Exhibit
4.6


 


SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as of April [*], 2022, by and between BullFrog AI Holdings,
Inc., a Nevada corporation (the “Company”), and each lender party that executes the signature page hereto as a purchaser
(each, a “Purchaser” and collectively, the “Purchasers”).


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an exemption from the registration requirements of Section
5 of the Securities Act, as defined, contained in Section 4(a)(2) thereof and/or Rule 506(b) thereunder, the Company desires to issue
and sell to the Purchaser, and the Purchaser desires to purchase from the Company, securities of the Company as more fully described
in this Agreement.


 


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


 


ARTICLE
I.


DEFINITIONS


 


1.1
Definitions. In addition to the words and terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 5.5.


 


“Action” shall have the meaning ascribed to such
term in Section 3.10.


 


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


 


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


 


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


 


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


 


“Common
Stock” means the common stock of the Company, par value $0.00001 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed.


 


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


 


“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.19.


 


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


  




    	 



     


    

 


“Exempt
Issuance” means the issuance of (a) shares of Common Stock, restricted stock units or options, and the underlying shares of
Common Stock to consultants, employees, officers or directors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non- employee members of the Board of
Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered
to the Company, (b) securities issued upon the exercise or exchange of or conversion of any Securities issued hereunder and/or other
securities issuable pursuant to existing agreements, exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this
Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such
securities (other than in connection with stock dividends, stock splits or combinations) or to extend the term of such securities,
(c) securities issued pursuant, acquisitions or strategic transactions approved by a majority of the directors of the Company,
provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and which
shall reasonably be expected to provide to the Company additional benefits, but shall not include a transaction in which the Company
is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities, (d) securities issued pursuant to any purchase money equipment loan or capital leasing arrangement, purchasing agent or
debt financing from a commercial bank or similar financial institution, (e) securities issued pursuant to any presently outstanding
warrants or this Agreement; and (f) securities upon a stock split, stock dividend or subdivision of the Common Stock and shares of
common stock in a public offering; (g) non-convertible loans from traditional commercials banks with interest per annum not
to exceed 12% which will rank pari passu with the Notes issued to investors by the Company.


 


“Face
Value” means the Subscription Amount plus original issue discount as described in the


 


Notes.


 


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


 


“GAAP” shall have the meaning ascribed to such term in Section
3.8.


 


“Indebtedness”
shall have the meaning ascribed to such term in Section 3.27.


 


“Intellectual
Property” means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable
and whether or not reduced to practice), all improvements thereto, and all U.S. and foreign patents, patent applications, and patent
disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof,
(b) all trademarks, service marks, brand names, certification marks, trade dress, logos, trade names, domain names, assumed names and
corporate names, together with all colorable imitations thereof, and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrights, and all applications, registrations, and renewals in connection
therewith, (d) all trade secrets under applicable state laws and the common law and know-how (including formulas, techniques, technical
data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans
and proposals), (e) all computer software (including source code, object code, diagrams, data and related documentation), and (f) all
copies and tangible embodiments of the foregoing (in whatever form or medium).


 


“IPO”
shall mean an initial public offering by the Company that results in a listing of the Company’s Common Stock on a national securities
exchange.


 


“Licensed
Intellectual Property Agreement” means all licenses, sublicenses, agreements and permissions (each as amended to date) that any
third party owns and that the Company uses, including off- the-shelf software purchased or licensed by the Company.


 




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


 


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


 


“Notes”
means the Original Issue Discount Convertible Promissory Notes issued to the Purchaser, in the form of Exhibit A attached hereto.


 


“Note
Conversion Price” means the Note Conversion Price provided in the Note.


 


“Original
Issue Date” means the date of the first issuance of the Notes, regardless of any transfers of any Note and regardless of the number
of instruments which may be issued to evidence such Notes.


 


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


 


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


 


“Purchaser
Party” shall have the meaning ascribed to such term in Section 5.8.


 


“Registrable
Securities” shall mean, collectively, the Shares and the Warrant Shares.


 


“Regulation
FD” means Regulation FD promulgated by the SEC pursuant to the Exchange Act, as such Regulation may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such
Regulation


 


“Required
Approvals” shall have the meaning ascribed to such term in Section 3.4.


 


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


 


“SEC”
means the United States Securities and Exchange Commission. “Securities” means the Notes, the Warrants and the Shares.


 


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


 


“Shares”
means the Common Stock issuable upon conversion of the Notes.


 


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


 


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


 






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“Subsidiary”
means with respect to any entity at any date, any direct or indirect corporation, limited or general partnership, limited liability
company, trust, estate, association, joint venture or other business entity of which (A) more than 50% of (i) the outstanding
capital stock having (in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors or other
managing body of such entity, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits
of such partnership or limited liability company or (iii) in the case of a trust, estate, association, joint venture or other
entity, the beneficial interest in such trust, estate, association or other entity business is, at the time of determination, owned
or controlled directly or indirectly through one or more intermediaries, by such entity, or (B) is under the actual control of the
Company.


