Exhibit 10.2


 


Execution Copy


 


COMMON STOCK PURCHASE AGREEMENT


 


COMMON STOCK PURCHASE
AGREEMENT (the “Agreement”), dated as of December 6, 2016, by and between MYND ANALYTICS, INC., a
Delaware corporation (the “Company”), and ASPIRE CAPITAL FUND, LLC, an Illinois limited liability company
(the “Buyer”). Capitalized terms used herein and not otherwise defined herein are defined in Section 10 hereof.


 


WHEREAS:


 


Subject to the terms
and conditions set forth in this Agreement, the Company wishes to sell to the Buyer, and the Buyer wishes to buy from the Company,
up to Ten Million Dollars ($10,000,000) of the Company’s common stock, par value $0.001 (the “Common Stock”).
The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”


 


NOW THEREFORE,
the Company and the Buyer hereby agree as follows:


 


1.          PURCHASE
OF COMMON STOCK.


 


Subject to the terms
and conditions set forth in this Agreement, the Company has the right to sell to the Buyer, and the Buyer has the obligation to
purchase from the Company, Purchase Shares as follows:


 


(a)          Commencement
of Purchases of Common Stock. After the Commencement Date (as defined below), the purchase and sale of Purchase Shares hereunder
shall occur from time to time upon written notices by the Company to the Buyer on the terms and conditions as set forth herein
following the satisfaction of the conditions (the “Commencement”) as set forth in Sections 6 and 7 below (the
date of satisfaction of such conditions, the “Commencement Date”).


 


(b)          The
Company’s Right to Require Regular Purchases. Subject to the terms and conditions of this Agreement, on any given Business
Day after the Commencement Date, the Company shall have the right but not the obligation to direct the Buyer by its delivery to
the Buyer of a Purchase Notice from time to time, and the Buyer thereupon shall have the obligation, to buy the number of Purchase
Shares specified in such notice, up to 50,000 Purchase Shares, on such Business Day (as long as such notice is delivered on or
before 5:00 p.m. Eastern time on such Business Day) (each such purchase, a “Regular Purchase”) at the Purchase
Price on the Purchase Date; however, in no event shall the Purchase Amount of a Regular Purchase exceed One Hundred Thousand Dollars
($100,000) per Business Day. The Company may deliver additional Purchase Notices to the Buyer from time to time so long as the
most recent purchase has been completed. The share amounts in this Section 1(b) shall be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction.


 




     


     


    

 


(c)          VWAP
Purchases. Subject to the terms and conditions of this Agreement, in addition to purchases of Purchase Shares as described
in Section 1(b) above, with one Business Day’s prior written notice (as long as such notice is delivered on or before 5:00
p.m. Eastern time on the Business Day immediately preceding the VWAP Purchase Date), the Company shall also have the right but
not the obligation to direct the Buyer by the Company’s delivery to the Buyer of a VWAP Purchase Notice from time to time,
and the Buyer thereupon shall have the obligation, to buy the VWAP Purchase Share Percentage of the trading volume of the Common
Stock on the VWAP Purchase Date up to the VWAP Purchase Share Volume Maximum on the VWAP Purchase Date (each such purchase, a “VWAP
Purchase”) at the VWAP Purchase Price. The Company may deliver a VWAP Purchase Notice to the Buyer on or before 5:00
p.m. Eastern time on a date on which (i) the Company also submitted a Purchase Notice for a Regular Purchase of at least 50,000
Purchase Shares to the Buyer and (ii) the Closing Sale Price is higher than $0.50. The share amount in the prior sentence shall
be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split, or other
similar transaction. A VWAP Purchase shall automatically be deemed completed at such time on the VWAP Purchase Date that the Sale
Price falls below the VWAP Minimum Price Threshold; in such circumstance, the VWAP Purchase Amount shall be calculated using (i)
the VWAP Purchase Share Percentage of the aggregate shares traded on the Principal Market for such portion of the VWAP Purchase
Date prior to the time that the Sale Price fell below the VWAP Minimum Price Threshold and (ii) a VWAP Purchase Price calculated
using the volume weighted average price of Common Stock sold during such portion of the VWAP Purchase Date prior to the time that
the Sale Price fell below the VWAP Minimum Price Threshold. Each VWAP Purchase Notice must be accompanied by instructions to the
Company’s Transfer Agent to immediately issue to the Buyer an amount of Common Stock equal to the VWAP Purchase Share Estimate,
a good faith estimate by the Company of the number of Purchase Shares that the Buyer shall have the obligation to buy pursuant
to the VWAP Purchase Notice. In no event shall the Buyer, pursuant to any VWAP Purchase, purchase a number of Purchase Shares that
exceeds the VWAP Purchase Share Estimate issued on the VWAP Purchase Date in connection with such VWAP Purchase Notice; however,
the Buyer will immediately return to the Company any amount of Common Stock issued pursuant to the VWAP Purchase Share Estimate
that exceeds the number of Purchase Shares the Buyer actually purchases in connection with such VWAP Purchase. Upon completion
of each VWAP Purchase Date, the Buyer shall submit to the Company a confirmation of the VWAP Purchase in form and substance reasonably
acceptable to the Company. The Company may deliver additional VWAP Purchase Notices to the Buyer from time to time so long as the
most recent purchase has been completed.


 


(d)          Payment
for Purchase Shares. For each Regular Purchase, the Buyer shall pay to the Company an amount equal to the Purchase Amount as
full payment for such Purchase Shares via wire transfer of immediately available funds on the same Business Day that the Buyer
receives such Purchase Shares. For each VWAP Purchase, the Buyer shall pay to the Company an amount equal to the VWAP Purchase
Amount as full payment for such Purchase Shares via wire transfer of immediately available funds on the third Business Day following
the VWAP Purchase Date. All payments made under this Agreement shall be made in lawful money of the United States of America via
wire transfer of immediately available funds to such account as the Company may from time to time designate by written notice in
accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of this Agreement is due
on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is a Business Day.


 


(e)          Purchase
Price Floor. The Company and the Buyer shall not effect any sales under this Agreement on any Purchase Date where the Closing
Sale Price is less than the Floor Price. “Floor Price” means $0.50 per share of Common Stock, which shall be
appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction.


 


(f)          Records
of Purchases. The Buyer and the Company shall each maintain records showing the remaining Available Amount at any given time
and the dates and Purchase Amounts for each purchase, or shall use such other method reasonably satisfactory to the Buyer and the
Company to reconcile the remaining Available Amount.


 




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(g)          Taxes.
The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and delivery
of any shares of Common Stock to the Buyer made under this Agreement.


 


2.          BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


The Buyer represents
and warrants to the Company that as of the date hereof and as of the Commencement Date:


 


(a)          Investment
Purpose. The Buyer is entering into this Agreement and acquiring the Commitment Shares (as defined in Section 4(e) hereof)
and the Purchase Shares (the Purchase Shares and the Commitment Shares are collectively referred to herein as the “Securities”),
for its own account for investment only and not with a view towards, or for resale in connection with, the public sale or distribution
thereof; provided however, by making the representations herein, the Buyer does not agree to hold any of the Securities for any
minimum or other specific term.


 


(b)          Accredited
Investor Status. The Buyer is an “accredited investor” as that term is defined in Rule 501(a)(3) of Regulation
D of the 1933 Act.


 


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


 


(d)          Information.
The Buyer has been furnished with all materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities that have been reasonably requested by the Buyer, including, without limitation,
the SEC Documents (as defined in Section 3(f) hereof). The Buyer understands that its investment in the Securities involves a high
degree of risk. The Buyer (i) is able to bear the economic risk of an investment in the Securities including a total loss, (ii)
has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of the
proposed investment in the Securities and (iii) has had an opportunity to ask questions of and receive answers from the officers
of the Company concerning the financial condition and business of the Company and other matters related to an investment in the
Securities. Neither such inquiries nor any other due diligence investigations conducted by the Buyer or its representatives shall
modify, amend or affect the Buyer’s right to rely on the Company’s representations and warranties contained in Section
3 below. The Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment
decision with respect to its acquisition of the Securities.


 


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


 




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(f)          Transfer
or Sale. The Buyer understands that except as provided in the Registration Rights Agreement (as defined in Section 4(a) hereof):
(i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered
for sale, sold, assigned or transferred unless (A) subsequently registered thereunder or (B) an exemption exists permitting such
Securities to be sold, assigned or transferred without such registration; (ii) any sale of the Securities made in reliance on Rule
144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities
under circumstances in which the seller (or the person through whom the sale is made) may be deemed to be an underwriter (as that
term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations
of the SEC thereunder; and (iii) neither the Company nor any other person is under any obligation to register the Securities under
the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.


 


(g)          Organization.
The Buyer is a limited liability company duly organized and validly existing in good standing under the laws of the jurisdiction
in which it is organized, and has the requisite organizational power and authority to own its properties and to carry on its business
as now being conducted.


