Exhibit 10.1

 

SECURITIES PURCHASE AGREEMENT

 

This Securities
Purchase Agreement (this “Agreement”) is dated as of October 20, 2021, between Mechanical Technology, Incorporated,
a Nevada corporation and includes any successor Company thereto (the “Company”), and each purchaser identified
on the signature pages hereto (each, including its successors and permitted assigns, a “Purchaser” and collectively,
the “Purchasers”).

 

WHEREAS,
the Company and Purchasers desire to enter into this Agreement, pursuant to which the Purchasers are to be granted the right to
acquire securities of the Company as set forth herein and

 

WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933,
as amended, and/or Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser,
severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement
(the “Offering”).

 

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

 

ARTICLE I.

DEFINITIONS

 

1.1      Definitions. In
addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined herein have the
meanings given to such terms in the Notes (as defined herein), and (b) the following terms have the meanings set forth in this
Section 1.1:

 

“Accredited
Investor” shall have the meaning ascribed to such term in Section 3.2(c).

 

“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.7.

 

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

 

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

 

“Applicable
Law” shall mean any law, rule or regulation of any governmental authority or jurisdiction applicable to any party to
this Agreement, as the case may be.

 

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

 

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

 


 


 

 



 

“Buy-In”
shall have the meaning ascribed to such term in Section 4.1(h).

 

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

 

“Closing
Date” means the Business Day on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchasers’ obligation to pay the Subscription Amount at such Closing,
and (ii) the Company’s obligations to deliver the Securities to be issued and sold at such Closing, in each case, have been
satisfied or waived, but in no event later than the fifth Business Day following the date hereof.

 

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

 

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

 

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

 

“Company
Counsel” means, Sullivan & Worcester LLP, 1633 Broadway, 32nd Floor, New York, NY 10019, Attn: David
E. Danovitch, Esq., email: ddanovitch@sullivanlaw.com.

 

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

 

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

 

“Disqualification
Event” shall have the meaning ascribed to such term in Section 3.1(nn).

 

“Effective
Date” means the latest of the date that (a) a Registration Statement has been declared effective by the Commission with
respect to all of the Underlying Shares (as defined herein) without regard to any cutbacks permitted therein and has been continuously
effective for not less than six (6) months, or (b) all of the Underlying Shares have been sold pursuant to Rule 144, and (c) Company
counsel has delivered to the Transfer Agent and Purchasers at the Company’s expense a standing written unqualified opinion
that resales may then be made by such holders of all of the Underlying Shares pursuant to an effective Registration Statement,
which opinion shall be in form and substance reasonably acceptable to Purchaser.

 

“Equity
Line of Credit” shall have the meaning ascribed to such term in Section 4.13.

 

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

 


 


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“Exempt
Issuance” means, absent a written waiver by the Purchasers, the issuance of (a) shares of Common Stock and options to
officers, directors, or employees of the Company after the Closing Date up to the amounts and on the terms set forth on Schedule
3.1(g) pursuant to Stock Option Plan, (b) securities exercisable or exchangeable for or convertible into shares of Common
Stock issued and outstanding on the date of this Agreement, provided that such securities and any term thereof have not been amended
since the date of this Agreement to increase the number of such securities or to decrease the issue price, exercise price, exchange
price or conversion price of such securities and which securities and the principal terms thereof are set forth on Schedule
3.1(g) under the heading “Exempt Issuance”, and described in the SEC Reports, (c) securities issued pursuant
to acquisitions or strategic transactions approved by a majority of the disinterested directors of the Company, provided that
any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company and shall be intended
to provide to the Company substantial additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities in connection with the raising of capital or to an entity whose primary business is
investing in securities, (d) securities issued at a price or an effective price greater than the highest price of any security
issued and issuable in the offering including but not limited to the Warrants and the Warrant Shares; and (e) securities issued
or issuable to the Purchasers and their assigns pursuant to this Agreement, the Notes or the Warrants and other Transaction Documents
including without limitation, Section 4.17 and Section 4.23 herein, or upon exercise, conversion or exchange of any such securities,
and (f) securities described on Schedule 3.1(g) under the heading “Additional Exempt Issuances.” No
Variable Rate Transaction shall be deemed an Exempt Issuance.

 

“Exercise
Price” shall have the meaning ascribed to such term in the Warrants.

 

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

 

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

 

“Form
8-K” shall have the meaning ascribed to such term in Section 4.6.

 

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

 

“G&M”
shall mean Grushko & Mittman, P.C., with offices located at 515 Rockaway Avenue, Valley Stream, New York 11581, Fax: 212-697-3575.

 

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

 

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

 

“Investor
Questionnaire” means the form of Accredited Investor Questionnaire annexed hereto as Exhibit F.

 

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

 

“Legal
Opinion” shall have the meaning ascribed to such term in Section 2.2(a)(ii).

 


 


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

 

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

 

“Listing
Default” shall have the meaning ascribed to such term in Section 4.11(b).

 

“Majority
in Interest” shall have the meaning ascribed to such term in Section 5.5.

 

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

 

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

 

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

 

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

 

“Notes”
means the senior secured convertible notes issuable pursuant to this Agreement, in the form of Exhibit A hereto.

 

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

 

“Offering”
shall have the meaning attributed to such term in the recitals.

 

“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.17(a).

 

“Permitted
Indebtedness” means (a) unsecured liabilities for borrowed money or amounts owed not in excess of $1,500,000 in the
aggregate (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements and
other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto) not affecting more than $1,500,000 in the aggregate, except guaranties by endorsement
of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; (c) the present
value of any lease payments not in excess of $1,500,000 due under leases required to be capitalized in accordance with GAAP; and
(d) Equipment Financing, as defined herein.

 


 


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“Permitted
Lien” means the individual and collective reference to the following: (a) Liens for taxes, assessments and other governmental
charges or levies not yet due or Liens for taxes, assessments and other governmental charges or levies being contested in good
faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company)
have been established in accordance with GAAP, (b) Liens imposed by law which were incurred in the ordinary course of the Company’s
business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other
similar Liens arising in the ordinary course of the Company’s business, and which (x) do not individually or in the aggregate
materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business
of the Company and its Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have
the effect of preventing for so long as any amount in excess of $1,500,000 remains on the Note the forfeiture or sale of the property
or asset subject to such Liens, (c) Liens incurred in connection with Permitted Indebtedness under clause (c) thereunder, provided
that such Liens are not secured by assets of the Company or its Subsidiaries other than the assets so acquired or leased and not
in excess of the value of such assets; and Liens incurred in connection with Permitted Indebtedness under clause (d) thereunder,
provided that such Liens are not secured by assets of the Borrower or its Subsidiaries other than the assets so acquired and not
in excess of the value of such assets. Holder agrees that the Liens entered into hereunder in equipment; other personal property
or real estate acquired by Borrower after the date hereof (“Equipment Liens”) which secure Indebtedness constituting
Permitted Indebtedness under clause (d) of the definition of Permitted Indebtedness (“Equipment Financing”)
shall be senior in priority to the Liens of the Holder with respect to such equipment or personal property (the “Third
Party Equipment”); provided that such Liens are confined solely to the equipment so financed and the proceeds thereof
and are Permitted Liens and is further secured by the Company’s unsecured corporate guaranty. Upon the expiration of
the Liens of such other lenders or the termination of their prohibition of Liens in favor of other Lenders, the Third Party Equipment
shall automatically become part of the Collateral, and Lender is authorized at that time to amend any filed financing statement(s)
to reflect that change.

 

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

 

“Placement
Agent” means Univest Securities, LLC, maintaining an office at 75 Rockefeller Plaza, Suite 1838, New York, NY 10019.

 

“Pre-Notice”
shall have the meaning ascribed to such term in Section 4.17(b).

 

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

 

“Pro-Rata
Portion” shall have the meaning ascribed to such term in Section 4.17(e).

 

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

 

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

 

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

 

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

 


 


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

 

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

 

“Required
Minimum” means, as of any date, 150% of the maximum aggregate number of shares of Common Stock then issued or potentially
issuable in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of
all Warrants or conversion in full of all Notes, ignoring any conversion or exercise limits set forth therein, and assuming that
any previously unconverted Notes will be held until the second anniversary of the issue date of such Notes.

 

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

 

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

 

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

 

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

 

“Security
Agreement” means the Security Agreement to be entered into in connection with the sale of the Securities, a copy of
which is annexed hereto as Exhibit D.

 

“Shareholder
Approval” means such approval, if required, by the applicable rules and regulations of the Nasdaq Stock Market (or any
successor entity) from the shareholders of the Company with respect to the transactions contemplated by the Transaction Documents,
including the issuance of all of the Underlying Shares; and as further described in this Agreement.

 

“Short
Sales” means “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act and all types
of direct and indirect stock pledges, forward sale contracts, options, puts, calls, swaps and similar arrangements (including
on a total return basis) whether such transactions are made through U.S. or non-U.S. broker dealers or foreign regulated brokers,
but shall not include locating or borrowing shares of Common Stock. 

 

“Standard
Settlement Period” shall have the meaning ascribed to such term in Section 4.1(d).

 

“Stock
Option Plan” means, collectively, the Company’s 2006 Plan, 2014 Plan, 2014 Plan, and 2021 Stock Incentive Plan,
all as described in the SEC Reports.

 

“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Notes and Warrants purchased hereunder
at the Closing as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading
“Subscription Amount,” in United States dollars and in immediately available funds.

 


 


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“Subsequent
Financing” shall have the meaning ascribed to such term in Section 4.17(a).