 


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


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in
question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, the OTCQB, the OTCQX, or the OTC Pink Marketplace (or any successors to any of the foregoing).


 


“Transaction
Documents” means this Agreement, the Notes, the Warrants, and any other documents or agreements executed in connection with the
transactions contemplated hereunder, including, but not limited to, the documents referenced in Section 2.2(a).


 


“Transfer
Agent” means VStock Transfer, LLC with a mailing address of 18 Lafayette Place, Woodmere, NY 11598, and a facsimile number of (646)
536-3179, and any successor transfer agent of the Company.


 


“Variable
Rate Transaction” means any Equity Line of Credit or similar agreement, nor issue nor agree to issue any Common Stock, floating
or Variable Priced Equity Linked Instruments nor any of the foregoing or equity with price reset rights (subject to adjustment for stock
splits, distributions, dividends, recapitalizations and the like) (collectively, the “Variable Rate Transaction”). For purposes
of this Agreement, “Equity Line of Credit” shall include any transaction involving a written agreement between the Company
and an investor or underwriter whereby the Company has the right to “put” its securities to the investor or underwriter over
an agreed period of time and at an agreed price or price formula, and “Variable Priced Equity Linked Instruments” shall include:
(A) any debt or equity securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional
shares of Common Stock either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the
trading prices of or quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with
a fixed conversion, exercise or exchange price that is subject to being reset at some future date at any time after the initial issuance
of such debt or equity security due to a change in the market price of the Company’s Common Stock since date of initial issuance,
and (B) any amortizing convertible security which amortizes prior to its maturity date, where the Company is required or has the option
to (or any investor in such transaction has the option to require the Company to) make such amortization payments in shares of Common
Stock which are valued at a price that is based upon and/or varies with the trading prices of or quotations for Common Stock at any time
after the initial issuance of such debt or equity security (whether or not such payments in stock are subject to certain equity conditions).
For purposes of determining the total consideration for a convertible instrument (including a right to purchase equity of the Company)
issued, subject to an original issue or similar discount or which principal amount is directly or indirectly increased after issuance,
the consideration will be deemed to be the actual cash amount received by the Company in consideration of the original issuance of such
convertible instrument.


 


“Warrants”
means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, which Warrants shall be exercisable immediately and have a term of exercise equal to five years from such initial exercise date,
in the form of Exhibit B attached hereto.


 


“Warrant
Exercise Price” means the exercise price provided in the Warrant.


 




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


 


ARTICLE
II.


PURCHASE AND SALE


 


2.1 Closing.
On the Closing Dates, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and
delivery of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees
to purchase an aggregate of (i) Notes with a Face Value listed on the Purchaser’s signature page and (ii) Warrants to
purchase shares equal to 100% of the Shares issuable upon conversion of the Note at a price equal to 110% of the IPO price or, if
the Company fails to complete the IPO before October 22, 2022, 90% of the IPO price. On the Closing Date, the Purchaser shall
deliver to the Company a signed copy of the Transaction Documents and, via wire transfer, immediately available funds equal to the
Purchaser’s Subscription Amount. After receipt of the Subscription Amount, the Company shall deliver to the Purchaser
countersigned copies of the Transaction Documents. Upon satisfaction of the closing conditions set forth in Section 2.3, the Closing
shall occur at the Company’s offices or such other location as the parties shall mutually agree.


 


 2.2 Deliveries.




 


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


 


 (i) this Agreement duly executed by the Company;




 


(ii) a
Note in the principal amount of <PRINCIPAL AMOUNT>, convertible at the Note Conversion Price, registered in the name of the Purchaser;


 


(iii) an
original Warrant to purchase <WARRANT SHARES> shares of Common Stock, exercisable at the Warrant Exercise Price, registered in
the name of such Purchaser;


 


(iv) a
Board Consent approving the issuance of the Notes and the execution of the Transaction Documents listed above on behalf of the Company.


 


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


 


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




 


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




 


 2.3 Closing Conditions.




 


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


 


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


 


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


 


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




 




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(b) The
respective obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being met:


 


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


 


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


 


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




 


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




 


ARTICLE
III.


REPRESENTATIONS
AND WARRANTIES OF COMPANY


 


The
Company hereby makes the following representations and warranties to each Purchaser as of the date hereof:


 


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


 


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


 




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3.3 No
Conflicts. Except as set forth in Schedule 3.3, the execution, delivery and performance by the Company of this Agreement and
the other Transaction Documents to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions
contemplated hereby and thereby do not and will not (i) subject to the Required Approvals, conflict with or violate any provision of
the Company’s or any Subsidiary’s Certificate or Articles of Incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights
of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility,
debt or other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.


 


3.4 Filings,
Consents and Approvals. Except as set forth on Schedule 3.4, the Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other
than: (i) blue sky filings or a Form D filing and (ii) such filings as are required to be made under applicable state securities laws
(the “Required Approvals”).