 


(h)          Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Buyer and is a valid
and binding agreement of the Buyer enforceable against the Buyer in accordance with its terms, subject as to enforceability to
(i) general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and (ii) public policy
underlying any law, rule or regulation (including any federal or state securities law, rule or regulation) with regards to indemnification,
contribution or exculpation. The execution and delivery of the Transaction Documents (as defined in Section 3(b) hereof) by the
Buyer and the consummation by it of the transactions contemplated hereby and thereby do not conflict with the Buyer’s certificate
of organization or operating agreement or similar documents, and do not require further consent or authorization by the Buyer,
its managers or its members.


 


(i)          Residency.
The Buyer is a resident of the State of Illinois.


 


(j)          No
Prior Short Selling. The Buyer represents and warrants to the Company that at no time prior to the date of this Agreement has
any of the Buyer, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Section 242.200 of Regulation SHO of the Securities Exchange Act of
1934, as amended (the “1934 Act”) of the Common Stock or (ii) hedging transaction, which establishes a net short
position with respect to the Common Stock.


 


3.          REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company represents
and warrants to the Buyer that as of the date hereof and as of the Commencement Date:


 




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(a)          Organization
and Qualification. The Company and its “Subsidiaries” (which for purposes of this Agreement means any entity in
which the Company, directly or indirectly, owns more than 50% of the voting stock or capital stock or other similar equity interests)
are corporations or limited liability companies duly organized and validly existing in good standing under the laws of the jurisdiction
in which they are incorporated or organized, and have the requisite corporate or organizational power and authority to own their
properties and to carry on their business as now being conducted. Each of the Company and its Subsidiaries is duly qualified as
a foreign corporation or limited liability company to do business and is in good standing in every jurisdiction in which its ownership
of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure
to be so qualified or be in good standing could not reasonably be expected to have a Material Adverse Effect. As used in this Agreement,
“Material Adverse Effect” means any material adverse effect on any of: (i) the business, properties, assets,
operations, results of operations or financial condition of the Company and its Subsidiaries, if any, taken as a whole, or (ii)
the authority or ability of the Company to perform its obligations under the Transaction Documents. The Company has no material
Subsidiaries except as set forth on Schedule 3(a).


 


(b)          Authorization;
Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement, the Registration Rights Agreement and each of the other agreements entered into by the parties on the Commencement
Date and attached hereto as exhibits to this Agreement (collectively, the “Transaction Documents”), and to issue
the Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by
the Company and the consummation by it of the transactions contemplated hereby and thereby, including without limitation, the issuance
of the Commitment Shares and the reservation for issuance and the issuance of the Purchase Shares issuable under this Agreement,
have been duly authorized by the Company’s Board of Directors or duly authorized committee thereof, do not conflict with
the Company’s Certificate of Incorporation or Bylaws, and do not require further consent or authorization by the Company,
its Board of Directors or its stockholders (other than as contemplated by Section 1(h) hereof), (iii) this Agreement has been,
and each other Transaction Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this
Agreement constitutes, and each other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid
and binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability
may be limited by (y) general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
or similar laws relating to, or affecting generally, the enforcement of creditors' rights and remedies and (z) public policy underlying
any law, rule or regulation (including any federal or states securities law, rule or regulation) with regards to indemnification,
contribution or exculpation. The Board of Directors of the Company or duly authorized committee thereof has approved the resolutions
(the “Signing Resolutions”) substantially in the form as set forth as Exhibit B-1 attached hereto to
authorize this Agreement and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect
and have not been modified or supplemented in any material respect other than by the resolutions set forth in Exhibit B-2
attached hereto regarding the registration statement referred to in Section 4 hereof. The Company has delivered to the Buyer a
true and correct copy of the Signing Resolutions as approved by the Board of Directors of the Company or an appropriate Board committee.


 




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(c)          Capitalization.
As of the date hereof, the authorized capital stock of the Company consists of 500,000,000 shares of Common Stock, par value $0.001,
of which as of the date hereof, 2,101,061 shares are issued and outstanding, zero shares are held as treasury shares, 500,000 shares
(subject to increase in accordance with the terms of an “evergreen” provision) are reserved for future issuance pursuant
to the Company’s equity incentive plans, of which approximately 33,354 shares remain available for future option grants or
stock awards, and 7,160 shares are issuable and reserved for issuance pursuant to securities (other than stock options or equity
based awards issued pursuant to the Company’s stock incentive plans) exercisable or exchangeable for, or convertible into,
shares of Common Stock. All of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and
non-assessable. Except as disclosed in Schedule 3(c), (i) no shares of the Company’s capital stock are subject to preemptive
rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding
debt securities of the Company or any of its Subsidiaries, (iii) there are no outstanding options, warrants, scrip, rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital
stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries
or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there are no material agreements
or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities
under the 1933 Act (except (a) the Registration Rights Agreement and (b) that certain Amended and Restated Registration Rights
Agreement dated as of December 23, 2015 by and among the Company and the holders identified therein), (v) there are no outstanding
securities or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become
bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company
does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
The Company has furnished or made available to the Buyer true and correct copies of the Company’s Certificate of Incorporation,
as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s
Bylaws, as amended and as in effect on the date hereof (the “Bylaws”).


 


(d)          Issuance
of Securities. The Commitment Shares have been duly authorized and, upon issuance in accordance with the terms hereof, the
Commitment Shares shall be (i) validly issued, fully paid and non-assessable and (ii) free from all taxes, liens and charges with
respect to the issuance thereof. At least an additional 1,200,000 shares of Common Stock have been duly authorized and reserved
for issuance upon future purchase as Purchase Shares under this Agreement. Upon issuance and payment therefore in accordance with
the terms and conditions of this Agreement, such Purchase Shares shall be validly issued, fully paid and non-assessable and free
from all taxes, liens and charges with respect to the issue thereof, with the holders being entitled to all rights accorded to
a holder of Common Stock.


 




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(e)          No
Conflicts. Except as disclosed in Schedule 3(e), the execution, delivery and performance of the Transaction Documents by the
Company and the consummation by the Company of the transactions contemplated hereby and thereby (including, without limitation,
the reservation for issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate of Incorporation,
including any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company,
or the Bylaws or (ii) constitute a default (or an event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which the Company or any of its Subsidiaries is a party, or result, to the Company’s knowledge, in a violation of any
law, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and
regulations of the Principal Market applicable to the Company or any of its Subsidiaries) or by which any property or asset of
the Company or any of its Subsidiaries is bound or affected, except in the case of defaults, terminations, amendments, accelerations,
cancellations and violations under clause (ii), which could not reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in Schedule 3(e), neither the Company nor its Subsidiaries is in violation of any term of or in default under
its Certificate of Incorporation, including any Certificate of Designation, Preferences and Rights of any outstanding series of
preferred stock of the Company, or Bylaws or their organizational charter or bylaws, respectively. Except as disclosed in Schedule
3(e), neither the Company nor any of its Subsidiaries is in violation of any term of or is in default under any material contract,
agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order or any statute, rule or regulation applicable
to the Company or its Subsidiaries, except for possible violations, defaults, terminations or amendments that could not reasonably
be expected to have a Material Adverse Effect. The business of the Company and its Subsidiaries is not being conducted, and shall
not be conducted, in violation of any law, ordinance, or regulation of any governmental entity, except for possible violations,
the sanctions for which either individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect.
Except as specifically contemplated by this Agreement, reporting obligations under the 1934 Act or as required under the 1933 Act
or applicable state securities laws or the filing of a Listing of Additional Shares Notification Form with the Principal Market,
the Company is not required to obtain any consent, authorization or order of, or make any filing or registration with, any court
or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations
under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except for reporting obligations
under the 1934 Act, all consents, authorizations, orders, filings and registrations which the Company is required to obtain pursuant
to the preceding sentence shall be obtained or effected on or prior to the Commencement Date. The Company is not subject to any
notices or actions from or to the Principal Market, other than routine matters incident to listing on the Principal Market and
not involving a violation of the rules of the Principal Market. To the Company’s knowledge, the Principal Market has not
commenced any delisting proceedings against the Company.


 


(f)          SEC
Documents; Financial Statements. Except as disclosed in Schedule 3(f), since June 30, 2015, the Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements
of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements
and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC Documents”).
As of their respective dates (except as they have been correctly amended), the SEC Documents complied in all material respects
with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents,
and none of the SEC Documents, at the time they were filed with the SEC (except as they may have been properly amended), contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they were made, not misleading. As of their respective
dates (except as they have been properly amended), the financial statements of the Company included in the SEC Documents complied
as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC
with respect thereto. Such financial statements have been prepared in accordance with generally accepted accounting principles,
consistently applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the
notes thereto or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed
or summary statements) and fairly present in all material respects the financial position of the Company as of the dates thereof
and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments). Except as disclosed in Schedule 3(f) or routine correspondence, such as comment letters and notices
of effectiveness in connection with previously filed registration statements or periodic reports publicly available on EDGAR, to
the Company’s knowledge, the Company or any of its Subsidiaries are not presently the subject of any inquiry, investigation
or action by the SEC.


 




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(g)          Absence
of Certain Changes. Except as disclosed in Schedule 3(g), since June 30, 2016, there has been no material adverse change in
the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries taken as
a whole. For purposes of this Agreement, neither a decrease in cash or cash equivalents or in the market price of the Common Stock
nor losses incurred in the ordinary course of the Company’s business shall be deemed or considered a material adverse change.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts
as they become due.


