abmc_ex1045





 






EXHIBIT
10.45



PURCHASE AGREEMENT


 


PURCHASE AGREEMENT (the
“Agreement”), dated as of
December 8, 2020, by and between AMERICAN BIO MEDICA CORPORATION, a New
York corporation (the “Company”), and
LINCOLN PARK CAPITAL FUND,
LLC, an Illinois limited liability company (the
“Investor”).

 



WHEREAS:

 


Subject to the terms and conditions set forth in
this Agreement, the Company wishes to sell to the Investor, and the
Investor wishes to buy from the Company, up to Ten Million Two
Hundred Fifty Thousand Dollars ($10,250,000) of the Company's
common stock, $0.01 par value per share (the "Common
Stock"). The shares of Common
Stock to be purchased hereunder (including, without limitation, the
Initial Purchase Shares and the Tranche Purchase Shares (each as
defined herein)) are referred to herein as the
“Purchase
Shares.”

 


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

 


1.           CERTAIN
DEFINITIONS.

 


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

 


(a)           “Accelerated
Purchase Date” means, with respect to any Accelerated
Purchase made pursuant to Section 2(c) hereof, the
Business Day immediately following the applicable Purchase Date
with respect to the corresponding Regular Purchase referred to in
clause (i) of the second sentence of Section 2(c)
hereof.

 


(b)           “Accelerated
Purchase Floor Price” means $0.10, which shall be
appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction and,
effective upon the consummation of any such reorganization,
recapitalization, non-cash dividend, stock split or other similar
transaction, the Accelerated Purchase Floor Price shall mean the
lower of (i) the
adjusted price and (ii) $0.25.

 


(c)           “Accelerated
Purchase Minimum Price Threshold” means, with respect
to any Accelerated Purchase made pursuant to Section 2(c) hereof, the
greater of (i) seventy-five percent (75%) of the Closing Sale Price
of the Common Stock on the applicable Purchase Date with respect to
the corresponding Regular Purchase referred to in clause (i) of the
second sentence of Section
2(c) hereof and (ii) the minimum per share price threshold
set forth by the Company in the applicable Accelerated Purchase
Notice.

 


(d)           “Accelerated
Purchase Notice” means, with respect to an Accelerated
Purchase made pursuant to Section 2(c) hereof, an
irrevocable written notice from the Company to the Investor
directing the Investor to purchase the number of Purchase Shares
specified by the Company therein as the Accelerated Purchase Share
Amount to be purchased by the Investor (such specified Accelerated
Purchase Share Amount subject to adjustment in accordance with
Section 2(c) hereof
as necessary to give effect to the Purchase Share amount
limitations applicable to such Accelerated Purchase Share Amount as
set forth in this Agreement) at the applicable Accelerated Purchase
Price on the applicable Accelerated Purchase Date for such
Accelerated Purchase.

 


 




 

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(e)           “Accelerated
Purchase Price” means, with respect to an Accelerated
Purchase made pursuant to Section 2(c) hereof,
ninety-five percent (95%) of the lower of (i) the VWAP for the
period beginning at 9:30:01 a.m., Eastern time, on the applicable
Accelerated Purchase Date, or such other time publicly announced by
the Principal Market as the official open (or commencement) of
trading on the Principal Market on such applicable Accelerated
Purchase Date (the “Accelerated Purchase Commencement
Time”), and ending at the earliest of (A) 4:00:00
p.m., Eastern time, on such applicable Accelerated Purchase Date,
or such other time publicly announced by the Principal Market as
the official close of trading on the Principal Market on such
applicable Accelerated Purchase Date, (B) such time, from and after
the Accelerated Purchase Commencement Time for such Accelerated
Purchase, that the total number (or volume) of shares of Common
Stock traded on the Principal Market has exceeded the applicable
Accelerated Purchase Share Volume Maximum, and (C) such time, from
and after the Accelerated Purchase Commencement Time for such
Accelerated Purchase, that the Sale Price has fallen below the
applicable Accelerated Purchase Minimum Price Threshold (such
earliest of (i)(A), (i)(B) and (i)(C) above, the
“Accelerated
Purchase Termination Time”), and (ii) the Closing Sale
Price of the Common Stock on such applicable Accelerated Purchase
Date (to be appropriately adjusted for any applicable
reorganization, recapitalization, non-cash dividend, stock split,
reverse stock split or other similar transaction).

 

(f)           
“Accelerated
Purchase Share Amount” means, with respect to an
Accelerated Purchase made pursuant to Section 2(c) hereof, the number
of Purchase Shares directed by the Company to be purchased by the
Investor in an applicable Accelerated Purchase Notice, which number
of Purchase Shares shall not exceed the lesser of (i) 300% of the
number of Purchase Shares directed by the Company to be purchased
by the Investor pursuant to the corresponding Regular Purchase
Notice for the corresponding Regular Purchase referred to in clause
(i) of the second sentence of Section 2(c) hereof (such
corresponding Regular Purchase being subject to the Purchase Share
limitations contained in Section 2(b) hereof) and (ii)
an amount equal to (A) the Accelerated Purchase Share Percentage
multiplied by (B) the total number (or volume) of shares of Common
Stock traded on the Principal Market during the period on the
applicable Accelerated Purchase Date beginning at the Accelerated
Purchase Commencement Time for such Accelerated Purchase and ending
at the Accelerated Purchase Termination Time for such Accelerated
Purchase.

 


(g)           “Accelerated
Purchase Share Percentage” means, with respect to an
Accelerated Purchase made pursuant to Section 2(c) hereof, twenty
percent (20%).

 


(h)           “Accelerated
Purchase Share Volume Maximum” means, with respect to
an Accelerated Purchase made pursuant to Section 2(c) hereof, a number
of shares of Common Stock equal to (i) the number of Purchase
Shares specified by the Company in the applicable Accelerated
Purchase Notice as the Accelerated Purchase Share Amount to be
purchased by the Investor in such Accelerated Purchase, divided by
(ii) the Accelerated Purchase Share Percentage (to be appropriately
adjusted for any applicable reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other
similar transaction).

 


(i)           “Additional
Accelerated Purchase Date” means, with respect to an
Additional Accelerated Purchase made pursuant to Section 2(d) hereof, the
Business Day (i) that is the Accelerated Purchase Date with respect
to the corresponding Accelerated Purchase referred to in clause (i)
of the proviso in the second sentence of Section 2(d) hereof and (ii) on
which the Investor receives, prior to 1:00 p.m., Eastern time, on
such Business Day, a valid Additional Accelerated Purchase Notice
for such Additional Accelerated Purchase in accordance with this
Agreement.

 


(j)           “Additional
Accelerated Purchase Floor Price” means $0.10, which
shall be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar
transaction and, effective upon the consummation of any such
reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction, the Additional Accelerated Purchase
Floor Price shall mean the lower of (i) the adjusted price
and (ii) $0.25.

 


 




 

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(k)           “Additional
Accelerated Purchase Minimum Price Threshold” means,
with respect to an Additional Accelerated Purchase made pursuant to
Section 2(d)
hereof, the greater of (i) seventy-five percent (75%) of the
Closing Sale Price of the Common Stock on the Business Day
immediately preceding the applicable Additional Accelerated
Purchase Date with respect to such Additional Accelerated Purchase
and (ii) the minimum per share price threshold set forth by the
Company in the applicable Additional Accelerated Purchase
Notice.

 


(l)           “Additional
Accelerated Purchase Notice” means, with respect to an
Additional Accelerated Purchase made pursuant to Section 2(d) hereof, an
irrevocable written notice from the Company to the Investor
directing the Investor to purchase the number of Purchase Shares
specified by the Company therein as the Additional Accelerated
Purchase Share Amount to be purchased by the Investor (such
specified Additional Accelerated Purchase Share Amount subject to
adjustment in accordance with Section 2(d) hereof as
necessary to give effect to the Purchase Share amount limitations
applicable to such Additional Accelerated Purchase Share Amount as
set forth in this Agreement) at the applicable Additional
Accelerated Purchase Price on the applicable Additional Accelerated
Purchase Date for such Additional Accelerated
Purchase.

 


(m)           “Additional
Accelerated Purchase Price” means, with respect to an
Additional Accelerated Purchase made pursuant to Section 2(d) hereof,
ninety-five percent (95%) of the lower of (i) the VWAP for the
period on the applicable Additional Accelerated Purchase Date,
beginning at the latest of (A) the applicable Accelerated Purchase
Termination Time with respect to the corresponding Accelerated
Purchase referred to in clause (i) of the proviso in the second
sentence of Section
2(d) hereof on such Additional Accelerated Purchase Date,
(B) the applicable Additional Accelerated Purchase Termination Time
with respect to the most recently completed prior Additional
Accelerated Purchase on such Additional Accelerated Purchase Date,
as applicable, and (C) the time at which all Purchase Shares
subject to all prior Accelerated Purchases and Additional
Accelerated Purchases (as applicable), including, without
limitation, those that have been effected on the same Business Day
as the applicable Additional Accelerated Purchase Date with respect
to which the applicable Additional Accelerated Purchase relates,
have theretofore been received by the Investor as DWAC Shares in
accordance with this Agreement (such latest of (i)(A), (i)(B) and
(i)(C) above, the “Additional Accelerated Purchase
Commencement Time”), and ending at the earliest of (X)
4:00 p.m., Eastern time, on such Additional Accelerated Purchase
Date, or such other time publicly announced by the Principal Market
as the official close of trading on the Principal Market on such
Additional Accelerated Purchase Date, (Y) such time, from and after
the Additional Accelerated Purchase Commencement Time for such
Additional Accelerated Purchase, that the total number (or volume)
of shares of Common Stock traded on the Principal Market has
exceeded the applicable Additional Accelerated Purchase Share
Volume Maximum, and (Z) such time, from and after the Additional
Accelerated Purchase Commencement Time for such Additional
Accelerated Purchase, that the Sale Price has fallen below the
applicable Additional Accelerated Purchase Minimum Price Threshold
(such earliest of (i)(X), (i)(Y) and (i)(Z) above, the
“Additional
Accelerated Purchase Termination Time”), and (ii) the
Closing Sale Price of the Common Stock on such Additional
Accelerated Purchase Date (to be appropriately adjusted for any
applicable reorganization, recapitalization, non-cash dividend,
stock split, reverse stock split or other similar
transaction).

 


 




 

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(n)           “Additional
Accelerated Purchase Share Amount” means, with respect
to an Additional Accelerated Purchase made pursuant to Section 2(d) hereof, the number
of Purchase Shares directed by the Company to be purchased by the
Investor on an Additional Accelerated Purchase Notice, which number
of Purchase Shares shall not exceed the lesser of (i) 300% of the
number of Purchase Shares directed by the Company to be purchased
by the Investor pursuant to the corresponding Regular Purchase
Notice for the corresponding Regular Purchase referred to in clause
(i) of the proviso in the second sentence of Section 2(d) hereof (such
corresponding Regular Purchase being subject to the Purchase Share
limitations contained in Section 2(b) hereof) and (ii)
an amount equal to (A) the Additional Accelerated Purchase Share
Percentage multiplied by (B) the total number (or volume) of shares
of Common Stock traded on the Principal Market during the period on
the applicable Additional Accelerated Purchase Date beginning at
the Additional Accelerated Purchase Commencement Time for such
Additional Accelerated Purchase and ending at the Additional
Accelerated Purchase Termination Time for such Additional
Accelerated Purchase.

 


(o)           “Additional
Accelerated Purchase Share Percentage” means, with
respect to an Additional Accelerated Purchase made pursuant to
Section 2(d)
hereof, twenty percent (20%).