 

“Subsequent
Financing Notice” shall have the meaning ascribed to such term in Section 4.17(b).

 

“Subsidiary”
means with respect to any entity at any date, any direct or indirect Person, limited or general partnership, limited liability
company, trust, estate, association, joint venture or other business entity of which (A) more than 40% of (i) the outstanding
capital stock having (in the absence of contingencies) ordinary voting power to elect a majority of the board of directors or
other managing body of such entity, (ii) in the case of a partnership or limited liability company, the interest in the capital
or profits of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture
or other entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination,
owned or controlled directly or indirectly through one or more intermediaries, by such entity, or (B) is under the actual control
of the Company.

 

“Termination
Date” shall mean October 29, 2021.

 

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

 

“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on
the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
and the New York Stock Exchange (or any successors to any of the foregoing). As of the date of this Agreement and the Closing
Date, the Nasdaq Capital Market is the Trading Market.

 

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

 

“Transfer
Agent” means American Stock Transfer & Trust Company LLC, 6201 15th Avenue, Brooklyn, NY 11219, and any
successor transfer agent of the Company.

 

“Underlying
Shares” means the shares of Common Stock issued and issuable upon conversion of the Notes and upon exercise of the Warrants
and issued and issuable in lieu of the cash payment of interest on the Notes in accordance with the terms of the Notes and any
other shares of Common Stock issued or issuable to a Purchaser in connection with or pursuant to the Securities or Transaction
Documents.

 

“Unlegended
Shares” shall have the meaning ascribed to such term in Section 4.1(d).

 

“Variable
Priced Equity Linked Instruments” shall have the meaning ascribed to such term in Section 4.13.

 

“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.13.

 


 


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

 

“Warrants”
means the Class A, Class B and Class C Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance
with Section 2.2(a) hereof in the form of Exhibit B attached hereto.

 

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

 

ARTICLE II.

PURCHASE AND SALE

 

2.1      Closing. On
the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and
delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree
to purchase, an aggregate of up to $16,304,348 principal amount of Notes together with Warrants as determined pursuant to Section
2.2(a). Each Purchaser shall deliver to the Company such Purchaser’s Subscription Amount pursuant to the wire instructions
annexed hereto as Schedule 2.1, and the Company shall deliver to each Purchaser its respective Note and Warrants, as determined
pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable
at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur
electronically or at the offices of G&M or such other location as the parties shall mutually agree. Notwithstanding anything
herein to the contrary, the Closing Date shall occur on or before the Termination Date. With respect to any Closing not held
on or before the Termination Date, the Company shall cause (i) all subscription documents executed by the Company or a Purchaser
to be returned to the Company or such Purchaser, as applicable, and (ii) each Subscription Amount to be returned, without interest
or deduction to the Purchaser who delivered such Subscription Amount.

 

IN THE
EVENT THERE IS MORE THAN ONE PURCHASER, NO MINIMUM AMOUNT OF NOTES MUST BE SOLD IN ORDER FOR THE COMPANY TO ACCEPT ANY SUBSCRIPTIONS,
AND ALL NET PROCEEDS OF THE OFFERING WILL BE IMMEDIATELY AVAILABLE FOR COMPANY PURPOSES UPON CLOSING.

 


 


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2.2      Deliveries.

 

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

 

(i)        this
Agreement duly executed by the Company;

 

(ii)       a
legal opinion of Company Counsel, substantially in the form of Exhibit E attached hereto; 

 

(iii)      a
Note with a principal amount reflecting an eight percent (8%) original issue discount for the cash portion of such Purchaser’s
Subscription Amount as set forth on the signature page hereto registered in the name of such Purchaser;

 

(iv)      Class
A Warrants, Class B Warrants and Class C Warrants registered in the name of such Purchaser, each representing the right to purchase
up to a number of shares of Common Stock equal to one-third (1/3) of such Purchaser’s Note principal amount divided by the
Conversion Price in effect on the Closing Date, having a per share Exercise Price as set forth therein, subject to adjustment
as provided herein and therein;

 

(v)       the
Security Agreement and documents referred to therein duly executed by the Company and Subsidiaries;

 

(vi)      the
Registration Rights Agreement duly executed by the Company;

 

(vii)     a
certificate executed on behalf of the Company by its Principal Executive Officer or Chief Executive Officer (each as defined in
the Exchange Act) of the Company, dated as of the Closing Date, in which such officer shall certify that the conditions set forth
in Section 2.3(b) have been fulfilled; and

 

(viii)    a
certificate executed on behalf of the Company by its Secretary’s certificate containing (i) copies of the text of the resolutions
by which the corporate action on the part of the Company necessary to approve this Agreement and the other Transaction Documents
and the transactions and actions contemplated hereby and thereby, which shall be accompanied by a certificate of the corporate
secretary or assistant corporate secretary of Company dated as of the Closing Date certifying to the Purchasers that such resolutions
were duly adopted and have not been amended or rescinded, (ii) an incumbency certificate dated as of the Closing Date executed
on behalf of Company by its corporate secretary or one of its assistant corporate secretaries certifying the office of each officer
of Company executing this Agreement, or any other agreement, certificate or other instrument executed pursuant hereto, and (iii)
copies of (A) the Company’s Certificate of Incorporation and bylaws in effect on the Closing Date, and (B) the certificate
evidencing the good standing of Company as of a day within five (5) Business Days prior to the Closing Date.

 

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

 

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

 


 


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(ii)       such
Purchaser’s Subscription Amount by wire transfer to the Company;

 

(iii)      the
Registration Rights Agreement duly executed by each Purchaser;

 

(iv)      Accredited
Investor Questionnaire duly executed by each Purchaser; and

 

(v)       the
Security Agreement duly executed by each Purchaser and the Collateral Agent.

 

2.3          Closing
Conditions.

 

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

 

(i)        the
accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers
therein) on the date of this Agreement and the Closing Date of the representations and warranties of the Purchasers contained
herein (unless as of a specific date therein in which case they shall be accurate as of such date);

 

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

 

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

 

(b)          The
respective obligations of a Purchaser hereunder to effect the Closing, unless waived by such Purchaser, are subject to the following
conditions being met:

 

(i)        the
accuracy in all material respects (determined without regard to any materiality, Material Adverse Effect or other similar qualifiers
therein) on the date of this Agreement and Closing Date of the representations and warranties of the Company contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);

 

(ii)       the
Required Approval in Section 3.1(e)(iii), and all obligations, covenants and agreements of the Company and parties and required
signatories to and under the Transaction Documents (except for Purchaser) required to be performed or obtained at or prior to
the Closing Date shall have been performed and obtained; 

 

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

 

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

 

2.4            Purchaser’s
Right To Terminate.  [reserved].

 


 


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

 

ARTICLE III.

REPRESENTATIONS AND WARRANTIES

 

3.1      Representations
and Warranties of the Company. Except as set forth in this Section 3.1 or the Disclosure Schedules, which Disclosure
Schedules shall be deemed a part hereof and shall qualify any representation made herein only to the extent of the disclosure
contained in the corresponding or cross-referenced section of the Disclosure Schedules, the Company hereby makes the following
representations and warranties to each Purchaser as of the date hereof and as of the Closing Date (unless as of a specific date
therein):

 

(a)  Subsidiaries. All
of the direct and indirect Subsidiaries of the Company and the Company’s ownership interests therein are set forth on Schedule
3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests and rights to receive
equity of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of each Subsidiary
are validly issued and are fully paid, non-assessable and free of pre-emptive and similar rights to subscribe for or purchase
securities.

 

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

 


 


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

 

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

 

(e)  Filings,
Consents and Approvals. Except as set forth in Schedule 3.1(e), the Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state,
local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company
of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.6 of this Agreement, (ii) the filing
with the Commission pursuant to the Registration Rights Agreement, (iii) the notice and/or application(s) to each applicable Trading
Market for the issuance and sale of the Securities and the listing of the Underlying Shares for trading thereon in the time and
manner required thereby, (iv) the filing of Form D with the Commission and such filings as are required to be made under applicable
state securities laws and (v) Shareholder Approval (collectively, the “Required Approvals”). 

 


 


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(f)   Issuance
of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company other than restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued
in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear
of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Company
has reserved from its duly authorized capital stock a number of shares of Common Stock for issuance of the Underlying Shares at
least equal to the Required Minimum on the date hereof. 

 

(g)  Capitalization. The
capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall
also include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company and beneficial
holders of 10% or more of the Company’s Common Stock as of the date hereof. The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock
options under the Stock Option Plan, the issuance of shares of Common Stock to employees pursuant to the Stock Purchase Plan and
pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by the Transaction Documents. There are no outstanding options,
warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any
shares of Common Stock or the capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which
the Company or any Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or
capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate the Company or any Subsidiary
to issue shares of Common Stock or other securities to any Person (other than the Purchasers). There are no outstanding securities
or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price
of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding
securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no
contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem
a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none
of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No
further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of
the Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s
stockholders.

 


 


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(h)  Reporting
Company; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof,
for the two years preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such
material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of
filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act. The
financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during
the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and
the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal,
immaterial, year-end audit adjustments.

 

(i)   Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included
within the SEC Reports, except as disclosed in a subsequent SEC Report, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant
to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the
Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to the Stock Option Plan. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated
by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties,
operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities laws
at the time this representation is made or deemed made that has not been publicly disclosed at least five Business Day prior to
the date that this representation is made.

 

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

 


 


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

 

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

 

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

 

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

 


 


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(o)  Intellectual
Property. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC
Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property
Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that
any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be
abandoned, within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since
the date of the latest audited financial statements included within the SEC Reports, a written notice of a claim or otherwise
has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of any Person, except as could not
have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The
Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all
of their intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.