 


3.5 Issuance
of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Shares,
when issued upon conversion of the Notes will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by
the Company. The Company shall reserve from its duly authorized capital stock a number of shares of Common Stock issuable pursuant to
the Notes and Warrants.


 


3.6 Capitalization.
The capitalization of the Company is as set forth on Schedule 3.6. The Company has not issued any capital stock since its most
recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock awards under the Company’s
equity incentive plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plans
and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most recently filed periodic
report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents. Except as set forth on Schedule 3.6, as a result
of the purchase and sale of the Securities, there are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire, any shares of Common Stock or the capital stock of any Subsidiary, or contracts,
commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound to issue additional shares
of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance and sale of the Securities will not obligate
the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than the Purchaser) and will not
result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities.
There are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar provisions,
and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become bound
to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom stock”
plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly authorized,
validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and none of
such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No
further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the Securities.
There are no stockholders’ agreements, voting agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 




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3.7 Subsidiaries.
All of the direct and indirect Subsidiaries of the Company are set forth in Schedule 3.7. The Company owns, directly or indirectly, all
of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities.


 


3.8 Financial
Statements. The consolidated financial statements of the Company, together with the related notes and schedules, present fairly,
in all material respects, the consolidated financial position of the Company and any of its Subsidiaries as of the dates indicated and
the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
and have been prepared in compliance with United States generally accepted accounting principles (“GAAP”) applied
on a consistent basis during the periods involved.


 


3.9 Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest financial statements: (i) there has been no
event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company
has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary
course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements
pursuant to GAAP, (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant
to existing Company equity incentive plans. Other than as disclosed on Schedule 3.9, except for the issuance of the Securities
contemplated by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations,
assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at least one Trading Day prior to the date that this representation
is made.


 


3.10 Litigation.
Except as set forth on Schedule 3.10, there is no action, suit, inquiry, notice of violation, proceeding or investigation, inquiry
or other similar proceeding of any federal or state government unit pending or, to the knowledge of the Company, threatened against or
affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely
affects or challenges the legality, validity or enforceability of any of the Transaction Documents or the issuance of the Securities
or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. The Company
has no reason to believe that an Action will be filed against it in the future except as disclosed on Schedule


 




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3.10.
Neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim
of violation of or liability under federal or state securities laws or a claim for fraud or breach of fiduciary duty. There has not been,
and to the knowledge of the Company, there is not pending or contemplated, any investigation or inquiry by the SEC involving the Company
or any current or former director or officer of the Company. The SEC has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Securities Act, and the Company has no reason to believe
it will do so in the future.


 


3.11 Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their
relationships with their employees are good. To the knowledge of the Company, no effort is underway to unionize or organize the employees
of the Company or any Subsidiary. To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now
expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information
agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third party, and
the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability with
respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal, state, local and foreign
laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and hours, except
where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. There is no workmen’s compensation liability matter, employment-related charge, complaint, grievance, investigation, inquiry
or obligation of any kind pending, or to the Company’s knowledge, threatened, relating to an alleged violation or breach by the
Company or its Subsidiaries of any law, regulation or contract that could, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 


3.12 Compliance.
Except as set forth on Schedule 3.12, neither the Company nor any Subsidiary: (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or
any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in
violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any
of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or
order of any court, arbitrator or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or
regulation of any governmental authority, including without limitation all foreign, federal, state and local laws relating to taxes,
environmental protection, occupational health and safety, product quality and safety and employment and labor matters, except in each
case as could not have or reasonably be expected to result in a Material Adverse Effect.


 


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


 




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3.14 Regulatory
Permits. 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 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 on the Company or any of
its Subsidiaries.


 


3.15 Title
to Assets. Subject to the Liens of the outstanding secured senior debt, the Company and the Subsidiaries have good and marketable
title in fee simple to all personal property owned by them that is material to the business of the Company and the Subsidiaries. The
Company owns no real property. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them
under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.


 


 3.16 Intellectual Property.




 


(i) Subject
to the Liens of the outstanding secured senior debt, to the Company’s knowledge, the Company owns or possesses or has the right
to use pursuant to a valid and enforceable written license, sublicense, agreement, or permission all Intellectual Property necessary
for the operation of the business of the Company as presently conducted.


 


(ii) To
the Company’s knowledge, the Intellectual Property does not interfere with, infringe upon, misappropriate, or otherwise come into
conflict with, any Intellectual Property rights of third parties, and the Company has no knowledge that facts exist which indicate a
likelihood of the foregoing. The Company has not received any charge, complaint, claim, demand, or notice alleging any such interference,
infringement, misappropriation, or conflict (including any claim that the Company must license or refrain from using any Intellectual
Property rights of any third party). To the knowledge of the Company, no third party has interfered with, infringed upon, misappropriated,
or otherwise come into conflict with, any Intellectual Property rights of the Company.


