Exhibit 10.1


 


SECURITIES PURCHASE AGREEMENT


 


This SECURITIES PURCHASE
AGREEMENT (this “Agreement”), dated as of November 2, 2021, is by and among American Virtual Cloud Technologies,
Inc., a Delaware corporation with headquarters located at 1720 Peachtree Street, Suite 629, Atlanta, GA 30309 (the “Company”),
and each of the investors listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively,
the “Buyers”).


 


RECITALS


 


A. The
Company and each Buyer desire to enter into this transaction to purchase (i) Series A Warrants (as defined below) in reliance upon the
exemption from securities registration afforded by Section 4(a)(2) of the 1933 Act, and Rule 506(b) of Regulation D (“Regulation
D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “1933 Act”) and (ii) the Common Shares (as defined below) and Series B Warrants (as defined
below) pursuant to a currently effective shelf registration statement on Form S-3, which has at least $10,000,000 of unallocated securities,
including Common Stock (as defined below) and warrants to purchase Common Stock registered thereunder (Registration Number 333-258136)
(the “Registration Statement”), which Registration Statement has been declared effective in accordance with the 1933
Act, by the SEC.


 


B. Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) such aggregate number
of shares of Common Stock as set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers (which aggregate amount
for all Buyers shall be 2,500,000 shares of Common Stock and shall collectively be referred to herein as the “Common Shares”),
(ii) a warrant to initially acquire up to that aggregate number of additional shares of Common Stock set forth opposite such Buyer’s
name in column (4) on the Schedule of Buyers, substantially in the form attached hereto as Exhibit A-1 (the “Series
A Warrants”) (as exercised, collectively, the “Series A Warrant Shares”) and (iii) a warrant to initially
acquire up to that aggregate number of additional shares of Common Stock set forth opposite such Buyer’s name in column (5) on the
Schedule of Buyers, substantially in the form attached hereto as Exhibit A-2 (the “Series B Warrants”,
and together with the Series A Warrants, the “Warrants”) (as exercised, collectively, the “Series A Warrant
Shares”, and together with the Series B Warrant Shares, the “Warrant Shares”).


 


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


 


D. The
Series A Warrants and the Series A Warrant Shares are collectively referred to herein as the “PIPE Securities”. The
Common Shares, the Series B Warrants and the Series B Warrant Shares are collectively referred to herein as the “RD Securities”.
The PIPE Securities and the RD Securities are collectively referred to herein as the “Securities”.


 






     


     


    

 


AGREEMENT


 


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


 


		1.	PURCHASE AND SALE OF COMMON SHARES AND WARRANTS.



 


(a)
Purchase of Common Shares and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections
6 and 7 below, the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the
Company on the Closing Date (as defined below) (i) such aggregate number of Common Shares as is set forth opposite such Buyer’s
name in column (3) on the Schedule of Buyers, (ii) Series A Warrants to initially acquire up to that aggregate number of Series A Warrant
Shares as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers and (iii) Series B Warrants to initially
acquire up to such aggregate number of Series B Warrant Shares as is set forth opposite such Buyer’s name in column (5) on the Schedule
of Buyers.


 


(b)
Closing. The closing (the “Closing”) of the purchase of the Common Shares and the Warrants by the Buyers
shall occur at the offices of Kelley Drye & Warren LLP, 3 World Trade Center, 175 Greenwich Street, New York, NY 10007. The date and
time of the Closing (the “Closing Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day (as defined
below) on which the conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually
agreed to by the Company and each Buyer). As used herein “Business Day” means any day other than Saturday, Sunday or
other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided,
however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay
at home”, “shelter-in-place”, “non-essential employee”  or any other similar orders or restrictions
or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer
systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.


 


(c)
Purchase Price. The aggregate purchase price for the Common Shares and the Warrants to be purchased by each Buyer (the “Purchase
Price”) shall be the amount set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers.


 


(d)
Form of Payment; Deliveries. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case
of any Buyer, the amounts withheld pursuant to Section 4(j)) to the Company for the Common Shares and the Warrants to be issued and
sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined
below) and (ii) the Company shall (A) cause Continental Stock Transfer & Trust Company (together with any subsequent transfer
agent, the “Transfer Agent”) through the Depository Trust Company (“DTC”) Fast Automated Securities
Transfer Program, to credit such aggregate number of Common Shares that each Buyer is purchasing as is set forth opposite such Buyer’s
name in column (3) of the Schedule of Buyers to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system, and (B) deliver to each Buyer (x) a Series A Warrant pursuant to which such Buyer shall have the right to initially
acquire up to that aggregate number of Series A Warrant Shares as is set forth opposite such Buyer’s name in column (4) on the Schedule
of Buyers and (y) a Series B Warrant pursuant to which such Buyer shall have the right to initially acquire up to such aggregate number
of Series B Warrant Shares as is set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers, in each case, duly
executed on behalf of the Company and registered in the name of such Buyer or its designee. Notwithstanding the foregoing, with respect
to any Exercise Notice (as defined in the Series B Warrants) delivered on or prior to 6:00 p.m. (New York City time) on the Trading Day
immediately preceding the Closing Date, which may be delivered at any time after the time of execution of the this Agreement, the Company
agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on the Closing Date and the Closing Date
shall be the Share Delivery Date (as defined in the Series B Warrants) for purposes hereunder.