 

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

 

(q)       Transactions
With Affiliates and Employees. Except as disclosed in the SEC Reports, none of the officers or directors of the Company
or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a
party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case
in excess of $50,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company or any Subsidiary, and (iii) other employee benefits, including stock option agreements under
the Stock Option Plan.

 

(r)       Certain
Fees. Except as set forth on Schedule 3.1(r), no brokerage, finder’s fees, commissions or due diligence
fees are or will be payable by the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement
agent, investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The
Purchasers shall have no obligation with respect to any such fees or with respect to any claims made by or on behalf of other
Persons for fees of a type contemplated in this Section 3.1(r) that may be due in connection with the transactions contemplated
by the Transaction Documents.

 


 


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

 

(t)       Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act
of any securities of the Company or any Subsidiary, except for the Purchasers.

 

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

 

(v)       Application
of Takeover Protections. The Company and the Board of Directors have taken all action in order to render inapplicable any
control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of the
State of Nevada that are or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling
their obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the
Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.

 


 


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

 

(x)       No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made
any offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause the Offering
of the Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act which would require
the registration of any such securities under the Securities Act, or (ii) any applicable shareholder approval provisions of any
Trading Market on which any of the securities of the Company are listed or designated.

 

(y)       Solvency.
Based on the consolidated financial condition of the Company and Subsidiaries as of the Closing Date after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder: (i) the fair saleable value of the Company’s
assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities
(including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small
capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements
and capital availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient
to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company does not intend
to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash to be payable
on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that it will
file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the
Closing Date. Schedule 3.1(z) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the
Company and any Subsidiary, or for which the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $1,500,000 in the aggregate (other than trade accounts
payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect
of indebtedness of others, whether or not the same are or should be reflected on the Company’s consolidated balance sheet
(or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business; and (z) the present value of any lease payments in excess of $1,500,000 due under leases required
to be capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.

 


 


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(z)       Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all required United States federal, state
and local income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which
it is subject, (ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the
payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of
the Company or of any Subsidiary know of no basis for any such claim.

 

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

 

(bb)     No
Outstanding Variable Priced Equity Linked Instruments. As of the date of this Agreement, no outstanding Variable Priced Equity
Linked Instruments, nor any debt or equity with anti-dilution, ratchet or reset rights except as disclosed on Schedule 3.1(g)
under the heading “Variable Priced Equity Linked Instruments” and except for the Securities sold pursuant
to this Offering.

 

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

 


 


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(dd)    Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding
(except for Section 4.16 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has been asked
by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of
the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any
specified term, (ii) to maintain the confidentiality of the existence and terms of this transaction and the information included
in the Transaction Documents and the Disclosure Schedules, (iii) past or future open market or other transactions by any Purchaser,
specifically including, without limitation, Short Sales or “derivative” transactions, before or after the closing
of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded
securities, (iv) any Purchaser, and counter-parties in “derivative” transactions to which any such Purchaser is a
party, directly or indirectly, may presently have a “short” position in the Common Stock and (v) each Purchaser shall
not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) any Purchaser may engage in hedging activities at
various times during the period that the Securities are outstanding, including, without limitation, during the periods that the
value of the Underlying Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if
any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the
hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute
a breach of any of the Transaction Documents. The Company acknowledges that anything to the
contrary in the Transaction Documents notwithstanding, Purchaser may sell long any Underlying Shares it anticipates receiving
after conversion of any part of a Note or exercise of a Warrant.

 

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

 

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

 

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

 

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

 


 


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(ii)       Private
Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated
hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of any Trading Market
upon which the Company’s securities are traded or listed.

 

(jj)       No
General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchasers.

 

(kk)     Indebtedness
and Seniority. As of the date hereof, all Indebtedness and Liens of the Company and the principal terms thereof are set forth
in the SEC Reports. As of the Closing Date, no Indebtedness or equity of the Company is or will be pari passu or senior
to the Notes in right of payment, whether with respect to principal, interest or upon liquidation or dissolution, or otherwise,
other than Indebtedness secured by purchase money security interests (which is senior only as to underlying assets covered thereby),
and capital lease obligations (which is senior only as to the property covered thereby).

 

(ll)       Listing
and Maintenance Requirements. The Common Stock is listed for trading on the Nasdaq Capital Market under the symbol MKTY. There
are no proceedings pending or, to the Company’s knowledge, threatened against the Company relating to the continued listing
of the Company Common Stock on the Nasdaq Capital Market, or any other listing or trading market or platform and the Company has
not received any currently pending notice of the delisting of the Common Stock or other outstanding securities from the Nasdaq
Capital Market.

 

(mm)   [Reserved].

 

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

 


 


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(oo)     Regulatory
Matters. The Company and its Subsidiaries have complied in all material respects with all statutes and regulations related
to the research, manufacture and sale of its products to the extent applicable to the Company’s and its Subsidiaries’
activities. Items manufactured or under investigation by the Company and its Subsidiaries comply with all applicable manufacturing
practices regulations and other requirements established by government regulators in the jurisdictions in which the Company or
its Subsidiaries manufacture their products and Applicable Law. The Company is not and its Subsidiaries are not the subject of
any investigation by any authority with respect to the development, testing, manufacturing and distribution of their products,
nor has any investigation, prosecution, or other enforcement action been threatened by any regulatory agency. Neither the Company
nor any of its Subsidiaries has received from any regulatory agency any letter or other document asserting that the Company or
any Subsidiary has violated any statute or regulation enforced by that agency with respect to the development, testing, manufacturing
and distribution of their products. To the Company’s knowledge, research conducted by or for the Company and its Subsidiaries
has complied in all material respects with Applicable Law.

 

(pp)     Other
Covered Persons. Except for attorneys for legal services and accountants for accounting services and Placement Agent, the
Company is not aware of any person that has been or will be paid (directly or indirectly) remuneration in connection with the
sale of any Securities pursuant to this Agreement.

 

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

 

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

 


 


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(ss)      Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(ss) of the Disclosure Schedules. To the knowledge and
belief of the Company, such accounting firm (i) is a registered public accounting firm as required by the Exchange Act and (ii)
shall express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the
fiscal year ending December 31, 2021.

 

(tt)      No
Disagreements with Accountants and Lawyers. There are no disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company and
the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability
to perform any of its obligations under any of the Transaction Documents.

 

(uu)     Form
S-3 Eligibility.        The Company is not currently eligible to register the resale
of the Underlying Shares for resale by the Purchaser on Form S-3 promulgated under the Securities Act.

 

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

 

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

 

(xx)     Shell
Status. As of the date of this Agreement and the Closing Date, the Company is not a “shell company” nor a “former
shell company” (as defined in Rule 405 of the Securities Act).

 

(yy)     Survival.
The foregoing representations and warranties shall survive the Closing.

 

3.2          Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as
of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they
shall be accurate as of such date):

 

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

 


 


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

 

(c)        Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on
which it exercises any Warrants or converts any shares of Preferred Stock, it will be either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities Act.

 

(d)      Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk
of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.

 

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

 

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

 


 


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

 

The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such
Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance
of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating
or borrowing shares in order to effect Short Sales or similar transactions in the future.

 

ARTICLE
IV.

OTHER AGREEMENTS OF THE PARTIES

 

4.1      (a)           Transfer
Restrictions. The Securities may only be disposed of in compliance with state and federal securities laws. In connection with
any transfer of Securities other than pursuant to an effective registration statement or Rule 144 or other available exemption,
to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(c), the Company
may require the transferor thereof to provide to the Company, at the Company’s expense, an opinion of counsel selected by
the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory
to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities
Act. As a condition of such transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and
the Registration Rights Agreement shall have the rights and obligations of a Purchaser under this Agreement and the other Transaction
Documents.

 


 


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

 

[NEITHER] THIS SECURITY [NOR
THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE] [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY [AND
THE SECURITIES ISSUABLE UPON [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(a)
UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.

 

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

 


 


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

 

(e)       Legend
Removal Default. In addition to such Purchaser’s other available remedies, provided the conditions for legend removal
set forth in Section 4.1(d) exist, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty,
for each $1,000 of Underlying Shares (based on the higher of the actual purchase price or VWAP of the Common Stock on the date
such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(d),
$10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading
Day) until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual
damages for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents,
and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation,
a decree of specific performance and/or injunctive relief.

 

(f)       DWAC.
In lieu of delivering physical certificates representing the Unlegended Shares, upon request of a Purchaser, so long as the certificates
therefor do not bear a legend and the Purchaser is not obligated to return such certificate for the placement of a legend thereon,
the Company shall cause its transfer agent to electronically transmit the Unlegended Shares by crediting the account of Purchaser’s
prime broker with the Depository Trust Company through its Deposit Withdrawal At Custodian system, provided that the Company’s
Common Stock is DTC eligible and the Company’s transfer agent participates in the Deposit Withdrawal at Custodian system.
Such delivery must be made on or before the Legend Removal Date.

 


 


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(g)       Injunction.
In the event a Purchaser shall request delivery of Unlegended Shares as described in this Section 4.1 and the Company is required
to deliver such Unlegended Shares, the Company may not refuse to deliver Unlegended Shares based on any claim that such Purchaser
or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction
Documents, or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining
and or enjoining delivery of such Unlegended Shares shall have been sought and obtained by the Company and the Company has posted
a surety bond for the benefit of such Purchaser in the amount of the greater of (i) 120% of the amount of the aggregate purchase
price of the Underlying Shares to be subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common
Stock on the Trading Day before the issue date of the injunction multiplied by the number of Unlegended Shares to be subject to
the injunction, which bond shall remain in effect until the completion of arbitration/litigation of the dispute and the proceeds
of which shall be payable to such Purchaser to the extent Purchaser obtains judgment in Purchaser’s favor.

