(xiv) The
Company shall have filed with the Principal Market to list the Conversion Shares.


 


(xv) In
accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent (A) original certificates
(I) representing the Subsidiaries’ shares of capital stock to the extent such subsidiary is a corporation or otherwise has certificated
equity and (II) representing all other equity interests and all promissory notes required to be pledged thereunder, in each case, accompanied
by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) appropriate financing statements
on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interests purported to be created by each Security Document.


 


(xvi) Prior
to the Closing, the Company shall have delivered or caused to be delivered to each Buyer and the Collateral Agent (A) certified copies
of requests for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the Company or any
of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent or the
Buyers, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing
statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral (as defined
in the Security Agreement), and the results of searches for any tax Lien and judgment Lien filed against such Person or its property,
which results, except as otherwise agreed to in writing by the Collateral Agent and the Buyers, shall not show any such Liens; and (B)
a perfection certificate, duly completed and executed by the Company and each of its Subsidiaries, in form and substance reasonably satisfactory
to the Buyers.


 






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(xvii) The
Collateral Agent shall have received the Security Agreement, duly executed by the Company and each other Grantor, together with the original
stock certificates representing all of the equity interests and all promissory notes required to be pledged thereunder, accompanied by
undated stock powers and allonges executed in blank and other proper instruments of transfer.


 


(xviii) With
respect to the Intellectual Property Rights, if any, of the Company or any of its applicable Subsidiaries, the Company and/or such Subsidiaries,
as applicable, shall have duly executed and delivered to such Buyer each Intellectual Property Security Agreement, in the form attached
as Exhibit A to the Security Agreement.


 


(xix) Such
Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer or Chief Financial Officer
of the Company, setting forth the wire amounts of each Buyer and the wire transfer instructions of the Company (the “Flow of
Funds Letter”).


 


(xx) The
Company shall have duly executed and delivered to such Buyer the voting agreement in the form of Exhibit C hereof (the “Voting
Agreement”), by and between the Company and the stockholders listed on Schedule 7(a)(xxiii) attached hereto (the “Stockholders”)
and the Stockholders shall have duly executed and delivered to such Buyer the Voting Agreement.


 


(xxi) The
Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions
contemplated by this Agreement as such Buyer or its counsel may reasonably request.


 


8. TERMINATION.


 


In the event that the Closing
shall not have occurred with respect to a Buyer within five (5) days of the date hereof, then such Buyer shall have the right to terminate
its obligations under this Agreement with respect to itself at any time on or after the close of business on such date without liability
of such Buyer to any other party; provided, however, (i) the right to terminate this Agreement under this Section 8 shall not be
available to such Buyer if the failure of the transactions contemplated by this Agreement to have been consummated by such date is the
result of such Buyer’s breach of this Agreement and (ii) the abandonment of the sale and purchase of the Notes shall be applicable
only to such Buyer providing such written notice, provided further that no such termination shall affect any obligation of the Company
under this Agreement to reimburse such Buyer for the expenses described in Section 4(g) above. Nothing contained in this Section 8
shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or
the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations
under this Agreement or the other Transaction Documents.


 






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9. MISCELLANEOUS.


 


(a) Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company 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 under
any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such 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 manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from
bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations
to such Buyer or to enforce a judgment or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.


 


(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature
is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature
page, such signature page 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 signature page were an original thereof.


 


(c) Headings;
Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of,
this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words
of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in
which they are found.


 






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(d) Severability;
Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended
to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall
not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as
close as possible to that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything to the contrary contained
in this Agreement or any other Transaction Document (and without implication that the following is required or applicable), it is the
intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the case may
be), or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts that would
be characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly, if any
obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally judicially determined
to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed to have been made by mutual mistake
of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment shall be effected,
to the extent necessary, by reducing or refunding, at the option of such Buyer, the amount of interest or any other amounts which would
constitute unlawful amounts required to be paid or actually paid to such Buyer under the Transaction Documents. For greater certainty,
to the extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by such Buyer under any of
the Transaction Documents or related thereto are held to be within the meaning of “interest” or another applicable term to
otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which they relate.