 


(h)          Absence
of Litigation. Except as disclosed in Schedule 3(h), to the Company’s knowledge, there is no action, suit, proceeding,
inquiry or investigation before or by any court, public board, government agency, self-regulatory organization or body pending
or, to the knowledge of the Company or any of its Subsidiaries, threatened against the Company, the Common Stock or any of the
Company’s Subsidiaries or any of the Company’s or the Company’s Subsidiaries’ officers or directors in
their capacities as such, which could reasonably be expected to have a Material Adverse Effect (each, an “Action”).
A description of each such Action, if any, is set forth in Schedule 3(h).


 


(i)          Acknowledgment
Regarding Buyer’s Status. The Company acknowledges and agrees that the Buyer is acting solely in the capacity of arm’s
length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby. The Company further
acknowledges that the Buyer is not 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 hereby and thereby and any advice given by the Buyer or
any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby and
thereby is merely incidental to the Buyer’s purchase of the Securities. The Company further represents to the Buyer that
the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the
Company and its representatives and advisors.


 


(j)          Intellectual
Property Rights. To the Company’s knowledge, the Company and its Subsidiaries own or possess adequate rights or licenses
to use all material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights
(collectively, “Intellectual Property”) necessary to conduct their respective businesses as now conducted, except
as set forth in Schedule 3(j) or to the extent that the failure to own, possess, license or otherwise hold adequate rights to use
Intellectual Property would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in Schedule
3(j), to the Company’s knowledge, none of the Company’s active and registered Intellectual Property will expire or
terminate by the terms and conditions thereof within two years from the date of this Agreement, except as would not reasonably
be expected to have a Material Adverse Effect. The Company and its Subsidiaries do not have any knowledge of any infringement by
the Company or its Subsidiaries of any Intellectual Property of others and, except as set forth on Schedule 3(j), there is no claim,
action or proceeding being made or brought against, or to the Company’s knowledge, being threatened against, the Company
or its Subsidiaries regarding Intellectual Property, which could reasonably be expected to have a Material Adverse Effect.


 




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(k)          Environmental
Laws. To the Company’s knowledge, the Company and its Subsidiaries (i) are in material compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the protection of the environment or human health and safety
and with respect to hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”),
(ii) have received all material permits, licenses or other approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in material compliance with all terms and conditions of any such permit, license or approval,
except where, in each of the three foregoing clauses, the failure to so comply or receive such approvals could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(l)          Title.
The Company and its Subsidiaries have good and marketable title to all personal property owned by them that is material to the
business of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects except such as
are described in Schedule 3(l) or such as do not materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and any of its Subsidiaries or could not reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect. Any real property and facilities held under lease by the Company
and any of its Subsidiaries, to the Company’s knowledge, are held by them under valid, subsisting and enforceable leases
with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings
by the Company and its Subsidiaries.


 


(m)          Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as management of the Company believes to be reasonable and customary in the businesses in which the Company
and its Subsidiaries are engaged. To the Company’s knowledge, since September 30, 2013, neither the Company nor any such
Subsidiary has been refused any insurance coverage sought or applied for and neither the Company nor any such Subsidiary, to the
Company’s knowledge, will be unable to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected
to have a Material Adverse Effect.


 


(n)          Regulatory
Permits. The Company and its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective businesses as currently conducted, except when the
failure to so possess such certificates, authorizations or permits could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any written notice of proceedings
relating to the revocation or modification of any such material certificate, authorization or permit.


 


(o)          Tax
Status. The Company and each of its Subsidiaries has made or filed all federal and state income and all other material tax
returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company
and each of its Subsidiaries has set aside on its books reserves reasonably adequate for the payment of all unpaid and unreported
taxes or filed valid extensions) and has paid all taxes and other governmental assessments and charges that are material in amount,
shown or determined to be due on such returns, reports and declarations, except those being contested in good faith. To the Company’s
knowledge, there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction.


 




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(p)          Transactions
With Affiliates. Except as set forth on Schedule 3(p), and other than the grant or exercise of stock options or any other equity
securities offered pursuant to duly adopted stock or incentive compensation plans as disclosed on Schedule 3(c), as of the date
hereof, none of the officers, directors or employees of the Company is presently a party to any transaction with the Company or
any of its Subsidiaries (other than for services as employees, officers and directors and reimbursement for expenses incurred on
behalf of the Company), 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, or otherwise requiring payments to or from any officer, director
or such employee or, to the knowledge of the Company, any corporation, partnership, trust or other entity in which any officer,
director, or any such employee has a material interest or is an officer, director, trustee or general partner.


 


(q)          Application
of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement Date 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 Certificate of Incorporation or the
laws of the state of its incorporation, other than Section 203 of the Delaware General Corporation Law, which is or could become
applicable to the Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s
issuance of the Securities and the Buyer’s ownership of the Securities.


 


4.          COVENANTS.


 


(a)          Filing
of Form 8-K and Registration Statement. The Company agrees that it shall, within the time required under the 1934 Act, file
a Current Report on Form 8-K disclosing this Agreement and the transaction contemplated hereby. The Company shall also file prior
to December 31, 2016 a new registration statement covering the sale of the Securities by the Buyer in accordance with the terms
of the Registration Rights Agreement between the Company and the Buyer, dated as of the date hereof (“Registration Rights
Agreement”).


 


(b)          Blue
Sky. The Company shall take such action, if any, as is reasonably necessary in order to obtain an exemption for or to qualify
(i) the initial issuance of the Securities to the Buyer under this Agreement and (ii) any subsequent sale of the Securities by
the Buyer, in each case, under applicable securities or “Blue Sky” laws of the states of the United States in such
states as is reasonably requested by the Buyer from time to time, and shall provide evidence of any such action so taken to the
Buyer at its written request.


 


(c)          Listing.
The Company shall promptly secure the listing of all of the Securities upon each national securities exchange and automated quotation
system that requires an application by the Company for listing, if any, upon which shares of Common Stock are then listed (subject
to official notice of issuance) and shall maintain such listing, so long as any other shares of Common Stock shall be so listed.
The Company shall use its reasonable best efforts to maintain the Common Stock’s listing on the Principal Market in accordance
with the requirements of the Registration Rights Agreement. Neither the Company nor any of its Subsidiaries shall take any action
that would be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market, unless
the Common Stock is immediately thereafter traded on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market,
the Nasdaq Global Market, the Nasdaq Capital Market, the OTC Bulletin Board, or the OTCQB or OTCQX market places of the OTC Markets.
The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section.


 




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(d)          Limitation
on Short Sales and Hedging Transactions. The Buyer agrees that beginning on the date of this Agreement and ending on the date
of termination of this Agreement as provided in Section 11(k), the Buyer and its agents, representatives and affiliates shall not
in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined
in Section 242.200 of Regulation SHO of the 1934 Act) of the Common Stock or (ii) hedging transaction, which establishes a net
short position with respect to the Common Stock.


 


(e)          Issuance
of Commitment Shares. Immediately upon the execution of this Agreement, the Company shall issue to the Buyer as consideration
for the Buyer entering into this Agreement 80,000 shares of Common Stock (the “Commitment Shares”). The Commitment
Shares shall be issued in restricted book-entry form and (subject to Section 5 hereof) shall bear a restrictive legend substantially
similar to the following:


 


THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS
SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A
CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.


 


(f)          Due
Diligence. The Buyer shall have the right, from time to time as the Buyer may reasonably deem appropriate, to perform reasonable
due diligence on the Company during normal business hours and subject to reasonable prior notice to the Company. The Company and
its officers and employees shall provide information and reasonably cooperate with the Buyer in connection with any reasonable
request by the Buyer related to the Buyer’s due diligence of the Company, including, but not limited to, any such request
made by the Buyer in connection with (i) the filing of the registration statement described in Section 4(a) hereof and (ii) the
Commencement; provided, however, that at no time is the Company required or permitted to disclose material nonpublic information
to the Buyer or breach any obligation of confidentiality or non-disclosure to a third party or make any disclosure that could cause
a waiver of attorney-client privilege. Except as may be required by law, court order or governmental authority, each party hereto
agrees not to disclose any Confidential Information of the other party to any third party and shall not use the Confidential Information
of such other party for any purpose other than in connection with, or in furtherance of, the transactions contemplated hereby.
Each party hereto acknowledges that the Confidential Information shall remain the property of the disclosing party and agrees that
it shall take all reasonable measures to protect the secrecy of any Confidential Information disclosed by the other party.


 




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(g)          Disposition
of Securities. The Buyer shall not sell any Securities except as provided in this Agreement, the Registration Rights Agreement
and the “Plan of Distribution” section of the prospectus included in the Registration Statement. The Buyer shall
not transfer any Securities except pursuant to sales described in the “Plan of Distribution” section of the prospectus
included in the Registration Statement or pursuant to Rule 144 under the 1933 Act. In the event of any sales of Securities pursuant
to the Registration Statement, the Buyer will (i) effect such sales pursuant to the “Plan of Distribution” section
of the prospectus included in the Registration Statement, and (ii) will comply with all applicable prospectus delivery requirements.