 






    2


     


    

 


(e)
Sales During Pre-Settlement Period. Notwithstanding anything herein to the contrary, if at any time on or after the time
of execution of this Agreement by the Company and an applicable Buyer, through and including the time immediately prior to the Closing
(the “Pre-Settlement Period”), such Buyer sells (excluding “short sales” as defined in Rule 200 of Regulation
SHO) to any Person all, or any portion, of any Common Shares or Series B Warrant Shares to be issued hereunder to such Buyer at the Closing
(collectively, the “Pre-Settlement Shares”), such Buyer shall, automatically hereunder (without any additional required
actions by such Buyer or the Company), be deemed to be unconditionally bound to purchase, and the Company shall be deemed unconditionally
bound to sell, such Pre-Settlement Shares to such Buyer at the Closing; provided, that the Company shall not be required to deliver any
Pre-Settlement Shares to such Buyer prior to the Company’s receipt of the purchase price of such Pre-Settlement Shares hereunder;
and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant
by such Buyer as to whether or not during the Pre-Settlement Period such Buyer shall sell any Pre-Settlement Shares to any Person and
that any such decision to sell any Pre-Settlement Shares by such Buyer shall be made, in the sole discretion of such Buyer, at the time
such Buyer elects to effect any such sale, if any.


 


		2.	BUYER’S REPRESENTATIONS AND WARRANTIES.



 


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


 


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


 


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


 






    3


     


    

 


(c)
Accredited Investor or Other Qualified Status. Such Buyer is a “qualified institutional investor” as defined
in Rule 144A of the 1933 Act, an institutional accredited investor of a type listed in subsection (1), (2), (3), (7) or (8) of Rule 501(a)
of Regulation D, with a substantive, pre-existing relationship with the Company, or a “Qualified Investor” within the meaning
of Directive 2003/71/EC of the European Parliament and of the Council of November 4, 2003 (as amended to date, the “Prospectus Directive,”
including any implementing legislation in the United Kingdom), and/or a person who is (a) an investment professional falling within articles
19(5) of the Financial Services and Markets Act 2000 (“FSMA”) (Financial Promotion) Order 2005, as amended (the “Order”);
(b) a person falling within article 49(2)(a) to (d) “high net worth companies, unincorporated associations etc.” of the Order;
or (c) a person to whom an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the FSMA) in
connection with the issue or sale of any securities may otherwise be lawfully communicated or caused to be communicated. In the case of
a Buyer situated in a member state of the European Economic Area (“EEA”), such Buyer is a person to whom an offer of
the Securities may be made without registration or delivery of a prospectus under an applicable exception under the national legislation
of the relevant member state of the EEA implementing the Prospectus Directive.


 


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


 


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


 






    4


     


    

 


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


 


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


 


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


 


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


 






    5


     


    

 


(j) Receipt of
Prospectus Supplement. Such Buyer acknowledges receipt of the Company’s Prospectus Supplement relating to the offering of
the RD Securities, which Prospectus Supplement is required to be delivered to such Buyer pursuant to Section 4(c) below. Such Buyer
acknowledges that it has had an opportunity to review the Prospectus Supplement prior to committing to purchase any of the RD
Securities.


 


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


 


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


 


(m) Residency.
Such Buyer is a resident of that jurisdiction specified below its address on the Schedule of Buyers.


 


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


 


		3.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



 


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


 


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


 






    6


     


    

 


(b) Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares, the issuance of
the Warrants and the reservation for issuance and issuance of the Warrant Shares issuable upon exercise of the Warrants) have been
duly authorized by the Company’s board of directors and (other than the filing with the SEC of (i) one or more Registration
Statements in accordance with the requirements of the Registration Rights Agreement, (ii) a Form D, (iii) the 8-K Filing (as defined
below), and (iv) a prospectus supplement in connection with the Closing as required by the Registration Statement pursuant to Rule
424(b) under the 1933 Act (the “Prospectus Supplement”) supplementing the base prospectus forming part of the
Registration Statement (the “Prospectus”) and any other filings as may be required by any state securities
agencies (collectively, the “Required Approvals”)) and no further filing, consent or authorization is required by
the Company, its board of directors or its stockholders or other governing body. This Agreement has been, and the other Transaction
Documents to which it is a party will be prior to the Closing, duly executed and delivered by the Company, and each constitutes the
legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights
and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law.
“Transaction Documents” means, collectively, this Agreement, the Warrants, the Registration Rights Agreement, the
Irrevocable Transfer Agent Instructions (as defined below) and each of the other agreements and certificates entered into or
delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as may be amended from
time to time.