 


(p)           “Additional
Accelerated Purchase Share Volume Maximum” means, with
respect to an Additional Accelerated Purchase made pursuant to
Section 2(d)
hereof, a number of shares of Common Stock equal to (i) the number
of Purchase Shares specified by the Company in the applicable
Additional Accelerated Purchase Notice as the Additional
Accelerated Purchase Share Amount to be purchased by the Investor
in such Additional Accelerated Purchase, divided by (ii) the
Additional Accelerated Purchase Share Percentage (to be
appropriately adjusted for any applicable reorganization,
recapitalization, non-cash dividend, stock split, reverse stock
split or other similar transaction).

 


(q)           “Alternate
Adjusted Regular Purchase Share Limit” means, with
respect to a Regular Purchase made pursuant to Section 2(b) hereof, the
maximum number of Purchase Shares which, taking into account the
applicable per share Purchase Price therefor calculated in
accordance with this Agreement, would enable the Company to deliver
to the Investor, on the applicable Purchase Date for such Regular
Purchase, a Regular Purchase Notice for a Purchase Amount equal to,
or as closely approximating without exceeding, Fifty Thousand
Dollars ($50,000).

 

(r)           
“Available
Amount” means, initially, Ten Million Two Hundred
Fifty Thousand Dollars ($10,250,000) in the aggregate, which amount
shall be reduced by (i) the Initial Purchase Amount upon the
purchase of the Initial Purchase Shares by the Investor on the date
hereof pursuant to Section
2(a) hereof, (ii) the Tranche Purchase Amount upon the
purchase of the Tranche Purchase Shares by the Investor on the
Commencement Date pursuant to Section 2(a) hereof, and (iii)
the Purchase Amount each time the Investor purchases Purchase
Shares (other than the Initial Purchase Shares and the Tranche
Purchase Shares) pursuant to Section 2 hereof.

 


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

 


(t)           “Business
Day” means any day on which the Principal Market is
open for trading, including any day on which the Principal Market
is open for trading for a period of time less than the customary
time.

 


(u)           “Closing
Sale Price” means, for any security as of any date,
the last closing sale price for such security on the Principal
Market as reported by the Principal Market.

 


 




 

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(v)           
“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
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 without confidential restriction 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.

 


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

 


(x)           “DTC”
means The Depository Trust Company, or any successor performing
substantially the same function for the Company.

 


(y)           “DWAC
Shares” means shares of Common Stock that are (i)
issued in electronic form, (ii) freely tradable and transferable
and without restriction on resale and (iii) timely credited by the
Company to the Investor’s or its designee’s specified
Deposit/Withdrawal at Custodian (DWAC) account with DTC under its
Fast Automated Securities Transfer (FAST) Program, or any similar
program hereafter adopted by DTC performing substantially the same
function.

 


(z)           “Exchange
Act” means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC
thereunder.

 


(aa)           “Floor
Price” means, with respect to a Regular Purchase made
pursuant to Section
2(a) hereof, $0.05, which shall be appropriately adjusted
for any reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction and, effective upon the
consummation of any such reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction, the Floor Price
shall mean the lower of (i) the adjusted price and (ii)
$0.25.

 


(bb)           “Fully
Adjusted Regular Purchase Share Limit” means, with
respect to any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction from and after the date of
this Agreement, the Regular Purchase Share Limit (as defined in
Section 2(b)
hereof) in effect on the applicable date of determination, after
giving effect to the full proportionate adjustment thereto made
pursuant to Section
2(b) hereof for or in respect of such reorganization,
recapitalization, non-cash dividend, stock split or other similar
transaction.

 


(cc)           “Material
Adverse Effect” means any material adverse effect on
(i) the enforceability of any Transaction Document,
(ii) the results of operations, assets, business or financial
condition of the Company, taken as a whole, other than any material
adverse effect that resulted exclusively from (A) any change
in the United States or foreign economies or securities or
financial markets in general that does not have a disproportionate
effect on the Company, (B) any change that generally affects
the industry in which the Company operates that does not have a
disproportionate effect on the Company, (C) any change arising
in connection with earthquakes, hostilities, acts of war, sabotage
or terrorism or military actions or any escalation or material
worsening of any such hostilities, acts of war, sabotage or
terrorism or military actions existing as of the date hereof,
(D) any action taken by the Investor, its affiliates or its or
their successors and assigns with respect to the transactions
contemplated by this Agreement, (E) the effect of any change
in applicable laws or accounting rules that does not have a
disproportionate effect on the Company, or (F) any change
resulting from compliance with terms of this Agreement or the
consummation of the transactions contemplated by this Agreement, or
(iii) the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction
Document to be performed as of the date of
determination.

 


 




 

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(dd)           “Maturity
Date” means the first day of the month immediately
following the twenty-four (24) month anniversary of the
Commencement Date.


 


(ee)           “PEA
Period” means the period commencing at 9:30 a.m.,
Eastern time, on the fifth (5th) Business Day
immediately prior to the filing of any post-effective amendment to
the Registration Statement (as defined herein) or New Registration
Statement (as such term is defined in the Registration Rights
Agreement), and ending at 9:30 a.m., Eastern time, on the Business
Day immediately following, the effective date of any post-effective
amendment to the Registration Statement (as defined herein) or New
Registration Statement (as such term is defined in the Registration
Rights Agreement).

 


(ff)           “Person”
means an individual or entity including but not limited to 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.

 


(gg)           “Principal
Market” means the OTCQB operated by the OTC Markets
Group, Inc. (or any nationally recognized successor thereto);
provided, however, that in the event the Company’s Common
Stock is ever listed or traded on The Nasdaq Capital Market, The
Nasdaq Global Market, The Nasdaq Global Select Market, the New York
Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin
Board, or the OTCQX operated by the OTC Markets Group, Inc. (or any
nationally recognized successor to any of the foregoing), then the
“Principal Market” shall mean such other market or
exchange on which the Company’s Common Stock is then listed
or traded.

 


(hh)           “Purchase
Amount” means, with respect to the Initial Purchase,
the Tranche Purchase, any Regular Purchase, any Accelerated
Purchase, and any Additional Accelerated Purchase made hereunder,
as applicable, the portion of the Available Amount to be purchased
by the Investor pursuant to Section 2 hereof.

 


(ii)           “Purchase
Date” means, with respect to a Regular Purchase made
pursuant to Section
2(b) hereof, the Business Day on which the Investor
receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m.,
Eastern time, on such Business Day, a valid Regular Purchase Notice
for such Regular Purchase in accordance with this
Agreement.

 


(jj)           “Purchase
Notice” means a Regular Purchase Notice, an
Accelerated Purchase Notice or an Additional Accelerated Purchase
Notice with respect to any Regular Purchase, Accelerated Purchase
or Additional Accelerated Purchase, respectively.

 


(kk)           “Purchase
Price” means, with respect to a Regular Purchase made
pursuant to Section
2(b) hereof, ninety-five percent (95%) of the lower of: (i)
the lowest Sale Price on the Purchase Date for such Regular
Purchase and (ii) the arithmetic average of the three (3) lowest
Closing Sale Prices for the Common Stock during the fifteen (15)
consecutive Business Days ending on the Business Day immediately
preceding such Purchase Date for such Regular Purchase (in each
case, to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar
transaction that occurs on or after the date of this
Agreement).

 


 




 

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(ll)           “Regular
Purchase Notice” means, with respect to a Regular
Purchase pursuant to Section 2(b) hereof, an
irrevocable written notice from the Company to the Investor
directing the Investor to buy a specified number of Purchase Shares
(subject to the Purchase Share limitations contained in
Section 2(b)
hereof) at the applicable Purchase Price for such Regular Purchase
in accordance with this Agreement.

 


(mm)         
“Sale
Price” means any trade price for the shares of Common
Stock on the Principal Market as reported by the Principal
Market.

 


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

 


(oo)           “Securities”
means, collectively, the Purchase Shares and the Commitment
Shares.

 


(pp)           “Securities
Act” means the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the SEC
thereunder.

 


(qq)           “Subsidiary”
means any Person the Company wholly-owns or controls, or in which
the Company, directly or indirectly, owns a majority of the voting
stock or similar voting interest, in each case that would be
disclosable pursuant to Item 601(b)(21) of Regulation S-K
promulgated under the Securities Act.

 


(rr)           “Transaction
Documents” means, collectively, this Agreement and the
schedules and exhibits hereto, the Registration Rights Agreement
and the schedules and exhibits thereto, and each of the other
agreements, documents, certificates and instruments entered into or
furnished by the parties hereto or thereto in connection with the
transactions contemplated hereby and thereby.

 


(ss)
          “Transfer Agent” means
Computershare, P.O. BOX 30170, College Station, TX 77842-3170, or
such other Person who is then serving as the transfer agent for the
Company in respect of the Common Stock.

 


(tt)           “VWAP”
means in respect of an Accelerated Purchase Date or an Additional
Accelerated Purchase Date, as applicable, the volume weighted
average price of the Common Stock on the Principal Market, as
reported on the Principal Market.

 


2.
PURCHASE OF COMMON STOCK.

 


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

 

(a)           
Initial
Purchase and Tranche Purchase.
On the date of this Agreement, upon the satisfaction of the
conditions set forth in Sections 7(I)
and 8(I)
hereof, the Company shall issue and
sell to the Investor and the Investor shall purchase from the
Company (the “Initial
Purchase”) Five Hundred
Thousand (500,000) Purchase Shares (collectively, the
“Initial Purchase
Shares”) for aggregate
consideration of One Hundred Twenty-Five Thousand Dollars
($125,000) (the “Initial Purchase
Amount”). On the
Commencement Date (defined below), the Company shall issue and sell
to the Investor and the Investor shall purchase from the Company
(the “Tranche
Purchase”) Five Hundred
Thousand (500,000) Purchase Shares (collectively, the
“Tranche Purchase
Shares”) for aggregate
consideration of One Hundred Twenty-Five Thousand Dollars
($125,000) (the “Tranche Purchase
Amount”).

 


 




 

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(b)           
Commencement of
Regular Sales of Common Stock.
Upon the satisfaction of all of the conditions set forth in
Sections
7(II) and 8(II)
hereof (the “Commencement”
and the date of satisfaction of such conditions the
“Commencement
Date”) and thereafter,
the Company shall have the right, but not the obligation, to direct
the Investor, by its delivery to the Investor of a Regular Purchase
Notice from time to time, to purchase up to Two Hundred Thousand
(200,000) Purchase Shares, subject to adjustment as set forth below
in this Section 2(b)
(such maximum number of Purchase
Shares, as may be adjusted from time to time, the
“Regular Purchase Share
Limit”), at the Purchase
Price on the Purchase Date (each such purchase a
“Regular
Purchase”);
provided,
however,
that (i) the Regular Purchase Share Limit shall be increased to Two
Hundred Fifty Thousand (250,000) Purchase Shares, if the Closing
Sale Price of the Common Stock on the applicable Purchase Date is
not below $0.20, and (ii) the Regular Purchase Share Limit shall be
increased to Five Hundred Thousand (500,000) Purchase Shares, if
the Closing Sale Price of the Common Stock on the applicable
Purchase Date is not below $0.50 (all of which share and dollar
amounts shall be appropriately proportionately adjusted for any
reorganization, recapitalization, non-cash dividend, stock split or
other similar transaction; provided
that if, after giving effect to the
full proportionate adjustment to the Regular Purchase Share Limit
therefor, the Fully Adjusted Regular Purchase Share Limit then in
effect would preclude the Company from delivering to the Investor a
Regular Purchase Notice hereunder for a Purchase Amount (calculated
by multiplying (X) the number of Purchase Shares equal to the Fully
Adjusted Regular Purchase Share Limit, by (Y) the Purchase Price
per Purchase Share covered by such Regular Purchase Notice on the
applicable Purchase Date therefor) equal to or greater than Fifty
Thousand Dollars ($50,000), the Regular Purchase Share Limit for
such Regular Purchase Notice shall not be fully adjusted to equal
the applicable Fully Adjusted Regular Purchase Share Limit, but
rather the Regular Purchase Share Limit for such Regular Purchase
Notice shall be adjusted to equal the applicable Alternate Adjusted
Regular Purchase Share Limit as of the applicable Purchase Date for
such Regular Purchase Notice); and provided,
further,
however,
that the Investor’s committed obligation under any single
Regular Purchase, other than any Regular Purchase with respect to
which an Alternate Adjusted Regular Purchase Share Limit shall
apply, shall not exceed Five Hundred Thousand Dollars ($500,000).
If the Company delivers any Regular Purchase Notice for a Purchase
Amount in excess of the limitations contained in the immediately
preceding sentence, such Regular Purchase Notice shall be
void ab
initio to the extent of the
amount by which the number of Purchase Shares set forth in such
Regular Purchase Notice exceeds the number of Purchase Shares which
the Company is permitted to include in such Purchase Notice in
accordance herewith, and the Investor shall have no obligation to
purchase such excess Purchase Shares in respect of such Regular
Purchase Notice; provided,
however,
that the Investor shall remain obligated to purchase the number of
Purchase Shares which the Company is permitted to include in such
Regular Purchase Notice. The Company may deliver a Regular Purchase
Notice to the Investor as often as every Business Day, so long as
(i) the Closing Sale Price of the Common Stock on such Business Day
is not less than the Floor Price and (ii) all Purchase Shares
subject to all prior Regular Purchases have theretofore been
received by the Investor as DWAC Shares in accordance with this
Agreement. Notwithstanding the foregoing, the Company shall not
deliver any Regular Purchase Notices to the Investor during the PEA
Period.