 


5.          TRANSFER
AGENT INSTRUCTIONS.


 


Immediately upon the
execution of this Agreement, the Company shall deliver to the Transfer Agent a letter in the form as set forth as Exhibit D
attached hereto with respect to the issuance of the Commitment Shares. On the Commencement Date, the Company shall cause
any restrictive legend on the Commitment Shares to be removed upon surrender of the originally issued certificate(s) for such shares.
So long as the Buyer complies with its obligations in Section 4(g), all of the Purchase Shares to be issued under this Agreement
shall be issued without any restrictive legend unless the Buyer expressly consents otherwise. The Company shall issue irrevocable
instructions to the Transfer Agent, and any subsequent transfer agent, to issue Common Stock in the name of the Buyer for the Purchase
Shares (the “Irrevocable Transfer Agent Instructions”). The Company warrants to the Buyer that, so long as the
Buyer complies with its obligations in Section 4(g), no instruction other than the Irrevocable Transfer Agent Instructions referred
to in this Section 5, will be given by the Company to the Transfer Agent with respect to the Purchase Shares and that the Commitment
Shares and the Purchase Shares shall otherwise be freely transferable on the books and records of the Company as and to
the extent provided in this Agreement and the Registration Rights Agreement, subject to the provisions of Section 4(e) in the case
of the Commitment Shares.


 


		6.	CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE
SALES OF SHARES OF COMMON STOCK UNDER THIS AGREEMENT.



 


The right of the Company
hereunder to commence sales of the Purchase Shares is subject to the satisfaction of each of the following conditions on or before
the Commencement Date (the date that the Company may begin sales of Purchase Shares):


 


(a)          The
Buyer shall have executed each of the Transaction Documents and delivered the same to the Company;


 


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


 


(c)          A
registration statement covering the sale of the Securities by the Buyer shall have been declared effective under the 1933 Act by
the SEC and no stop order with respect to the registration statement shall be pending or threatened by the SEC.




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		7.	CONDITIONS TO THE BUYER’S OBLIGATION TO MAKEPURCHASES
OF SHARES OF COMMON STOCK.



 


The obligation of the
Buyer to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions on or before
the Commencement Date (the date that the Company may begin sales of Purchase Shares) and once such conditions have been initially
satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:


 


(a)          The
Company shall have executed each of the Transaction Documents and delivered the same to the Buyer;


 


(b)          The
Company shall have issued to the Buyer the Commitment Shares and, in the event that the Buyer shall have surrendered the originally
issued certificate(s), shall have removed the restrictive transfer legend from the book-entry representing the Commitment Shares;


 


(c)          The
Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have been within
the last 365 days suspended by the SEC or the Principal Market, other than a general halt in trading in the Common Stock by the
Principal Market under halt codes indicating pending or released material news, and the Securities shall be approved for listing
upon the Principal Market;


 


(d)          The
Buyer shall have received the opinion of the Company’s legal counsel dated as of the Commencement Date in customary form
and substance;


 


(e)          The
representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any
of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations
and warranties shall be true and correct without further qualification) as of the date of this Agreement and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true
and correct in all material respects as of such specific date) and the Company shall have performed, satisfied and complied in
all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied
or complied with by the Company at or prior to the Commencement Date. The Buyer shall have received a certificate, executed by
the CEO, President or CFO of the Company, dated as of the Commencement Date, to the foregoing effect in the form attached hereto
as Exhibit A;


 


(f)          The
Board of Directors of the Company or a duly authorized committee thereof shall have adopted resolutions substantially in the form
attached hereto as Exhibit B-1, which shall be in full force and effect without any amendment or supplement thereto as of
the Commencement Date;


 


(g)          As
of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose
of effecting future purchases of Purchase Shares hereunder, 1,200,000 shares of Common Stock;


 


(h)          The
Irrevocable Transfer Agent Instructions, in form acceptable to the Buyer shall have been signed by the Company and the Buyer and
have been delivered to the Transfer Agent;


 




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(i)          The
Company shall have delivered to the Buyer a certificate evidencing the incorporation and good standing of the Company in the State
of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) Business Days of the Commencement
Date;


 


(j)          [Intentionally
Omitted.]


 


(k)          The
Company shall have delivered to the Buyer a secretary’s certificate executed by the Secretary of the Company, dated as of
the Commencement Date, in the form attached hereto as Exhibit C;


 


(l)          A
registration statement covering the sale of (i) all of the Commitment Shares and (ii) such number of additional Purchase Shares
as reasonably determined by the Company shall have been declared effective under the 1933 Act by the SEC and no stop order with
respect thereto shall be pending or threatened by the SEC. The Company shall have prepared and delivered to the Buyer a final and
complete form of prospectus, dated and current as of the Commencement Date, to be used by the Buyer in connection with any sales
of any Securities, and to be filed by the Company one (1) Business Day after the Commencement
Date pursuant to Rule 424(b). The Company shall have made all filings under all applicable federal and state securities laws necessary
to consummate the issuance of the Commitment Shares and the Purchase Shares pursuant to this Agreement in compliance with such
laws;


 


(m)          No
Event of Default has occurred and is continuing, or any event which, after notice and/or lapse of time, would become an Event of
Default has occurred;


 


(n)          On
or prior to the Commencement Date, the Company shall take all necessary action, if any, and such actions as reasonably requested
by the Buyer, in order to render inapplicable any control share acquisition, business combination, stockholder rights plan or poison
pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation
or the laws of the state of its incorporation, other than Section 203 of the Delaware General Corporation Law, that is or could
become applicable to the Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the
Company's issuance of the Securities and the Buyer's ownership of the Securities; and


 


(o)          The
Company shall have provided the Buyer with the information reasonably requested by the Buyer in connection with its due diligence
requests made prior to, or in connection with, the Commencement, in accordance with the terms of Section 4(f) hereof.


 




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8.          INDEMNIFICATION.


 


In consideration of
the Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder and in addition to
all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify and
hold harmless the Buyer and all of its affiliates, members, officers, directors, and employees, and any of the foregoing person’s
agents or other representatives (including, without limitation, those retained in connection with the transactions contemplated
by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action,
suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether
any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’
fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising
out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction
Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement
or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, or (c) any cause of action, suit or claim brought or made against such Indemnitee and arising out of or resulting
from the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document
contemplated hereby or thereby, other than with respect to Indemnified Liabilities which directly and primarily result from (A)
a breach of any of the Buyer’s representations and warranties, covenants or agreements contained in this Agreement, or (B)
the gross negligence, bad faith or willful misconduct of the Buyer or any other Indemnitee. To the extent that the foregoing undertaking
by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction
of each of the Indemnified Liabilities which is permissible under applicable law.


 


9.          EVENTS
OF DEFAULT.


 


An “Event
of Default” shall be deemed to have occurred at any time as any of the following events occurs:


 


(a)          while
any registration statement is required to be maintained effective pursuant to the terms of the Registration Rights Agreement, the
effectiveness of such registration statement lapses for any reason (including, without limitation,
the issuance of a stop order) or is unavailable to the Buyer for the sale of all of the Registrable Securities (as defined in the
Registration Rights Agreement), and such lapse or unavailability continues for a period of ten (10) consecutive Business Days or
for more than an aggregate of thirty (30) Business Days in any 365-day period, which is not in connection with a Permitted Delay
(as defined in the Registration Rights Agreement), post-effective amendment to any such registration statement or the filing of
a new registration statement; provided, however, that in connection with any post-effective amendment to such registration statement
or filing of a new registration statement that is required to be declared effective by the SEC, such lapse or unavailability may
continue for a period of no more than thirty (30) consecutive Business Days, which such period shall be extended for up to an additional
thirty (30) Business Days if the Company receives a comment letter from the SEC in connection therewith;


 


(b)          the
suspension from trading or failure of the Common Stock to be listed on a Principal Market for a period of three (3) consecutive
Business Days;


 


(c)          the
delisting of the Common Stock from the Principal Market, and the Common Stock is not immediately thereafter trading on the New
York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market, the Nasdaq Capital Market, the OTC
Bulletin Board or the OTCQB marketplace or OTCQX marketplace of the OTC Markets Group;


 


(d)          the
failure for any reason by the Transfer Agent to issue Purchase Shares to the Buyer within five (5) Business Days after the applicable
Purchase Date that the Buyer is entitled to receive;


 


(e)          the
Company’s breach of any representation or warranty (as of the dates made), covenant or other term or condition under any
Transaction Document if such breach could reasonably be expected to have a Material Adverse Effect and except, in the case of a
breach of a covenant which is reasonably curable, only if such breach continues uncured for a period of at least five (5) Business
Days;


 




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(f)          if
any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;


 


(g)          if
the Company pursuant to or within the meaning of any Bankruptcy Law; (A) commences a voluntary case, (B) consents to the entry
of an order for relief against it in an involuntary case, (C) consents to the appointment of a Custodian of it or for all or substantially
all of its property, (D) makes a general assignment for the benefit of its creditors or (E) becomes insolvent; or


 


(h)          a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (A) is for relief against the Company in
an involuntary case, (B) appoints a Custodian of the Company or for all or substantially all of its property, or (C) orders the
liquidation of the Company or any Subsidiary.