 


(c) Issuance of
Securities; Registration Statement. The issuance of the Common Shares and the Warrants are duly authorized and, upon issuance
and payment in accordance with the terms of the Transaction Documents shall be validly issued, fully paid and non-assessable and
free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal,
encumbrances, security interests and other encumbrances (collectively “Liens”) with respect to the issuance
thereof. As of the Closing, the Company shall have reserved from its duly authorized capital stock not less than 200% of the maximum
number of shares of Common Stock issuable upon exercise of the Warrants (without taking into account any limitations on the exercise
of the Warrants set forth in the Warrants). Upon exercise in accordance with the Warrants, the Warrant Shares, when issued, will be
validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue
thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. Subject to the accuracy of the
representations and warranties of the Buyers in this Agreement, the offer and issuance by the Company of the PIPE Securities is
exempt from registration under the 1933 Act. The issuance by the Company of the RD Securities has been registered under the 1933
Act, the RD Securities are being issued pursuant to the Registration Statement and all of the RD Securities are freely transferable
and freely tradable by each of the Buyers without restriction, whether by way of registration or some exemption therefrom. The
Registration Statement is effective and available for the issuance of the RD Securities thereunder and the Company has not received
any notice that the SEC has issued or intends to issue a stop-order with respect to the Registration Statement or that the SEC
otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends
or has threatened in writing to do so. The “Plan of Distribution” section under the Registration Statement (including
the Prospectus Supplement) permits the issuance and sale of the RD Securities hereunder and as contemplated by the other Transaction
Documents. Upon receipt of the RD Securities, each of the Buyers will have acquire ownership of the RD Securities free of any
adverse claim. The Registration Statement and any prospectus included therein, including the Prospectus and the Prospectus
Supplement, complied in all material respects with the requirements of the 1933 Act, and the documents incorporated by reference
into the Registration Statement when filed, complied in all material respects with the requirements of the 1934 Act and, in each
case, with the rules and regulations of the SEC promulgated under the 1933 Act or the 1934 Act, as the case may be. At the time the
Registration Statement and any amendments thereto became effective the Registration Statement and any amendments thereto complied
and, upon the filing of the Prospectus Supplement after the date of this Agreement the Registration Statement will comply. in all
material respects with the requirements of the 1933 Act and did not and will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading. The
Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued
and the Prospectus Supplement at the Closing Date, complied and will comply, as the case may be, in all material respects with the
requirements of the 1933 Act and did not, and will not, contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
The Company meets all of the requirements of General Instruction I.B.6 for the use of Form S-3 under the 1933 Act for the offering
and sale of the RD Securities contemplated by this Agreement and the other Transaction Documents, and the SEC has not notified the
Company of any objection to the use of the form of the Registration Statement pursuant to Rule 401(g)(1) under the 1933 Act. The
Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act. The Company (i) has not distributed
any offering material in connection with the offer or sale of any of the RD Securities and (ii) until no Buyer holds any of the RD
Securities, shall not distribute any offering material in connection with the offer or sale of any of the RD Securities to, or by,
any of the Buyers (if required), in each case, other than the Registration Statement, the Prospectus or the Prospectus Supplement.
In accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority Manual, the offering of the Securities has
been registered with the SEC on Form S-3 under the 1933 Act pursuant to the standards for Form S-3 in effect prior to October 21,
1992, and the RD Securities are being offered pursuant to Rule 415 promulgated under the 1933 Act.


 






    7


     


    

 


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


 


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


 


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


 






    8


     


    

 


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


 


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


 


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


 






    9


     


    

 


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


 


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


 






    10


     


    

 


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


 


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


 






    11


     


    

 


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


 


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


 


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


 






    12


     


    

 


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


 


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


 


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


 


(r) Equity
Capitalization.


 


 (i) Definitions:




 


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


 






    13


     


    

 


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


 


(ii)  Authorized and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of
(A) 500,000,000 shares of Common Stock, of which 65,258,194 are issued and outstanding and 36,605,675 shares are reserved for issuance
pursuant to Convertible Securities (as defined below) (other than the Common Shares and the Warrants) exercisable or exchangeable for,
or convertible into, shares of Common Stock and (B) 5,000,000 shares of Preferred Stock, none of which are issued and outstanding. No
shares of Common Stock are held in the treasury of the Company. “Convertible Securities” means any capital stock or
other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible
into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security
of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.


 


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


 


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


 






    14


     


    

 


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


 


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


 


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


 






    15


     


    

 


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


 


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


 


(w) Title.