 


 




 

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(c)           
Accelerated
Purchases. Subject to the terms
and conditions of this Agreement, from and after the Commencement
Date, in addition to purchases of Purchase Shares as described
in Section 2(a)
and Section 2(b)
above, the Company shall also have the
right, but not the obligation, to direct the Investor, by its
delivery to the Investor of an Accelerated Purchase Notice from
time to time in accordance with this Agreement, to purchase the
applicable Accelerated Purchase Share Amount at the Accelerated
Purchase Price on the Accelerated Purchase Date therefor in
accordance with this Agreement (each such purchase, an
“Accelerated
Purchase”). The Company
may deliver an Accelerated Purchase Notice to the Investor only on
a Purchase Date on which (i) the Company also properly submitted a
Regular Purchase Notice providing for a Regular Purchase of a
number of Purchase Shares not less than the Regular Purchase Share
Limit then in effect on such Purchase Date in accordance with this
Agreement (including, without limitation, giving effect to any
automatic increase to the Regular Purchase Share Limit as a result
of the Closing Sale Price of the Common Stock exceeding certain
thresholds set forth in Section 2(b)
above on such Purchase Date and any
other adjustments to the Regular Purchase Share Limit, in each case
pursuant to Section 2(b)
above), (ii) if all Purchase Shares
subject to all prior Regular Purchases and Accelerated Purchases
and all Additional Accelerated Purchases prior to the Regular
Purchase Date referred to in clause (i) hereof (as applicable) have
theretofore been received by the Investor as DWAC Shares in
accordance with this Agreement, and (iii) the Closing Sale Price of
the Common Stock is not less than the Accelerated Purchase Floor
Price. If the Company delivers any Accelerated Purchase Notice
directing the Investor to purchase an amount of Purchase Shares
that exceeds the Accelerated Purchase Share Amount that the Company
is then permitted to include in such Accelerated Purchase Notice,
such Accelerated Purchase Notice shall be void ab initio to the extent of the amount by which the number of
Purchase Shares set forth in such Accelerated Purchase Notice
exceeds the Accelerated Purchase Share Amount that the Company is
then permitted to include in such Accelerated Purchase Notice
(which shall be confirmed in an Accelerated Purchase Confirmation),
and the Investor shall have no obligation to purchase such excess
Purchase Shares in respect of such Accelerated Purchase
Notice; provided,
however,
that the Investor shall remain obligated to purchase the
Accelerated Purchase Share Amount which the Company is permitted to
include in such Accelerated Purchase Notice. Within one (1)
Business Day after completion of each Accelerated Purchase Date for
an Accelerated Purchase, the Investor shall provide to the Company
a written confirmation of such Accelerated Purchase setting forth
the applicable Accelerated Purchase Share Amount and Accelerated
Purchase Price for such Accelerated Purchase (each, an
“Accelerated Purchase
Confirmation”).
Notwithstanding the foregoing, the Company shall not deliver any
Accelerated Purchase Notices to the Investor during the PEA
Period.

 


 




 

9








 






 

 


 

 

(d)           
Additional
Accelerated Purchases. Subject
to the terms and conditions of this Agreement, from and after the
Commencement Date, in addition to purchases of Purchase Shares as
described in Section
2(a), Section 2(b)
and Section 2(c)
above, the Company shall also have the
right, but not the obligation, to direct the Investor, by its
timely delivery to the Investor of an Additional Accelerated
Purchase Notice on an Additional Accelerated Purchase Date in
accordance with this Agreement, to purchase the applicable
Additional Accelerated Purchase Share Amount at the applicable
Additional Accelerated Purchase Price therefor in accordance with
this Agreement (each such purchase, an “Additional Accelerated
Purchase”). The Company
may deliver multiple Additional Accelerated Purchase Notices to the
Investor on an Additional Accelerated Purchase Date;
provided,
however,
that the Company may deliver an Additional Accelerated Purchase
Notice to the Investor only (i) on a Business Day that is also the
Accelerated Purchase Date for an Accelerated Purchase with respect
to which the Company properly submitted to the Investor an
Accelerated Purchase Notice in accordance with this Agreement on
the applicable Purchase Date for a Regular Purchase of a number of
Purchase Shares not less than the Regular Purchase Share Limit then
in effect in accordance with this Agreement (including, without
limitation, giving effect to any automatic increase to the Regular
Purchase Share Limit as a result of the Closing Sale Price of the
Common Stock exceeding certain thresholds set forth in
Section
2(b) above on such Purchase
Date and any other adjustments to the Regular Purchase Share Limit,
in each case pursuant to Section 2(b)
above), (ii) if the Closing Sale Price
of the Common Stock on the Business Day immediately preceding the
Business Day on which such Additional Accelerated Purchase Notice
is delivered is not less than the Additional Accelerated Purchase
Floor Price, and (iii) if all Purchase Shares subject to all prior
Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases, including, without limitation, those that have been
effected on the same Business Day as the applicable Additional
Accelerated Purchase Date with respect to which the applicable
Additional Accelerated Purchase relates, in each case have
theretofore been received by the Investor as DWAC Shares in
accordance with this Agreement. If the Company delivers any
Additional Accelerated Purchase Notice directing the Investor to
purchase an amount of Purchase Shares that exceeds the Additional
Accelerated Purchase Share Amount that the Company is then
permitted to include in such Additional Accelerated Purchase
Notice, such Additional Accelerated Purchase Notice shall be
void ab
initio to the extent of the
amount by which the number of Purchase Shares set forth in such
Additional Accelerated Purchase Notice exceeds the Additional
Accelerated Purchase Share Amount that the Company is then
permitted to include in such Additional Accelerated Purchase Notice
(which shall be confirmed in an Additional Accelerated Purchase
Confirmation), and the Investor shall have no obligation to
purchase such excess Purchase Shares in respect of such Additional
Accelerated Purchase Notice; provided,
however,
that the Investor shall remain obligated to purchase the Additional
Accelerated Purchase Share Amount which the Company is permitted to
include in such Additional Accelerated Purchase Notice. Within one
(1) Business Day after completion of each Additional Accelerated
Purchase Date, the Investor will provide to the Company a written
confirmation of each Additional Accelerated Purchase on such
Additional Accelerated Purchase Date setting forth the applicable
Additional Accelerated Purchase Share Amount and Additional
Accelerated Purchase Price for each such Additional Accelerated
Purchase on such Additional Accelerated Purchase Date (each, an
“Additional Accelerated
Purchase Confirmation”).
Notwithstanding the foregoing, the Company shall not deliver any
Additional Accelerated Purchase Notices to the Investor during the
PEA Period.

 

(e)           
Payment
for Purchase Shares. For the
Initial Purchase, the Tranche Purchase and each Regular Purchase,
the Investor shall pay to the Company an amount equal to the
Purchase Amount with respect to such Regular Purchase, Tranche
Purchase and Initial Purchase, respectively, as full payment for
such Purchase Shares via wire transfer of immediately available
funds on the same Business Day that the Investor receives such
Purchase Shares, if such Purchase Shares are received by the
Investor before 1:00 p.m., Eastern time, or, if such Purchase
Shares are received by the Investor after 1:00 p.m., Eastern time,
the next Business Day. For each Accelerated Purchase and each
Additional Accelerated Purchase, the Investor shall pay to the
Company an amount equal to the Purchase Amount with respect to such
Accelerated Purchase and Additional Accelerated Purchase,
respectively, as full payment for such Purchase Shares via wire
transfer of immediately available funds on the second Business Day
following the date that the Investor receives such Purchase Shares.
If the Company or the Transfer Agent shall fail for any reason or
for no reason to electronically transfer any Purchase Shares as
DWAC Shares in respect of the Tranche Purchase, a Regular Purchase,
an Accelerated Purchase or an Additional Accelerated Purchase (as
applicable) within two (2) Business Days following the receipt by
the Company of the Tranche Purchase Amount, the Purchase Price,
Accelerated Purchase Price and Additional Accelerated Purchase
Price, respectively, therefor in compliance with this
Section
2(e), and if on or after such
Business Day the Investor purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by the Investor of such Purchase Shares that the Investor
anticipated receiving from the Company in respect of such Tranche
Purchase, Regular Purchase, Accelerated Purchase or Additional
Accelerated Purchase (as applicable), then the Company shall,
within two (2) Business Days after the Investor’s request,
either (i) pay cash to the Investor in an amount equal to the
Investor’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased
(the “Cover
Price”), at which point
the Company’s obligation to deliver such Purchase Shares as
DWAC Shares shall terminate, or (ii) promptly honor its obligation
to deliver to the Investor such Purchase Shares as DWAC Shares and
pay cash to the Investor in an amount equal to the excess (if any)
of the Cover Price over the total Purchase Amount paid by the
Investor pursuant to this Agreement for all of the Purchase Shares
to be purchased by the Investor in connection with such Tranche
Purchase, Regular Purchase, Accelerated Purchase and Additional
Accelerated Purchase (as applicable). The Company shall not issue
any fraction of a share of Common Stock upon the Initial Purchase,
the Tranche Purchase, or any Regular Purchase, Accelerated Purchase
or Additional Accelerated Purchase. If the issuance would result in
the issuance of a fraction of a share of Common Stock, the Company
shall round such fraction of a share of Common Stock up or down to
the nearest whole share. All payments made under this Agreement
shall be made in lawful money of the United States of America or
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.

 


 




 

10








 






 

 


 

 


(f)           Beneficial
Ownership Limitation. Notwithstanding anything to the
contrary contained in this Agreement, the Company shall
not issue or sell, and the Investor shall not purchase or
acquire, any shares of Common Stock under this
Agreement which, when aggregated with all other shares of
Common Stock then beneficially owned by the Investor and its
affiliates (as calculated pursuant to Section 13(d) of the Exchange
Act and Rule 13d-3 promulgated thereunder), would result in the
beneficial ownership by the Investor of more
than 9.99% of the outstanding shares of Common Stock (the
“Beneficial
Ownership Limitation”). Upon the written or oral
request of the Investor, the Company shall promptly (but not later
than 24 hours) confirm orally or in writing to the Investor the
number of shares of Common Stock then outstanding. The Investor and
the Company shall each cooperate in good faith in the
determinations required hereby and the application hereof. The
Investor’s written certification to the Company of the
applicability of the Beneficial Ownership Limitation, and the
resulting effect thereof hereunder at any time, shall be conclusive
with respect to the applicability thereof and such result absent
manifest error.