 


In addition to any other rights and remedies
under applicable law and this Agreement, including the Buyer termination rights under Section 11(k) hereof, so long as an Event
of Default has occurred and is continuing, or if any event which, after notice and/or lapse of time, would become an Event of Default,
has occurred and is continuing, or so long as the Closing Sale Price is below the Floor Price, the Company may not require and
the Buyer shall not be obligated or permitted to purchase any shares of Common Stock under this Agreement. If pursuant to or within
the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company,
a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment
for the benefit of its creditors, (any of which would be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof)
this Agreement shall automatically terminate without any liability or payment to the Company without further action or notice by
any Person. No such termination of this Agreement under Section 11(k)(i) shall affect the Company’s or the Buyer’s
obligations under this Agreement with respect to pending purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.


 


10.         CERTAIN
DEFINED TERMS.


 


For purposes of this
Agreement, the following terms shall have the following meanings:


 


(a)          “1933
Act” means the Securities Act of 1933, as amended.


 


(b)          “Available
Amount” means initially Ten Million Dollars ($10,000,000) in the aggregate which amount shall be reduced by the Purchase
Amount each time the Buyer purchases shares of Common Stock pursuant to Section 1 hereof.


 


(c)          “Bankruptcy
Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.


 


(d)          “Business
Day” means any day on which the Principal Market is open for trading during normal trading hours (i.e., 9:30 a.m. to
4:00 p.m. Eastern Time), including any day on which the Principal Market is open for trading for a period of time less than the
customary time.


 


(e)          “Closing
Sale Price” means the last closing trade price for the Common Stock on the Principal Market as reported by the Principal
Market.


 




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(f)          “Confidential
Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing,
orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant and equipment),
which is designated as "Confidential," "Proprietary" or some similar designation. Information communicated
orally shall be considered Confidential Information if such information is expressly identified as Confidential Information at
the time of such initial disclosure and confirmed in writing as being Confidential Information within ten (10) Business Days after
the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties.
Confidential Information shall not, however, include any information which (i) was publicly known and made generally available
in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available
after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is
already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s
files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without
a breach of such third party’s obligations of confidentiality; (v) is independently developed by the receiving party without
use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence
in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party, provided that the
receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in
obtaining an order protecting the information from public disclosure.


 


(g)          “Custodian”
means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


(h)          “Maturity
Date” means the date that is thirty (30) months from the Commencement Date.


 


(i)          “Person”
means an individual or entity including any limited liability company, a partnership, a joint venture, a corporation, a trust,
an unincorporated organization and a government or any department or agency thereof.


 


(j)          “Principal
Market” means the OTCQB marketplace; provided however, that in the event the Company’s Common Stock is ever listed
or traded on the New York Stock Exchange, the NYSE MKT, the Nasdaq Global Select Market, the Nasdaq Global Market, Nasdaq Capital
Market, the OTC Bulletin Board or either of the OTCQB marketplace or the OTCQX marketplace of the OTC Markets Group, then the “Principal
Market” shall mean such other market or exchange on which the Company’s Common Stock is then listed or traded.


 


(k)          “Purchase
Amount” means, with respect to any particular purchase made hereunder, the portion of the Available Amount to be purchased
by the Buyer pursuant to Section 1 hereof as set forth in a valid Purchase Notice or VWAP Purchase Notice which the Company delivers
to the Buyer.


 


(l)          “Purchase
Date” means with respect to any Regular Purchase made hereunder, the Business Day of receipt by the Buyer of a valid
Purchase Notice that the Buyer is to buy Purchase Shares pursuant to Section 1(b) hereof.


 




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(m)          “Purchase
Notice” shall mean an irrevocable written notice from the Company to the Buyer directing the Buyer to buy Purchase Shares
pursuant to Section 1(b) hereof as specified by the Company therein at the applicable Purchase Price on the Purchase Date.


 


(n)          “Purchase
Price” means the lesser of (i) the lowest Sale Price of the Common Stock on the Purchase Date or (ii) the arithmetic
average of the three (3) lowest Closing Sale Prices for the Common Stock during the twelve (12) consecutive Business Days ending
on the Business Day immediately preceding such Purchase Date (to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction).


 


(o)          “Sale
Price” means any trade price for the shares of Common Stock on the Principal Market during normal trading hours, as reported
by the Principal Market.


 


(p)          “SEC”
means the U.S. Securities and Exchange Commission.


 


(q)          “Transfer
Agent” means the transfer agent of the Company as set forth in Section 11(f) hereof or such other person who is then
serving as the transfer agent for the Company in respect of the Common Stock.


 


(r)          “VWAP
Minimum Price Threshold” means, with respect to any particular VWAP Purchase Notice, the Sale Price on the VWAP Purchase
Date equal to the greater of (i) 80% of the Closing Sale Price on the Business Day immediately preceding the VWAP Purchase Date
or (ii) such higher price as set forth by the Company in the VWAP Purchase Notice.


 


(s)          “VWAP
Purchase Amount” means, with respect to any particular VWAP Purchase Notice, the portion of the Available Amount to be
purchased by the Buyer pursuant to Section 1(c) hereof pursuant to a valid VWAP Purchase Notice which requires the Buyer to buy
the VWAP Purchase Share Percentage of the aggregate shares traded on the Principal Market during normal trading hours on the VWAP
Purchase Date up to the VWAP Purchase Share Volume Maximum, subject to the VWAP Minimum Price Threshold.


 


(t)          “VWAP
Purchase Date” means, with respect to any VWAP Purchase made hereunder, the Business Day following the receipt by
the Buyer of a valid VWAP Purchase Notice that the Buyer is to buy Purchase Shares pursuant to Section 1(c) hereof.


 


(u)          “VWAP
Purchase Notice” shall mean an irrevocable written notice from the Company to the Buyer directing the Buyer to buy Purchase
Shares on the VWAP Purchase Date pursuant to Section 1(c) hereof as specified by the Company therein at the applicable VWAP Purchase
Price with the applicable VWAP Purchase Share Percentage specified therein.


 


(v)         “VWAP
Purchase Share Percentage” means, with respect to any particular VWAP Purchase Notice pursuant to Section 1(c) hereof,
the percentage set forth in the VWAP Purchase Notice which the Buyer will be required to buy as a specified percentage of the aggregate
shares traded on the Principal Market during normal trading hours up to the VWAP Purchase Share Volume Maximum on the VWAP Purchase
Date subject to Section 1(c) hereof but in no event shall this percentage exceed thirty percent (30%) of such VWAP Purchase Date’s
share trading volume of the Common Stock on the Principal Market during normal trading hours.


 




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(w)          “VWAP
Purchase Price” means the lesser of (i) the Closing Sale Price on the VWAP Purchase Date; or (ii) ninety-five percent
(95%) of volume weighted average price for the Common Stock traded on the Principal Market during normal trading hours on (A) the
VWAP Purchase Date if the aggregate shares traded on the Principal Market on the VWAP Purchase Date have not exceeded the VWAP
Purchase Share Volume Maximum and the Sale Price of Common Stock has not fallen below the VWAP Minimum Price Threshold (to be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction),
or (B) the portion of the VWAP Purchase Date until such time as the sooner to occur of (1) the time at which the aggregate shares
traded on the Principal Market has exceeded the VWAP Purchase Share Volume Maximum, or (2) the time at which the Sale Price of
Common Stock falls below the VWAP Minimum Price Threshold (to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction).


 


(x)          “VWAP
Purchase Share Estimate” means the number of shares of Common Stock that the Company has in its sole discretion irrevocably
instructed its Transfer Agent to issue to the Buyer via the Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program in connection with a VWAP Purchase Notice pursuant to Section 1(c) hereof and issued to the Buyer’s
or its designee’s balance account with DTC through its Deposit Withdrawal At Custodian (DWAC) system on the VWAP Purchase
Date (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split
or other similar transaction).


 


(y)          “VWAP
Purchase Share Volume Maximum” means a number of shares of Common Stock traded on the Principal Market during normal
trading hours on the VWAP Purchase Date equal to: (i) the VWAP Purchase Share Estimate, divided by (ii) the VWAP Purchase Share
Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock
split or other similar transaction).


 


11.         MISCELLANEOUS.


 


(a)          Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement and the other Transaction Documents shall be governed by the internal laws of the State of Illinois, without
giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the City of Chicago, for the adjudication of any
dispute hereunder or under the other Transaction Documents or in connection herewith or therewith, or with any transaction contemplated
hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to such
party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY.


 




    -19-


     


    

 


(b)          Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile
or pdf (or other electronic reproduction) signature shall be considered due execution and shall be binding upon the signatory thereto
with the same force and effect as if the signature were an original, not a facsimile or PDF (or other electronic reproduction)
signature.


 


(c)          Headings.
The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of, this
Agreement.


 


(d)          Severability.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.


 


(e)          Entire
Agreement. This Agreement and the Registration Rights Agreement supersede all other prior oral or written agreements between
the Buyer, the Company, their affiliates and persons acting on their behalf with respect to the matters discussed herein, and this
Agreement, the other Transaction Documents and the instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company
nor the Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges
and agrees that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than
as expressly set forth in this Agreement.