 


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


 


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


 






    16


     


    

 


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


 


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


 


(ii) No
Hazardous Materials:


 


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


 






    17


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 






    18


     


    

 


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


 


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


 


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


 






    19


     


    

 


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


 


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


 


(hh) Registration
Eligibility. The Company is eligible to register the issuance of the RD Securities by the Company using Form S-3 promulgated
under the 1933 Act. The Company is eligible to register the Registrable Securities (as defined in the Registration Rights Agreement)
for resale by the Buyers using Form S-3 promulgated under the 1933 Act.


 


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


 


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


 






    20


     


    

 


(kk) [Reserved].


 


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


 


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


 


(nn) Management.
Except as set forth in Schedule 3(nn) hereto, during the past five year period, no current or former officer or director
or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company or any of its Subsidiaries
has been the subject of:


 


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


 


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


 


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


 


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


 






    21


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    22


     


    

 


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


 


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


 


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


 


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


 


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


 


(vv) Registration
Rights. No holder of securities of the Company has rights to the registration of any securities of the Company because of the
filing of the Registration Statement or the issuance of the Securities hereunder that could expose the Company to material liability
or any Buyer to any liability or that could impair the Company’s ability to consummate the issuance and sale of the Securities
in the manner, and at the times, contemplated hereby, which rights have not been waived by the holder thereof as of the date
hereof.


 


(ww) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware,
software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and
perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries as
currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants
that would reasonably be expected to have a Material Adverse Effect on the Company’s business. The Company and its
Subsidiaries have implemented and maintained commercially reasonable physical, technical and administrative controls, policies,
procedures, and safeguards to maintain and protect their material confidential information and the integrity, continuous operation,
redundancy and security of all IT Systems and data, including “Personal Data,” used in connection with their businesses.
“Personal Data” means (i) a natural person’s name, street address, telephone number, e-mail address,
photograph, social security number or tax identification number, driver’s license number, passport number, credit card number,
bank information, or customer or account number; (ii) any information which would qualify as “personally identifying
information” under the Federal Trade Commission Act, as amended; (iii) “personal data” as defined by the European
Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (iv) any information which would qualify as
“protected health information” under the Health Insurance Portability and Accountability Act of 1996, as amended by the
Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”); and (v) any other
piece of information that allows the identification of such natural person, or his or her family, or permits the collection or
analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or
the duty to notify any other person or such, nor any incidents under internal review or investigations relating to the same except
in each case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders,
rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and
Personal Data from unauthorized use, access, misappropriation or modification except in each case, where such would not, either
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.


 






    23


     


    

 


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


 


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


 


		4.	COVENANTS.



 


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


 


(b) Amendments to the
Registration Statement; Prospectus Supplements; Free Writing Prospectuses.


 


(i) Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses. Except as provided in this Agreement and other
than periodic reports required to be filed pursuant to the 1934 Act, the Company shall not file with the SEC any amendment to the
Registration Statement that relates to the Buyer, this Agreement, the Warrants or the transactions contemplated hereby or thereby or
file with the SEC any Prospectus Supplement that relates to the Buyer, this Agreement, the Warrants or the transactions contemplated
hereby or thereby with respect to which (a) the Buyer shall not previously have been advised, (b) the Company shall not have given
due consideration to any comments thereon received from the Buyer or its counsel, or (c) the Buyer shall reasonably object after
being so advised, unless the Company reasonably has determined that it is necessary to amend the Registration Statement or make any
supplement to the Prospectus to comply with the 1933 Act or any other applicable law or regulation, in which case the Company shall
promptly (but in no event later than 24 hours) so inform the Buyer, the Buyer shall be provided with a reasonable opportunity to
review and comment upon any disclosure relating to the Buyer and the Company shall expeditiously furnish to the Buyer an electronic
copy thereof. In addition, for so long as, in the reasonable opinion of counsel for the Buyer, the Prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the 1933 Act) is required to be delivered in connection with any acquisition or sale of
RD Securities by the Buyer, the Company shall not file any Prospectus Supplement with respect to the RD Securities without
delivering or making available a copy of such Prospectus Supplement, together with the Prospectus, to the Buyer promptly.


 






    24


     


    

 


(ii)  The Company has not made, and agrees that it will not make, an offer relating to the RD Securities that would constitute an “issuer
free writing prospectus” as defined in Rule 433 promulgated under the 1933 Act (an “Issuer Free Writing Prospectus”)
or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 promulgated under the 1933 Act (a “Free
Writing Prospectus”) required to be filed by the Company or the Buyer with the SEC or retained by the Company or the Buyer under
Rule 433 under the 1933 Act. The Buyer has not made, and agrees that it will not make, an offer relating to the RD Securities that would
constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under
the 1933 Act. Any such Issuer Free Writing Prospectus or other Free Writing Prospectus consented to by the Buyer or the Company is referred
to in this Agreement as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the SEC, legending and record keeping.