 


3.           INVESTOR'S
REPRESENTATIONS AND WARRANTIES.

 


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

 


(a)           Investment
Purpose.  The Investor is acquiring the Securities as
principal for its own account and not with a view to or for
distributing or reselling such Securities or any part thereof in
violation of the Securities Act or any applicable state securities
law, has no present intention of distributing any of such
Securities in violation of the Securities Act or any applicable
state securities law and has no direct or indirect arrangement or
understandings with any other Persons to distribute or regarding
the distribution of such Securities in violation of the Securities
Act or any applicable state securities law (this representation and
warranty not limiting the Investor’s right to sell the
Securities at any time pursuant to the Registration Statement
described herein or otherwise in compliance with applicable federal
and state securities laws).  The Investor is acquiring
the Securities hereunder in the ordinary course of its
business.

 



            

(b)            

Accredited Investor Status,
Disqualification. The Investor is an “accredited
investor” pursuant to Rule 501 of Regulation D under the
Securities Act of 1933, as amended (the “Securities
Act”), and not
subject to any of the “Bad Actor” disqualifications
described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification
Event”),
except for a Disqualification Event covered by Rule 506(d)(2) or
(d)(3).





 


(c)           Reliance
on Exemptions. The Investor 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 Investor's compliance with, the
representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth herein in order to
determine the availability of such exemptions and the eligibility
of the Investor to acquire the Securities.

 


 




 

11








 






 

 


 

 


(d)           Information.
The Investor understands that its investment in the Securities
involves a high degree of risk. The Investor (i) is able to bear
the economic risk of an investment in the Securities including a
total loss thereof, (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 Investor or its
representatives shall modify, amend or affect the Investor's right
to rely on the Company's representations and warranties contained
in Section 4 below. The Investor has sought such accounting, legal
and tax advice from its own independent advisors as it has
considered necessary to make an informed investment decision with
respect to its acquisition of the Securities and is not relying on
any accounting, legal, tax or other advice from the Company, its
officers, directors, representatives or advisors.

 


(e)           No
Governmental Review. The Investor understands that no U.S.
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 an investment in
the Securities nor have such authorities passed upon or endorsed
the merits of the offering of the Securities.

 


(f)           Transfer
or Sale. The Investor understands that (i) the Securities
may not be offered for sale, sold, assigned or transferred unless
(A) registered pursuant to the Securities Act 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
Securities Act) may require compliance with some other exemption
under the Securities Act or the rules and regulations of the SEC
thereunder.

 


(g)           Validity;
Enforcement. This Agreement has been duly and validly
authorized, executed and delivered on behalf of the Investor and is
a valid and binding agreement of the Investor enforceable against
the Investor in accordance with its terms, subject as to
enforceability to 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.

 


(h)           Residency.
The Investor is a resident of the State of Illinois.

 


(i)           No
Short Selling. The Investor represents and warrants to the
Company that at no time prior to the date of this Agreement has any
of the Investor, 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 Rule 200 of
Regulation SHO of the Exchange Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with
respect to the Common Stock.

 


4.           REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.

 


The
Company represents and warrants to the Investor that, except as set
forth in the disclosure schedules attached hereto or in the SEC
Documents expressly referred to as exceptions or qualifications
with respect to specific representations and warranties of the
Company in this Section 4 (in each case, which exceptions shall be
deemed to be a part of the representations and warranties made
hereunder), as of the date hereof and as of the Commencement
Date:

 


 




 

12








 






 

 


 

 


(a)           Organization
and Qualification. The Company is an entity duly
incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite corporate power and authority to
own and use its properties and assets and to carry on its business
as currently conducted.  The Company is not in violation
or default of any of the provisions of its Certificate of
Incorporation, Bylaws or other organizational or charter
documents.  The Company is duly qualified to conduct
business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business
conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good
standing, as the case may be, could not have or reasonably be
expected to result in a Material Adverse Effect and no proceeding
has been instituted in any such jurisdiction revoking, limiting or
curtailing or seeking to revoke, limit or curtail such power and
authority or qualification. The Company has no
Subsidiaries.

 


(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 Transaction Documents to which it is a party,
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 (as defined below
in Section 5(e))
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 and no further consent or
authorization is required by the Company, its Board of Directors or
its stockholders (except as provided in this Agreement), (iii) each
of this Agreement and the Registration Rights Agreement has been,
and each other Transaction Document shall be on the Commencement
Date, duly executed and delivered by the Company and (iv) each of
this Agreement and the Registration Rights 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
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. The Board of Directors of the Company has approved
the resolutions (the “Signing Resolutions”)
substantially in the form as set forth as Exhibit B
attached hereto to authorize this Agreement, the Registration
Rights 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 respect. The Company has
delivered to the Investor a true and correct copy of minutes of a
meeting of the Board of Directors of the Company at which the
Signing Resolutions were duly adopted by the Board of Directors or
a unanimous written consent adopting the Signing Resolutions
executed by all of the members of the Board of Directors of the
Company. Except as set forth in this Agreement, no other approvals
or consents of the Company’s Board of Directors, any
authorized committee thereof, or stockholders (except as provided
in this Agreement) is necessary under applicable laws and the
Company’s Certificate of Incorporation or Bylaws to authorize
the execution and delivery of the Transaction Documents or any of
the transactions contemplated thereby, including, but not limited
to, the issuance of the Securities.

 


 




 

13








 






 

 


(c)           Capitalization.
As of the date hereof, the authorized capital stock of the Company
is set forth in the Company’s Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30, 2020, as amended. Except
as disclosed in the SEC Documents (as defined below), (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, (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
contracts, commitments, understandings or arrangements by which the
Company is or may become bound to issue additional shares of
capital stock of the Company 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, (iv) there are no agreements or
arrangements under which the Company is obligated to register the
sale of any of their securities under the Securities Act (except
the Registration Rights Agreement), (v) there are no outstanding
securities or instruments of the Company which contain any
redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company is
or may become bound to redeem a security of the Company, (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 to the Investor 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"), and summaries of the
material terms of all securities convertible into or exercisable
for Common Stock, if any, and copies of any documents containing
the material rights of the holders thereof in respect thereto that
are not disclosed in the SEC Documents.

 


(d)           Issuance
of Securities. Upon issuance and payment therefor in
accordance with the terms and conditions of this Agreement, the
Purchase Shares (including, without limitation, the Initial
Purchase Shares and the Tranche Purchase Shares) shall be validly
issued, fully paid and nonassessable and free from all taxes,
liens, charges, restrictions (other than such restrictions on
transfer arising under the Securities Act prior to the effective
date of the Registration Statement registering the resale thereof
by the Investor under the Securities Act), rights of first refusal
and preemptive rights with respect to the issue thereof, with the
holders being entitled to all rights accorded to a holder of Common
Stock under the Certificate of Incorporation, Bylaws and the New
York Business Corporation Law. Upon issuance in accordance with the
terms and conditions of this Agreement, the Commitment Shares (as
defined below in Section
5(e)) shall be validly issued, fully paid and nonassessable
and free from all taxes, liens, charges, restrictions (other than
such restrictions on transfer arising under the Securities Act
prior to the effective date of the Registration Statement
registering the resale thereof by the Investor under the Securities
Act), rights of first refusal and preemptive rights with respect to
the issue thereof, with the holders being entitled to all rights
accorded to a holder of Common Stock under the Certificate of
Incorporation, Bylaws and the New York Business Corporation Law.
8,000,000 shares of Common Stock have been duly authorized and
reserved for issuance upon purchase under this Agreement as
Purchase Shares (including the Initial Purchase Shares and the
Tranche Purchase Shares).

 


 




 

14








 






 

 


(e)           No
Conflicts. The execution, delivery and performance of the
Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby
(including, without limitation, the issuance of the Commitment
Shares and the reservation for issuance and issuance of the
Purchase Shares) will not (i) result in a violation of the
Certificate of Incorporation, any Certificate of Designations,
Preferences and Rights of any outstanding series of preferred stock
of the Company or the Bylaws or (ii) conflict with, or constitute a
default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, any
agreement, indenture or instrument to which the Company is a party,
or result 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 by which any property or asset of the
Company is bound or affected, except in the case of conflicts,
defaults, terminations, amendments, accelerations, cancellations
and violations under clause (ii), which could not reasonably be
expected to result in a Material Adverse Effect. The Company is not
in violation of any term of or in default under its Certificate of
Incorporation, any Certificate of Designation, Preferences and
Rights of any outstanding series of preferred stock of the Company
or Bylaws. The Company is not in violation of any term of or is not
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, except
for such conflicts, defaults, terminations or amendments that could
not reasonably be expected to have a Material Adverse Effect. The
business of the Company 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 and as required under
the Securities Act or applicable state securities laws and the
rules and regulations of 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 as set forth elsewhere in this
Agreement, 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. Except as disclosed in the SEC Documents,
since one year prior to the date hereof, the Company has not
received nor delivered any notices or correspondence from or to the
Principal Market, other than notices with respect to listing of
additional shares of Common Stock and other routine correspondence.
Except as disclosed in the SEC Documents, the Principal Market has
not commenced any delisting proceedings against the
Company.

 


(f)           SEC
Documents; Financial Statements. The Company has filed all
reports, schedules, forms, statements and other documents required
to be filed by the Company with the SEC under the Securities Act
and the Exchange Act, including pursuant to Section 13(a) or 15(d)
thereof, for the twelve months preceding the date hereof (or such
shorter period as the Company was required by law or regulation to
file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein,
being collectively referred to herein as the “SEC
Documents”).  As of their respective dates,
the SEC Documents complied in all material respects with the
requirements of the Securities Act and the Exchange Act, as
applicable. None of the SEC Documents, when filed, contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under
which they were made, not misleading. The financial statements of
the Company included in the SEC Documents comply in all material
respects with applicable accounting requirements and the rules and
regulations of the SEC with respect thereto as in effect at the
time of filing.  Such financial statements have been
prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be
otherwise specified in such financial statements or the notes
thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all
material respects the financial position of the Company as of and
for the dates thereof and the results of operations and cash flows
for the periods then ended, subject, in the case of unaudited
statements, to normal, immaterial, year-end audit adjustments.
Except as set forth in the SEC Documents, the Company has received
no notices or correspondence from the SEC for the one year
preceding the date hereof.
The SEC has not commenced any enforcement proceedings against the
Company.

 


(g)           Absence
of Certain Changes. Except as disclosed in the SEC
Documents, since December 31, 2019, there has been no material
adverse change in the business, properties, operations, financial
condition or results of operations of the Company. 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 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. 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, threatened against or affecting the
Company, the Common Stock or any of the Company's officers or
directors in their capacities as such, which could reasonably be
expected to have a Material Adverse Effect.

 


 




 

15








 






 

 


 

 


(i)           Acknowledgment
Regarding Investor's Status. The Company acknowledges and
agrees that the Investor 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 Investor 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
Investor 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 Investor's purchase of the
Securities. The Company further represents to the Investor 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)           No
General Solicitation; No Integrated Offering. Neither the
Company, nor any of its affiliates, nor any Person acting on its or
their behalf, has engaged in any form of general solicitation or
general advertising (within the meaning of Regulation D under the
Securities Act) in connection with the offer or sale of the
Securities. Neither the Company, nor any of its affiliates, nor any
Person acting on their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any
security, under circumstances that would require registration of
the offer and sale of any of the Securities under the Securities
Act, whether through integration with prior offerings or otherwise,
or cause this offering of the Securities to be integrated with
prior offerings by the Company in a manner that would require
stockholder approval pursuant to the rules of the Principal Market
on which any of the securities of the Company are listed or
designated. The issuance and sale of the Securities hereunder does
not contravene the rules and regulations of the Principal
Market.