 


 (iii) With respect to each Licensed Intellectual Property Agreement:




 


(A) The
Licensed Intellectual Property Agreement is legal, valid, binding, enforceable, and in full force and effect;


 


(B) To
the Company’s knowledge, no party to the Licensed Intellectual Property Agreement is in breach or default, and no event has occurred
that with notice or lapse of time would constitute a breach or default or permit termination, modification, or acceleration thereunder,
which as to any such breach, default or event could have a Material Adverse Effect on the Company;


 


(C) No
party to such Licensed Intellectual Property Agreement has repudiated any provision thereof;


 




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(D) Except
as set forth in such Licensed Intellectual Property Agreement, the Company has not received written or verbal notice or otherwise has
knowledge that the underlying item of Intellectual Property is subject to any outstanding injunction, judgment, order, decree, ruling,
or charge; and


 


(E) Except
as set forth on Schedule 3.16, the Company has not granted any sublicense or similar right with respect to the license, sublicense,
agreement, or permission.


 


(iv) The
Company has complied with and is presently in compliance with all foreign, federal, state, local, governmental (including, but not limited
to, the Federal Trade Commission and State Attorneys General), administrative, or regulatory laws, regulations, guidelines, and rules
applicable to any personal identifiable information.


 


(v) Each
Person who participated in the creation, conception, invention or development of the Intellectual Property currently used in the business
of the Company (each, a “Developer”) which is not licensed from third parties has executed one or more agreements containing
industry standard confidentiality, work for hire and assignment provisions, whereby the Developer has assigned to the Company all copyrights,
patent rights, Intellectual Property rights and other rights in the Intellectual Property, including all rights in the Intellectual Property
that existed prior to the assignment of rights by such Person to the Company.


 


 (vi) Each Developer has signed a perpetual non-disclosure agreement with the Company.




 


3.17 Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase
in cost.


 


3.18 Transactions
With Affiliates and Employees. Except as disclosed in Schedule 3.18, none of the officers or directors of the Company or any
Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to any
transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of
$120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) other employee benefits, including stock award agreements under any equity incentive
plan of the Company.


 


3.19 Sarbanes-Oxley;
Internal Accounting Controls. Except as disclosed in the Schedule 3.19, the Company and the Subsidiaries are in compliance with any
and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the SEC thereunder that are effective as of the date hereof and as of the Closing Date. The Company
and the Subsidiaries maintain a system of internal accounting controls. The Company’s certifying officers have evaluated the effectiveness
of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently
filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most
recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure
controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in
the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that
have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company
and its Subsidiaries.


 




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3.20 Certain
Fees. Except as set forth on Schedule 3.20, no brokerage or finder’s fees or commissions are or will be payable by the
Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person
with respect to the transactions contemplated by the Transaction Documents. The Purchaser shall have no obligation with respect to any
fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be
due by the Company in connection with the transactions contemplated by the Transaction Documents.


 


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


 


3.22 Registration
Rights. Except as disclosed on Schedule 3.22, no Person has any right to cause the Company or any Subsidiary to effect the
registration under the Securities Act of any securities of the Company or any Subsidiary.


 


3.23 Listing
and Maintenance Requirements; Shell Company. The Company’s Common Stock is not quoted or listed on any Trading Market. The
Company is not and has never been a shell company as such term is defined in Rule 12(b)(2) under the Securities Exchange Act of 1934,
as amended and the rules and regulations of the Securities and Exchange Commission thereunder.


 


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


 


3.25 Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided the Purchaser or its agent or counsel with any information that
it believes constitutes or might constitute material, non-public information which is not otherwise disclosed on Schedule 3.25.
The Company understands and confirms that the Purchaser will rely on the foregoing representation in effecting transactions in securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and
correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were made not misleading. The press releases disseminated by
the Company during the 12 months preceding the date of this Agreement do not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Article
IV hereof.


 




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3.26 No
Integrated Offering. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Article IV, neither
the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or
sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable stockholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.


 


3.27 Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Securities hereunder, (i) the Company’s assets do not constitute unreasonably small capital
to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular
capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital availability
thereof, and (ii) the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all
of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of
its liabilities when such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such
debts as they mature (taking into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has
no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization or liquidation under the bankruptcy
or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.27 sets forth as of the date hereof
all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments.
For the purposes of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in
excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements
and other contingent obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s
consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $100,000 due
under leases required to be capitalized in accordance with GAAP. Except as set forth on Schedule 3.27, neither the Company nor
any Subsidiary is in default with respect to any Indebtedness.