 


(c) Prospectus
Delivery. Immediately prior to execution of this Agreement, the Company shall have delivered to the Buyer, and as soon as
practicable after execution of this Agreement the Company shall file, Prospectus Supplements with respect to the RD Securities to be
issued on the Closing Date, as required under, and in conformity with, the 1933 Act, including Rule 424(b) thereunder. The Company
shall provide the Buyer a reasonable opportunity to comment on a draft of each Prospectus Supplement and any Issuer Free Writing
Prospectus, shall give due consideration to all such comments and, subject to the provisions of Section 4(b) hereof, shall deliver
or make available to the Buyer, without charge, an electronic copy of each form of Prospectus Supplement, together with the
Prospectus, and any Permitted Free Writing Prospectus on the Closing Date. The Company consents to the use of the Prospectus (and of
any Prospectus Supplements thereto) in accordance with the provisions of the 1933 Act and with the securities or “blue
sky” laws of the jurisdictions in which the RD Securities may be sold by the Buyer, in connection with the offering and sale
of the RD Securities and for such period of time thereafter as the Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) is required by the 1933 Act to be delivered in connection with sales of the RD Securities. If during such
period of time any event shall occur that in the judgment of the Company and its counsel is required to be set forth in the
Registration Statement or the Prospectus or any Permitted Free Writing Prospectus or should be set forth therein in order to make
the statements made therein (in the case of the Prospectus, in light of the circumstances under which they were made) not
misleading, or if it is necessary to amend the Registration Statement or supplement or amend the Prospectus or any Permitted Free
Writing Prospectus to comply with the 1933 Act or any other applicable law or regulation, the Company shall forthwith prepare and,
subject to Section 4(b) above, file with the SEC an appropriate amendment to the Registration Statement or Prospectus Supplement to
the Prospectus (or supplement to the Permitted Free Writing Prospectus) and shall expeditiously furnish or make available to the
Buyer an electronic copy thereof.


 






    25


     


    

 


(d) Stop Orders.
The Company shall advise the Buyer promptly (but in no event later than 24 hours) and shall confirm such oral or written advice in
writing: (i) of the Company’s receipt of notice of any request by the SEC for amendment of or a supplement to the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus or for any additional information; (ii) of the Company’s
receipt of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or
prohibiting or suspending the use of the Prospectus or any Prospectus Supplement, or of the suspension of qualification of the RD
Securities for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such
purpose; (iii) of the Company becoming aware of the happening of any event, which makes any statement of a material fact made in the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus untrue or which requires the making of any additions
to or changes to the statements then made in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in
order to state a material fact required by the 1933 Act to be stated therein or necessary in order to make the statements then made
therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or of the
necessity to amend the Registration Statement or supplement the Prospectus or any Permitted Free Writing Prospectus to comply with
the 1933 Act or any other law or (iv) if at any time following the date hereof the Registration Statement is not effective or is not
otherwise available for the issuance of the RD Securities or any Prospectus contained therein is not available for use for any other
reason. Thereafter, the Company shall promptly notify such holders when the Registration Statement, the Prospectus, any Permitted
Free Writing Prospectus and/or any amendment or supplement thereto, as applicable, is effective and available for the issuance of
the RD Securities. If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration Statement or
prohibiting or suspending the use of the Prospectus or any Prospectus Supplement, the Company shall use best efforts to obtain the
withdrawal of such order at the earliest possible time.


 


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


 


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


 


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


 


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


 






    26


     


    

 


(i) Listing. The
Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Underlying Securities (as
defined below) upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then
listed or designated for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or
designation for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the
Transaction Documents on such national securities exchange or automated quotation system. The Company shall maintain the Common
Stock’s listing or authorization for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the
NYSE American, the Nasdaq Global Market or the Nasdaq Global Select Market (each, an “Eligible Market”). Neither
the Company nor any of its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or
suspension of the Common Stock on an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its
obligations under this Section 4(i). “Underlying Securities” means the (i) the Common Shares, (ii) the Warrant
Shares and (iii) any capital stock of the Company issued or issuable with respect to the Common Shares, the Warrant Shares, or the
Warrants, respectively, including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise and (2) shares of capital stock of the Company into which the shares of Common Stock are
converted or exchanged and shares of capital stock of a Successor Entity (as defined in the Warrants) into which the shares of
Common Stock are converted or exchanged, in each case, without regard to any limitations on exercise of the Warrants.


 


(j) Fees. The
Company shall reimburse the lead Buyer a non-accountable fee of $65,000 for all costs and expenses incurred by it or its affiliates
in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction
Documents (including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley
Drye & Warren, LLP, counsel to the lead Buyer, any other reasonable fees and expenses in connection with the structuring,
documentation, negotiation and closing of the transactions contemplated by the Transaction Documents and due diligence and
regulatory filings in connection therewith) (the “Transaction Expenses”) and shall be withheld by the lead Buyer
from its Purchase Price at the Closing, less $25,000 previously paid by the Company to Kelley Drye & Warren LLP; provided, that
the Company shall promptly reimburse Kelley Drye & Warren, LLP on demand for all Transaction Expenses not so reimbursed through
such withholding at the Closing. In addition to the Transaction Expenses, the Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, transfer agent fees, DTC fees or broker’s commissions (other than for
Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby (including, without limitation, any
fees or commissions payable to the Placement Agent, who is the Company’s sole placement agent in connection with the
transactions contemplated by this Agreement). The Company shall pay, and hold each Buyer harmless against, any liability, loss or
expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any
claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall
bear its own expenses in connection with the sale of the Securities to the Buyers.