 


 (k)           Intellectual
Property Rights. The Company owns or possesses 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 rights necessary to
conduct their respective businesses as now conducted. None of the
Company's material trademarks, trade names, service marks, service
mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, government
authorizations, trade secrets or other intellectual property rights
have expired or terminated, or, by the terms and conditions
thereof, could expire or terminate within two years from the date
of this Agreement. The Company does not have any knowledge of any
infringement by the Company of any material trademark, trade name
rights, patents, patent rights, copyrights, inventions, licenses,
service names, service marks, service mark registrations, trade
secret or other similar rights of others, or of any such
development of similar or identical trade secrets or technical
information by others, and there is no claim, action or proceeding
being made or brought against, or to the Company's knowledge, being
threatened against, the Company regarding trademark, trade name,
patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or
other infringement, which could reasonably be expected to have a
Material Adverse Effect.

 


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

 


 




 

16








 






 

 


 

 


(m)           Title.
The Company has good and marketable title in fee simple to all real
property owned by the Company and good and marketable title in all
personal property owned by the Company that is material to the
business of the Company, in each case free and clear of all liens,
encumbrances and defects (“Liens”) and, except for
Liens as do not materially affect the value of such property and do
not materially interfere with the use made and proposed to be made
of such property by the Company and Liens for the payment of
federal, state or other taxes, the payment of which is neither
delinquent nor subject to penalties.  Any real property
and facilities held under lease by the Company are held by the
Company under valid, subsisting and enforceable leases with which
the Company is in compliance 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.

 


(n)           Insurance.
The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as
management of the Company believes to be prudent and customary in
the businesses in which the Company is engaged. The Company has not
been refused any insurance coverage sought or applied for and the
Company has no reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not
materially and adversely affect the condition, financial or
otherwise, or the earnings, business or operations of the Company,
taken as a whole.

 


(o)           Regulatory
Permits. The Company possesses all material certificates,
authorizations and permits issued by the appropriate federal, state
or foreign regulatory authorities necessary to conduct its
business, and the Company has not received any notice of
proceedings relating to the revocation or modification of any such
material certificate, authorization or permit.

 


(p)           Tax
Status. The Company 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 has set aside on its books
provisions reasonably adequate for the payment of all unpaid and
unreported taxes) 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 and has set aside on its
books provision reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns,
reports or declarations apply. There are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any
jurisdiction, and the officers of the Company know of no basis for
any such claim.

 


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

 


 




 

17








 






 

 


 

 


(r)           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 which
is or could become applicable to the Investor as a result of the
transactions contemplated by this Agreement, including, without
limitation, the Company's issuance of the Securities and the
Investor's ownership of the Securities.

 


(s)            Disclosure.  Except
with respect to the material terms and conditions of the
transactions contemplated by the Transaction Documents that will be
timely publicly disclosed by the Company, the Company confirms that
neither it nor any other Person acting on its behalf has provided
the Investor or its agents or counsel with any information that it
believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Registration
Statement or the SEC Documents.   The Company
understands and confirms that the Investor will rely on the
foregoing representation in effecting purchases and sales of
securities of the Company.  All of the disclosure
furnished by or on behalf of the Company to the Investor regarding
the Company, its business and the transactions contemplated hereby,
including the disclosure schedules to this Agreement, is true and
correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements made therein, in light of the circumstances under
which they were made, not misleading. The press releases
disseminated by the Company during the twelve months preceding the
date of this Agreement are true and correct in all material
respects.  The Company acknowledges and agrees that the
Investor neither makes nor has made any representations or
warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3
hereof.

 


(t)           Foreign
Corrupt Practices.  Neither the Company, nor to the
knowledge of the Company, any agent or other Person acting on
behalf of the Company, has (i) directly or indirectly, used any
funds for unlawful contributions, gifts, entertainment or other
unlawful expenses related to foreign or domestic political
activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic
political parties or campaigns from corporate funds, (iii) failed
to disclose fully any contribution made by the Company (or made by
any Person acting on its behalf of which the Company is aware)
which is in violation of law, or (iv) violated in any material
respect any provision of the Foreign Corrupt Practices Act of 1977,
as amended.


 

(u)           
DTC Eligibility.
The Company, through the Transfer Agent, currently participates in
the DTC Fast Automated Securities Transfer (FAST) Program and the
Common Stock can be transferred electronically to third parties via
the DTC Fast Automated Securities Transfer (FAST)
Program.

 


(v)           Sarbanes-Oxley.
The Company is in compliance in all material respects with all
provisions of the Sarbanes-Oxley Act of 2002, as amended, which are
applicable to it as of the date hereof.

 



(w)           Certain
Fees. No brokerage or finder’s fees or commissions are
or will be payable by the Company to any broker, financial advisor
or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by the
Transaction Documents. The Investor shall have no obligation with
respect to any fees or with respect to any claims made by or on
behalf of other Persons for fees of a type contemplated in this
Section 4(w) that
may be due in connection with the transactions contemplated by the
Transaction Documents.

 


(x)           Investment
Company. The Company is not, and immediately after receipt
of payment for the Securities will not be, an “investment
company” within the meaning of the Investment Company Act of
1940, as amended.

 


 




 

18








 






 

 


 

 


(y)           Listing
and Maintenance Requirements. The Common Stock is registered
pursuant to Section 12(g) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is
likely to have the effect of, terminating the registration of the
Common Stock pursuant to the Exchange Act nor has the Company
received any notification that the SEC is currently contemplating
terminating such registration. The Company has not, in the twelve
(12) months preceding the date hereof, received any notice from any
Person to the effect that the Company is not in compliance with the
listing or maintenance requirements of the Principal Market. The
Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such
listing and maintenance requirements. The Principal Market has not
commenced any delisting proceedings against the
Company.

 


(z)           Accountants.
The Company’s accountants are set forth in the SEC Documents
and, to the knowledge of the Company, such accountants are an
independent registered public accounting firm as required by the
Securities Act.

 


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

 


(bb)           Shell
Company Status. The Company is not currently, and has never
been, an issuer identified in Rule 144(i)(1) under the Securities
Act.

 


(cc)           No
Disqualification Events. None of the Company, any of its
predecessors, any affiliated issuer, any director, executive
officer, other officer of the Company participating in the offering
contemplated hereby, any beneficial owner of 20% or more of the
Company's outstanding voting equity securities, calculated on the
basis of voting power, nor any promoter (as that term is defined in
Rule 405 under the Securities Act) connected with the Company in
any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications
described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification
Event”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company
has exercised reasonable care to determine whether any Issuer
Covered Person is subject to a Disqualification Event.

 


5.           COVENANTS.

 


(a)           Filing
of Current Report and Registration Statement. The Company
agrees that it shall, within the time required under the Exchange
Act, file with the SEC a Current Report on Form 8-K relating to the
transactions contemplated by, and describing the material terms and
conditions of, the Transaction Documents (the “Current Report”). The
Company shall also file with the SEC, within thirty (30) days from
the date hereof, a new registration statement (the
“Registration
Statement”) covering only the resale of the Purchase
Shares (including, without limitation, all of the Initial Purchase
Shares and Tranche Purchase Shares) and all of the Commitment
Shares, in accordance with the terms of the Registration Rights
Agreement between the Company and the Investor, dated as of the
date hereof (the “Registration Rights
Agreement”). The Company shall permit the Investor to
review and comment upon the substantially final pre-filing draft
version of the Current Report at least two (2) Business Days prior
to its filing with the SEC, and the Company shall give due
consideration to all such comments. The Investor shall use its
reasonable best efforts to comment upon the substantially final
pre-filing draft version of the Current Report within one (1)
Business Day from the date the Investor receives it from the
Company.

 


 




 

19








 






 

 


 

 


(b)           Blue
Sky. The Company shall take all such action, if any, as is
reasonably necessary in order to obtain an exemption for or to
register or qualify (i) the issuance of the Commitment Shares and
the sale of the Purchase Shares to the Investor under this
Agreement and (ii) any subsequent resale of all Commitment Shares
and all Purchase Shares by the Investor, 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 Investor from time to time, and shall provide evidence of any
such action so taken to the Investor.

 


(c)           Listing/DTC.
The Company shall promptly secure the listing of all of the
Purchase Shares and Commitment Shares to be issued to the Investor
hereunder on the Principal Market (subject to official notice of
issuance) and upon each other national securities exchange or
automated quotation system, if any, upon which the Common Stock is
then listed, and shall use commercially reasonable efforts to
maintain, so long as any shares of Common Stock shall be so listed,
such listing of all such Securities from time to time issuable
hereunder. The Company shall maintain the listing of the Common
Stock on the Principal Market and shall comply with the
Company’s reporting, filing and other obligations under the
bylaws or rules and regulations of the Principal Market. The
Company shall not take any action that would reasonably be expected
to result in the delisting or suspension of the Common Stock on the
Principal Market. The Company shall promptly, and in no event later
than the Business Day immediately following the date of receipt by
the Company, provide to the Investor copies of any notices it
receives from the Principal Market regarding the continued
eligibility of the Common Stock for listing on the Principal
Market; provided, however, that the Company shall not be required
to provide the Investor copies of any such notice that the Company
(i) reasonably believes constitutes material non-public information
or (ii) is not be required to be publicly disclosed in any report
or statement filed with the SEC under the Exchange Act or the
Securities Act. The Company shall pay all fees and expenses in
connection with satisfying its obligations under this Section 5(c). The Company shall
take all action necessary to ensure that its Common Stock can be
transferred electronically as DWAC Shares.

 


(d)           Prohibition
of Short Sales and Hedging Transactions. The Investor agrees
that beginning on the date of this Agreement and ending on the date
of termination of this Agreement as provided in Section 11, the
Investor 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 Rule 200 of Regulation SHO of the Exchange 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. In consideration for the
Investor’s execution and delivery of this Agreement, the
Company shall cause to be issued to the Investor a total of
1,250,000 shares of Common Stock (the “Commitment Shares”) not
later than the close of business on the next Business Day
immediately following the date of this Agreement and shall,
concurrently with the execution of this Agreement on the date
hereof, deliver to the Transfer Agent the Irrevocable Transfer
Agent Instructions with respect to the issuance of such Commitment
Shares to the Investor within such time period. For the avoidance
of doubt, all of the Commitment Shares shall be fully earned as of
the date of this Agreement, whether or not the Commencement shall
occur or any Purchase Shares (other than the Initial Purchase
Shares) are purchased by the Investor under this Agreement and
irrespective of any subsequent termination of this
Agreement.