 


3.28 Tax
Status. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have been required
to be filed and paid all taxes shown thereon through the date hereof, to the extent that such taxes have become due and are not being
contested in good faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed
in Schedule 3.28, no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had, or
would have, individually or in the aggregate, a Material Adverse Effect. The Company has no knowledge of any federal, state or other
governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which would have a Material
Adverse Effect


 


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


 




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


 


3.31 Acknowledgement
Regarding Purchaser’s Trading Activity. Notwithstanding anything in this Agreement or elsewhere to the contrary (except for
Sections 4.7 and 5.12 hereof), it is understood and acknowledged by the Company that: (i) the Purchaser has not been asked by the Company
to agree, nor has the Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market
or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions,
before or after the closing of this or future private placement transactions, may negatively impact the market price of the Company’s
publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which the Purchaser
is a party, directly or indirectly, presently may have a “short” position in the Common Stock, and (iv) the Purchaser shall
not be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) the Purchaser may engage in hedging activities at various times during the
period that the Securities are outstanding, including, without limitation, during the periods that the value of the Shares deliverable
with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders’
equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that
such aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.


 


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


 


3.33 Private
Placement. Assuming the accuracy of each Purchaser’s representations and warranties set forth in Article IV, no registration
under the Securities Act is required for the offer and sale of the Notes or the Shares issuable upon conversion thereof by the Company
to the Purchasers as contemplated hereby.


 


3.34 No
General Solicitation. Neither the Company nor any person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company offered the Securities for sale only to the Purchaser and certain
other “accredited investors” within the meaning of Rule 501 under the Securities Act.


 


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


 




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3.36 Notice
of Disqualification Events. The Company will notify the Purchaser 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, reasonably be expected to become
a Disqualification Event relating to any Issuer Covered Person, in each case of which it is aware.


 


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


 


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


 


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


 


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


 


ARTICLE
IV.


REPRESENTATIONS
AND WARRANTIES OF PURCHASERS


 


4.1 Representations
and Warranties of the Purchaser. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein):


 


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


 




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


 


4.4 Purchaser
Status. At the time the Purchaser was offered the Securities, it was, and as of the date hereof it is, an accredited investor within
the meaning of Rule 501 under the Securities Act. The Purchaser is not subject to any of the “Bad Actor” disqualifications
described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification
Event covered by Rule 506(d)(2) or (d)(3).


 


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


 


4.6 Access
to Information. The Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and has been afforded, subject to Regulation FD, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment; provided, however, that the Purchaser has not requested nor been
provided by the Company with any non-public information regarding the Company, its financial condition, results of operations, business,
properties, management and prospects. The Purchaser acknowledges and agrees that neither the Company nor anyone else has provided the
Purchaser with any information or advice with respect to the Securities nor is such information or advice necessary or desired.


 




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


 


The
Company acknowledges and agrees that the representations contained in this Article 4 shall not modify, amend or affect the Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transaction contemplated hereby.


 


ARTICLE
V.


OTHER
AGREEMENTS OF THE PARTIES


 


 5.1 Removal of Legends.




 


The
Shares, the Warrants and Warrant Shares may only be disposed of in compliance with state and federal securities laws. In connection with
any transfer of the Shares, Warrants or Warrant Shares other than pursuant to an effective registration statement or Rule 144, to the
Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 5.1(b), the Company may require the
transferor to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company at the
cost of the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred Shares, Warrants or Warrant Shares under the Securities Act.


 


(a) Each
Purchaser agrees to the imprinting, so long as is required by this Section 5.1, of a legend on any of the Shares, the Warrants or Warrant
Shares in the following form:


 


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


 




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(b) The
Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Shares or Warrant Shares to a financial institution that is an “accredited
investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and,
if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Shares or Warrant Shares to the pledgees
or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of
the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge.
At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured
party of Shares and Warrant Shares may reasonably request in connection with a pledge or transfer of the Shares or Warrant Shares.


 


(c) Certificates
evidencing the Shares and the Warrant Shares (or the Transfer Agent’s records if held in book entry form) shall not contain any
legend (including the legend set forth in Section 5.1(a) hereof): (i) while a registration statement covering the resale of such securities
is effective under the Securities Act (the “Effective Date”), (ii) following any sale of such Shares or Warrant Shares pursuant
to Rule 144, (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144, without the requirement for the Company to
be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and without volume or
manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including Sections
4(a)(1) and 4(a)(7) judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any of the provisions
in clause (i) –(iv) above are applicable, at its expense, cause its counsel to issue a legal opinion to the Transfer Agent promptly
after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a
Note is converted or a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Shares
or the Warrant Shares, or if such Shares or Warrant Shares may be sold under Rule 144 and the Company is then in compliance with the
current public information required under Rule 144, or if the Shares or Warrant Shares may be sold under Rule 144 without the requirement
for the Company to be in compliance with the current public information required under Rule 144 as to such Shares or Warrant Shares and
without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable requirements of the Securities
Act (including Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC) then such Shares
or Warrant Shares shall be issued or reissued free of all legends. The Company agrees that following the effective date of any registration
statement or at such time as such legend is no longer required under this Section 5.1(c), it will, no later than two Trading Days following
the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Shares or Warrant Shares, as
applicable, issued with a restrictive legend (such second Trading Day, the “Legend Removal Date”), deliver or cause to be
delivered to such Purchaser a certificate representing such Shares or Warrant Shares that is free from all restrictive and other legends.
The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer
set forth in this Section 5.1. Certificates for Shares or Warrant Shares subject to legend removal hereunder shall be transmitted by
the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company
system as directed by such Purchaser. The Company shall be responsible for any delays caused by its Transfer Agent.