 


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


 






    27


     


    

 


(l) Disclosure of
Transactions and Other Material Information.


 


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


 


(ii) Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company
or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be
granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants, including,
without limitation, Section 4(q) of this Agreement, or any of the covenants or agreements contained in any other Transaction
Document, by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents (as
determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the
Transaction Documents, such Buyer shall have the right to make a public disclosure, in the form of a press release, public
advertisement or otherwise, of such breach or such material, non-public information, as applicable, without the prior approval by
the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer shall
have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees,
affiliates, stockholders or agents, for any such disclosure. To the extent that the Company delivers any material, non-public
information to a Buyer without such Buyer’s consent, the Company hereby covenants and agrees that such Buyer shall not have
any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject
to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements
with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval
of any Buyer, to make the Press Release and any press release or other public disclosure with respect to such transactions (i) in
substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by applicable law and regulations
(provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection with any such press release or
other public disclosure prior to its release). Without the prior written consent of the applicable Buyer (which may be granted or
withheld in such Buyer’s sole discretion), the Company shall not (and shall cause each of its Subsidiaries and affiliates to
not) disclose the name of such Buyer in any filing, announcement, release or otherwise. Notwithstanding anything contained in this
Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and
agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and
binding agreement executed by the Company and such particular Buyer (it being understood and agreed that no Buyer may bind any other
Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material,
non-public information regarding the Company or any of its Subsidiaries.


 






    28


     


    

 


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


 


(n) Additional
Issuance of Securities. The Company agrees that for (x) the period commencing on the date hereof and ending on the date
immediately following the 60th calendar day after the Closing Date and (y) each 60 calendar day period commencing on, and
including, each Forced Exercise Date (as defined in the Series B Warrant) (each, a “Restricted Period”), neither
the Company nor any of its Subsidiaries shall directly or indirectly issue, offer, sell, grant any option or right to purchase, or
otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to purchase or other disposition of) any
equity security or any equity-linked or related security (including, without limitation, any “equity security” (as that
term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities, any preferred stock or any purchase
rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring during the applicable Restricted
Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing,
this Section 4(l)(iii) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to purchase Common
Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined
below), provided that (x) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options)
after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Stock issued and
outstanding immediately prior to the date hereof and (y) the exercise price of any such options is not lowered, none of such options
are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are
otherwise materially changed in any manner that adversely affects any of the Buyers; (B) shares of Common Stock issued upon the
conversion or exercise of Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an
Approved Stock Plan that are covered by clause (A) above) issued prior to the date hereof, provided that the conversion, exercise or
other method of issuance (as the case may be) of any such Convertible Security is made solely pursuant to the conversion, exercise
or other method of issuance (as the case may be) provisions of such Convertible Security that were in effect on the date immediately
prior to the date of this Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than
standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not
lowered, none of such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved
Stock Plan that are covered by clause (A) above) are amended to increase the number of shares issuable thereunder and none of the
terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an
Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed in any manner that adversely affects any
of the Buyers; (C) the Common Shares and (D) the Warrant Shares (each of the foregoing in clauses (A) through (D), collectively the
“Excluded Securities”) and (E) after the thirtieth calendar day of any Restricted Period, a Subsequent Placement
consisting of only shares of Common Stock at a cash purchase price greater than or equal to $2.70 per share of Common Stock (as
adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events). “Approved Stock
Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or
subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued
to any employee, officer or director for services provided to the Company in their capacity as such.


 






    29


     


    

 


(o) Reservation of
Shares. So long as any of the Warrants remain outstanding, the Company shall take all action necessary to at all times have
authorized, and reserved for the purpose of issuance, no less than 200% of the maximum number of Warrant Shares issuable upon
exercise of all the Warrants then outstanding (without regard to any limitations on the exercise of the Warrants set forth therein)
(collectively, the “Required Reserve Amount”); provided that at no time shall the number of shares of Common
Stock reserved pursuant to this Section 4(o) be reduced other than proportionally in connection with any exercise and/or redemption,
as applicable of Warrants. If at any time the number of shares of Common Stock authorized and reserved for issuance is not
sufficient to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and
reserve a sufficient number of shares, including, without limitation, calling a special meeting of stockholders to authorize
additional shares to meet the Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient
number of authorized shares, obtain stockholder approval of an increase in such authorized number of shares, and voting the
management shares of the Company in favor of an increase in the authorized shares of the Company to ensure that the number of
authorized shares is sufficient to meet the Required Reserve Amount.