 


 




 

20








 






 

 


 

 


(f)           Due
Diligence; Non-Public Information. The Investor shall have
the right, from time to time as the Investor may reasonably deem
appropriate, to perform reasonable due diligence on the Company
during normal business hours. Subject to the below restrictions and
covenants regarding material, non-public information, the Company
and its officers and employees shall provide information and
reasonably cooperate with the Investor in connection with any
reasonable request by the Investor related to the Investor's due
diligence of the Company. 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 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. The Company confirms that neither it,
nor any of its affiliates will, and the Company shall use its
reasonable best efforts to ensure that none of their respective
directors, officers, employees, stockholders, agents or other
Persons acting on their behalf will, directly or indirectly,
provide the Investor or its agents or counsel with any information
that constitutes or might constitute material, non-public
information, unless a simultaneous public announcement thereof is
made by the Company in the manner contemplated by Regulation FD. In
the event of a breach of the foregoing covenant by the Company, any
of its affiliates, or any of their respective directors, officers,
employees, stockholders, agents or other Persons acting on their
behalf (as determined in the reasonable good faith judgment of the
Investor), in addition to any other remedy provided herein or in
the other Transaction Documents, the Investor shall have the right
to make a public disclosure, in the form of a press release, public
advertisement or otherwise, of such material, non-public
information without the prior approval by the Company; provided the
Investor shall have first provided notice to the Company that it
believes it has received information that constitutes material,
non-public information, the Company shall have at least 24 hours to
publicly disclose such material, non-public information prior to
any such disclosure by the Investor, and the Company shall have
failed to publicly disclose such material, non-public information
within such time period. The Investor shall not have any liability
to the Company, any of its affiliates, or any of their respective
directors, officers, employees, stockholders, agents or other
Persons acting on their behalf, for any such disclosure. The
Company understands and confirms that the Investor shall be relying
on the foregoing covenants in effecting transactions in securities
of the Company.








(g)
        Purchase
Records. The Investor and the
Company shall each maintain records showing the remaining Available
Amount at any given time and the dates and Purchase Amounts for
each Regular Purchase, Accelerated Purchase and Additional
Accelerated Purchase and the Initial Purchase and Tranche Purchase
or shall use such other method, reasonably satisfactory to the
Investor and the Company.






(h)    
    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 Investor made under this Agreement.

 


(i)           Use
of Proceeds. The Company will use the net proceeds from the
offering as described in the Registration Statement or the SEC
Documents.

 


(j)           Other
Transactions. During the term of this Agreement, the Company
shall not enter into, announce or recommend to its shareholders any
agreement, plan, arrangement or transaction in or of which the
terms thereof would restrict, materially delay, conflict with or
impair the ability or right of the Company to perform its
obligations under the Transaction Documents, including, without
limitation, the obligation of the Company to deliver the Purchase
Shares and the Commitment Shares to the Investor in accordance with
the terms of the Transaction Documents.

 


(k)           Integration.
From and after the date of this Agreement, neither the Company, nor
any of its affiliates will, and the Company shall use its
reasonable best efforts to ensure that no Person acting on their
behalf will, directly or indirectly, make any offers or sales of
any security or solicit any offers to buy any security, under
circumstances that would (i) require registration of the offer and
sale by the Company to the Investor of any of the Securities under
the Securities Act, or (ii) cause this offering of the Securities
by the Company to the Investor to be integrated with other
offerings by the Company in a manner that would require stockholder
approval pursuant to the rules of the Principal Market on which any
of the securities of the Company are listed or designated, unless
in the case of this clause (ii), stockholder approval is obtained
before the closing of such subsequent transaction in accordance
with the rules of such Principal Market.

 


 




 

21








 






 

 


 

 


(l)           Limitation
on Variable Rate Transactions. From and after the date of
this Agreement until the later of (i) the 36-month anniversary of
the date of this Agreement and (ii) the 36-month anniversary of the
Commencement Date (if the Commencement has occurred), in either
case irrespective of any earlier termination of this Agreement, the
Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company of Common Stock or
Common Stock Equivalents (or a combination of units thereof)
involving a Variable Rate Transaction, other than in connection
with an Exempt Issuance. The Investor shall be entitled to obtain
injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect
damages, without the necessity of showing economic loss and without
any bond or other security being required. “Common Stock Equivalents”
means any securities of the Company which entitle the holder
thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, rights, options, warrants or
other instrument that is at any time convertible into or
exercisable or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock. “Variable Rate
Transaction” means a transaction in which the Company
(i) issues or sells any debt or equity securities that are
convertible into, exchangeable or exercisable for, or include the
right to receive additional shares of Common Stock or Common Stock
Equivalents either (A) at a conversion price, exercise price,
exchange rate or other price that is based upon and/or varies with
the trading prices of or quotations for the Common Stock at any
time after the initial issuance of such debt or equity securities
(including, without limitation, pursuant to any “cashless
exercise” provision), or (B) with a conversion, exercise or
exchange price that is subject to being reset at some future date
after the initial issuance of such debt or equity security or upon
the occurrence of specified or contingent events directly or
indirectly related to the business of the Company or the market for
the Common Stock (including, without limitation, any “full
ratchet” or “weighted average” anti-dilution
provisions), (ii) issues or sells any debt or equity securities,
including without limitation, Common Stock or Common Stock
Equivalents, either (A) at a price that is subject to being reset
at some future date after the initial issuance of such debt or
equity security or upon the occurrence of specified or contingent
events directly or indirectly related to the business of the
Company or the market for the Common Stock, or (B) that is subject
to or contains any put, call, redemption, buy-back, price-reset or
other similar provision or mechanism (including, without
limitation, a “Black-Scholes” put or call right) that
provides for the issuance of additional debt or equity securities
of the Company or the payment of cash by the Company, or (iii)
enters into any agreement, including, but not limited to, an
“equity line of credit”, “at-the-market
offering” or other continuous offering or similar offering of
Common Stock or Common Stock Equivalents, whereby the Company may
sell Common Stock or Common Stock Equivalents at a future
determined price. “Exempt Issuance” means
the issuance of (a) Common Stock, options or other equity incentive
awards to employees, officers, directors or vendors of the Company
pursuant to any equity incentive plan or stock purchase plan duly
adopted (before or after the date of this Agreement) for such
purpose, by the Board of Directors of the Company or a majority of
the members of a committee of directors established for such
purpose, (b) (1) any Securities issued to the Investor pursuant to
this Agreement, (2) any securities issued upon the exercise or
exchange of or conversion of any shares of Common Stock or Common
Stock Equivalents held by the Investor at any time, (3) shares of
Common Stock, Common Stock Equivalents or other securities issued
to the Investor pursuant to any other existing or future contract,
agreement or arrangement between the Company and the Investor, or
(4) any securities issued upon the exercise or exchange of or
conversion of any Common Stock Equivalents issued and outstanding
on the date of this Agreement, provided that such securities
referred to in this clause (4) have not been amended since the date
of this Agreement to increase the number of such securities or to
decrease the exercise price, exchange price or conversion price of
such securities, (c) securities issued pursuant to acquisitions,
divestitures, licenses, partnerships, collaborations or strategic
transactions approved by the Board of Directors or a majority of
the members of a committee of directors established for such
purpose, which acquisitions, divestitures, licenses, partnerships,
collaborations or strategic transactions can have a Variable Rate
Transaction component, provided that any such issuance shall only
be to a Person (or to the equity holders of a Person) which is,
itself or through its subsidiaries, an operating company or an
asset in a business synergistic with the business of the Company
and shall provide to the Company additional benefits in addition to
the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose
of raising capital or to an entity whose primary business is
investing in securities, or (d) Common Stock issued pursuant to an
“at-the-market offering” by the Company exclusively
through one or more registered broker-dealers acting primarily as
agent(s) of the Company pursuant to a written equity distribution
or sales agreement between the Company and such registered
broker-dealer(s).

 


6.           TRANSFER
AGENT INSTRUCTIONS.

 


(a)      
On the date of this Agreement, the Company shall issue irrevocable
instructions to the Transfer Agent substantially in the form
attached hereto as Exhibit D to
issue the Initial Purchase Shares and the Commitment Shares in
accordance with the terms of this Agreement (the
“Irrevocable
Transfer Agent Instructions”). The certificate(s) or
book-entry statement(s) representing the Initial Purchase Shares
and the Commitment Shares, except as set forth below, shall bear
the following restrictive legend (the “Restrictive
Legend”):

 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES 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.

 


 




 

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(b) On the earlier of
(i) the Commencement Date and (ii) such time that the Investor
shall request, provided all conditions of Rule 144 under the
Securities Act are met , the Company shall, no later than one (1)
Business Day following the delivery by the Investor to the Company
or the Transfer Agent of one or more legended certificates or
book-entry statements representing the Initial Purchase Shares
and/or Commitment Shares (which certificates or book-entry
statements the Investor shall promptly deliver on or prior to the
first to occur of the events described in clauses (i) and (ii) of
this sentence), as directed by the Investor, issue and deliver (or
cause to be issued and delivered) to the Investor, as requested by
the Investor, either: (A) a certificate or book-entry statement
representing such Initial Purchase Shares and/or Commitment Shares
that is free from all restrictive and other legends or (B) a number
of shares of Common Stock equal to the number of Initial Purchase
Shares and/or Commitment Shares represented by the certificate(s)
or book-entry statement(s) so delivered by the Investor as DWAC
Shares. The Company shall take all actions necessary or desirable
to carry out the intent and accomplish the purposes of the
immediately preceding sentence, including, without limitation,
delivering all such legal opinions, consents, certificates,
resolutions and instructions to the Transfer Agent, and any
successor transfer agent of the Company, as may be requested from
time to time by the Investor or necessary or desirable to carry out
the intent and accomplish the purposes of the immediately preceding
sentence. On the Commencement Date, the Company shall issue to the
Transfer Agent, and any subsequent transfer agent, (i) irrevocable
instructions in the form substantially similar to those used by the
Investor in substantially similar transactions (the
“Commencement
Irrevocable Transfer Agent Instructions”) and (ii) the
notice of effectiveness of the Registration Statement in the form
attached as an exhibit to the Registration Rights Agreement (the
“Notice of
Effectiveness of Registration Statement”), in each
case to issue the Commitment Shares and the Purchase Shares
(including the Tranche Purchase Shares) in accordance with the
terms of this Agreement and the Registration Rights Agreement. All
Purchase Shares (including the Tranche Purchase Shares) to be
issued from and after Commencement to or for the benefit of the
Investor pursuant to this Agreement shall be issued only as DWAC
Shares. The Company represents and warrants to the Investor that,
while this Agreement is effective, no instruction other than the
Commencement Irrevocable Transfer Agent Instructions and the Notice
of Effectiveness of Registration Statement referred to in this
Section 6(b) will
be given by the Company to the Transfer Agent with respect to the
Purchase Shares or the Commitment Shares from and after
Commencement, and the Purchase Shares and the Commitment Shares
covered by the Registration Statement shall otherwise be freely
transferable on the books and records of the Company. If the
Investor effects a sale, assignment or transfer of the Purchase
Shares, the Company shall permit the transfer and shall promptly
instruct the Transfer Agent (and any subsequent transfer agent) to
issue DWAC Shares in such name and in such denominations as
specified by the Investor to effect such sale, transfer or
assignment. The Company acknowledges that a breach by it of its
obligations hereunder will cause irreparable harm to the Investor.
Accordingly, the Company acknowledges that the remedy at law for a
breach of its obligations under this Section 6 will be inadequate
and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 6, that the Investor
shall be entitled, in addition to all other available remedies, to
an order and/or injunction restraining any breach and requiring
immediate issuance and transfer, without the necessity of showing
economic loss and without any bond or other security being
required. The Company agrees that if the Company fails to fully
comply with the provisions of this Section 6(b) within five (5)
Business Days of the Investor providing the deliveries referred to
above, the Company shall, at the Investor’s written
instruction, purchase such shares of Common Stock containing the
restrictive legend from the Investor at the greater of the (i)
purchase price paid for such shares of Common Stock (as applicable)
and (ii) the Closing Sale Price of the Common Stock on the date of
the Investor’s written instruction.


 



7. 

CONDITIONS
TO THE COMPANY'S RIGHT TO COMMENCE SALES OF SHARES OF COMMON
STOCK.