 




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(d) In
addition to such Purchaser’s other available remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated
damages and not as a penalty, for each $1,000 of the principal amount of the Notes being converted or the value of the Warrant Shares
for which a Warrant is being exercised (based on the Warrant Exercise Price), $20 per Trading Day for each Trading Day after the Legend
Removal Date (increasing to $20 per Trading Day after the fifth Trading Day) until such certificate is delivered without a legend. Nothing
herein shall limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver certificates representing
any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to
it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief, and (ii) if after the
Legend Removal Date such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by such Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common
Stock equal to all or any portion of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company
without any restrictive legend, then, the Company shall pay to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s
total purchase price (including brokerage commissions and other out-of- pocket expenses, if any) for the shares of Common Stock so purchased
(including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such
number of Shares or Warrant Shares that the Company was required to deliver to such Purchaser by the Legend Removal Date multiplied by
(B) the highest closing sale price of the Common Stock on any Trading Day during the period commencing on the date of the delivery by
such Purchaser to the Company of the applicable Shares or Warrant Shares (as the case may be) and ending on the date of such delivery
and payment under this Section 5.1(d).


 


(e) In
the event a Purchaser shall request delivery of unlegended shares as described in this Section 5.1 and the Company is required to deliver
such unlegended shares, (i) it shall pay all fees and expenses associated with or required by the legend removal and/or transfer including
but not limited to legal fees, Transfer Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government
upon the issuance of Common Stock; and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser
or anyone associated or affiliated with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents,
or for any other reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery
of such unlegended shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit
of such Purchaser in the amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Shares (based on amount
of principal and/or interest of the Note which was converted) and Warrant Shares (based on exercise price in effect upon exercise) which
is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading Day before the issue
date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect
until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser to the extent Purchaser
obtains judgment in Purchaser’s favor.


 


 5.2 Furnishing of Information.




 


(a) Until
the earliest of the time that (i) no Purchaser owns Shares and Warrant Shares or (ii) the Warrants have expired, the Company covenants
to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed
by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject to the reporting requirements
of the Exchange Act.


 




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


 


5.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2(a)(1) of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless
stockholder approval is obtained before the closing of such subsequent transaction.


 


5.4 Securities
Laws Disclosure; Publicity. The Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser
in any filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of the Purchaser, except (a)
as required by federal securities law in connection with the filing of final Transaction Documents with the SEC and (b) to the extent
such disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchaser with prior notice
of such disclosure permitted under this clause (b).


 


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


 


5.6 Non-Public
Information. When the Company’s Common Stock is quoted or listed on a Trading Market, to the extent that any notice provided
pursuant to any Transaction Document or any other communications made by the Company, or information provided, to the Purchaser constitutes,
or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice
or other material information with the SEC pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser
shall be relying on the foregoing covenant in effecting transactions in securities of the Company. In addition to any other remedies
provided by this Agreement or other Transaction Documents, if the Company knowingly provides any material, non- public information to
the Purchasers without their prior written consent, and it fails to immediately (no later than that Trading Day) file a Form 8-K, once
it is required to do so, disclosing this material, non-public information, it shall pay the Purchasers as partial liquidated damages
and not as a penalty a sum equal to $1,000 per day for each $100,000 of each Purchaser’s Subscription Amount beginning with the
day the information is disclosed to the Purchaser and ending and including the day the Form 8-K disclosing this information is filed.


 




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5.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes, and shall
not use such proceeds: (a) for the satisfaction of any Indebtedness as defined in the Note, (b) for the redemption of any Common Stock
or Common Stock Equivalents, (c) in violation of FCPA or OFAC regulations, or (d) to lend money, give credit, or make advances to any
officers, directors, employees or affiliates of the Company.


 


 5.8 Indemnification of Purchaser.




 


Subject
to the provisions of this Section 5.8, the Company will indemnify and hold each Purchaser and its directors, officers, stockholders,
members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act), and the directors, officers, stockholders, agents, members, partners or employees (and any other
Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title)
of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable
attorneys’ fees and costs of investigation (including local counsel, if retained) that any such Purchaser Party may suffer or incur
as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in
this Agreement or in the other Transaction Documents, (b) any action instituted against the Purchaser Parties in any capacity, or any
of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect
to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a breach of such Purchaser
Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser
Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct
by such Purchaser Party which constitutes fraud, gross negligence, willful misconduct or malfeasance) or (c) any untrue or alleged untrue
statement of a material fact contained in any registration statement, any prospectus or any form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto,
in light of the circumstances under which they were made) not misleading. If any action shall be brought against any Purchaser Party
in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing,
and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser
Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict
on any material issue between the position of the Company and the position of such Purchaser Party, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such separate counsel (in addition to local counsel, if retained).
The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without
the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the
extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall
have the right to settle any action against any of them by the payment of money provided that they cannot agree to any equitable relief
and the Company, its officers, directors and Affiliates receive unconditional releases in customary form. The indemnification required
by this Section 5.8 shall be made by periodic payments of the amount thereof during the investigation or defense, as and when bills are
received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any
Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.