 


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


 


(p)
Variable Securities. So long as any Warrants remain outstanding, the Company and each Subsidiary shall be prohibited from
effecting or entering into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate
Transaction” means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either
(A) at a conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations
for the shares of Common Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise
or exchange price that is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon
the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for the Common
Stock, other than pursuant to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including,
without limitation, an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell
securities at a future determined price (other than standard and customary “preemptive” or “participation” rights).
Each Buyer shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which
remedy shall be in addition to any right to collect damages.


 


(q)
Participation Right. At any time after the date hereof until the eighteen month anniversary of the Closing Date, neither
the Company nor any of its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first
complied with this Section 4(q). The Company acknowledges and agrees that the right set forth in this Section 4(q) is a right
granted by the Company, separately, to each Buyer.


 


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


 






    30


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 






    31


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    32


     


    

 


(v) Exercise
Procedures. The form of Exercise Notice (as defined in the Warrants) included in the Warrants sets forth the totality of the
procedures required of the Buyers in order to exercise the Warrants. No legal opinion or other information or instructions shall be
required of the Buyers to exercise their Warrants. The Company shall honor exercises of the Warrants and shall deliver the Warrant
Shares in accordance with the terms, conditions and time periods set forth in the Warrants. Without limiting the preceding
sentences, no ink-original Exercise Notice shall be required, nor shall any medallion guarantee (or other type of guarantee or
notarization) of any Exercise Notice form be required in order to exercise the Warrants.


 


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


 


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


 


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


 


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


 


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


 


		5.	REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.



 


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


 






    33


     


    

 


(b) Transfer Agent
Instructions. The Company shall issue irrevocable instructions to its Transfer Agent and any subsequent transfer agent in a form
acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit
shares to the applicable balance accounts at DTC, registered in the name of each Buyer or its respective nominee(s), for the Common
Shares and the Warrant Shares in such amounts as specified from time to time by each Buyer to the Company upon the exercise of the
Warrants (as the case may be). The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent
Instructions referred to in this Section 5(b) will be given by the Company to its Transfer Agent with respect to the
Securities, and that the Securities shall otherwise be freely transferable on the books and records of the Company, as applicable,
to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or transfer of
the Securities, the Company shall permit the transfer and shall promptly instruct its Transfer Agent to issue one or more
certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by such
Buyer to effect such sale, transfer or assignment. The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations
under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the
provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies, to an order
and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic
loss and without any bond or other security being required. The Company shall cause its counsel to issue each legal opinion referred
to in the Irrevocable Transfer Agent Instructions to the Transfer Agent as follows: (i) at the Closing with respect to the Common
Shares, (ii) upon each exercise of the Warrants (unless such issuance covered by a prior legal opinion previously delivered to the
Transfer Agent), and (iii) on each date a registration statement with respect to the issuance or resale of any of the Securities is
declared effective by the SEC. Any fees (with respect to the Transfer Agent, counsel to the Company or otherwise) associated with
the issuance of such opinions or the removal of any legends on any of the Securities shall be borne by the Company.


 


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


 


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


 






    34


     


    

 


(d) No Legends on RD
Securities; Removal of Legends on PIPE Securities. Certificates evidencing RD Securities shall be unrestricted and shall not be
required to contain any legend. Certificates evidencing PIPE Securities shall not be required to contain the legend set forth in
Section 5(b) above or any other legend (i) while a registration statement (including a Registration Statement) covering the
resale of such PIPE Securities is effective under the 1933 Act, (ii) following any sale of such PIPE Securities pursuant to Rule 144
(assuming neither the transferor nor the transferee is an affiliate of the Company), (iii) if such PIPE Securities are eligible to
be sold, assigned or transferred under Rule 144 (provided that a Buyer provides the Company with reasonable assurances that such
PIPE Securities are eligible for sale, assignment or transfer under Rule 144 which shall not include an opinion of Buyer’s
counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144), provided that such Buyer
provides the Company with an opinion of counsel to such Buyer, in a generally acceptable form, to the effect that such sale,
assignment or transfer of the PIPE Securities may be made without registration under the applicable requirements of the 1933 Act or
(v) if such legend is not required under applicable requirements of the 1933 Act (including, without limitation, controlling
judicial interpretations and pronouncements issued by the SEC). With respect to RD Securities or, with respect to PIPE Securities,
if a legend is not required pursuant to the foregoing with respect to such PIPE Securities, the Company shall no later than two (2)
Trading Days (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for the
settlement of a trade initiated on the date such Buyer delivers such legended certificate representing such Securities to the
Company) following the delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of a certificate
representing such RD Securities or a legended certificate representing such PIPE Securities (endorsed or with stock powers attached,
signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, if applicable), together with any
other deliveries from such Buyer as may be required above in this Section 5(c), as directed by such Buyer, either: (A) provided
that the Company’s transfer agent is participating in the DTC Fast Automated Securities Transfer Program
(“FAST”) and such Securities are Common Shares or Warrant Shares, credit the aggregate number of shares of Common
Stock to which such Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its
Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer agent is not participating in FAST, issue and deliver
(via reputable overnight courier) to such Buyer, a certificate representing such Securities that is free from all restrictive and
other legends, registered in the name of such Buyer or its designee (the date by which such credit is so required to be made to the
balance account of such Buyer’s or such Buyer’s nominee with DTC or such certificate is required to be delivered to such
Buyer pursuant to the foregoing is referred to herein as the “Share Delivery Deadline”). The Company shall be
responsible for any transfer agent fees or DTC fees with respect to any issuance of Securities or the removal of any legends with
respect to any Securities in accordance herewith.


 






    35


     


    

 


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


 






    36


     


    

 


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


 


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



 


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


 


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


 


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


 


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


 


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



 


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


 


(a)
The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents and the Company shall have duly
executed and delivered to such Buyer (x) such aggregate number of Common Shares set forth across from such Buyer’s name in column
(3) of the Schedule of Buyers, (y) a Series A Warrant (initially for such aggregate number of Series A Warrant Shares as is set forth
across from such Buyer’s name in column (4) of the Schedule of Buyers) and (z) a Series B Warrant (initially for such aggregate
number of Series B Warrant Shares as is set forth across from such Buyer’s name in column (5) of the Schedule of Buyers), in each
case, as being purchased by such Buyer at the Closing pursuant to this Agreement.


 






    37


     


    

 


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


 


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


 


(d)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company issued by
the Secretary of State of Delaware as of a date within ten (10) days of the Closing Date.


 


(e)
The Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation
and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business
and is required to so qualify, as of a date within ten (10) days of the Closing Date.


 


(f) The Company shall
have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary of the Company and dated
as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of
directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and (iii) the
Bylaws of the Company, each as in effect at the Closing.


 


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


 


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


 






    38


     


    

 


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


 


(j) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale
of the Securities, including without limitation, those required by the Principal Market, if any. No statute, rule, regulation, executive
order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent
jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.


 


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


 


(l) The Company shall have filed with the Principal Market to list the Common Shares and the Warrant Shares.


 


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


 


(n)
From the date hereof to the Closing Date, (i) trading in the Common Stock shall not have been suspended by the SEC or the Principal
Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior
to the Closing), and, (ii) 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 the Principal Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude
in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of each Buyer,
makes it impracticable or inadvisable to purchase the Securities at the Closing


 


(o)
The Registration Statement shall be effective and available for the issuance and sale of the RD Securities hereunder and the Company
shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder.


 


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


 






    39


     


    

 


		8.	TERMINATION.



 


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


 


		9.	MISCELLANEOUS.



 


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


 


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


 






    40


     


    

 


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


 


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


 






    41


     


    

 


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


 






    42


     


    

 


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


 


If to the Company:


 


American Virtual Cloud Technologies, Inc.

1720 Peachtree Street, Suite 629

Atlanta, GA 30309

Telephone: (404) 769-3236

Attention: Chief Financial Officer

E-Mail: tking@avctechnologies.com


 


With a copy (for informational purposes only) to:


 


Greenberg Traurig, LLP

1750 Tysons Blvd., Suite 1000

McLean, VA 22102

Telephone: (703) 749-1300

Attention: Jason Simon, Esq.

E-Mail: simonj@gtlaw.com


 


If to the Transfer Agent:


 


Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, NY 10004-1561

Telephone: (212) 845-3285

Attention: Richard Viscovich

E-Mail: rviscovich@continentalstock.com


 






    43


     


    

 


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


 


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

3 World Trade Center

175 Greenwich Street

New York, NY 10007

Telephone: (212) 808-7540

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


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


 


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


 


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


 






    44


     


    

 


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


 


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


 


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


 


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


 






    45


     


    

 


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


 


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


 


(n) Payment Set
Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of the
other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such payment or
payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the
Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or
federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof
originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement
and the other Transaction Documents are in United States Dollars (“U.S. Dollars”), and all amounts owing under
this Agreement and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if
any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation.
“Exchange Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this
Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation.


 






    46


     


    

 


(o)
Judgment Currency.


 


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


 


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


 


(2)
the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date
as of which such conversion is made pursuant to this Section 9(o)(i)(1) being hereinafter referred to as the “Judgment Conversion
Date”).


 


(ii)  If in the case of any proceeding in the court of any jurisdiction referred to in Section 9(o)(i)(1) above, there is a change
in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the
Exchange Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount
of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.


 


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


 


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


 


[signature pages follow]


 




    47


     


    

 


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


 


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