 


I.           The
right of the Company hereunder to sell the Initial Purchase Shares
on the date of this Agreement is subject to the satisfaction of
each of the following conditions:

 


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

 


(b)            The
representations and warranties of the Investor shall be true and
correct in all material respects as of the date
hereof.

 


II.           The
right of the Company hereunder to commence sales of the Purchase
Shares (other than the Initial Purchase Shares), including the
Tranche Purchase Shares, on the Commencement Date is subject to the
satisfaction of each of the following conditions:

 


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

 


(b)            The
Registration Statement covering the resale of the Purchase Shares
(including, without limitation, all of the Initial Purchase Shares
and Tranche Purchase Shares) and all of the Commitment Shares shall
have been declared effective under the Securities Act by the SEC,
and no stop order with respect to the Registration Statement shall
be pending or threatened by the SEC; and 

 


 




 

23








 






 

 


 

 


(c)            The
representations and warranties of the Investor shall be true and
correct in all material respects as of the date hereof and as of
the Commencement Date as though made at that time.

 



8. 

CONDITIONS
TO THE INVESTOR'S OBLIGATION TO PURCHASE SHARES OF COMMON
STOCK.





 


I.           The
obligation of the Investor to buy the Initial Purchase Shares under
this Agreement is subject to the satisfaction of each of the
following conditions:


 


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


 


(b) 
The
Common Stock shall be listed or quoted 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, and all
Securities to be issued by the Company to the Investor pursuant to
this Agreement shall have been, if applicable, approved for listing
or quotation on the Principal Market in accordance with the
applicable rules and regulations of the Principal Market, subject
only to official notice of issuance;

 


(c) The representations
and warranties of the Company contained in Section 4 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
4 above, in which case, such representations and warranties
shall be true and correct without further qualification) as of the
date hereof (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, or to the extent
already qualified as to materiality in Section 4 above shall be true
and correct in all respects as of such specific date) and the
Company shall have performed, satisfied and complied 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 date hereof. The Investor shall have
received a certificate, executed by the Chief Executive Officer
(“CEO”), President or Chief
Financial Officer (“CFO”) of the Company,
dated as of the date hereof, to the foregoing effect in the form
attached hereto as Exhibit
A;

 


(d)           The
Board of Directors of the Company shall have adopted the Signing
Resolutions in substantially the form attached hereto as
Exhibit
B which shall be in full force and effect without any
amendment or supplement thereto as of the Commencement
Date;

 


(e)           The
Irrevocable Transfer Agent Instructions shall have been delivered
by the Company to the Transfer Agent (or any successor transfer
agent) and acknowledged in writing (including by email) by the
Transfer Agent (or any successor transfer agent);

 


(f)           All
federal, state and local governmental laws, rules and regulations
applicable to the transactions contemplated by the Transaction
Documents and necessary for the execution, delivery and performance
of the Transaction Documents and the consummation of the
transactions contemplated thereby in accordance with the terms
thereof shall have been complied with, and all consents,
authorizations and orders of, and all filings and registrations
with, all federal, state and local courts or governmental agencies
and all federal, state and local regulatory or self-regulatory
agencies necessary for the execution, delivery and performance of
the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall
have been obtained or made, including, without limitation, in each
case those required under the Securities Act, the Exchange Act,
applicable state securities or “Blue Sky” laws or
applicable rules and regulations of the Principal Market, or
otherwise required by the SEC, the Principal Market or any state
securities regulators;

 


 




 

24








 






 

 


 

 


(g)           No
statute, regulation, order, decree, writ, ruling or injunction
shall have been enacted, entered, promulgated, threatened or
endorsed by any federal, state or local court or governmental
authority of competent jurisdiction which prohibits the
consummation of or which would materially modify or delay any of
the transactions contemplated by the Transaction Documents;
and

 


(h)           No
action, suit or proceeding before any federal, state, local or
foreign arbitrator or any court or governmental authority of
competent jurisdiction shall have been commenced or threatened, and
no inquiry or investigation by any federal, state, local or foreign
governmental authority of competent jurisdiction shall have been
commenced or threatened, against the Company, or any of the
officers, directors or affiliates of the Company, seeking to
restrain, prevent or change the transactions contemplated by the
Transaction Documents, or seeking material damages in connection
with such transactions.

 


II.           The
obligation of the Investor to buy Purchase Shares (other than the
Initial Purchase Shares), including the Tranche Purchase Shares,
under this Agreement is subject to the satisfaction of each of the
following conditions on or prior to the Commencement Date 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 Investor;

 

(b)         
The Company shall have issued or caused to be issued to the
Investor (i) one or more certificates or book-entry statements
representing the Initial Purchase Shares and the Commitment Shares
free from all restrictive and other legends or (ii) a number of
shares of Common Stock equal to the number of Initial Purchase
Shares and Commitment Shares as DWAC Shares, in each case in
accordance with Section
6(b);

 


(c)           The
Common Stock shall be listed or quoted 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, and all
Securities to be issued by the Company to the Investor pursuant to
this Agreement shall have been, if applicable, approved for listing
or quotation on the Principal Market in accordance with the
applicable rules and regulations of the Principal Market, subject
only to official notice of issuance;


 


(d)           The
Investor shall have received the opinions and negative assurances
of the Company's legal counsel dated as of the Commencement Date
substantially in the form heretofore agreed by the parties
hereto;


 


(e)           The
representations and warranties of the Company contained in
Section 4 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 4 above, in which case, such
representations and warranties shall be true and correct without
further qualification) as of the date hereof 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, or to the extent already qualified as to materiality
in Section 4 above shall be true and correct in all respects as of
such specific date) and the Company shall have performed, satisfied
and complied 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
Investor 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;

 


 




 

25








 






 

 


 

 


(f)           The
Board of Directors of the Company shall have adopted the Signing
Resolutions in substantially the form attached hereto as
Exhibit
B 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 purchases of Purchase Shares (including the Initial
Purchase Shares and the Tranche Purchase Shares), hereunder,
8,000,000 shares of Common Stock;

 


(h)           The
Commencement Irrevocable Transfer Agent Instructions and the Notice
of Effectiveness of Registration Statement each shall have been
delivered to the Transfer Agent (or any successor transfer agent)
and acknowledged in writing (including by email) by the Transfer
Agent (or any successor transfer agent);

 


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

 


(j)           The
Company shall have delivered to the Investor a certified copy of
the Certificate of Incorporation as certified by the Department of
State of the State of New York within ten (10) Business Days of the
Commencement Date;

 


(k)           The
Company shall have delivered to the Investor 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)           The
Registration Statement covering the resale of the Purchase Shares
(including, without limitation, all of the Initial Purchase Shares
and Tranche Purchase Shares) and all of the Commitment Shares shall
have been declared effective under the Securities Act by the SEC,
and no stop order with respect to the Registration Statement shall
be in effect or threatened by the SEC. The Company shall have
prepared and filed with the SEC, not later than one (1) Business
Day after the effective date of the Registration Statement, a final
and complete prospectus (the preliminary form of which shall be
included in the Registration Statement) and shall have delivered to
the Investor a true and complete copy thereof. Such prospectus
shall be current and available for the resale by the Investor of
all of the Securities covered thereby. The Current Report shall
have been filed with the SEC, as required pursuant to Section 5(a). All reports,
schedules, registrations, forms, statements, information and other
documents required to have been filed by the Company with the SEC
at or during the 12-month period immediately preceding the
Commencement Date pursuant to the reporting requirements of the
Exchange Act shall have been filed with the SEC within the
applicable time periods prescribed for such filings under the
Exchange Act, including any applicable extension periods
contemplated by the Exchange Act;

 


(m)           No
Event of Default (as defined below) has occurred, and no event
which, after notice and/or lapse of time, would reasonably be
expected to become an Event of Default has occurred;

 


(n)           All
federal, state and local governmental laws, rules and regulations
applicable to the transactions contemplated by the Transaction
Documents and necessary for the execution, delivery and performance
of the Transaction Documents and the consummation of the
transactions contemplated thereby in accordance with the terms
thereof shall have been complied with, and all consents,
authorizations and orders of, and all filings and registrations
with, all federal, state and local courts or governmental agencies
and all federal, state and local regulatory or self-regulatory
agencies necessary for the execution, delivery and performance of
the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall
have been obtained or made, including, without limitation, in each
case those required under the Securities Act, the Exchange Act,
applicable state securities or “Blue Sky” laws or
applicable rules and regulations of the Principal Market, or
otherwise required by the SEC, the Principal Market or any state
securities regulators;

 


 




 

26








 






 

 


 

 


(o)           No
statute, regulation, order, decree, writ, ruling or injunction
shall have been enacted, entered, promulgated, threatened or
endorsed by any federal, state or local court or governmental
authority of competent jurisdiction which prohibits the
consummation of or which would materially modify or delay any of
the transactions contemplated by the Transaction Documents;
and

 


(p)           No
action, suit or proceeding before any federal, state, local or
foreign arbitrator or any court or governmental authority of
competent jurisdiction shall have been commenced or threatened, and
no inquiry or investigation by any federal, state, local or foreign
governmental authority of competent jurisdiction shall have been
commenced or threatened, against the Company, or any of the
officers, directors or affiliates of the Company, seeking to
restrain, prevent or change the transactions contemplated by the
Transaction Documents, or seeking material damages in connection
with such transactions.

 



9. 

INDEMNIFICATION.





 


In
consideration of the Investor'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 Investor and all of its affiliates,
stockholders, members, officers, directors, employees and direct or
indirect investors 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, in the case of clause (c), with respect to
Indemnified Liabilities which directly and primarily result from
the fraud, gross negligence or willful misconduct of an Indemnitee.
The indemnity in this Section 9 shall not apply to amounts paid in
settlement of any claim if such settlement is effected without the
prior written consent of the Company, which consent shall not be
unreasonably withheld, conditioned or delayed. 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. Payment under this
indemnification shall be made within thirty (30) days from the date
Investor makes written request for it. A certificate containing
reasonable detail as to the amount of such indemnification
submitted to the Company by Investor shall be conclusive evidence,
absent manifest error, of the amount due from the Company to
Investor. If any action shall be brought against any Indemnitee in
respect of which indemnity may be sought pursuant to this
Agreement, such Indemnitee shall promptly notify the Company in
writing, and the Company shall have the right to assume the defense
thereof with counsel of its own choosing reasonably acceptable to
the Indemnitee. Any Indemnitee shall have the right to employ
separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnitee, except to the extent that (i) the
employment thereof has been specifically authorized by the Company
in writing, (ii) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or
(iii) in such action there is, in the reasonable opinion of
such separate counsel, a material conflict on any material issue
between the position of the Company and the position of such
Indemnitee, in which case the Company shall be responsible for the
reasonable fees and expenses of no more than one such separate
counsel.