 




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5.9 Settlement
Without Consent if Failure to Reimburse. If an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for reasonable fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 5.8 effected without its written consent if (1) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (2) such indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (3) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.


 


5.10 Listing
of Common Stock. The Company agrees, if the Company applies to have the Common Stock traded on any Trading Market, it will then include
in such application all of the Shares, and will take such other action as is necessary to cause all of the Shares to be listed or quoted
on such other Trading Market as promptly as possible. The Company will then take all action necessary to continue the listing and trading
of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations
under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer
through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of
fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.


 


5.11 Senior
Debt. The Company shall not issue any new indebtedness which is senior in rank to the Notes while the Notes are outstanding.


 


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


 




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


 


5.14 DTC
Program. For so long as any of the Notes are outstanding, the Company will employ as the Transfer Agent for the Common Stock and
Shares a participant in the Depository Trust Company Automated Securities Transfer Program and cause the Common Stock to be transferable
pursuant to such program.


 


5.15 Maintenance
of Property. The Company shall keep all of its property necessary for the operations of its business, which is necessary or useful
to the conduct of its business, in good working order and condition, ordinary wear and tear excepted.


 


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


 


5.17 No
Registration of Securities on Form S-1. Other than the registration rights provided hereunder, for the initial six months the Notes
are outstanding, the Company will not file any registration statements on Form S-1. For the avoidance of doubt, the foregoing shall not
prevent the Company from filing a Registration Statement on Form S-8 with respect to equity compensation plans.


 


5.18 Variable
Rate Transactions. While any of the Notes are outstanding, the Company shall be prohibited from entering a Variable Rate Transaction
without the prior consent of the holders of more than 50% in principal amount of the then outstanding Notes.


 


 5.19 Registration Rights and Lock-Up Agreement.




 


 (a) With respect to the Shares and Warrant Shares, the Company shall:




 


(1) With
the next Registration Statement on Form S-1 filed by the Company, include the Registrable Securities in such Registration Statement and
use its best efforts to cause the Registration Statement to become effective and remain effective as provided herein.


 


(2) Prepare
and file with the SEC such amendments, including post-effective amendments, to the Registration Statement as may be necessary to keep
the Registration Statement continuously effective as to the applicable Registrable Securities until such time as all of the Registerable
Securities have been sold by the Holder or he is eligible to otherwise remove the restrictive legend and effect a sale other than through
the Registration Statement.


 


(3) Use
its best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of, (i) any order suspending the effectiveness of the
Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the Registrable Securities
for sale in any U.S. jurisdiction, at the earliest practicable moment.


 




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(4) Furnish
to the Holder, without charge, at least one conformed copy of each Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be incorporated therein by reference, and all exhibits to the extent
requested by the Holder (including those previously furnished or incorporated by reference) promptly after the filing of such documents
with the SEC.


 


(b) The
Purchaser agrees that, without the prior written consent of the Company, the Purchaser shall not, during the period ending 90 days
after the date of the prospectus filed with the SEC in connection with the Registration Statement on Form S-1 described in Section
5.19(a): (1) offer, pledge, announce the intention to sell, sell, contract to sell,
sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any Registrable Securities or (2) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences of ownership of the Registrable Securities.


 


ARTICLE
IV.


MISCELLANEOUS


 


6.1 Termination.
This Agreement may be terminated by the Purchaser by written notice to the other parties, if the Closing has not been consummated on
or before [May 15], 2022; provided, however, that no such termination will affect the right of any party to sue for any breach by any
other party (or parties).


 


6.2 Fees
and Expenses. Except as expressly set forth below and in the Transaction Documents to the contrary, each party shall pay the fees
and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any
exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Purchaser.


 


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


 


6.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered by email
attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. ( Eastern Standard or Daylight
Savings Time, as applicable) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication
is delivered via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading
Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second Trading Day following the date of transmission, if
sent by U.S. nationally recognized overnight delivery service or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. To the extent
that any notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the
Company or any Subsidiaries, the Company shall, if the Company’s Common Stock is quoted or listed on a Trading Market, simultaneously
file such notice with the SEC pursuant to a Current Report on Form 8-K, or which failure to do so will subject the Company to the liquidated
damages provided for in Article 5.