 

(h)       Buy-In.
In addition to any other rights available to Purchaser, if the Company fails to deliver to a Purchaser Unlegended Shares as required
pursuant to this Agreement and after the Legend Removal Date the Purchaser, or a broker on the Purchaser’s behalf, purchases
(in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of
the shares of Common Stock which the Purchaser was entitled to receive in unlegended form from the Company (a “Buy-In”),
then the Company shall promptly pay in cash to the Purchaser (in addition to any remedies available to or elected by the Purchaser)
the amount, if any, by which (A) the Purchaser’s total purchase price (including brokerage commissions, if any) for the
shares of Common Stock so purchased exceeds (B) the aggregate purchase price of the shares of Common Stock delivered to the Company
for reissuance as Unlegended Shares together with interest thereon at a rate of 15% per annum accruing until such amount and any
accrued interest thereon is paid in full (which amount shall be paid as liquidated damages and not as a penalty). For example,
if a Purchaser purchases shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to $10,000
of purchase price of Underlying Shares delivered to the Company for reissuance as Unlegended Shares, the Company shall be required
to pay the Purchaser $1,000, plus interest, if any. The Purchaser shall provide the Company written notice indicating the amounts
payable to the Purchaser in respect of the Buy-In.

 

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

 


 


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

 

4.3      Furnishing
of Information; Public Information.

 

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

 

(b)        At
any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of
the Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without
restriction or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information
requirement under Rule 144(c) or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes an issuer in the future,
and the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”)
then, in addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial
liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities, an
amount in cash equal to two percent (2.0%) of the aggregate Subscription Amount of such Purchaser’s Securities on the day
of a Public Information Failure and on every thirtieth (30th) day (pro rated for periods totaling less than thirty
days) thereafter until the earlier of (a) the date such Public Information Failure is cured and (b) such time that such public
information is no longer required for the Purchasers to transfer the Underlying Shares pursuant to Rule 144. The payments to which
a Purchaser shall be entitled pursuant to this Section 4.3(b) are referred to herein as “Public Information Failure Payments.”
Public Information Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public
Information Failure Payments are incurred and (ii) the fifth (5thd) Business Day after the event or failure giving
rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments
in a timely manner, such Public Information Failure Payments shall bear interest at the rate of 1% per month (prorated for partial
months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information
Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief.

 

4.4      Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined
in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require
the registration under the Securities Act of the sale of the Securities or that would be integrated with the offer or sale of
the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval
prior to the closing of such other transaction or to effectuate such other transaction unless shareholder approval is obtained
before the earlier of the closing of such subsequent transaction or effectuation of such other transaction.

 


 


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4.5      Conversion
and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice of Conversion
included in the Note set forth the totality of the procedures required of the Purchasers in order to exercise the Warrants or
convert the Note. Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be
required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of
Conversion form be required in order to exercise the Warrants or convert the Note. No additional legal opinion, other information
or instructions shall be required of the Purchasers to exercise their Warrants or convert their Note. The Company shall honor
exercises of the Warrants and conversions of the Note and shall deliver Underlying Shares in accordance with the terms, conditions
and time periods set forth in the Transaction Documents.

 

4.6      Securities
Laws Disclosure; Publicity. The Company shall on or before the second Trading Day following the Closing Date, file with the
Commission a Current Report on Form 8-K including the Transaction Documents as exhibits thereto (“Form 8-K”).
A form of the Form 8-K is annexed hereto as Exhibit G. Such Exhibit G will be identical to the Form 8-K which will
be filed with the Commission except for the omission of signatures thereto by the Company. From and after the filing of the Form
8-K, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered
to any of the Purchasers by the Company or any Subsidiary, or any of their respective officers, directors, employees or agents
in connection with the transactions contemplated by the Transaction Documents. The Company and each Purchaser shall consult with
each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the Company nor any
Purchaser shall issue any press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press
release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by
law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or communication.
Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser
in any filing with the Commission or any regulatory agency or Trading Market unless the name of such Purchaser is already included
in the body of the Transaction Documents, without the prior written consent of such Purchaser, except: (a) as required by federal
securities law in connection with the filing of final Transaction Documents with the Commission and any registration statement
registering the Securities on behalf of each of the Purchasers, and (b) to the extent such disclosure is required by law or Trading
Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under
this clause (b). To the extent that any notice provided pursuant to any Transaction Document constitutes or contains material,
non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission
pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company. 

 


 


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4.7      Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any
Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including
any distribution under a rights 31 4888-2697-8816, v.1 agreement) or similar anti-takeover plan or arrangement in effect
or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement,
by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.

 

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

 

4.9      Use
of Proceeds. Except as set forth on Schedule 4.9 attached hereto, the Company shall use the net proceeds from the sale
of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion
of the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior
practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding
litigation or (d) in violation of FCPA or OFAC regulations.

 



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4.10    Indemnification
of Purchasers. Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Purchaser and its
directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”)
harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all
judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such
Purchaser Party may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants
or agreements made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against
the Purchaser Parties in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is
not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless
such action is solely based upon a material breach of such Purchaser Party’s representations, warranties or covenants under
the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder or any violations
by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which is finally judicially
determined to constitute fraud, bad faith, gross negligence or willful misconduct. The Company will indemnify each Purchaser Party,
to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, reasonable attorneys’ fees) and expenses, as incurred, arising out of or relating to (i) any untrue
or alleged untrue statement of a material fact contained in such Registration Statement, Prospectus Supplement, any prospectus
or any form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating
to any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein
(in the case of any prospectus or supplement thereto, in the light of the circumstances under which they were made) not misleading,
except to the extent, but only to the extent, that such untrue statements or omissions are based solely upon information regarding
such Purchaser Party furnished in writing to the Company by such Purchaser Party expressly for use therein, or (ii) any violation
or alleged violation by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation
thereunder in connection therewith). If any action shall be brought against any Purchaser Party in respect of which indemnity
may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any
Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time
to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material
conflict on any material issue between the position of the Company and the position of such Purchaser Party, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will
not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that
a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification
required by this Section 4.10 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or are incurred. The indemnity agreements contained herein shall be in addition to
any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may
be subject to pursuant to law.

 

4.11    Reservation
and Listing of Securities/Shareholder Approval.

 

(a)     As
of the date hereof, the Company has reserved for each Purchaser and the Company shall continue to reserve and keep available at
all times, the “Required Minimum”, free of pre-emptive rights. If, on any date, the number of authorized but unissued
(and otherwise unreserved) shares of Common Stock is less than the Required Minimum on such date (an “Authorized Share
Failure”), then the Board of Directors shall amend the Company’s certificate of incorporation to increase the
number of authorized but unissued shares of Common Stock to at least the Required Minimum plus such other amount as may be required
for the Company’s other purposes, and use its commercially reasonable efforts to reserve the Required Minimum on behalf
of the Purchaser, as soon as possible and in any event not later than the 60th day after such date. Without limiting
the generality of the foregoing sentence, as soon as practicable after the date of the occurrence of an Authorized Share Failure,
but in no event later than sixty (60) days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting
of its stockholders for the approval of an increase in the number of authorized shares of Common Stock. In connection with such
meeting, the Company shall provide each stockholder with a proxy statement and shall solicit its stockholders’ approval
of such increase in authorized shares of Common Stock and to cause its board of directors to recommend to the stockholders that
they approve such proposal. Notwithstanding the foregoing, if any such time of an Authorized Share Failure, the Company is able
to obtain the written consent of a majority of the shares of its issued and outstanding Common Stock to approve the increase in
the number of authorized shares of Common Stock without soliciting its stockholders, the Company may satisfy this obligation by
obtaining such consent and submitting for filing with the SEC an Information Statement on Schedule 14C.

 



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(b)       The
Company shall prior to the Closing: (i) in the time and manner required by the principal Trading Market, prepare and file with
such Trading Market an additional shares listing application covering a number of shares of Common Stock at least equal to the
Required Minimum on the date of such application, (ii) take all steps necessary to cause such shares of Common Stock to be approved
for listing or quotation on such Trading Market as soon as possible thereafter, (iii) provide to the Purchasers evidence of such
listing or quotation and (iv) maintain the listing or quotation of such Common Stock on any date at least equal to the Required
Minimum on such date on such Trading Market or another Trading Market. The Company will take all action necessary to continue
the listing or quotation and trading of its Common Stock on a Trading Market until the later of (i) five (5) years after the Closing
Date, and (ii) for so long as the Notes or Warrants are outstanding, and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. In the event the aforedescribed listing
is not continuously maintained for five (5) years after the Closing Date and for so long as Notes or Warrants are outstanding
(a “Listing Default”), then in addition to any other rights the Purchasers may have hereunder or under Applicable
Law, on the first day of a Listing Default and on each monthly anniversary of each such Listing Default date (if the applicable
Listing Default shall not have been cured by such date) until the applicable Listing Default is cured, the Company shall pay to
each Purchaser an amount in cash, as partial liquidated damages and not as a penalty, equal to 2% of the aggregate outstanding
Note principal and accrued interest, conversion price of Note Underlying Shares and purchase price of Warrant Shares held by such
Purchaser or which may be acquired upon exercise of Warrants on the day of a Listing Default and on every thirtieth day (pro-rated
for periods less than thirty days) thereafter until the date such Listing Default is cured. If the Company fails to pay any liquidated
damages pursuant to this Section in a timely manner, the Company will pay interest thereon at a rate of 1% per month (pro-rated
for partial months) to the Purchaser.