 


 




 

27








 






 

 


 

 


10.           EVENTS
OF DEFAULT.

 


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

 


(a)           the
effectiveness of a registration statement registering the resale of
the Securities lapses for any reason (including, without
limitation, the issuance of a stop order or similar order) or such
registration statement (or the prospectus forming a part thereof)
is unavailable to the Investor for resale of any or all of the
Securities to be issued to the Investor under the Transaction
Documents, 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, but excluding a
lapse or unavailability where (i) the Company terminates a
registration statement after the Investor has confirmed in writing
that all of the Securities covered thereby have been resold or (ii)
the Company supersedes one registration statement with another
registration statement, including (without limitation) by
terminating a prior registration statement when it is effectively
replaced with a new registration statement covering Securities
(provided in the case of this clause (ii) that all of the
Securities covered by the superseded (or terminated) registration
statement that have not theretofore been resold are included in the
superseding (or new) registration statement);

 


(b)           the
suspension of the Common Stock from trading on the Principal Market
for a period of one (1) Business Day, provided that the Company may
not direct the Investor to purchase any shares of Common Stock
during any such suspension;

 


(c)           the
delisting of the Common Stock from OTC Markets (or nationally
recognized successor to the foregoing), provided, however, that the
Common Stock is not immediately thereafter trading on the New York
Stock Exchange, The Nasdaq Capital Market, The Nasdaq Global
Market, The Nasdaq Global Select Market, the NYSE American, the
NYSE Arca, or the OTC Bulletin Board (or nationally recognized
successor to any of the foregoing);

 


(d)           the
failure for any reason by the Transfer Agent to issue Purchase
Shares to the Investor within two (2) Business Days after the date
on which the Investor is entitled to receive such Purchase Shares
under this Agreement;

 


(e)           the
Company breaches any representation, warranty, covenant or other
term or condition under any Transaction Document if such breach
would 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 for a period of at least
five (5) Business Days;

 


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

 


 




 

28








 






 

 


 

 


(g)           if
the Company, pursuant to or within the meaning of any Bankruptcy
Law, (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii)
consents to the appointment of a Custodian of it or for all or
substantially all of its property, or (iv) makes a general
assignment for the benefit of its creditors or is generally unable
to pay its debts as the same become due;

 


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

 


(i)           if
at any time the Company is not eligible to transfer its Common
Stock electronically as DWAC Shares.

 


In
addition to any other rights and remedies under applicable law and
this Agreement, 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 reasonably be expected to become an Event of Default,
has occurred and is continuing, the Company shall not deliver to
the Investor any Regular Purchase Notice, Accelerated Purchase
Notice or Additional Accelerated Purchase Notice.

 


11.           TERMINATION

 


This
Agreement may be terminated only as follows:

 


(a)           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 10(f),
10(g) and
10(h) hereof), this
Agreement shall automatically terminate without any liability or
payment to the Company (except as set forth below) without further
action or notice by any Person.

 


(b)           In
the event that (i) the Company fails to file the Registration
Statement with the SEC within the period specified in Section 5(a) hereof in
accordance with the terms of the Registration Rights Agreement or
(ii) the Commencement shall not have occurred on or before January
31, 2021, due to the failure to satisfy the conditions set forth in
Sections 7(II) and
8(II) above with
respect to the Commencement, then, in the case of clause (i) above,
this Agreement may be terminated by the Investor at any time prior
to the filing of the Registration Statement and, in the case of
clause (ii) above, this Agreement may be terminated by either party
at the close of business on January 31, 2021 or thereafter, in each
case without liability of such party to the other party (except as
set forth below); provided, however, that the right to terminate
this Agreement under this Section 11(b) shall not be
available to any party if such party is then in breach of any
covenant or agreement contained in this Agreement or any
representation or warranty of such party contained in this
Agreement fails to be true and correct such that the conditions set
forth in Section
7(II)(c) or Section
8(II)(e), as applicable, could not then be
satisfied.

 


(c)           
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 Investor electing to terminate this
Agreement without any liability whatsoever of any party to any
other party under this Agreement (except as set forth below). The
Company Termination Notice shall not be effective until one (1)
Business Day after it has been received by the
Investor.

 


(d)           This
Agreement shall automatically terminate on the date that the
Company sells and the Investor 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
below).

 


 




 

29








 






 

 


 

 


(e)           If,
for any reason or for no reason, the full Available Amount has not
been purchased in accordance with Section 2 of this
Agreement by the Maturity Date, 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
below).

 


Except
as set forth in Sections
11(a) (in respect of an Event of Default under Sections 10(f), 10(g) and 10(h)), 11(d) and 11(e), any termination of this
Agreement pursuant to this Section 11 shall be effected by
written notice from the Company to the Investor, or the Investor to
the Company, as the case may be, setting forth the basis for the
termination hereof. The representations and warranties and
covenants of the Company and the Investor contained in Sections 3, 4, 5, and 6 hereof, the indemnification
provisions set forth in Section 9 hereof and the
agreements and covenants set forth in Sections 10,
11 and 12 shall survive the execution
and delivery of this Agreement and any termination of this
Agreement. No termination of this Agreement shall (i) affect the
Company’s or the Investor’s rights or obligations under
(A) this Agreement with respect to the Initial Purchase or any
pending Tranche Purchase, Regular Purchases, Accelerated Purchases
or Additional Accelerated Purchases and the Company and the
Investor shall complete their respective obligations with respect
to the Initial Purchase and any pending Tranche Purchase, Regular
Purchases, Accelerated Purchases and Additional Accelerated
Purchases under this Agreement and (B) the Registration Rights
Agreement, which shall survive any such termination, or (ii) be
deemed to release the Company or the Investor from any liability
for intentional misrepresentation or willful breach of any of the
Transaction Documents.

 


12.           MISCELLANEOUS.

 


(a)           Governing
Law; Jurisdiction; Jury Trial. The corporate laws of the
State of New York 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, the Registration Rights 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 State of Illinois, County of Cook, 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.

 


(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 signature or signature delivered by e-mail in a
“.pdf” format data file, including any electronic
signature complying with the U.S. federal ESIGN Act of 2000, e.g.,
www.docusign.com, www.echosign.adobe.com, etc., 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
signature.

 


 




 

30








 






 

 


 

 


(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. The Transaction Documents supersede all other
prior oral or written agreements between the Investor, the Company,
their affiliates and Persons acting on their behalf with respect to
the subject matter thereof, 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 Investor 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
the Transaction Documents.

 


(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 or
email (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or
(iii) one Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses for such communications
shall be:

 


If to
the Company:


American Bio Medica
Corporation


122
Smith Road


Kinderhook, NY
12106


Telephone:  
(518) 758-8158


E-mail:        
mdwaterhouse@abmc.com


Attention:    
Melissa A. Waterhouse

 


 


With a
copy to (which shall not constitute notice or service of
process):


Olshan
Frome Wolosky LLP


1325 Avenue of the Americas, 15th
Floor


New
York, NY 10019


Telephone:  (212) 451-2300


Facsimile:   (212) 451-2222


Email:     
   sfeldman@olshanlaw.com


Attention:    Spencer G. Feldman,
Esq.

 


 




 

31








 






 

 


 

 


If to
the Investor:


Lincoln
Park Capital Fund, LLC


440
North Wells, Suite 410


Chicago, IL
60654

Telephone:  
312-822-9300

Facsimile:   
312-822-9301

E-mail:        
jscheinfeld@lpcfunds.com/jcope@lpcfunds.com

Attention:   
Josh Scheinfeld/Jonathan Cope

 


With a
copy to (which shall not constitute notice or service of
process):


Dorsey
& Whitney LLP


51 West
52nd
Street


New
York, NY 10019


Telephone:  
(212) 415-9214


Facsimile:   
(212) 953-7201


E-mail:        
marsico.anthony@dorsey.com


Attention:    
Anthony J. Marsico, Esq.





If to
the Transfer Agent:


Computershare


P.O.
BOX 30170


College
Station, TX 77842-3170

Telephone:  
(781) 575-4223

Email:     
    matthew.wendler@computershare.com

Attention:   
Matthew Wendler

 


or at
such other address and/or facsimile number and/or email address
and/or to the attention of such other Person as the recipient party
has specified by written notice given to each other party three (3)
Business Days 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 or email account
containing the time, date, and recipient facsimile number or email
address, as applicable, or (C) provided by a nationally recognized
overnight delivery service, shall be rebuttable evidence of
personal service, receipt by facsimile or email or receipt from a
nationally recognized overnight delivery service in accordance with
clause (i), (ii) or (iii) above, respectively.

 


(g)           Successors
and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and
assigns. The Company shall not assign this Agreement or any rights
or obligations hereunder without the prior written consent of the
Investor, including by merger or consolidation. The Investor 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, except as set forth in Section 9, is
not for the benefit of, nor may any provision hereof be enforced
by, any other Person.

 


(i)           Publicity.
The Company shall afford the Investor and its counsel with the
opportunity to review and comment upon, shall consult with the
Investor and its counsel on the form and substance of, and shall
give due consideration to all such comments from the Investor or
its counsel on, any press release, SEC filing or any other public
disclosure by or on behalf of the Company relating to the Investor,
its purchases hereunder or any aspect of the Transaction Documents
or the transactions contemplated thereby, not less than 24 hours
prior to the issuance, filing or public disclosure thereof. The
Investor must be provided with a final version of any portion of
such press release, SEC filing or other public disclosure at least
24 hours prior to any release, filing or use by the Company
thereof. The Company agrees and acknowledges that its failure to
fully comply with this provision constitutes a Material Adverse
Effect.

 


(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 consummate and make effective, as soon as
reasonably possible, the Commencement, and to carry out the intent
and accomplish the purposes of this Agreement and the consummation
of the transactions contemplated hereby.

 


 




 

32








 






 

 


 

 


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

 


(l)           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.

 


(m)           Remedies,
Other Obligations, Breaches and Injunctive Relief. The
Investor’s remedies provided in this Agreement, including,
without limitation, the Investor’s remedies provided in
Section 9, shall be cumulative and in addition to all other
remedies available to the Investor under this Agreement, at law or
in equity (including a decree of specific performance and/or other
injunctive relief), no remedy of the Investor contained herein
shall be deemed a waiver of compliance with the provisions giving
rise to such remedy and nothing herein shall limit the Investor's
right to pursue actual damages for any failure by the Company to
comply with the terms of this Agreement. The Company acknowledges
that a breach by it of its obligations hereunder will cause
irreparable harm to the Investor and that the remedy at law for any
such breach may be inadequate. The Company therefore agrees that,
in the event of any such breach or threatened breach, the Investor
shall be entitled, in addition to all other available remedies, to
an injunction restraining any breach, without the necessity of
showing economic loss and without any bond or other security being
required.

 

(n)           
Enforcement Costs.
If: (i) this Agreement is placed by the Investor in the hands of an
attorney for enforcement or is enforced by the Investor through any
legal proceeding; (ii) an attorney is retained to represent the
Investor in any bankruptcy, reorganization, receivership or other
proceedings affecting creditors' rights and involving a claim under
this Agreement; or (iii) an attorney is retained to represent the
Investor in any other proceedings whatsoever in connection with
this Agreement, then the Company shall pay to the Investor, as
incurred by the Investor, all reasonable costs and expenses
including attorneys' fees incurred in connection therewith, in
addition to all other amounts due hereunder. If this Agreement is
placed by the Company in the hands of an attorney for enforcement
or is enforced by the Company through any legal proceeding, then
the Investor shall pay to the Company, as incurred by the Company,
all reasonable costs and expenses including attorneys' fees
incurred in connection therewith, in addition to all other amounts
due hereunder.

 

(o)           
Amendment and Waiver;
Failure or Indulgence Not Waiver. No provision of this
Agreement may be amended or waived by the parties from and after
the date that is one (1) Business Day immediately preceding the
initial filing of the Registration Statement with the SEC. Subject
to the immediately preceding sentence, (i) no provision of this
Agreement may be amended other than by a written instrument signed
by both parties hereto and (ii) no provision of this Agreement may
be waived other than in a written instrument signed by the party
against whom enforcement of such waiver is sought. 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.

 


 


 


 



* * * * *


 




 

33








 






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


 


 



THE COMPANY:


 


AMERICAN
BIO MEDICA CORPORATION


 


 


By:__/s/ Melissa A.
Waterhouse________


Name:
Melissa A. Waterhouse


Title:
Chief Executive Officer


 


 


 



INVESTOR:


 


LINCOLN
PARK CAPITAL FUND, LLC


BY:
LINCOLN PARK CAPITAL, LLC


BY:
ALEX NOAH INVESTORS, INC.


 


 


By:_/s/ Jonathan
Cope_______________


Name:
Jonathan Cope


Title:
President


 




 

34