 


(f)          Notices.
Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); (iii)
upon receipt, when sent by electronic message (provided the recipient responds to the message and confirmation of both electronic
messages are kept on file by the sending party); or (iv) one (1) Business Day after timely deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:


 


If to the Company:


 


MYnd Analytics, Inc.


26522 La Alameda, Suite 290


Mission Viejo, CA 92691


		Telephone:	949-420-4400



		Facsimile:	866-867-4446



		Attention:	Paul Buck



		Email:	PBuck@MYndAnalytics.com






 




    -20-


     


    

 


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


 


Dentons US LLP


1221 Avenue of the Americas


New York, NY 10020


		Telephone:	212-767-6700



		Facsimile:	212-768-6800



		Attention:	Jeffrey A. Baumel



		Email:	jeffrey.baumel@dentons.com



 


If to the Buyer:


 


Aspire Capital Fund, LLC


155 North Wacker Drive, Suite
1600


Chicago, IL 60606


		Telephone:	312-658-0400



		Facsimile:	312-658-4005



		Attention:	Steven G. Martin



		Email:	smartin@aspirecapital.com



 


With a copy to (which
shall not constitute delivery to the Buyer):


 


Morrison & Foerster LLP


2000 Pennsylvania Avenue, NW, Suite
6000


Washington, DC 20006


		Telephone:	202-778-1611



		Facsimile:	202-887-0763



		Attention:	Martin P. Dunn, Esq.



		Email:	mdunn@mofo.com



 


If to the Transfer
Agent:


 


American
Stock Transfer & Trust Company, LLC


6201 15th
Avenue


Brooklyn,
NY 11219


		Telephone:	718-921-8200



		Facsimile:	718-765-8713



		Attention:	Philip Velez



		Email:	pvelez@amstock.com



 


or at such other address and/or facsimile
number and/or to the attention of such other person as the recipient party has specified by written notice given to each other
party at least one (1) Business Day prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent or other communication, (B) mechanically or electronically generated by the sender’s facsimile
machine containing the time, date, and recipient facsimile number, (C) electronically generated by the sender’s electronic
mail containing the time, date and recipient email address or (D) provided by a nationally recognized overnight delivery service,
shall be rebuttable evidence of receipt in accordance with clause (i), (ii), (iii) or (iv) above, respectively.


 




    -21-


     


    

 


(g)          Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and
assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of
the Buyer, including by merger or consolidation; provided, however, that any transaction, whether by merger, reorganization, restructuring,
consolidation, financing or otherwise, whereby the Company remains the surviving entity immediately after such transaction shall
not be deemed a succession or assignment. The Buyer may not assign its rights or obligations under this Agreement.


 


(h)          No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.


 


(i)          Publicity.
The Buyer shall have the right to approve before issuance any press release, SEC filing or any other public disclosure made by
or on behalf of the Company whatsoever with respect to, in any manner, the Buyer, its purchases hereunder or any aspect of this
Agreement or the transactions contemplated hereby; provided, however, that the Company shall be entitled, without the prior approval
of the Buyer, to make any press release or other public disclosure (including any filings with the SEC) with respect to such transactions
as is required by applicable law and regulations so long as the Company and its counsel consult with the Buyer in connection with
any such press release or other public disclosure at least two (2) Business Days prior to its release; provided, however, that
the Company’s obligations pursuant to this Section 11(i) shall not apply if the material provisions of such press release,
SEC filing, or other public disclosure previously has been publicly disclosed by the Company in accordance with this Section 11(i).
The Buyer must be provided with a copy thereof at least one (1) Business Day prior to any release or use by the Company thereof.


 


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


 


(k)          Termination.
This Agreement may be terminated only as follows:


 


(i)          By
the Buyer any time an Event of Default exists without any liability or payment to the Company. However, if pursuant to or within
the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against the Company,
a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a general assignment
for the benefit of its creditors, (any of which would be an Event of Default as described in Sections 9(f), 9(g) and 9(h) hereof)
this Agreement shall automatically terminate without any liability or payment to the Company without further action or notice by
any Person. No such termination of this Agreement under this Section 11(k)(i) shall affect the Company’s or the Buyer’s
obligations under this Agreement with respect to pending purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.


 




    -22-


     


    

 


(ii)         In
the event that the Commencement shall not have occurred the Company shall have the option to terminate this Agreement for any reason
or for no reason without any liability whatsoever of either party to the other party under this Agreement except as set forth in
Section 11(k)(viii) hereof.


 


(iii)        In
the event that the Commencement shall not have occurred on or before March 31, 2017, due to the failure to satisfy any of the conditions
set forth in Sections 6 and 7 above with respect to the Commencement, either party shall have the option to terminate this Agreement
at the close of business on such date or thereafter without liability of either party to any other party; provided, however, that
the right to terminate this Agreement under this Section 11(k)(iii) shall not be available to either party if such failure to satisfy
any of the conditions set forth in Sections 6 and 7 is the result of a breach of this Agreement by such party or the failure of
any representation or warranty of such party included in this Agreement to be true and correct in all material respects.


 


(iv)        At
any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason
by delivering notice (a “Company Termination Notice”) to the Buyer electing to terminate this Agreement without
any liability whatsoever of either party to the other party under this Agreement except as set forth in Section 11(k)(viii) hereof.
The Company Termination Notice shall not be effective until one (1) Business Day after it has been received by the Buyer.


 


(v)         This
Agreement shall automatically terminate on the date that the Company sells and the Buyer purchases the full Available Amount as
provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any
other party under this Agreement except as set forth in Section 11(k)(viii) hereof.


 


(vi)        If
by the Maturity Date for any reason or for no reason the full Available Amount under this Agreement has not been purchased as provided
for in Section 1 of this Agreement, this Agreement shall automatically terminate on the Maturity Date, without any action or notice
on the part of any party and without any liability whatsoever of any party to any other party under this Agreement except as set
forth in Section 11(k)(viii) hereof.


 


(vii)       Except
as set forth in Sections 11(k)(i) (in respect of an Event of Default under Sections 9(f), 9(g) and 9(h)), 11(k)(v) and 11(k)(vi),
any termination of this Agreement pursuant to this Section 11(k) shall be effected by written notice from the Company to the Buyer,
or the Buyer to the Company, as the case may be, setting forth the basis for the termination hereof.


 


(viii)      The
representations and warranties of the Company and the Buyer contained in Sections 2, 3 and 5 hereof, the indemnification provisions
set forth in Section 8 hereof and the agreements and covenants set forth in Sections 4(e), 4(g) and 11, shall survive the
Commencement and any termination of this Agreement. No termination of this Agreement shall affect the Company’s or the Buyer’s
rights or obligations (A) under the Registration Rights Agreement, which shall survive any such termination in accordance with
its terms, or (B) under this Agreement with respect to pending purchases and the Company and the Buyer shall complete their respective
obligations with respect to any pending purchases under this Agreement.


 




    -23-


     


    

 


(l)          No
Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Buyer that it has not engaged
any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Buyer represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with
the transactions contemplated hereby. Each party shall be responsible for the payment of any fees or commissions, if any, of any
financial advisor, placement agent, broker or finder engaged by such party relating to or arising out of the transactions contemplated
hereby. Each party shall pay, and hold the other party harmless against, any liability, loss or expense (including, without limitation,
attorneys' fees and out of pocket expenses) arising in connection with any such claim.


 


(m)          No
Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party.


 


(n)          Failure
or Indulgence Not Waiver. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.


 


*     *     *     *    *




    -24-


     


    

 


IN WITNESS WHEREOF, the Buyer and
the Company have caused this Common Stock Purchase Agreement to be duly executed as of the date first written above.


 


	 	THE COMPANY:
	 	 	 
	 	MYND ANALYTICS, INC.
	 	 	 
	 	By:	/s/ George C. Carpenter IV
	 	Name: George C. Carpenter IV
	 	Title:  Chief Executive Officer
	 	 
	 	BUYER:
	 	 
	 	ASPIRE CAPITAL FUND, LLC
	 	BY: ASPIRE CAPITAL PARTNERS, LLC
	 	BY: SGM HOLDINGS CORP.
	 	 	 
	 	By:	/s/ Steven G. Martin
	 	Name:
    Steven G. Martin
	 	Title:  President


 




    -25-


     


    

 


Execution Copy


 


SCHEDULES


 





	Schedule 3(a)	Subsidiaries
	Schedule 3(c)	Capitalization
	Schedule 3(e)	Conflicts
	Schedule 3(f)	1934 Act Filings
	Schedule 3(g)	Material Changes
	Schedule 3(h)	Litigation
	Schedule 3(j)	Intellectual Property
	Schedule 3(l)	Title
	Schedule 3(p)	Transactions with Affiliates




 


EXHIBITS


 





	Exhibit A	Form of Officer’s Certificate
	Exhibit B	Form of Resolutions of Board of Directors of the Company
	Exhibit C	Form of Secretary’s Certificate
	Exhibit D	Form of Letter to Transfer Agent




 




     


     


    

 


DISCLOSURE SCHEDULES


 


Schedule 3(a) – Subsidiaries


 


CNS Response, Inc., a California corporation and Colorado CNS
Response, Inc., a Colorado corporation, are wholly-owned subsidiaries of MYnd Analytics, Inc., a Delaware corporation.