 




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6.5 Amendments;
Waivers. Except as provided in the last sentence of this Section 6.5, no provision of this Agreement may be waived, modified, supplemented
or amended except in a written instrument signed, in the case of an amendment, by the Company and a majority in interest of the outstanding
balance of the Note or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver
of any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay
or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment effected
in accordance with accordance with this Section 6.5 shall be binding upon the Purchaser and holder of Securities and the Company.


 


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


 


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


 


6.8 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in
Section 6.7 and this Section 6.8.


 


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


 


6.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.


 




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


 


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


 


6.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then that Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission of an conversion
of a Note, the Purchaser shall be required to return any Shares subject to any such rescinded Conversion Notice concurrently with the
restoration of such Purchaser’s right to acquire such shares pursuant to the Purchaser’s Note.


 


6.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction without requiring the posting of any bond.


 


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


 


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


 




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


 


6.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have
been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.


 


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


 


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


 


6.21 Waiver
of jury trial. In any action, suit, or proceeding in any jurisdiction brought by any party against any other party, the parties each
knowingly and intentionally, to the greatest extent permitted by applicable law, hereby absolutely, unconditionally, irrevocably and
expressly waive forever trial by jury.


 


6.22 Non-Circumvention.
The Company hereby covenants and agrees that the Company will not, by amendment of its Articles of Incorporation, including any Certificates
of Designation, or Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution,
issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms
of this Agreement, and will at all times in good faith carry out all of the provision of this Agreement and take all action as may be
required to protect the rights of all holders of the Securities. Without limiting the generality of the foregoing or any other provision
of this Agreement or the other Transaction Documents, the Company (a) shall not increase the par value of any Shares issuable upon conversion
of the Notes above the Note Conversion Price then in effect and (b) shall take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and nonassessable Shares upon the conversion of the Notes. Notwithstanding
anything herein to the contrary, if after 180 days from the original issuance date, the Purchasers are not permitted to convert the Note,
in full, for any reason, subject to the Purchaser’s compliance with Rule 144 the Company shall use its best efforts to promptly
remedy such failure, including, without limitation, obtaining such consent or approvals as necessary to permit such conversion or exercise.


 


(Signature
Pages Follow)


 




    	27



     


    

 


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


 


	BullFrog AI Holdings, Inc.	 	Address for Notice:
	 	 	 
	By:	 	 	 
	Name:	Vin Singh	 	325 Ellington Blvd. #317
	Title:	Chief Executive Officer	 	Gaithersburg, MD 20878


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 




    	 



     


    

 


PURCHASER
SIGNATURE PAGE TO


SECURITIES PURCHASE AGREEMENT


 


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


 


Name of Purchaser: Bigger Capital Fund, LP


 


	Signature of Authorized Signatory of Purchaser:	




 


Name of Authorized Signatory: Michael Bigger


 


Title of Authorized Signatory: Managing Member of the GP


 


Email Address of Authorized Signatory: biggercapital@gmail.com


 


Facsimile Number of Authorized Signatory: __________________________


 


	Address for Notice to Purchaser:	
    11700 West Charleston BLVD. #170-659

    Las Vegas, NV, 89135



 


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


 


____________________________________


 


____________________________________


 


Face Value ___________________________


 


Subscription
Amount:  $250,000



 


EIN Number: 90-0131165


 


Purchaser
Signature Page


 




    	 



     


    

 


EXHIBIT
D


Form
of Consent


 


BullFrog
AI Holdings, Inc. (the “Company”) has information or notice of a proposed event (collectively, the “Information”)
that it is either required to provide you pursuant to that certain Securities Purchase Agreement dated April [*], 2022 (“Agreement”)
between you and the Company or believes that you would be interested in obtaining.


 


If
the Company is required to provide this Information to you under the Agreement, you acknowledge that receipt of this information
may restrict you from trading in the Company’s securities until this Information is made public in accordance with the Agreement.


 


If
the Company is not required to provide this Information to you under the Agreement, you acknowledge that this may restrict
you from trading in the Company’s securities until this Information is made public in accordance with the Agreement. Provided,
however, if the Company does not immediately file a Form 8- K publicly disclosing this Information, you shall be entitled to remedies
under the Agreement including liquidated damages under Section 5.6.


 


Please
respond in writing if you do or do not want to be provided with the Information. If the Company does not receive your response within
three business days, we will have the right to assume that you have chosen not to receive the Information and, if applicable, waived
your right to any piggyback registration rights, subsequent offering rights and any other rights provided for under the Agreements that
require notice, for which this Information (including notice) is being given.


 


Please
sign below and check the appropriate box below.


 


	 	Sincerely,
	 	 
	 	BullFrog AI Holdings, Inc.
	 	 
	 	By:	 
	 	Name:	Vin
Singh
	 	Title:	Chief Executive Officer


 


____
Yes. Please provide we with the Information


 


_X
_No. Do not provide me with the Information


 


_______________________





_______________________


 


Exhibit
D