 

(c)       The
Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust Company or
another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust Company
or such other established clearing corporation in connection with such electronic transfer.

 

(d)       In
addition, the Company shall hold a special meeting of shareholders (which may also be at the annual meeting of shareholders) at
the earliest practical date after the date on which the number of shares of Common Stock issuable pursuant to this Agreement on
a fully converted or exercised basis (ignoring for such purposes any conversion or exercise limitations therein) exceeds 19.9%
of the issued and outstanding shares of Common Stock on the Closing Date for the purpose of obtaining Shareholder Approval, with
the recommendation of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit proxies
from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and
all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company shall use its reasonable
best efforts to obtain such Shareholder Approval. If the Company does not obtain Shareholder Approval at the first meeting, the
Company shall call a meeting every three months thereafter to seek Shareholder Approval until the earlier of the date Shareholder
Approval is obtained or the Preferred Stock is no longer outstanding.

 



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

 

4.13    Subsequent
Equity Sales.

 

(a)       From
the date hereof until the earlier of (i) one (1) year after the Closing Date, and (ii) any amount in excess of an aggregate of
$1,500,000 of all Notes remains outstanding on the Notes, neither the Company nor any Subsidiary shall (a) issue, enter into any
agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, preferred
stock, or equity of the Company or any Subsidiary at a price or effective price that is less than the highest price per share
of the securities issued or issuable in the offering including but not limited to the Warrants and the Warrant Shares, or (b)
file any registration statement (other than on Form S-8) or any amendment or supplement thereto on behalf of the Company or any
Subsidiary, in each case other than as permitted pursuant to the Registration Rights Agreement or the issuance of securities in
the ordinary course of business for acquisitions at a price or effective price that is less than the highest price per share of
the securities issued or issuable in the offering including but not limited to the Warrants and Warrant Shares. Notwithstanding
the foregoing, the Company or any Subsidiary at anytime or from time to time shall be entitled to (a) issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or equity of
the Company or any Subsidiary at a price or effective price that is not less than the highest price per share of the securities
issued or issuable in the offering including but not limited to the Warrants and the Warrant Shares in an aggregate amount not
to exceed $5,000,000.

 

(b)       From
the date hereof until the earlier of (i) the Effective Date, (ii) the date the “Shareholder Approval” is obtained,
and (iii) any amount in excess of an aggregate of $1,500,000 of all Notes remains outstanding on the Notes, the Company shall
be prohibited from effecting or entering into an Equity Line of Credit or an agreement to effect any issuance by the Company or
any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate
Transaction. “Equity Line of Credit” means any transaction involving a written agreement between the Company and an
investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over
an agreed period of time and at an agreed price or price formula. “Variable Rate Transaction” means, collectively,
an Equity Line of Credit and a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible
into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either (A) at a conversion
price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of or quotations
for the shares of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity
security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company
or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited
to, an equity line of credit, whereby the Company may issue securities at a future determined price. Any Purchaser shall be entitled
to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall be in addition to any right
to collect damages.

 



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(c)       From
the date hereof until the earlier of (i) one year after the Closing Date, and (ii) the date an amount less than $1,500,000 remains
outstanding on the Notes in the aggregate, the Company will not amend the terms of any securities or Common Stock Equivalents
or of any agreement outstanding or in effect as of the date of this Agreement pursuant to which same were or may be acquired without
the consent of a Majority in Interest, if the result of such issuance of Common Stock would be at an effective price per share
of Common Stock less than the higher of the Conversion Price or highest Warrant Exercise Price in effect at the time of such issuance
or amendment. The restrictions and limitations in this Section 4.13 are in addition to and shall apply whether or not a Purchaser
exercises its rights pursuant to Section 4.17 and Section 4.23.

 

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

 

4.15    Capital
Changes. Except in case of the need to comply with the rules of the Principal Trading Market, until the one (1) year anniversary
of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock
without ten (10) days prior written notice to the Purchasers. In no event will the Company at any time Securities are outstanding
reduce the par value of the Common Stock to an amount less than the lower of (i) the Conversion Price, or (ii) lowest Warrant
Exercise Price, then in effect.

 

4.16    Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither
it, nor any Affiliate acting on such Purchaser’s behalf or pursuant to any understanding with such Purchaser will execute
any purchases or sales, including Short Sales, of any of the Company’s securities during the period commencing with the
execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are publicly announced
pursuant to a press release or Form 8-K as described in Section 4.6. The Company expressly acknowledges and agrees that (i) no
Purchaser makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities
of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to a
press release or Form 8-K as described in Section 4.6, (ii) no Purchaser shall be restricted or prohibited from effecting any
transactions in any securities of the Company in accordance with Applicable Law from and after the time that the transactions
contemplated by this Agreement are first publicly announced pursuant to a press release or Form 8-K, and (iii) no Purchaser shall
have any duty of confidentiality to the Company or its Subsidiaries. Except as described in this Section 4.16, the Company acknowledges
that no Purchaser owes any confidentiality obligation to the Company or any Subsidiary. Notwithstanding the foregoing, in the
case of a Purchaser that is a multi-managed investment vehicle or maintains a “Chinese Wall” whereby separate portfolio
managers, traders, consultants or advisors manage separate portions of such Purchaser’s assets and the portfolio managers,
traders, consultants or advisors have no direct knowledge of the investment decisions made by the portfolio managers managing
other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager, trader, consultant or advisor that made the investment decision to purchase the Securities
covered by this Agreement.

 



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4.17    Participation
in Future Financing.

 

(a)     For
so long as any amount in excess of $1,500,000 in the aggregate for all Purchasers remains outstanding on a Note, upon any proposed
issuance by the Company or any of its Subsidiaries of Common Stock, Common Stock Equivalents for cash consideration, Indebtedness
or a combination thereof, other than (i) a rights offering to all holders of Common Stock (which may include extending such rights
offering to holders of Notes), or (ii) an Exempt Issuance (each a “Subsequent Financing”), Purchasers who have
acquired on the Closing Date, Notes pursuant to this Agreement having a principal amount of not less than $3,000,000, shall have
the right to participate in up to an amount of the Subsequent Financing equal to fifty percent (50%) of the Subsequent Financing
(the “Participation Maximum”) pro rata to each other in proportion to their Subscription Amounts on the same
terms, conditions and price provided for in the Subsequent Financing, unless the Subsequent Financing is an underwritten public
offering, in which case the Company shall notify each Purchaser of such public offering when it is lawful for the Company to do
so, but no Purchaser shall be entitled to purchase any particular amount of such public offering without the approval of the lead
underwriter of such underwritten public offering.

 

(b)     At
least five (5) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written
notice of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser
if it wants to review the details of such financing (such additional notice, a “Subsequent Financing Notice”).
Upon the request of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall
promptly, but no later than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The
requesting Purchaser shall be deemed to have acknowledged that the Subsequent Financing Notice may contain material non-public
information. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent Financing,
the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing
is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment. 

 

(c)     Any
Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30
p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice that
the Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing
and warranting that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent
Financing Notice. If the Company receives no such notice from a Purchaser as of such tenth (10th) Trading Day, such
Purchaser shall be deemed to have notified the Company that it does not elect to participate. 

 



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(d)     If
by 5:30 p.m. (New York City time) on the fifth (5th ) Trading Day after all of the Purchasers have received the Pre-Notice,
notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to
participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may affect the remaining
portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice and the Purchasers
shall simultaneously affect their portion of such Subsequent Financing as set forth in their notifications to the Company consistent
with the terms set forth in the Subsequent Financing Notice. 

 

(e)     If
by 5:30 p.m. (New York City time) on the tenth (10th) Trading Day after all of the Purchasers have received the Pre-Notice,
the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount
of the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of
the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the principal amount of Notes purchased
hereunder by a Purchaser participating under this Section 4.17 and (y) the sum of the aggregate principal amounts of Notes purchased
hereunder by all Purchasers participating under this Section 4.17.

 

(f)      The
Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of
participation set forth above in this Section 4.17, if the Subsequent Financing subject to the initial Subsequent Financing Notice
is not consummated for any reason on the terms set forth in such Subsequent Financing Notice within sixty (60) Trading Days after
the date of the initial Subsequent Financing Notice.

 

(g)     The
Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Financing, the transaction documents
related to the Subsequent Financing shall not include any term or provision whereby such Purchaser shall be required to agree
to any restrictions on trading as to any of the Securities purchased hereunder (for avoidance of doubt, the securities purchased
in the Subsequent Financing shall not be considered securities purchased hereunder) or be required to consent to any amendment
to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior
written consent of such Purchaser.

 

(h)     Notwithstanding
anything to the contrary in this Section 4.17 and unless otherwise agreed to by such Purchaser, the Company shall either confirm
in writing to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly
disclose its intention to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser
will not be in possession of any material, non-public information, by the seventh (7th) Trading Day following delivery
of the Subsequent Financing Notice. If by such seventh (7th) Trading Day, no public disclosure regarding a transaction
with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has been received
by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be in possession
of any material, non-public information with respect to the Company or any of its Subsidiaries.