 


Neuro-Therapy Clinic, Inc., a Colorado corporation, is a wholly-owned
subsidiary of Colorado CNS Response, Inc.


 


Schedule 3(c) - Capitalization


 


Options


 


There are options to purchase an aggregate
of 325,120 shares of Common Stock issued and outstanding. Options to purchase 2,224 shares of Common Stock were granted pursuant
to the 2006 Stock Incentive Plan (which has been frozen) and options to purchase 322,896 shares of Common Stock were granted pursuant
to the 2012 Omnibus Incentive Compensation Plan.


 


2006 Stock Incentive Plan


 


	Option Exercise Price	
        Number of Shares of Common

        Stock Underlying Option

	$1,800.00	25
	$2,400.00	144
	$2,820.00	51
	$3,060.00	7
	$3,300.00	1,325
	$4,800.00	24
	$5,340.00	162
	$5,760.00	61
	$6,540.00	425


 







     


     


    

 


2012 Omnibus Incentive Compensation
Plan


 


	Grant Date	Option Exercise Price	Number of Shares of Common

Stock Underlying Option
	October 2, 2016	$6.00	102,000
	September 22, 2016	$6.00	144,000
	April 5, 2016	$5.10	8,250
	December 10, 2012	$9.44	43,978
	August 20, 2015	$11.00	8,750
	January 8, 2015	$50.00	1,250
	July 31, 2014	$52.00	2,125
	March 26, 2013	$50.00	938
	October 8, 2013	$50.00	8,000
	November 8, 2013	$50.00	3,389
	March 22, 2012	    $600.00	216


 


Warrants


 


There are warrants to purchase an aggregate
of 7,160 shares of Common Stock issued and outstanding.


 


	Warrant Exercise Price	Number of Shares of Common

Stock Underlying Warrant
	$9.44	191
	$10.00	4,000
	$50.00	1,161
	$55.00	1,620
	$200.00	104
	$1,800	84


 


Schedule 3(e) - Conflicts


 


None.


 


Schedule 3(f) - 1934 Act Filings


 


None.


 


Schedule 3(g) - Material Changes


 


None.


 


Schedule 3(h) - Litigation


 


None.


 




     


     


    

 


Schedule 3(j) - Intellectual Property


 


Except as disclosed below in this Schedule 3(j), to the Company’s
knowledge, none of the Company’s active and registered Intellectual Property will expire or terminate by the terms and conditions
thereof within two years from the date of the Agreement, except as would not reasonably be expected to have a Material Adverse
Effect.


 


		·	Patent No. 6,622,036



		·	Patent No. 7,754,190



		·	Patent No. 8,562,951



 


Schedule 3(l) - Title


 


None.


 


Schedule 3(p) - Transactions with Affiliates


 


The Company is party to a consulting agreement with Decision
Calculus Associates ("DCA") for marketing services provided by DCA. DCA is an entity operated by Jill Carpenter, who
is the spouse of the Company's CEO, George Carpenter.


 




     


     


    

 


EXHIBIT A


 


FORM OF OFFICER’S CERTIFICATE


 


This Officer’s
Certificate (“Certificate”) is being delivered pursuant to Section 7(e) of that certain Common Stock Purchase
Agreement dated as of _____________, 201_ (the “Common Stock Purchase Agreement”), by and between, a Delaware
corporation (the “Company”), and ASPIRE CAPITAL FUND, LLC, an Illinois limited liability company (the
“Buyer”). Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Common
Stock Purchase Agreement.


 


The undersigned, ______________,
________________ of the Company, hereby certifies as follows:


 


1.          I
am the _________________ of the Company and make the statements contained in this Certificate in such capacity and not personally;


 


2.          The
representations and warranties of the Company are true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 3 of the Common Stock Purchase Agreement, in which
case, such representations and warranties are true and correct without further qualification) as of the date when made and as of
the Commencement Date as though made at that time (except for representations and warranties that speak as of a specific date);


 


3.          The
Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.


 


  4.          The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.




 


IN WITNESS WHEREOF,
I have hereunder signed my name on this ___ day of ___________.


 


	 	 
	 	 	 


 


The undersigned as
Secretary of MYND ANALYTICS, INC., a Delaware corporation, hereby certifies that ___________________ is the duly elected,
appointed, qualified and acting ______________ of MYND ANALYTICS, INC. and that the signature appearing above is his genuine
signature.


 


	 	 	 
	 	 	, Secretary


 




     


     


    

 


EXHIBIT B-1


 


FORM OF COMPANY RESOLUTIONS


FOR SIGNING PURCHASE AGREEMENT


 


WHEREAS, management has reviewed with the
Board of Directors and Pricing Committee of the Board of Directors (the “Pricing Committee”) the background,
terms and conditions of the transactions subject to the Common Stock Purchase Agreement (the “Purchase Agreement”)
by and between the Company and Aspire Capital Fund, LLC (“Aspire”), including all materials terms and conditions
of the transactions subject thereto, providing for the purchase by Aspire of up to Ten Million Dollars ($10,000,000) of the Company’s
common stock, par value $0.001 per share (the “Common Stock”); and


 


WHEREAS, the Board of Directors has delegated
all matters related to the Purchase Agreement, issuance of Commitment Shares (as hereinafter defined), issuance of Purchase Shares
(as hereinafter defined), Registration Rights Agreement (as hereinafter defined), and Instructions (as hereinafter defined) to
the Pricing Committee, and


 


WHEREAS, after careful
consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Pricing Committee,
the Pricing Committee has determined that it is advisable and in the best interests of the Company to engage in the transactions
contemplated by the Purchase Agreement, including, but not limited to, the issuance of 80,000 shares of Common Stock to Aspire
as a commitment fee (the “Commitment Shares”) and the sale of shares of Common Stock to Aspire up to the available
amount under the Purchase Agreement (the “Purchase Shares,” and together with the Commitment Shares, the “Aspire
Shares”).


 


Transaction Documents


 


NOW, THEREFORE, BE
IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and the Chief Executive Officer and
Chief Financial Officer (the “Authorized Officers”) are severally authorized to execute and deliver the Purchase
Agreement, and any other agreements or documents contemplated thereby including, without limitation, a registration rights agreement
(the “Registration Rights Agreement”) providing for the registration of the shares of the Company’s Common
Stock issuable in respect of the Purchase Agreement on behalf of Aspire, with such amendments, changes, additions and deletions
as the Authorized Officers may deem to be appropriate and approve on behalf of, the Company, such approval to be conclusively evidenced
by the signature of an Authorized Officer thereon; and


 


FURTHER RESOLVED, that
the terms and provisions of the Registration Rights Agreement by and among the Company and Aspire are hereby approved and the Authorized
Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the terms of the Purchase Agreement),
with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate and approve on behalf of,
the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and


 


FURTHER RESOLVED, that
the terms and provisions of the Form of Transfer Agent Instructions (the “Instructions”) are hereby approved
and the Authorized Officers are authorized to execute and deliver the Instructions (pursuant to the terms of the Purchase Agreement),
with such amendments, changes, additions and deletions as the Authorized Officers may deem appropriate and approve on behalf of,
the Company, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and


 




     


     


    

 


Execution of Purchase Agreement


 


FURTHER RESOLVED, that
the Company be and it hereby is authorized to execute the Purchase Agreement providing for the purchase of common stock of the
Company having an aggregate value of up to $10,000,000; and


 


Issuance of Common Stock


 


FURTHER RESOLVED, that the Company is hereby
authorized to issue the Commitment Shares to Aspire as Commitment Shares and that upon issuance of the Commitment Shares
pursuant to the Purchase Agreement, the Commitment Shares shall be duly authorized, validly issued, fully paid and non-assessable;
and


 


FURTHER RESOLVED, that the Company is hereby
authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to the available amount under the Purchase Agreement
in accordance with the terms of the Purchase Agreement and that, upon issuance of the Purchase Shares pursuant to the Purchase
Agreement, the Purchase Shares will be duly authorized, validly issued, fully paid and non-assessable; and


 


FURTHER RESOLVED, that the Corporation shall
initially reserve 1,200,000 shares of Common Stock for issuance as Purchase Shares under the Purchase Agreement; and


Approval of Actions


 


FURTHER RESOLVED, that,
without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed on
behalf of the Company and to take all such steps as deemed necessary or appropriate, with the advice and assistance of counsel,
to cause the Company to consummate the agreements referred to herein and to perform its obligations under such agreements; and


 


FURTHER RESOLVED, that
the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in the name of the
Company, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed and delivered
all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters and undertakings
and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable to carry into effect
the purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken by any officer or director
of the Company in connection with the transactions contemplated by the agreements described herein are hereby approved, ratified
and confirmed in all respects; and


 


FURTHER RESOLVED, that
any and all actions heretofore or hereinafter taken on behalf of the Company by any of said persons or entities within the terms
of the foregoing resolutions are hereby approved, ratified and confirmed in all respects as the acts and deeds of the Company.