 






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(e) Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company,
its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any Buyer with
respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement, the other Transaction
Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain the entire
understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained in this
Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any Buyer has entered
into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date hereof with respect
to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or amend in any respect any obligations of the
Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement entered into prior
to the date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received from
the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall continue in full force
and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision
of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below),
and any amendment to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding
on all Buyers and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that it (A) applies
to less than all of the holders of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without such
Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion); and provided further that
the provisions of Sections 4(v) and 4(w) above cannot be amended or waived without the additional prior written approval of the Collateral
Agent or its successor. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving
party, provided that the Required Holders may waive any provision of this Agreement, and any waiver of any provision of this Agreement
made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities, as applicable,
provided that no such waiver shall be effective to the extent that it (1) applies to less than all of the holders of the Securities then
outstanding (unless a party gives a waiver as to itself only) or (2) imposes any obligation or liability on any Buyer without such Buyer’s
prior written consent (which may be granted or withheld in such Buyer’s sole discretion). No consideration (other than reimbursement
of legal fees) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration also is offered to all of the parties to the Transaction Documents, all holders of the Notes.
From the date hereof and while any Notes are outstanding, the Company shall not be permitted to receive any consideration from a Buyer
or a holder of Notes that is not otherwise contemplated by the Transaction Documents in order to, directly or indirectly, induce the Company
or any Subsidiary (i) to treat such Buyer or holder of Notes in a manner that is more favorable than to other similarly situated Buyers
or holders of Notes, or (ii) to treat any Buyer(s) or holder(s) of Notes in a manner that is less favorable than the Buyer or holder of
Notes that is paying such consideration; provided, however, that the determination of whether a Buyer has been treated more or less favorably
than another Buyer shall disregard any securities of the Company purchased or sold by any Buyer. The Company has not, directly or indirectly,
made any agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the Transaction Documents
except as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this
Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any financing to the Company, any Subsidiary
or otherwise. As a material inducement for each Buyer to enter into this Agreement, the Company expressly acknowledges and agrees that
(x) no due diligence or other investigation or inquiry conducted by a Buyer, any of its advisors or any of its representatives shall affect
such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s representations
and warranties contained in this Agreement or any other Transaction Document and (y) unless a provision of this Agreement or any other
Transaction Document is expressly preceded by the phrase “except as disclosed in the SEC Documents,” nothing contained in
any of the SEC Documents shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception
to any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document. “Required
Holders” means (I) prior to the Closing Date, each Buyer entitled to purchase Notes at the Closing and (II) on or after the
Closing Date, holders of a majority of the Registrable Securities as of such time (excluding any Registrable Securities held by the Company
or any of its Subsidiaries as of such time) or any Common Stock sold to a Person without the assignment of the rights under this Agreement
with respect thereto.


 






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(f) Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic
mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does
not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to such
recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case,
properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications shall be:


 


If to the Company:


 


American Virtual Cloud Technologies, Inc.

1720 Peachtree Street, Suite 629

Atlanta, GA 30309

Telephone: (404) 769-3236

Attention: Chief Financial Officer

E-Mail: tking@avctechnologies.com


 


With a copy (for informational purposes only) to:


 


Greenberg Traurig, LLP

1750 Tysons Blvd., Suite 1000

McLean, VA 22102

Telephone: (703) 749-1300

Attention: Jason Simon, Esq.

E-Mail: simonj@gtlaw.com


 


If to the Transfer Agent:


 


Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, NY 10004-1561

Telephone: (212) 845-3285

Attention: Richard Viscovich

E-Mail: rviscovich@continentalstock.com


 






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If to a Buyer, to its mailing address and e-mail
address set forth on the Schedule of Buyers, with copies to such Buyer’s representatives as set forth on the Schedule of Buyers,


 


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

3 World Trade Center

175 Greenwich Street

New York, NY 10007

Telephone: (212) 808-7540

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


or to such other mailing address and/or e-mail
address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party
five (5) days prior to the effectiveness of such change, provided that Kelley Drye & Warren LLP shall only be provided copies of notices
sent to the lead Buyer. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C)
provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 


(g) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns,
including any purchasers of any of the Notes. The Company shall not assign this Agreement or any rights or obligations hereunder without
the prior written consent of the Required Holders, including, without limitation, by way of a Fundamental Transaction (as defined in the
Notes) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Notes).
A Buyer may assign some or all of its rights hereunder in connection with any transfer of any of its Securities without the consent of
the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights.


 


(h) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the Indemnitees
referred to in Section 9(k).


 


(i) Survival.
The representations, warranties, agreements and covenants shall survive the Closing. Each Buyer shall be responsible only for its own
representations, warranties, agreements and covenants hereunder.


 


(j) Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.


 






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(k) Indemnification.
In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and
in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless each Buyer and each holder of any Securities and all of their stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee
as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company
or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the Company or any
Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding or claim brought or made against
such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or any Subsidiary)
or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance or enforcement
of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with
the proceeds of the issuance of the Securities, (C) any disclosure properly made by such Buyer pursuant to Section 4(i), or (D) the
status of such Buyer or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by the
Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action
or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights
and obligations under this Section 9(k) shall be the same as those set forth in Section 6 of the Registration Rights Agreement.


 


(l) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability
of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock and any other numbers in
this Agreement that relate to the Common Stock shall be automatically adjusted for any stock splits, stock dividends, stock combinations,
recapitalizations or other similar transactions that occur with respect to the Common Stock after the date of this Agreement. Notwithstanding
anything in this Agreement to the contrary, for the avoidance of doubt, nothing contained herein shall constitute a representation or
warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability
of, and/or securing of, securities of the Company in order for such Buyer (or its broker or other financial representative) to effect
short sales or similar transactions in the future.


 






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(m) Remedies.
Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have all
rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time
under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover
damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company
recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such Subsidiary’s
(as the case may be) obligations under the Transaction Documents, any remedy at law would inadequate relief to the Buyers. The Company
therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent injunctive or other
equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without
posting a bond or other security. The remedies provided in this Agreement and the other Transaction Documents shall be cumulative and
in addition to all other remedies available under this Agreement and the other Transaction Documents, at law or in equity (including a
decree of specific performance and/or other injunctive relief).


 


(n) Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents,
whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Subsidiary does not
timely perform its related obligations within the periods therein provided, then such Buyer may rescind or withdraw, in its sole discretion
from time to time upon written notice to the Company or such Subsidiary (as the case may be), any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights.


 


(o) Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of the other
Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or 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, foreign, 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.
Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents are in United
States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction Documents shall
be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount
in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount of
currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal
on the relevant date of calculation.


 






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(p) Judgment
Currency.


 


(i) If
for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document
in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this
Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement, the conversion
shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:


 


(1) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(2) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion Date”).


 


(ii) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall
pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.


 


(iii) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.


 


(q) Independent
Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents are several and not
joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of
any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by
any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not
so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Buyers
are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect to such obligations
or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Buyers are not acting
in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated
by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has been made by
such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such Buyer in connection
with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection with monitoring
such Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents. The Company and each Buyer confirms
that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation of the transaction contemplated
hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be
necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to
effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of the Company, not the action or decision
of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested
to do so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction
Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its Subsidiaries and the Buyers collectively
and not between and among the Buyers.


 


[signature pages follow]


 




    53


     


    


 


IN WITNESS WHEREOF,
each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written
above.


 


	 	COMPANY:
	 	 	 
	 	AMERICAN VIRTUAL CLOUD TECHNOLOGIES, INC.
	 	 	 
	 	By:	/s/ Thomas King
	 	 	Name: 	Thomas King
	 	 	Title:	Chief Financial Officer