 

 



    37


     


    

 

4.18    Purchaser’s
Exercise Limitations. The Company shall not effect exercise of the rights granted in Sections 4.17 and 4.23 of this Agreement,
and a Purchaser shall not have the right to exercise any portion of such rights granted in Sections 4.17 and 4.23 only to the
extent that after giving effect to such exercise, the Purchaser, would beneficially own in excess of the Beneficial Ownership
Limitation (as defined in the Note), applied in the manner set forth in the Note. In such event the right by Purchaser to benefit
from such rights or receive shares in excess of the Beneficial Ownership Limitation shall be held in abeyance until such times
as such excess shares shall not exceed the Beneficial Ownership Limitation, provided the Purchaser complies with the Purchaser’s
other obligations in connection with the exercise by Purchaser of its rights pursuant to Sections 4.17 and 4.23.

 

4.19    Maintenance
of Property/Insurance. The Company shall and shall cause each Subsidiary to keep all of its property, which is necessary or
useful to the conduct of its business, in good working order and condition, ordinary wear and tear excepted and insured by insurers
of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary for the
businesses of the Company and Subsidiary. From and after the Closing Date and for so long as any Securities are held by a Purchaser,
the Company will maintain directors and officers insurance coverage at least equal to the aggregate Subscription Amount.

 

4.20    Preservation
of Corporate Existence. The Company and each Subsidiary shall preserve and maintain its corporate existence, rights, privileges
and franchises in the jurisdiction of its incorporation, and qualify and remain qualified, as a foreign entity in each jurisdiction
in which such qualification is necessary in view of its business or operations and where the failure to qualify or remain qualified
might reasonably have a Material Adverse Effect upon the financial condition, business or operations of the Company and each Subsidiary
taken as a whole.

 

4.21    DTC
Program. At all times that Notes or Warrants are outstanding, the Company shall employ as the transfer agent for its Common
Stock and Underlying Shares a participant in the Depository Trust Company Automated Securities Transfer Program and cause the
Common Stock and Underlying Shares to be transferable pursuant to such program.

 

4.22    [reserved]

 

4.23    Most
Favored Nation Provision. From the date hereof and for so long as a Purchaser holds any Notes with a principal amount in excess
of $1,500,000, in the event that the Company issues or sells any Common Stock or Common Stock Equivalents, if a Purchaser then
holding outstanding Securities reasonably believes that any of the terms and conditions appurtenant to such issuance or sale are
more favorable to such investors than are the terms and conditions granted to the Purchasers hereunder, upon notice to the Company
by such Purchaser within five (5) Trading Days after disclosure of such issuance or sale, the Company shall amend the terms of
this transaction as to such Purchaser only so as to give such Purchaser the benefit of such more favorable terms or conditions.
This Section 4.23 shall not apply with respect to an Exempt Issuance. The Company shall provide each Purchaser with notice of
any such issuance or sale not later than ten (10) Trading Days before such issuance or sale.

 



    38


     


    

 

4.24    Indebtedness.
For so long as any Note is outstanding, the Company will not incur any Indebtedness other than Permitted Indebtedness, without
the consent of the Majority in Interest.

 

4.25    Duration
of Undertakings. Unless otherwise stated in this Article IV, all of the Company’s undertakings, obligations and responsibilities
set forth in Article IV of this Agreement shall remain in effect for so long as any Securities remain outstanding.

 

4.26    Registration
of Securities. Except for the securities described on Schedule 4.26, the Company undertakes not to file any registration
statement other than with respect to the Securities until all of the Securities have been included for resale in a registration
statement that is effective and current for a period of not less than six months.

 

ARTICLE V.

MISCELLANEOUS

 

5.1      Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing
has not been consummated on or before the Termination Date; provided, however, that such termination will not affect
the right of any party to sue for any breach by any other party (or parties).

 

5.2      Fees
and Expenses. The Company has agreed to pay G&M, at the Closing, the legal fees in connection with G&M’s representation
of Purchaser as set forth on Schedule 3.1(r). Except as expressly set forth in the Transaction Documents and on Schedule
3.1(r), each party shall pay the fees and expenses of its advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
The Company shall reimburse Purchasers for all expenses incurred in connection with UCC, lien, judgment, tax and similar searches
and filings conducted in connection with the Offering. The Company shall pay all Transfer Agent fees (including, without limitation,
any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or exercise notice
delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to
the Purchasers. All of the Purchasers acknowledge that they have been advised to seek the advice of their own attorneys.

 

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

 

5.4      Notices.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted
by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified
most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed
effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile
machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice
is to be received), or the first business day following such delivery (if delivered other than on a business day during normal
business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur.
The addresses for such communications shall be: (i) if to the Company, to: Mechanical Technology, Incorporated, 325 Washington
Avenue Extension, Albany, NY 12205, Attn: Michael Toporek, CEO, email: mtoporek@mtiinstruments.com, with a copy by fax only to
(which shall not constitute notice): Sullivan & Worcester LLP, 1633 Broadway, 32nd Floor, New York, NY 10019, Attn:
David E. Danovitch, Esq., email: ddanovitch@sullivanlaw.com, (ii) if to the Purchasers, to: the addresses and fax numbers
indicated on the signature pages hereto, with an additional copy by fax only to (which shall not constitute notice): Grushko &
Mittman, P.C., 515 Rockaway Avenue, Valley Stream, NY 11581, Attn: Edward M. Grushko, Esq., fax: (212) 697-3575, email: ed@grushkomittman.com,
and (iii) if to the Placement Agent, to: Univest Securities LLC, 75 Rockefeller Plaza, Suite 1838, New York, NY 10019, Attn: Bradley
Richmond, email: brichmond@univest.us.

 



    39


     


    

 

5.5      Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Purchasers holding 50.1% of the effected component of the Securities then
outstanding (the “Majority in Interest”), or, in the case of a waiver, by the party against whom enforcement
of any such waived provision is sought. Whenever the term “consent of the Purchasers” or a similar term is employed
herein, it shall mean the consent of a Majority in Interest. No waiver of any default with respect to any provision, condition
or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default
or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately,
materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations
of the other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in
accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.

 

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

 

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

 

5.8      No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as
otherwise set forth in Section 4.10.

 



    40


     


    

 

5.9      Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall
be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense
of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto
or its respective affiliates, directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively
in the state and federal courts sitting in Clark County, Nevada. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in Clark County, Nevada for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of
the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any action, suit or proceeding, any claim
that any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at
the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any other manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of the
Transaction Documents, then, in addition to the obligations of the Company under Section 4.10, the prevailing party in such action,
suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.

 

5.11    Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been signed by each party and delivered to each other party, it being
understood that the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of
the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf”
signature page were an original thereof.

 

5.12    Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that
they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.

 

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

 



    41


     


    

 

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

 

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

 

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

 

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

 



    42


     


    

 

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

 

5.19    [Reserved]

 

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

 

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

 

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

 



    43


     


    

 

5.23    Equitable
Adjustment. Trading volume amounts, price/volume amounts, the amount of Warrants, the amount of shares of Common Stock identified
in this Agreement, Conversion Price, Exercise Price, Underlying Shares and similar figures in the Transaction Documents shall
be equitably adjusted (but without duplication) to offset the effect of stock splits, similar events and as otherwise described
in this Agreement, Note and Warrants.

 

(Signature Pages Follow)

 



    44


     


    

 

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

 

	MECHANICAL
TECHNOLOGY, INCORPORATED

	Address for Notice:


	 

	 

	 


	 

	 

	325 Washington Avenue Extension

Albany, NY 12205

Email: mtoporek@mtiinstruments.com


	By:

	 

	 


	 

	Name: Michael Toporek

	 


	 

	Title: CEO

	 


	 

	 

	 


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

 

Sullivan & Worcester LLP

1633 Broadway, 32nd Floor

New York, NY 10019

Attn: David E. Danovitch, Esq.

Email: ddanovitch@sullivanlaw.com

	 




 

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

 

SIGNATURE PAGE FOR PURCHASER FOLLOWS]

 



    45


     


    

 

[PURCHASER SIGNATURE
PAGE TO MECHANICAL TECHNOLOGY, INCORPORATED SECURITIES PURCHASE AGREEMENT]

 

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

 

	Name of Purchaser:

	 




 

	Signature of Authorized Signatory of Purchaser:

	 




 

	Name of Authorized Signatory:

	 




 

	Title of Authorized Signatory:

	 




 

	Email Address of Authorized Signatory:

	 




 

	Facsimile Number of Authorized Signatory:

	 




 

	State of Incorporation of Purchaser:

	 




 

	Address for Notice to Purchaser:

	 




 

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

  

	Subscription Amount:

	US$

	 


	 

	 

	 


	Note principal amount:

	 

	(reflects an original issue discount of
8%)


	 

	 

	 


	Class A Warrants:

	 

	 


	 

	 

	 


	Class B Warrants:

	 

	 


	 

	 

	 


	Class C Warrants:

	 

	 




 

EIN Number,
if applicable, will be provided under separate cover  



 

	Date:

	 

	 




 

[SIGNATURE PAGES CONTINUE]

 



    46


     


    

 


EXHIBITS
AND SCHEDULES


 


	Exhibit A	Form of Note
	Exhibit B	Form of Warrant
	Exhibit C	Reserved
	Exhibit D	Form of Security Agreement and Joinder Agreement
	Exhibit E	Form of Legal Opinion
	Exhibit F	Form of Investor Questionnaire
	Exhibit G	Form of Form 8-K
	Exhibit H	Registration Rights Agreement
	 	 
	Schedule 2.1	Company Wire Instructions
	Schedule 3.1(a)	List of Subsidiaries
	Schedule 3.1(e)	Filings, Consents and Approvals
	Schedule 3.1(g)	Capitalization
	Schedule 3.1(r)	Fees
	Schedule 3.1(z)	Outstanding Secured and Unsecured Indebtedness
	Schedule 3.1(ss)	Accounting Firm Information
	Schedule 4.9	Use of Proceeds
	Schedule 4.26	Registrable Securities



 



    47


     


    

EXHIBIT
F


 


ACCREDITED
INVESTOR QUESTIONNAIRE 


IN
CONNECTION WITH INVESTMENT IN SECURED CONVERTIBLE NOTE 


MECHANICAL
TECHNOLOGY, INCORPORATED, 


A
NEVADA CORPORATION 


PURSUANT
TO SECURITIES PURCHASE AGREEMENT DATED OCTOBER 20, 2021


 


	TO :	Mechanical Technology, Incorporated	 
	 	325 Washington Avenue Extension	 
	 	Albany, NY 12205	 
	 	Email: mtoporek@mtiinstruments.com	 


 


INSTRUCTIONS


 


PLEASE
ANSWER ALL QUESTIONS. If the appropriate answer is “None” or “Not Applicable”, so state. Please print
or type your answers to all questions. Attach additional sheets if necessary to complete your answers to any item.


 


Your
answers will be kept strictly confidential at all times. However, Mechanical Technology, Incorporated (the “Company”)
may present this Questionnaire to such parties as it deems appropriate in order to assure itself that the offer and sale of securities
of the Company will not result in a violation of the registration provisions of the Securities Act of 1933, as amended, or a violation
of the securities laws of any state.


 


1.       Please
provide the following information:


 


	Name:	 



 

	Name of additional purchaser:	 
	(Please complete information in
    Question 5)


 


Date
of birth, or if other than an individual, year of organization or incorporation:


 


	 
	 


 


2.       Residence
address, or if other than an individual, principal office address:


 


	 
	 
	 



 



    48


     


    

	Telephone number:	 


 


	Social Security Number:	 


 


	Taxpayer Identification Number:	 



 

	3	Business address:	 
	 	 
	 	 


 


	Business telephone number:	 


 


	4	Send mail to:	Residence _______	Business _______


 


5.       With
respect to tenants in common, joint tenants and tenants by the entirety, complete only if information differs from that above:


 


	Residence address:	 
	 
	 


 


	Telephone number:	 


 


	Social Security Number:	 



 

	Taxpayer Identification Number:	 


 


	Residence address:	 
	 
	 


 


	Business telephone number:	 



 

	Send mail to:	Residence _______	Business _______


 


6.       Please
describe your present or most recent business or occupation and indicate such information as the nature of your employment, how
long you have been employed there, the principal business of your employer, the principal activities under your management or
supervision and the scope (e.g. dollar volume, industry rank, etc.) of such activities:


 


	 
	 
	 



 



    49


     


    

7.       Please
state whether you (i) are associated with or affiliated with a member of the Financial Industry Regulatory Association, Inc. (“FINRA”),
(ii) are an owner of stock or other securities of FINRA member (other than stock or other securities purchased on the open market),
or (iii) have made a subordinated loan to any FINRA member:


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


(a)               
If you answered yes to any of (i) – (iii) above, please indicate the applicable answer and briefly describe the facts below:


 


	 
	 
	 


 


8A.
Applicable to Individuals ONLY. Please answer the following questions concerning your financial condition as an “accredited
investor” (within the meaning of Rule 501 of Regulation D). If the purchaser is more than one individual, each individual
must initial an answer where the question indicates a “yes” or “no” response and must answer any other
question fully, indicating to which individual such answer applies. If the purchaser is purchasing jointly with his or her spouse,
one answer may be indicated for the couple as a whole:


 


8.1       Does
your net worth* (or joint net worth with your spouse or spousal equivalent) exceed $1,000,000?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


8.2       Did
you have an individual income** in excess of $200,000 or joint income together with your spouse or spousal equivalent in excess
of $300,000 in each of the two most recent years and do you reasonably expect to reach the same income level in the current year?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


8.3       Are
you an executive officer of the Company?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


*
For purposes hereof, net worth shall be deemed to include ALL of your assets, liquid or illiquid MINUS any liabilities.


 


**
For purposes hereof, the term “income” is not limited to “adjusted gross income” as that term is defined
for federal income tax purposes, but rather includes certain items of income which are deducted in computing “adjusted gross
income”. For investors who are salaried employees, the gross salary of such investor, minus any significant expenses personally
incurred by such investor in connection with earning the salary, plus any income from any other source including unearned income,
is a fair measure of “income” for purposes hereof. For investors who are self-employed, “income” is generally
construed to mean total revenues received during the calendar year minus significant expenses incurred in connection with earning
such revenues.


 




    50


     


    

8.B       Applicable
to Corporations, Partnerships, Trusts, Limited Liability Companies and other Entities ONLY:


 


The
purchaser is an accredited investor because the purchaser falls within at least one of the following categories (Check all appropriate
lines):


 


	 	___	(i)
                           a bank as defined in Section 3(a)(2) of the Act or any savings and loan association or other institution
                           as defined in Section 3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity;

                            

	 	___	(ii)
        a broker-dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended;

         

	

          
	___	(iii) an investment adviser registered pursuant
    to Section 203 of the Investment Advisers Act of 1940 or registered pursuant to the laws of a state;
	 	 	 
	 	___	(iv)
        an investment adviser relying on the exemption from registering with the Commission under Section 203(l) or (m) of the
        Investment Advisers Act of 1940;

         

	 	___	(v)
        an insurance company as defined in Section 2(13) of the Act;

         

	 	___	(vi)
        an investment company registered under the Investment Company Act of 1940, as amended (the “Investment Act”)
        or a business development company as defined in Section 2(a)(48) of the Investment Act;

         

	 	___	(vii)
        a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of
        the Small Business Investment Act of 1958, as amended;

         

	 	___	(viii)
        a Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act;

         

	 	___	(ix)
        a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state
        or its political subdivisions, for the benefit of its employees, where such plan has total assets in excess of $5,000,000;

         

	 	___	(x) an employee benefit plan within the meaning
    of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (the “Employee Act”), where the
    investment decision is made by a plan fiduciary, as defined in Section 3(21) of the Employee Act, which is either a bank,
    savings and loan association, insurance company, or registered investment adviser, or an employee benefit plan that has total
    assets in excess of $5,000,000, or a self-directed plan the investment decisions of which are made solely by persons that
    are accredited investors;



 



    51


     


    

	 	___	(xi)
                           a private business development company, as defined in Section 202(a)(22) of the Investment Advisers
                           Act of 1940, as amended;

                            

	 	___	(xii)
        an organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, a Massachusetts or similar
        business trust, or a partnership, or limited liability company, not formed for the specific purpose of acquiring the securities
        offered, with total assets in excess of $5,000,000;

         

	 	___	(xiii)
        a director, executive officer, or general partner of the issuer of the securities being offered or sold, or any director,
        executive officer, or general partner of a general partner of that issuer;

         

	 	___	(xiv)
        a natural person whose individual net worth, or joint net worth with that person’s spouse or spousal equivalent
        exceeds $1,000,000;

         

	 	___	(xv)
        a natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income
        with that person’s spouse or spousal equivalent in excess of $300,000 in each of those years and has a reasonable
        expectation of reaching the same income level in the current year;

         

	 	___	(xvi)
        a trust, with total assets in excess of $5,000,000, not formed for the specific purpose of acquiring the securities offered,
        whose purchase is directed by a “sophisticated” person, as described in Rule 506(b)(2)(ii) promulgated under
        the Act, who has such knowledge and experience in financial and business matters that he or she is capable of evaluating
        the merits and risks of the prospective investment;

         

	 	___	(xvii)
        a natural person holding in good standing one or more professional certifications or designations or credentials from
        an accredited educational institution that the Commission has designated as qualifying an individual for accredited investor
        status;

         

	 	___	(xviii)
        a natural person who is a “knowledgeable employee” as defined in Rule 3c5(a)(4) under the Investment Company
        Act of 1940 (17 CFR 270.3c-5(a)(41)), of the issuer of the securities being offered or sold where the issuer would be
        an investment company, as defined in Section 3 of such act, but for the exclusion provided by either Section 3(c)(1) or
        Section 3(c)(7) of such Act;

         

	 	___	(xix) a “family office”, as defined
    in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940 (17CFR 275.202(a)(11)(G)-1) (the “Family Office Rule”),
    with assets under management in excess of $5,000,000, that is not formed for the specific purpose of acquiring the securities
    offered, and whose prospective investment is directed by a person who has such knowledge and experience in financial and business
    matters that such family office is capable of evaluating the merits and risks of the prospective investment;



 



    52


     


    

	 	___	(xx)
                           a “family client” as defined in the Family Office Rule, of a family office that satisfies
                           the above requirements and whose investments are directed by that family office;

                            

	 	___	(xxi)
        an individual that holds professional certification or designation or credentials in good standing from an accredited
        institution that the SEC has designated as sufficient to demonstrate his or her investment knowledge, which initially
        consists of Series 7, 65 or 82 exam, but may be expanded in the future to encompass other exams or certifications as sufficient
        by order if the designations satisfy specified criteria;

         

	 	___	(xxii)
        an entity not otherwise specified in the accredited investor definition and not formed for the specific purpose of acquiring
        the securities offered that owns more than $5,000,000 in “investments” as defined in Rule 2a51-1(b);

         

	 	___	(xxiii)
        an investment adviser registered under the Investment Advisers Act of 1940, as amended or a person exempt from registration
        as a private fund adviser or a venture capital adviser;

         

	 	___	(xxiv) an entity in which all of the equity
    investors are persons or entities described above (“accredited investors”). ALL EQUITY OWNERS MUST COMPLETE “EXHIBIT
    A” ATTACHED HERETO.



 

9.A       Do
you have sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and
risks associated with investing in the Company?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


ANSWER
QUESTION 9B ONLY IF THE ANSWER TO QUESTION 9A WAS “NO.”


 


9.B       If
the answer to Question 9A was “NO,” do you have a financial or investment adviser (a) that is acting in the capacity
as a purchaser representative and (b) who has sufficient knowledge and experience in financial and business matters so as to be
capable of evaluating the merits and risks associated with investing in the Company?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


If
you have a financial or investment adviser(s), please identify each such person and indicate his or her business address and telephone
number in the space below. (Each such person must complete, and you must review and acknowledge, a separate Purchaser Representative
Questionnaire which will be supplied at your request).


 


	 
	 


 






    53


     


    

10.       You
have the right, will be afforded an opportunity, and are encouraged to investigate the Company and review relevant factors and
documents pertaining to the officers of the Company, and the Company and its business and to ask questions of a qualified representative
of the Company regarding this investment and the properties, operations, and methods of doing business of the Company.


 




    54


     


    

Have
you or has your purchaser representative, if any, conducted any such investigation, sought such documents or asked questions of
a qualified representative of the Company regarding this investment and the properties, operations, and methods of doing business
of the Company?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


	If so, briefly describe:	 
	 


 


If
so, have you completed your investigation and/or received satisfactory answers to your questions?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


11.       Do
you understand the nature of an investment in the Company and the risks associated with such an investment?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


12.       Do
you understand that there is no guarantee of any financial return on this investment and that you will be exposed to the risk
of losing your entire investment?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


13.       Do
you understand that this investment is not liquid?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


14.       Do
you have adequate means of providing for your current needs and personal contingencies in view of the fact that this is not a
liquid investment?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


15.       Are
you aware of the Company’s business affairs and financial condition, and have you acquired all such information about the
Company as you deem necessary and appropriate to enable you to reach an informed and knowledgeable decision to acquire the Interests?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 



    55


     


    




16.       Do
you have a “pre-existing relationship” with the Company or any of the officers of the Company?


 


	 	 	 	 	 	 
	 	Yes	 	No	 	 


 


(For
purposes hereof, “pre-existing relationship” means any relationship consisting of personal or business contacts of
a nature and duration such as would enable a reasonably prudent investor to be aware of the character, business acumen, and general
business and financial circumstances of the person with whom such relationship exists.)


 


If
so, please name the individual or other person with whom you have a pre-existing relationship and describe the relationship:


 


	 
	 


 


17.       Exceptions
to the representations and warranties made in Section 3.2 of the Securities Purchase Agreement (if no exceptions, write “none”
– if left blank, the response will be deemed to be “none”): ___________________________________________________


 


	 


 


Dated:
__________________, 2021


 


If
purchaser is one or more individuals (all individuals must sign):


 


 


	(Type
    or print name of prospective purchaser)
	 
	 
	Signature of prospective purchaser
	 
	 
	Social Security Number
	 
	 
	(Type or print name of additional purchaser)
	 
	 
	Signature of spouse, joint tenant, tenant in
    common or other signature, if required
	 
	 
	Signature of prospective purchaser
	 
	 
	Social Security Number



 



    56


     


    

Annex
A


 


Definition
of Accredited Investor


 


The
securities will only be sold to investors who represent in writing in the Securities Purchase Agreement that they are accredited
investors, as defined in Regulation D, Rule 501 under the Act which definition is set forth below:


 


1.             A
natural person whose net worth, or joint net worth with spouse or spousal equivalent, at the time of purchase exceeds $1 million
(excluding home); or


 


2.             A
natural person whose individual gross income exceeded $200,000 or whose joint income with that person’s spouse or spousal
equivalent exceeded $300,000 in each of the last two years, and who reasonably expects to exceed such income level in the current
year; or


 


3.             A
trust with total assets in excess of $5 million, not formed for the specific purpose of acquiring the securities offered, whose
purchase is directed by a sophisticated person as described in Section 230.506(b)(2)(ii); or


 


4.             A
director or executive officer of the Company; or


 


5.             The
investor is an entity, all of the owners of which are accredited investors; or


 


6.             (a)
a bank as defined in Section 3(a)(2) of the Act or any savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Act whether acting in its individual or fiduciary capacity;


 


(b)
any broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended;


 


(c)
an investment adviser registered pursuant to Section 203 of the Investment Advisers Act of 1940 or registered pursuant to the
laws of a state;


 


(d)
any investment adviser relying on the exemption from registering with the Commission under Section 203(l) or (m) of the Investment
Advisers Act of 1940 or registered pursuant to Section 203 of the Investment Advisers Act of 1940;


 


(e)
an insurance company as defined in Section 2(13) of the Act;


 


(f)
an investment company registered under the Investment Company Act of 1940, as amended (the “Investment Act”) or a
business development company as defined in Section 2(a)(48) of the Investment Act;


 


(g)
a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958, as amended;


 




    57


     


    

(h)
a Rural Business Investment Company as defined in Section 384A of the Consolidated Farm and Rural Development Act;


 


(i)
an employee benefit plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of
a state or its political subdivisions, for the benefit of its employees, where such plan has total assets in excess of $5,000,000;


 


(j)
an employee benefit plan within the meaning of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (the
“Employee Act”), where the investment decision is made by a plan fiduciary, as defined in Section 3(21) of the Employee
Act, which is either a bank, savings and loan association, insurance company, or registered investment adviser, or an employee
benefit plan that has total assets in excess of $5,000,000, or a self-directed plan the investment decisions of which are made
solely by persons that are accredited investors;


 


(k)
a private business development company, as defined in Section 202(a)(22) of the Investment Advisers Act of 1940, as amended;


 


(l)
an organization described in Section 501(c)(3) of the Internal Revenue Code, a corporation, a Massachusetts or similar business
trust, or a partnership, or limited liability company, not formed for the specific purpose of acquiring the securities offered,
with total assets in excess of $5,000,000;


 


(m)
any natural person holding in good standing one or more professional certifications or designations or credentials from an accredited
educational institution that the Commission has designated as qualifying an individual for accredited investor status, which in
determining whether to designate a professional certification or designation or credential from an accredited educational institution
for purposes of this paragraph, the Commission will consider, among others, the following attributes:


 


(i),
the certification, designation, or credential arises out of an examination or series of examinations administered by a self-regulatory
organization or other industry body or is issued by an accredited educational institution,


 


(ii)
the examination or series of examinations is designed to reliably and validly demonstrate an individual’s comprehension
and sophistication in the areas of securities and investing,


 


(iii)
persons obtaining such certification, designation, or credential can reasonably be expected to have sufficient knowledge and experience
in financial and business matters to evaluate the merits and risks of a prospective investment, and


 


(iv)
an indication that an individual holds the certification or designation is either made publicly available by the relevant self-regulatory
organization or other industry body or is otherwise independently verifiable;


 


(n)
a natural person who is a “knowledgeable employee” as defined in Rule 3c5(a)(4) under the Investment Company Act of
1940 (17 CFR 270.3c-5(a)(41)), of the issuer of the securities being offered or sold where the issuer would be an investment company,
as defined in Section 3 of such act, but for the exclusion provided by either Section 3(c)(1) or Section 3(c)(7) of such Act;


 




    58


     


    

(o)
any “family office”, as defined in Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940 (17CFR 275.202(a)(11)(G)-1)
(the “Family Office Rule”), with assets under management in excess of $5,000,000, that is not formed for the specific
purpose of acquiring the securities offered, and whose prospective investment is directed by a person who has such knowledge and
experience in financial and business matters that such family office is capable of evaluating the merits and risks of the prospective
investment;


 


(p)
any “family client” as defined in the Family Office Rule, of a family office that satisfies the above requirements
and whose investments are directed by that family office;


 


(q)
an entity not otherwise specified in the accredited investor definition and not formed for the specific purpose of acquiring the
securities offered that owns more than $5,000,000 in “investments” as defined in Rule 2a51-1(b); or


 


(r)
an investment adviser registered under the Investment Advisers Act of 1940, as amended or a person exempt from registration as
a private fund adviser or a venture capital adviser.


 




    59


     


    

EXHIBIT
“A” TO ACCREDITED INVESTOR QUESTIONNAIRE


 


ACCREDITED
CORPORATIONS, PARTNERSHIPS, LIMITED LIABILITY COMPANIES, TRUSTS OR OTHER ENTITIES INITIALING QUESTION 8B(xi) MUST PROVIDE THE
FOLLOWING INFORMATION.


 


I
hereby certify that set forth below is a complete list of all equity owners in __________________ [NAME OF ENTITY], a [TYPE OF
ENTITY] formed pursuant to the laws of the State of . I also certify that EACH SUCH OWNER HAS INITIALED THE SPACE OPPOSITE
HIS OR HER NAME and that each such owner understands that by initialing that space he or she is representing that he or she
is an accredited individual investor satisfying the test for accredited individual investors indicated under “Type of Accredited
Investor.”


 





 


	 	signature
    of authorized corporate officer, general partner or trustee


 


	 	Name of Equity Owner	Type of Accredited Investor1	 


	1.	 
	2.	 
	3.	 
	4.	 
	5.	 
	6.	 
	7.	 
	8.	 
	9.	 
	10.	 


 


 






1       Indicate
which Subparagraph of 8.1 - 8.3 the equity owner satisfies.


 




    60