 




     


     


    

 


EXHIBIT B-2


 


FORM OF COMPANY RESOLUTIONS APPROVING
REGISTRATION STATEMENT


 


WHEREAS, there has
been presented to the Board of Directors of the Company a Common Stock Purchase Agreement (the “Purchase Agreement”)
by and among the Corporation and Aspire Capital Fund, LLC (“Aspire”), providing for the purchase by Aspire of
up to Ten Million Dollars ($10,000,000) of the Company’s common stock, par value $0.001 (the “Common Stock”);
and


 


WHEREAS, the Board
of Directors has delegated all matters related to the Purchase Agreement, issuance of Commitment Shares (as defined in the Purchase
Agreement) and Registration Statement (as hereinafter defined) to the Pricing Committee of the Board of Directors (the "Pricing
Committee"), and


 


WHEREAS, after careful
consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Pricing Committee,
the Pricing Committee has approved the Purchase Agreement and the transactions contemplated thereby and the Company has executed
and delivered the Purchase Agreement to Aspire; and


 


WHEREAS, in connection
with the transactions contemplated pursuant to the Purchase Agreement, the Company has agreed to file a registration statement
with the Securities and Exchange Commission (the “Commission”) registering the Commitment Shares (as defined
in the Purchase Agreement) and the Purchase Shares (as defined in the Purchase Agreement); and


 


WHEREAS, the management
of the Company has prepared an initial draft of a Registration Statement on Form S-1 (the “Registration Statement”)
in order to register the sale of the Purchase Shares and the Commitment Shares (collectively, the “Securities”)
by Aspire; and


 


WHEREAS, the Pricing
Committee has determined to approve the Registration Statement and to authorize the appropriate officers of the Company to take
all such actions as they may deem appropriate to effect the offering.


 


NOW, THEREFORE, BE
IT RESOLVED, that the officers and directors of the Company be, and each of them hereby is, authorized and directed, with the assistance
of counsel and accountants for the Company, to prepare, execute and file with the Commission the Registration Statement, which
Registration Statement shall be filed substantially in the form presented to the Pricing Committee, with such changes therein as
the Chief Executive Officer or Chief Financial Officer of the Company shall deem desirable and in the best interest of the Company
and its stockholders (such officer’s execution thereof including such changes shall be deemed to evidence conclusively such
determination); and


 


FURTHER RESOLVED, that
the officers of the Company be, and each of them hereby is, authorized and directed, with the assistance of counsel and accountants
for the Company, to prepare, execute and file with the Commission all amendments, including post-effective amendments, and supplements
to the Registration Statement, and all certificates, exhibits, schedules, documents and other instruments relating to the Registration
Statement, as such officers shall deem necessary or appropriate (such officer’s execution and filing thereof shall be deemed
to evidence conclusively such determination); and


 




     


     


    

 


FURTHER RESOLVED, that
the execution of the Registration Statement and of any amendments and supplements thereto by the officers of the Company be, and
the same hereby is, specifically authorized either personally or by the Chief Executive Officer and Chief Financial Officer (the
“Authorized Officers”) as such officer’s true and lawful attorneys-in-fact and agents; and


 


FURTHER RESOLVED, that
the Authorized Officers are hereby designated as “Agent for Service” of the Company in connection with the Registration
Statement and the filing thereof with the Commission, and the Authorized Officers hereby are authorized to receive communications
and notices from the Commission with respect to the Registration Statement; and


 


FURTHER RESOLVED, that
the officers of the Company be, and each of them hereby is, authorized and directed to pay all fees, costs and expenses that may
be incurred by the Company in connection with the Registration Statement; and


 


FURTHER RESOLVED, that
it is desirable and in the best interest of the Company that the Securities be qualified or registered for sale in various states;
that the officers of the Company be, and each of them hereby is, authorized to determine the states in which appropriate action
shall be taken to qualify or register for sale all or such part of the Securities as they may deem advisable; that said officers
be, and each of them hereby is, authorized to perform on behalf of the Company any and all such acts as they may deem necessary
or advisable in order to comply with the applicable laws of any such states, and in connection therewith to execute and file all
requisite papers and documents, including, but not limited to, applications, reports, surety bonds, irrevocable consents, appointments
of attorneys for service of process and resolutions; and the execution by such officers of any such paper or document or the doing
by them of any act in connection with the foregoing matters shall conclusively establish their authority therefor from the Company
and the approval and ratification by the Company of the papers and documents so executed and the actions so taken; and


 


FURTHER RESOLVED, that
if, in any state where the securities to be registered or qualified for sale to the public, or where the Company is to be registered
in connection with the public offering of the Securities, a prescribed form of resolution or resolutions is required to be adopted
by the Board of Directors or Pricing Committee, each such resolution shall be deemed to have been and hereby is adopted, and the
Secretary is hereby authorized to certify the adoption of all such resolutions as though such resolutions were now presented to
and adopted by the Board of Directors or Pricing Committee; and


 


Approval of Actions


 


FURTHER RESOLVED, that,
without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed on
behalf of the Company and to take all such steps as are deemed necessary or appropriate, with the advice and assistance of counsel,
to cause the Company to take all such action referred to herein and to perform its obligations incident to the registration, listing
and sale of the Securities; and


 


FURTHER RESOLVED, that the Authorized Officers
be, and each of them hereby is, authorized, empowered and directed on behalf of and in the name of the Company, to take or cause
to be taken all such further actions and to execute and deliver or cause to be executed and delivered all such further agreements,
amendments, documents, certificates, reports, schedules, applications, notices, letters and undertakings and to incur and pay all
such fees and expenses as in their judgment shall be necessary, proper or desirable to carry into effect the purpose and intent
of any and all of the foregoing resolutions, and that all actions heretofore taken by any officer or director of the Company in
connection with the transactions contemplated by the agreements described herein are hereby approved, ratified and confirmed in
all respects.


 




     


     


    

 


EXHIBIT C


 


FORM OF SECRETARY’S CERTIFICATE


  


This Secretary’s Certificate (the
“Certificate”) is being delivered pursuant to Section 7(k) of that certain Common Stock Purchase Agreement dated
as of December 6, 2016 (the “Common Stock Purchase Agreement”), by and between MYND ANALYTICS, INC.,
a Delaware corporation (the “Company”) and ASPIRE CAPITAL FUND, LLC, an Illinois limited liability company
(the “Buyer”), pursuant to which the Company may sell to the Buyer up to Ten Million Dollars ($10,000,000) of
the Company’s Common Stock, par value $0.001 (the “Common Stock”). Terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Common Stock Purchase Agreement.


 


The undersigned, _______________, Secretary
of the Company, in his capacity as such, hereby certifies as follows:


 


1.          I
am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.


 


2.          Attached
hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s bylaws (“Bylaws”)
and Certificate of Incorporation (“Articles”), respectively, in each case, as amended through the date hereof,
and no action has been taken by the Company, its directors, officers or stockholders, in contemplation of the filing of any further
amendment relating to or affecting the Bylaws or Articles.


 


3.          Attached
hereto as Exhibit C are true, correct and complete copies of the Signing Resolutions duly adopted by the Pricing Committee of the
Board of Directors of the Company [by unanimous written consent]. Such resolutions have not been amended, modified or rescinded
and remain in full force and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors,
or any committee thereof, or the stockholders of the Company relating to or affecting (i) the entering into and performance of
the Common Stock Purchase Agreement, or the issuance, offering and sale of the Purchase Shares and the Commitment Shares and (ii)
and the performance of the Company of its obligation under the Transaction Documents as contemplated therein.


 


4.          As
of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.


 


IN WITNESS WHEREOF,
I have hereunder signed my name on this ___ day of ____________.


 


	 	 	 
	 	 	, Secretary


 


The undersigned as
Chief Executive Officer of MYND ANALYTICS, INC., a Delaware corporation, hereby certifies that ____________________ is the
duly elected, appointed, qualified and acting Secretary of MYND ANALYTICS, INC., and that the signature appearing above
is his genuine signature.


  


	 	 
	 	 


 




     


     


    

 


EXHIBIT D


 


FORM OF LETTER TO THE TRANSFER AGENT
FOR THE ISSUANCE OF THE COMMITMENT SHARES AT SIGNING OF THE PURCHASE AGREEMENT


 


[COMPANY LETTERHEAD]


 


____________, 201_


 


[Transfer Agent]


[Address]


[Address]


Attention:


 


Re: Issuance of Common Stock to Aspire Capital Fund, LLC


 


Ladies and Gentlemen:


 


On behalf of MYND ANALYTICS, INC., (the “Company”),
you are hereby instructed to issue as soon as possible 80,000 shares of our common stock in the name of ASPIRE
CAPITAL FUND, LLC. The share book-entry should be dated _____________, 201_. I have included a true and correct copy of adopted
resolutions of the Pricing Committee of the Board of Directors of the Company approving the issuance of these shares. The shares
should be issued subject to the following restrictive legend:


 


THE SECURITIES REPRESENTED
HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS
SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL, IN A
CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.


 




     


     


    

 


The share certificate should be sent as soon as possible
via overnight mail to the following address:


 


Aspire Capital Fund, LLC


155 North Wacker Drive, Suite 1600


Chicago, IL 60606


Attention: Steven G. Martin


 


Thank you very much for your help. Please call __________________,
at ____________ if you have any questions or need anything further.


 


	MYND ANALYTICS, INC.	 
	 	 	 
	BY:	 	 
	Name:	 
	Title: