Exhibit 10.1


 


SECURITIES PURCHASE AGREEMENT


 


This Securities Purchase Agreement
(this “Agreement”) is dated as of June 8, 2022 (the “Effective Date”), between Ecoark Holdings,
Inc., a Nevada corporation (the “Company”), and Digital Power Lending, LLC, a California limited liability company
(the “Purchaser”).


 


PREAMBLE


 


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


 


WHEREAS, subject to
SEC Guidance the Purchaser may sell the Registrable Shares (each as defined below) pursuant to a shelf registration statement on Form
S-3 (Registration No. 333-249532) (the “Registration Statement”), which Registration Statement was declared effective
on December 29, 2020 by the Commission (as defined below) in accordance with the Securities Act.


 


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


 


ARTICLE I


DEFINITIONS


 


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


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.21.


 


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


 


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


 


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


 


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


 


“Business
Day” means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day
on which banking institutions in the State of New York are authorized or required by law or other governmental action to close.


 


“Closing”
shall have the meaning ascribed to such term in Section 2.1.


 


“Closing
Date” shall mean the Trading Day on which the Closing is held, and is the Trading Day on which all of the Transaction Documents
have been executed and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchaser’s obligations
to pay the Subscription Amount at such Closing and (ii) the Company’s obligations to deliver the Securities to be issued and sold
at such Closing, in each case, have been satisfied or waived.


 


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


 


“Commitment
Shares” means the shares of Common Stock to be issued by the Company to the Purchaser pursuant to Section 2.1.


 


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


 


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


 






     


     


    

 


“Contingent
Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect
to any indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or
discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in
whole or in part) against loss with respect thereto.


 


“Conversion
Price” shall have the meaning ascribed to such term in the Series A Certificate of Designation.


 


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


 


“Conversion
Shares” means the shares of Common Stock issuable upon conversion of the Series A Preferred Stock.


 


“COVID-19”
means the disease known as coronavirus or COVID-19.


 


“COVID-19
Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing,
shut down, closure, sequester or any other Law, order, or directive by any Governmental Entity.


 


“Disclosure
Schedules” shall have the meaning ascribed to such term in Section 3.1.


 


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


 


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


 


“Exchange
Approval” means approval of the Common Stock contemplated by this Agreement by the Principal Market, which approval shall be
obtained (i) in the case of the Conversion Shares in an amount of up to 5,714,286 shares of Common Stock and (ii) in the case of the Warrant
Shares, no later than five days after the Company shall have obtained Shareholder Approval to issue such Conversion Shares and Warrant
Shares.


 


“Exchange
Cap” shall have the meaning ascribed to such term in Section 3.1(k)(ii).


 


“Exempt
Issuance” means the issuance of (i) shares of Common Stock, restricted stock units or stock options (and Common Stock issued
upon exercise of such securities) to employees, officers, consultants, advisors or directors of the Company in consideration of services
to the Company pursuant to any stock or option plan duly adopted for such purpose by a majority of the members of the Board of Directors
or a majority of the members of a committee of directors established for such purpose, not to exceed ten percent (10%) of the shares of
Common Stock issued and outstanding on the Effective Date, (ii) the Securities issued hereunder and any Common Stock or other securities
issued upon the conversion, exercise, or exchange of any Securities issued hereunder and/or other securities exercisable or exchangeable
for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion
price of such securities; (iii) shares of Common Stock issued upon any anti-dilution adjustment to Common Stock and Common Stock Equivalents
held by current unaffiliated security holders as of the date of this Agreement; (iv) securities issued to any underwriter, placement agent
or other registered broker-dealer as reasonable commissions or fees in connection with any financing transactions; (v) securities issued
pursuant to any merger, acquisition, asset purchase or similar transaction approved by the Board of Directors or a duly authorized committee
thereof, provided that any such issuance shall only be to a Person or Persons (or to the equity holders of a Person or Persons)
which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business
of the Company and shall have received the express prior written consent of the Purchaser, 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; and (vi) securities issued pursuant to any purchase money equipment loan, capital leasing arrangement or debt financing from
a commercial bank or similar financial institution.


 


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


 


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


 






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“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(oo).


 


“Free Writing
Prospectus” shall have the meaning ascribed to such term in Section 4.09(b).


 


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


 


“Governmental
Entity” means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal,
state, local, municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising,
or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any
nature or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public
international organization or any of the foregoing


 


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


 


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


 


“Indemnified
Liabilities” shall have the meaning ascribed to such term in Section 3.1(g).


 


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


 


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


 


“Issuer
Free Writing Prospectus” shall have the meaning ascribed to such term in Section 4.09(b).


 


“Knowledge”
means, with respect to any Person, (x) such Person is actually aware of such fact or matter or (y) such Person should reasonably have
been expected to discover or otherwise become aware of such fact or matter after reasonable investigation, and for purposes hereof it
shall be assumed that such Person has conducted a reasonable investigation of the accuracy of the representations and warranties set forth
herein.


 


“Law”
means any federal, state, local, municipal, foreign, multi-national or other law, common law, statute, constitutions, ordinances, rules,
regulations, codes, Orders, or legally enforceable requirements enacted, issued, adopted, promulgated, enforced, ordered, or applied by
any Governmental Entity


 


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


 


“Liens”
means any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional
sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected,
voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any
of the foregoing in the future.


 


“Listing
Default” shall have the meaning ascribed to such term in Section 4.13.


 


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


 


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


 


“Material
Agreement” means any material loan agreement, financing agreement, equity investment agreement or securities instrument to which
Company is a party, any agreement or instrument to which Company and Purchaser or any Affiliate of Purchaser is a party, and any other
material agreement listed, or required to be listed, on any of Company’s reports filed or required to be filed with the SEC, including
without limitation Forms 10-K, 10-Q and 8-K.


 


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


 


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


 


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


 






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“Officer’s
Certificate” has the meaning set forth in the Section 2.3(b)(i) hereof.


 


“Order”
means any order, writ, assessment, decision, injunction, decree, ruling, or judgment of a Governmental Entity or arbitrator, whether temporary,
preliminary, or permanent.


 


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


 


“Per Share
Purchase Price” shall mean $10,000.00.


 


“Permitted
Free Writing Prospectus” shall have the meaning ascribed to such term in 4.09(b).


 


“Permitted
Liens” means the individual and collective reference to the following: (a) Liens for taxes, assessments and other governmental
charges or levies not yet due or Liens for taxes, assessments and other governmental charges or levies being contested in good faith and
by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established
in accordance with GAAP; (b) Liens imposed by law which were incurred in the ordinary course of the Company’s business, such as
carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in
the ordinary course of the Company’s business, and which (x) do not individually or in the aggregate materially detract from the
value of such property or assets or materially impair the use thereof in the operation of the business of the Company and its consolidated
Subsidiaries or (y) are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing for
the foreseeable future the forfeiture or sale of the property or asset subject to such Lien; (c) pledges and deposits made in the ordinary
course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations;
and (d) deposits to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature that are not past due, in each case in the ordinary course of business, but excluding any
contract for the payment of money.


 


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


 


“Principal
Market” shall mean the national securities exchange on which the Common Stock shall be listed for trading, and shall consist
of any one of the NYSE American, the New York Stock Exchange, the NASDAQ Capital Market, the NASDAQ Global Market or the NASDAQ Global
Select Market.


 


“Principal
Market Rules” means the rules and regulations of the Company’s then Principal Market.


 


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


 


“Prospectus”
shall have the meaning ascribed to such term in 3.1(c).


 


“Prospectus
Supplement” shall have the meaning ascribed to such term in 3.1(c).


 


“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.2(b).


 


“Public
Information Failure Payments” shall have the meaning ascribed to such term in Section 4.2(b).


 


“Registrable
Shares” means the Commitment Shares, Conversion Shares, not to exceed 19.99% of the shares of Common Stock issued and outstanding
as of the Effective Date until Shareholder Approval is obtained in accordance with the Principal Market Rules.


 


“Removal
Date” means the date that all of the issued Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without
the requirement for the Company to be in compliance with the current public information requirements under Rule 144 and without volume
or manner-of-sale restrictions.


 


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


 


“Required
Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in
the future pursuant to the conversion of the Shares, ignoring any conversion or exercise limits set forth therein, and assuming that the
Conversion Price and Exercise Price is at all times on and after the date of determination 100% of the then Conversion Price or Exercise
Price on the Trading Day immediately prior to the date of determination.


 






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


 


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


 


“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such rule.


 


“SBA”
means the United States Small Business Administration.


 


“SEC Guidance”
means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.


 


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


 


“Secretary’s
Certificate” has the meaning set forth in the Section 2.3(b)(ii) hereof.


 


“Securities”
means the Commitment Shares, the Shares, the Conversion Shares, the Warrant and the Warrant Shares.


 


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


 


“Series
A Preferred Stock” means the Series A Convertible Redeemable Preferred Stock of the Company, par value $0.001 per share, to
be issued and sold by the Company to the Purchaser hereunder.


 


“Shares”
means the shares of Series A Preferred Stock issuable to the Purchaser pursuant to this Agreement.


 


“Shareholder
Approval” means such approval as may be required by the applicable rules and regulations of the Principal Market Rules (or the
applicable rules and regulations of any successor entity) from the shareholders of the Company with respect to the transactions contemplated
by this Agreement and the other Transaction Documents, including the issuance of all of the Conversion Shares and/or Warrant Shares in
excess of 19.99% of the issued and outstanding Common Stock on the Closing Date.


 


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


 


“Subscription
Amount” means $12,000,000.


 


“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable and with regard to future events,
also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.


 


“Termination
Date” shall have the meaning ascribed to such term in Section 2.1.


 


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


 


“Trading
Day” means a day on which the Principal Market is open for trading; provided, that in the event that the Common Stock is not
listed or quoted for trading on a Trading Market on the date in question, then Trading Day shall mean a Business Day.


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global Select Market, the New York Stock
Exchange, OTCQB, OTCQX, or the OTC Pink (or any successors to any of the foregoing). Notwithstanding the foregoing, term “Trading
Market” shall only include the OTC Pink for any interim period of time required upon the Company’s delisting from any other
Trading Market provided that the Company shall be required to list its Common Stock for trading or quotation on another Trading Market
(excluding the OTC Pink) promptly upon such delisting and the failure to do so shall constitute a default under the terms of this Agreement
and the other Transaction Documents.


 






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“Transaction”
shall have the meaning ascribed to such term in the Preamble.


 


“Transaction
Documents” means this Agreement all exhibits and schedules thereto and hereto, the Certificate of Designation of Rights, Preferences
and Limitations of the Series A Convertible Redeemable Preferred Stock (the “Series A Certificate of Designation”)
in the form attached hereto as Exhibit A, the Warrant in the form attached hereto as Exhibit B, the Transfer
Agent Instruction Letter in the form attached hereto as Exhibit C and any other documents or agreements executed in connection
with the transactions contemplated hereunder.


 


“Transfer
Agent” means Philadelphia Stock Transfer, Inc., and any successor transfer agent of the Company or, if the Company has not appointed
a Transfer Agent, the Company.


 


“Transfer
Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent to reserve
the Conversion Shares and Warrant Shares pursuant to the Transaction Documents in the form attached hereto as Exhibit C.


 


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


 


“Warrant”
means the Warrant in the form attached hereto as Exhibit B.


 


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


 


ARTICLE II


PURCHASE AND SALE


 


2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchaser agrees to purchase, the Securities for the
Subscription Amount (such purchase and sale being the “Closing”). Contemporaneously with or promptly following the
Closing, the Purchaser shall deliver to the Company the Purchaser’s Subscription Amount as set forth on the signature page hereto
executed by the Purchaser by a wire transfer of immediately available funds and the Company shall, on the Closing Date, deliver to the
Purchaser a certificate representing the number of Shares and Commitment Shares and the Warrant purchased by the Purchaser at the Closing
as determined pursuant to Section 2.2(a). Notwithstanding anything in this Agreement or in any other Transaction Document to the contrary,
the Purchaser may pay the Subscription Amount in one or more installments over a period not to exceed 15 Business Days from the Closing;
provided however that if the Purchaser fails to pay the full Subscription Amount by the end of such 15 Business Day period, the Company
may, at its election, terminate this Agreement by returning the funds received by it hereunder within two Business Days thereafter, whereupon
this Agreement shall be of no further force and effect and the Purchaser shall promptly surrender the Securities issued to it hereunder.
The Company and the Purchaser shall also deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction
of the covenants and conditions set forth in Sections 2.2 and 2.3 and receipt of the Subscription Amount by the Company, the Closing shall
occur at the principal offices of the Company or such other location as the parties shall mutually agree. Notwithstanding anything herein
to the contrary, the Closing Date shall occur on or before June 17, 2022 (such outside date, “Termination Date”). If
the Closing is not held on or before the Termination Date, the Company shall cause the Subscription Amount to be returned, without interest
thereon or deduction therefrom to the Purchaser.


 


2.2 Deliveries.


 


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


 


(i) this
Agreement duly executed by the Company;


 


(ii) a
certificate evidencing a number of Shares equal to the Subscription Amount divided by the Per Share Purchase Price, registered in the
name of the Purchaser;


 






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(iii) the
Series A Certificate of Designation;


 


(iv) upon
the Company’s receipt of Exchange Approval, a number of Commitment Shares equal to $200,000 in shares of Common Stock, where
the price per share shall be calculated based on average closing price (as reported by the Principal Market) of the Common Stock for the
five (5) trading days immediately preceding the Closing Date, which number is set forth opposite the Purchaser’s name on its signature
page hereto.


 


(v) the
Warrant;


 


(vi) the
Transfer Agent Instruction Letter;


 


(vii) a
Certificate of Good Standing of the Company and its Subsidiaries from each of their jurisdictions of incorporation or formation dated
no later than two Business Days prior to the Closing Date;


 


(xiii) the
Opinion of Counsel substantially as set forth on Exhibit D;


 


(ix) an
Officer’s Certificate (as hereinafter defined), executed by an officer of the Company;


 


(x) a
Secretary’s Certificate (as hereinafter defined), executed by the Corporate Secretary of the Company; and


 


(xi) all
documents, instruments and other writings required to be delivered by the Company to the Purchaser on or before the applicable Closing
Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated hereby.


 


The purchase of
the Shares, Warrant and Commitment Shares will be completed in a single tranche as provided herein. The sale by the Purchaser of the Registrable
Shares shall be registered pursuant to the Registration Statement, subject to SEC Guidance.


 


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


 


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


 


(ii) the
Subscription Amount by wire transfer to the account specified by the Company on Schedule 1 hereto (subject to Section 2.1).


 


2.3 Closing
Conditions.


 


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


 


(i) the
accuracy in all material respects on the Closing Date of the representations and warranties of the Purchaser contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date);


 


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


 


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


 


(iv) the
Company shall have received the executed signature page to this Agreement from the Purchaser and the Company shall have received payment
of immediately available funds representing the Subscription Amount from the Purchaser in cash.


 


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


 


(i) each
and every representation and warranty of the Company shall be true and correct in all material respects as of the date when made and as
of the applicable Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all material respects
with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the applicable
Closing Date, including, without limitation the issuance of all Securities on the Closing Date as required by the Transaction Documents
and the Company has a sufficient number of duly authorized shares preferred stock and Common Stock reserved for issuance as may be required
to fulfill its obligations pursuant to the Transaction Documents and the Purchaser shall have received a certificate, executed by the
Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably
requested by the Purchaser in the form acceptable to Purchaser (the “Officer’s Certificate”);


 






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(ii) the
Company shall have delivered to the Purchaser a certificate, in the form previously provided to the Company by the Purchaser, executed
by the Secretary of the Company and dated as of the applicable Closing Date, as to (A) the resolutions as adopted by the Board of Directors
authorizing the Company entering into the Transaction Documents and the transactions envisioned thereby, (B) the Articles of Incorporation
of the Company and (C) the Bylaws of the Company as in effect at the applicable Closing (the “Secretary’s Certificate”);


 


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




 


(iii) the
Purchaser shall have had the right through and until the date of the Closing, to conduct a full due diligence review of the Company and
of its Affiliates, and shall be satisfied with the results thereof;


 


(iv) All
necessary actions to be taken by the Company in connection with the Transaction and all documents incident thereto shall be satisfactory
in form and substance to the Purchaser, and the Purchaser shall have received all such counterpart originals or certified or other copies
of such documents as it or they may request;





 


(v) there
is no breach of any obligations, covenants and agreements under the Transaction Documents and no existing event which, with the passage
of time or the giving of notice, would constitute a breach under the Transaction Documents;


 


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


 


(vii) All
consents, authorizations, orders and approvals of, and filings and registrations with, any Governmental Authority which are required for
or in connection with the execution and delivery of this Agreement and the consummation by each Party hereto of the Transactions shall
have been obtained or made;


 


(viii) from
the date hereof to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited,
or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor
shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred
any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or
any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Purchaser, makes it impracticable
or inadvisable to purchase the Securities at the Closing; and


 


(ix) the
Company shall have received the executed signature page to this Agreement from the Purchaser and the Company shall have received payment
of immediately available funds representing the Subscription Amount from the Purchaser in cash.


 


ARTICLE III


REPRESENTATIONS AND WARRANTIES


 


3.1 Representations
and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall be deemed a part
hereof and shall qualify any representation or warranty made herein only to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules, the Company hereby represents and warrants to the Purchaser that the following representations and
warranties are true and correct as of the date of this Agreement and the Closing Date:


 


(a)
Organization and Qualification. The Company and each of the direct and indirect subsidiaries of the Company listed on Schedule
3.1(a) (the “Subsidiaries”) is an entity duly organized, validly existing and
in good standing under the laws of its state of incorporation or formation. The Company and each of its Subsidiaries is duly qualified
to do business, and is in good standing in the states required due to (i) the ownership or lease of real or personal property for use
in the operation of the Company’s business or (ii) the nature of the business conducted by the Company, except where the failure
to so qualify would not, individually or in the aggregate, have a Material Adverse Effect. The Company and each of its Subsidiaries has
all requisite power, right and authority to own, operate and lease its properties and assets, to carry on its business as now conducted,
to execute, deliver and perform its obligations under this Agreement and the other Transaction Documents to which it is a party, and to
carry out the transactions contemplated hereby and thereby, subject to the Required Approvals. All actions on the part of the Company
and its officers and directors necessary for the authorization, execution, delivery and performance of this Agreement and the other Transaction
Documents, the consummation of the transactions contemplated hereby and thereby, and the performance of all of the Company’s obligations
under this Agreement and the other Transaction Documents have been taken or will be taken prior to the Closing. This Agreement has been,
and the other Transaction Documents to which the Company is a party on the Closing will be, duly executed and delivered by the Company,
and this Agreement is, and each of the other Transaction Documents to which it is a party on the Closing will be, a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, reorganization,
insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors, and except
as enforceability of the obligations hereunder are subject to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or law). All of the Subsidiaries and the Company’s ownership interests therein are set forth
on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital stock or other equity interests of each Subsidiary
free and clear of any Liens except Permitted Liens, and subject to the Required Approvals, and all of the issued and outstanding shares
of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to
subscribe for or purchase securities. 


 






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(b)   
Issuance of Securities. The issuance of each of the Shares, Commitment Shares, Conversion Shares and Warrant Shares are
duly authorized and, upon issuance in accordance with the terms of this Agreement, the Certification of Designations and the Warrant,
as applicable, will be validly issued, fully paid and non-assessable and free and clear of all liens, Encumbrances and rights of refusal
of any kind and, if applicable at the time, subject to the Required Approvals. The issuance of the Warrant is duly authorized by the Company
and, when executed and delivered by the Company, will be a valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. 


 


(c)
Authorization; Enforcement; Registration Statement. The Company has the requisite corporate power and authority to enter
into and to consummate the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry
out its obligations hereunder and thereunder, subject to the Required Approvals. The execution and delivery of this Agreement and each
of the other Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action on the part of the Company and no further action is required by the Company, the Board of
Directors or the Company’s shareholders in connection herewith or therewith other than in connection with the Required Approvals
and the filing with the Commission of the prospectus supplement required by the Registration Statement pursuant to Rule 424(b) under the
Securities Act (the “Prospectus Supplement”) supplementing the base prospectus forming
part of the Registration Statement (the “Prospectus”). This Agreement and each other
Transaction Documents to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered
in accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law. Following the filing of the Prospectus Supplement the sale by the Purchaser of the Registrable
Shares will be registered under the Securities Act, and all of the Registrable Shares will be freely transferable and freely tradable
by the Purchaser without restriction, whether by way of registration or some exemption therefrom. The Registration Statement is effective
and subject to SEC Guidance is available for the sale of the Registrable Shares and the Company has not received any notice that the Commission
has issued or intends to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended
or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened in writing
to do so. The “Plan of Distribution” section under the Registration Statement permits the issuance and sale of the Registrable
Shares and as contemplated by the other Transaction Documents. Upon receipt of the Securities, the Purchaser will have good and marketable
title to the Securities. The Registration Statement and any prospectus included therein, including the Prospectus and the Prospectus Supplement,
complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the
Commission promulgated thereunder and all other applicable laws and regulations. At the time the Registration Statement and any amendments
thereto became effective, at the date of this Agreement and at each deemed effective date thereof pursuant to Rule 430B(f)(2) of the Securities
Act, the Registration Statement and any amendments thereto complied and will comply in all material respects with the requirements of
the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendments or supplements thereto
(including, without limitation the Prospectus Supplement), at the time the Prospectus or any amendment or supplement thereto was issued
and at the Closing Date, complied, and will comply, in all material respects with the requirements of the Securities Act and did not,
and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. The Company meets all of the requirements for the use
of Form S-3 under the Securities Act for the offering and sale of the Registrable Shares contemplated by this Agreement and the other
Transaction Documents, and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement
pursuant to Rule 401(g)(1) under the Securities Act. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x)
under the Securities Act. At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) relating to any of the Securities, the Company
was not and is not an “Ineligible Issuer” (as defined in Rule 405 under the Securities Act). The Company (i) has not distributed
any offering material in connection with the offer or sale of any of the Securities and (ii) until the Purchaser does not hold any of
the Securities, shall not distribute any offering material in connection with the offer or sale of any of the Securities to, or by, the
Purchaser (if required), in each case, other than the Registration Statement, the Prospectus or the Prospectus Supplement.


 






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(d)   
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not, except as set forth on Schedule 3.1(d): (i) conflict with or violate any provision of the Company’s
or any Subsidiary’s certificate or articles of incorporation, bylaws or other organizational or charter documents; (ii) conflict
with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation
of any Lien upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected; or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.


 


(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Sections 4.2 and 4.20 of this Agreement; (ii) the notice and/or application(s) to the Principal Market, and the receipt
of Shareholder Approval required for the issuance and sale of the Securities and the listing of the Conversion Shares, the Warrant Shares
and the Commitment Shares for trading thereon in the time and manner required thereby; and (iii) the filing of Form D with the Commission
and such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).


 


(f)    
No Financial Advisor. The Company acknowledges and agrees that the Purchaser is acting solely in the capacity of an arm’s
length purchaser with respect to the Securities and the transactions contemplated hereby. The Company further acknowledges that Purchaser
is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions
contemplated hereby and any advice given by the Purchaser or any of its representatives or agents in connection with this Agreement and
the transactions contemplated hereby is merely incidental to the Purchaser’s purchase of the Securities. The Company further represents
to the Purchaser that the Company’s decision to enter into this Agreement has been based solely on the independent evaluation of
the transactions contemplated hereby by the Company and its representatives.


 


(g)   
Reserved.


 






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(h) Capitalization
and Additional Issuances. The capitalization of the Company is as set forth in Schedule 3.1(h). Except as disclosed
on Schedule 3.1(h), no Person has any right of first refusal, preemptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents. Except as disclosed on Schedule 3.1(h), there
are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or
securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe
for or acquire any shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. Except as set forth on Schedule
3.1(h), the issuance and sale of the Securities will not obligate the Company to issue shares of Common Stock or other
securities to any Person (other than the Purchaser) and will not result in a right of any holder of Company securities to adjust the
exercise, conversion, exchange or reset price under any of such securities. All of the outstanding shares of capital stock of the
Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in material compliance with all federal
and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to
subscribe for or purchase securities. No further approval or authorization of any shareholder, the Board of Directors or others is
required for the issuance and sale of the Securities. There are no shareholders agreements, voting agreements or other similar
agreements with respect to the Company’s capital stock to which the Company is a party or, to the Knowledge of the Company,
between or among any of the Company’s shareholders.


 


(i)    
Private Placements. Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2,
no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchaser as contemplated
hereby.


 


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


 


(k)
Listing and Maintenance Requirements; Principal Market Regulation.


 


(i) The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to
its Knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company
received any notification that the Commission is contemplating terminating such registration. Except as disclosed in the SEC Reports,
the Company has not, in the twelve (12) months preceding the date hereof, received notice from any Principal Market on which the Common
Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements
of such 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.


 






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(ii) The
Company shall not issue or sell any shares of Common Stock or Common Stock Equivalents pursuant to this Agreement and the other Transaction
Documents to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant
to this Agreement and such Transaction Documents would exceed 19.99% of the Company’s outstanding shares of Common Stock as of the
date hereof (the “Exchange Cap”), unless and until the Company elects to solicit Shareholder Approval of the transactions
contemplated by this Agreement and such Transaction Documents and the shareholders of the Company as well as, subsequently, the Principal
Market have in fact approved the transactions contemplated by this Agreement and such Transaction Documents in accordance with the applicable
rules and regulations of the applicable Principal Market, and the articles of incorporation and bylaws of the Company. The Company agrees
to submit the application or notification to the Principal Market to obtain Exchange Approval within one (1) day of the Closing Date.
The Company shall file a preliminary proxy statement on Schedule 14A (the “PRE 14A”) with the Commission no later than
ten (10) days following the filing of its Annual Report on Form 10-K for its fiscal year ended March 31, 2022 (the “Form 10-K”),
for a special meeting of its shareholders (or its annual meeting of its shareholders) in order to obtain all necessary approvals of the
sale and issuance of the remaining Conversion Shares not subject to the Exchange Cap and the Warrant Shares (it being acknowledged and
agreed that the Commitment Shares shall be issued immediately upon receipt of Exchange Approval therefor) consistent with the rules and
regulations of the Principal Market. In addition, the PRE 14A shall include the unanimous recommendation of the Board of Directors that
such proposal be approved, and the Company shall solicit proxies from its shareholders in connection therewith in the same manner as all
other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such
proposal including, if requested by the Purchaser, the retention and utilization of a nationally known proxy solicitation firm. If the
Company fails to timely file the Form 10-K with the Commission by the prescribed due date thereof (taking into account an extension permitted
by Rule 12b-25 under the Exchange Act) (a “10-K Failure”), the Company shall make Commission Filing Failure Payments
(as defined below) until the Form 10-K is filed. The Company shall use its reasonable best efforts to: (i) promptly clear any comments
received by the Commission on the PRE 14A and thereafter file a definitive proxy statement on Schedule 14A related to the meeting of its
shareholders, and (ii) obtain such Shareholder Approval. If the Company does not obtain Shareholder Approval at the first such meeting,
and in any event within 75 days of the filing of the Form 10-K, the Company shall call a meeting every two (2) months thereafter to seek
Shareholder Approval until the earlier of the date on which Shareholder Approval is obtained or the Warrant Shares are no longer outstanding.
In the event that the Company has not been able to clear comments with the Commission on the PRE 14A within 50 days of Closing (a “Proxy
Failure,” and together with a 10-K Failure, each, a “Commission Filing Failure”), the Company will provide
prompt written notification to the Purchaser regarding the status of the comments with the Commission and the parties will, in good faith,
attempt to achieve a mutually satisfactory plan to address such comments, and the Company shall make Commission Filing Failure Payments
until it has cleared such comments. In the event of a Commission Filing Failure, in addition to the Purchaser’s other available
remedies, the Company shall pay to the Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such delay,
an amount in cash equal to two percent (2.0%) of the Subscription Amount of the Purchaser’s Securities held by the Purchaser on
the day of a Commission Filing Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty (30)
days) thereafter until the date such Commission Filing Failure is cured by the filing of the Form 10-K as to a Form 10-K Failure, and/or
by clearing Commission comments as to a Proxy Failure. The payments to which the Purchaser shall be entitled pursuant to this Section
3.1(k) are referred to herein as “Commission Filing Failure Payments.” Commission Filing Failure Payments shall be
paid on the earlier of (i) the last day of the calendar month during which such Commission Filing Failure Payments are incurred and (ii)
the third (3rd) Business Day after the event or failure giving rise to the Commission Filing Failure Payments is cured. In the event the
Company fails to make Commission Filing Failure Payments in a timely manner, such Commission Filing Failure Payments shall bear interest
at the rate of 1.5% per month (pro-rated for partial months) until paid in full. For the avoidance of doubt, in the event that both a
Form 10-K Failure and a Proxy Failure occur and remain ongoing, the total monthly Commission Filing Failure Payments shall be four percent
(4.0%) of the Subscription Amount, subject to interest pursuant to the preceding sentence.


 


(l)    
Shell Company Status. The Company is not and has not been a “shell company,” as such term is defined in Rule
144 under the Securities Act, since January 1, 2021. 


 


(m)
Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the Knowledge
of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties except as set forth
in Schedule 3.1(m), or against or affecting the Company’s current or former officers or directors in their capacity as such,
before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) which (i) adversely affects or challenges the legality,
validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable decision,
have or reasonably be expected to result in a Material Adverse Effect, and neither the Company nor any Subsidiary, nor any director or
officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities
laws or a claim of breach of fiduciary duty. There has not been, and to the Knowledge of the Company, there is not pending or contemplated,
any investigation by the Commission involving the Company or any current or former director or officer of the Company that is likely to
lead to action that can reasonably be expected to result in a Material Adverse Effect. There has not been, and to the Knowledge of the
Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.


 






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(n) Employee
Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any
member of a union.  The Company believes that its and its Subsidiaries’ relations with their respective employees are
good.  The Company and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations
respecting labor, employment and employment practices and benefits, terms and conditions of employment and wages and hours, except
as disclosed in Schedule 3.1(n) or where failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect. “Material Adverse Effect”
means any material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof),
condition (financial or otherwise) or prospects of the Company or any Subsidiary, taken as a whole, (ii) the transactions
contemplated hereby or in any of the other Transaction Documents or (iii) the authority or ability of the Company or any of its
Subsidiaries to perform any of their respective obligations under any of the Transaction Documents.


 


(o) Tax
Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes and
other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate for the
payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.  There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
and its Subsidiaries know of no basis for any such claim.  The Company is not operated in such a manner as to qualify as a
passive foreign investment company, as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.


 


(p)
SEC Reports; Financial Statements. The Company has filed all reports, schedules, forms,
statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to
Section 13(a) or 15(d) thereof, for the two (2) years preceding the date hereof (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC
Reports”). Except as disclosed on Schedule 3.1(p), as of their respective dates, the SEC
Reports complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of
the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods
involved (“GAAP”), except as may be otherwise specified in such financial statements
or the notes thereto and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present
in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the
results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments. 


 


(q) Indebtedness
and Other Contracts. Except as set forth on Schedule 3.1(q), neither the Company nor any of its Subsidiaries (i) has any
outstanding Indebtedness (as defined below), (ii) is a party to any contract, agreement or instrument, the violation of which, or
default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a
Material Adverse Effect, (iii) is in violation of any term of, or in default under, any contract, agreement or instrument relating
to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate, in a Material
Adverse Effect, or (iv) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance of which,
in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect.  For purposes of this
Agreement: (x) “Indebtedness” of any Person means, without duplication (A)
all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or
services (including, without limitation, “capital leases” in accordance with generally accepted accounting principles)
(other than trade payables entered into in the ordinary course of business), (C) all reimbursement or payment obligations with
respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or
businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the
rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such
property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted
accounting principles, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness
referred to in clauses (A) through (F) above secured by (or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) any mortgage, claim, lien, tax, right of first refusal, pledge, charge, security interest
or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the
Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all
Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G)
above.


 






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(r)    
No Undisclosed Events, Liabilities, Developments or Circumstances. Since January 1, 2021: (i) there has been no event, occurrence
or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred
any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course
of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements
pursuant to GAAP or disclosed in the SEC Reports, (iii) the Company has not altered its method of accounting, (iv) the Company has
not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements
to purchase or redeem any shares of its capital stock and (v) except as set forth on Schedule 3.1(r), the Company has not issued
any equity securities to any officer, director or Affiliate. The Company does not have pending before the Commission any request for confidential
treatment of information. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(r),
no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist
with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition,
that would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed
made that has not been publicly disclosed at least two Trading Days prior to the date that this representation is made.


 


(s)
No Additional Agreements. Neither the Company nor any of its Subsidiaries has any agreement or understanding with the Purchaser
with respect to the transactions contemplated by the Transaction Documents other than pursuant to documents substantially identical to
the Transaction Documents.


 


(t)    
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 Transaction 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). The Company has exercised reasonable care to determine whether any Issuer
Covered Person is subject to a Disqualification Event. 


 


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


 


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


 


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


 


(x) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property (if any) owned by
them and good and marketable title in all personal property owned by them that is material to the business of the Company and the
Subsidiaries, in each case free and clear of all Liens, except as set forth on Schedule 3.1(x) and except for (i) Liens as do
not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate
reserves have been made in accordance with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real
property and facilities held under lease by the Company and the Subsidiaries is held by them under valid, subsisting and enforceable
leases with which the Company and the Subsidiaries are in compliance, or where the failure of a lease to be enforceable would not
result in a Material Adverse Effect.


 






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(y)   
Intellectual Property.


 


(i)    
The term “Intellectual Property Rights” includes:


 


(A)
the name of the Company and each Subsidiary, all fictional business names, trading names, registered and unregistered trademarks,
service marks, and applications of the Company and each Subsidiary (collectively, “Marks”);


 


(B)
all patents, patent applications, and inventions and discoveries that may be patentable of the Company and each Subsidiary (collectively,
“Patents”);


 


(C)
all copyrights in both unpublished works and published works of the Company and each Subsidiary (collectively, “Copyrights”);


 


(D)
all rights in mask works of the Company and each Subsidiary (collectively, “Rights in Mask Works”); and


 


(E)
all know-how, trade secrets, confidential information, customer lists, software, technical information, data, process technology,
plans, drawings, and blue prints (collectively, “Trade Secrets”); owned, used, or licensed by the Company and each
Subsidiary as licensee or licensor.


 


(ii) Agreements.
Except as set forth on Schedule 3.1(y), there are no outstanding and, to Company’s Knowledge, no threatened disputes or
disagreements with respect to any agreements relating to any Intellectual Property Rights to which the Company is a party or by
which the Company is bound.


 


(iii)
Know-How Necessary for the Business. The Intellectual Property Rights are all those necessary for the operation of the Company’s
businesses as it is currently conducted. The Company is the owner of all right, title, and interest in and to each of the Intellectual
Property Rights, except as set forth on Schedule 3.1(y), free and clear of all liens, security interests, charges, encumbrances,
equities, and other adverse claims, and has the right to use all of the Intellectual Property Rights. To the Company’s Knowledge,
no employee of the Company has entered into any contract that restricts or limits in any way the scope or type of work in which the employee
may be engaged or requires the employee to transfer, assign, or disclose information concerning his work to anyone other than of the Company.


 


(iv)
Patents. The Company is the owner of all right, title and interest in and to each of the Patents, free and clear of all
Liens and other adverse claims. All of the issued Patents are currently in compliance with formal legal requirements (including payment
of filing, examination, and maintenance fees and proofs of working or use), are valid and enforceable, and are not subject to any maintenance
fees or taxes or actions falling due within ninety days after the Closing Date. No Patent has been or is now involved in any interference,
reissue, reexamination, or opposition proceeding. To the Company’s Knowledge except as set forth in Schedule 3.1(y): (1)
there is no potentially interfering patent or patent application of any third party, and (2) no Patent is infringed or has been challenged
or threatened in any way. To the Company’s Knowledge, none of the products manufactured and sold, nor any process or know-how used,
by the Company infringes or is alleged to infringe any patent or other proprietary right of any other Person.


 


(v) Trademarks.
The Company is the owner of all right, title, and interest in and to each of the Marks, free and clear of all Liens and other
adverse claims. All Marks that have been registered with the United States Patent and Trademark Office are currently in compliance
with all formal legal requirements (including the timely post-registration filing of affidavits of use and incontestability and
renewal applications), are valid and enforceable, and except as set forth on Schedule 3.1(y) are not subject to any
maintenance fees or taxes or actions falling due within ninety days after the Closing Date. Except as set forth in Schedule
3.1(y), no Mark has been or is now involved in any opposition, invalidation, or cancellation and, to the Company’s
Knowledge, no such action is threatened with respect to any of the Marks. To the Company’s Knowledge: (1) there is no
potentially interfering trademark or trademark application of any third party, and (2) no Mark is infringed or has been challenged
or threatened in any way. To the Company’s Knowledge, none of the Marks used by the Company infringes or is alleged to
infringe any trade name, trademark, or service mark of any third party. 


 


(vi)
Copyrights. The Company is the owner of all right, title, and interest in and to each of the Copyrights, free and clear
of all Liens and other adverse claims. All the Copyrights have been registered and are currently in compliance with formal requirements,
are valid and enforceable, and are not subject to any maintenance fees or taxes or actions falling due within ninety days after the date
of the Closing. To the Company’s Knowledge, no Copyright is infringed or has been challenged or threatened in any way. To the Company’s
Knowledge, none of the subject matter of any of the Copyrights infringes or is alleged to infringe any copyright of any third party or
is a derivative work based on the work of a third party. All works encompassed by the Copyrights have been marked with the proper copyright
notice.


 






    - 15 -


     


    

 


(vii) Trade
Secrets. With respect to each Trade Secret, the documentation relating to such Trade Secret is current, accurate, and sufficient
in detail and content to identify and explain it and to allow its full and proper use without reliance on the Knowledge or memory of
any individual. The Company has taken all reasonable precautions to protect the secrecy, confidentiality, and value of its Trade
Secrets. The Company has good title and an absolute and exclusive right to use the Trade Secrets. The Trade Secrets are not part of
the public knowledge or literature, and, to the Company’s Knowledge, have not been used, divulged, or appropriated either for
the benefit of any Person (other the Company) or to the detriment of the Company, except as disclosed on Schedule 3.1(y). No
Trade Secret is subject to any adverse claim or has been challenged or threatened in any way.


 


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


 


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


 


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


 


(cc)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding, it is understood and acknowledged by the Company that: (i) the Purchaser has not been asked by the Company to agree,
nor has the Purchaser agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities for any specified term, (ii) past or future open market
or other transactions by the Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions,
before or after the closing of this or future sales of securities by the Company, may negatively impact the market price of the Company’s
publicly-traded securities, (iii) the Purchaser, and counter-parties in “derivative” transactions to which the Purchaser is
a party, directly or indirectly, may presently have a “short” position in the Common Stock and (iv) the Purchaser shall not
be deemed to have any affiliation with or control over any arm’s length counter-party in any “derivative” transaction.
The Company further understands and acknowledges that (y) the Purchaser may engage in hedging activities at various times during the period
that the Securities are outstanding, including, without limitation, during the periods that the value of the Commitment Shares, Conversion
Shares and the Warrant Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could
reduce the value of the existing shareholders’ equity interests in the Company at and after the time that the hedging activities
are being conducted.  The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any of the
Transaction Documents. There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between
the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any
fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any of
the Transaction Documents.


 


(dd)    
Acknowledgment Regarding Purchaser’s Purchase of Securities. The Company acknowledges and agrees that the Purchaser
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further represents to the Purchaser that the Company’s decision to enter into this Agreement and the other
Transaction Documents has been based solely on the independent evaluation of the transactions contemplated hereby by the Company and its
representatives.


 


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








 









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(ff)
Application of Takeover Protections. The Company and the Board of Directors will, no later than five (5) Business Days prior
to the Closing Date, have taken all necessary action, if any, in order to render inapplicable any control share acquisition, business
combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s
Articles of Incorporation (or similar charter documents) or the laws of its state of incorporation that is or could become applicable
to the Purchaser as a result of the Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction
Documents, including without limitation as a result of the Company’s issuance of the Securities and the Purchaser’s ownership
of the Securities.




 


(gg) Registration
Rights. Except as contemplated hereunder, no Person has any right to cause the Company or any Subsidiary to effect the
registration under the Securities Act of any securities of the Company or any Subsidiary.


 


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


 


(ii)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all
applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and
regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company
and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the
Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company
and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms. 


 


(jj)  Transactions
With Affiliates and Employees. Except as set forth on Schedule 3.1(jj), none of the officers or directors of the Company
or any Subsidiary and, to the Knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party
to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including any
contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any
officer, director or such employee or, to the Knowledge of the Company, any entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee, shareholder, member or partner, in each case in excess of
$50,000 other than for: (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on
behalf of the Company and (iii) other employee benefits, including stock option agreements under any stock option plan of the
Company except as disclosed on Schedule 3.1(jj).


 


(kk)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage at least equal to the Subscription Amount, except as set forth
on Schedule 3.1(kk). Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost.


 






    - 17 -


     


    

 


(ll)   
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents or as otherwise disclosed in writing to the Purchaser, the Company confirms that neither it nor any other Person acting on its
behalf has provided any of the Purchaser or their agents or counsel with any information that it believes constitutes or might constitute
material, non-public information. The Company understands and confirms that the Purchaser will rely on the foregoing representation in
effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchaser regarding
the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Disclosure Schedules
to this Agreement, when taken together as a whole, 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
taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that the Purchaser neither makes nor has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth herein.


 


(mm)  
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, and the Company’s good
faith estimate of the fair market value of its assets, after giving effect to the receipt by the Company of the proceeds from the sale
of the Securities hereunder: (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be
paid on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature,
(ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed
to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company,
consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no Knowledge of any facts or circumstances which lead it to believe that
it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the
Closing Date. Schedule 3.1(mm) sets forth as of the date hereof all outstanding liens and secured and unsecured Indebtedness of
the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. Except as disclosed on Schedule 3.1(mm),
neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 


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


 


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


 


(pp)    
Reserved.


 


(qq)    
Accountants and Lawyers. The Company’s independent registered public accounting firm is set forth on Schedule 3.1(qq).
To the Knowledge and belief of the Company, such accounting firm: (i) is an independent registered public accounting firm and (ii) shall
express its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending
March 31, 2022. There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between
the Company and the accountants and lawyers formerly or presently employed by the Company and the Company is current with respect to any
fees owed to its accountants and lawyers which could affect the Company’s ability to perform any of its obligations under any of
the Transaction Documents. 


 


(pp) Material
Agreements. Except for the Transaction Documents (with respect to clause (i) only) or as set forth on Schedule 3.1(pp) hereto,
or as would not be reasonably likely to have a Material Adverse Effect, (i) the Company and each of its Subsidiaries have performed all
obligations required to be performed by them to date under any Material Agreement, (ii) neither the Company nor any of its Subsidiaries
has received any notice of default under any Material Agreement and, (iii) to the best of the Company’s Knowledge, neither the Company
nor any of its Subsidiaries is in default under any Material Agreement now in effect.


 


(qq) Promotional
Stock Activities. Neither the Company, its officers, its directors, nor any Affiliates or agents of the Company have engaged in any
stock promotional activity that could give rise to a complaint, inquiry, or trading suspension by the Commission alleging (i) a violation
of the anti-fraud provisions of the federal securities laws, (ii) violations of the anti-touting provisions, (iii) improper “gun-jumping;
or (iv) promotion without proper disclosure of compensation.


 






    - 18 -


     


    

 


(rr) No “Off-balance
Sheet Arrangements.” Other than as set forth in Schedule 3.1(rr), neither the Company nor any of its Affiliates is involved
in any “Off-balance Sheet Arrangements”. For purposes hereof an “Off-balance Sheet Arrangement” means any
transaction or contract to which an entity unconsolidated with the Company or any of its Affiliates is a party and under which either
the Company or any such Affiliate has: (i) any obligation under a guarantee contract pursuant to which the Company or any of its Affiliates
could be required to make payments to the guaranteed party, including any standby letter of credit, market value guarantee, performance
guarantee, indemnification agreement, keep-well or other support agreement; (ii) any retained or contingent interest in assets transferred
to such unconsolidated entity that serves as credit, liquidity or market risk support to the entity in respect of such assets; (iii) any
variable interest held in such unconsolidated entity where such entity provides financing, liquidity, market risk or credit risk support
to, or engages in leasing, hedging or research and development services with the Company of any of its Affiliates; and (iv) any liability
or obligation of the same nature as those described in clauses (i) through (iii) of this sentence even if of a different name (whether
absolute, accrued, contingent or otherwise) that would not be required to be reflected in the Company or any of its Affiliates’
financial statements.








 


(ss) Transfer
Taxes. On each date the Company issues Securities to the Purchaser, all share transfer or other taxes (other than income or similar
taxes) which are required to be paid in connection with the issuance of the Securities hereunder on such date will be, or will have been,
fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


(tt) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and its Subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its Subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any
information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(iii) any information which would qualify as “protected health information” under HIPAA; and (iv) any other piece of information
that allows the identification of such natural person, or his or her family, or permits the collection or analysis of any data related
to an identified person’s health or sexual orientation. There have been no breaches, violations, outages or unauthorized uses of
or accesses to same, except for those that have been remedied without material cost or liability or the duty to notify any other person,
nor any incidents under internal review or investigations relating to the same. The Company and its Subsidiaries are presently in material
compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental
or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Personal
Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation or modification.


 


(uu) Compliance
with Data Privacy Laws. To the Knowledge of the Company, the Company and its Subsidiaries are, and at all prior times were, in material
compliance with all applicable state and federal data privacy and security laws and regulations (collectively, the “Privacy Laws”).
To ensure compliance with the Privacy Laws, the Company and its Subsidiaries have in place, comply with, and take appropriate steps reasonably
designed to ensure compliance in all material respects with their policies and procedures relating to data privacy and security and the
collection, storage, use, disclosure, handling, and analysis of Personal Data (the “Policies”), if applicable. To the
Company’s Knowledge, the Company and its Subsidiaries have at all times made all disclosures to users or customers required by applicable
laws and regulatory rules or requirements in all material respects, and none of such disclosures made or contained in any Policy have,
to the Knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory rules or requirements in any material
respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice of any actual or potential liability
under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no Knowledge of any event or condition that
would reasonably be expected to result in any such notice to the extent that it would result in a Material Adverse Effect; (ii) is currently
conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law;
or (iii) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.


 


(vv) COVID-19; COVID-19 Measures.


 


(i) the
Company is not subject to (or has received an exclusion from the applicable Governmental Entity) COVID-19 Measures, such that the Company
may not continue to operate in the ordinary course of business as of the Effective Date and the reasonably foreseeable future.


 


(ii) Schedule
3.1(vv) sets forth a list of each loan or other financial grant for which the Company has applied or which it has received pursuant
to any COVID-19 Measure, including any “Paycheck Protection Program” loan, “Economic Stabilization Fund” loan,
or other SBA loan.


 






    - 19 -


     


    




 


(iii) the
Company has in place and maintains in effect business continuity, risk management, emergency and disaster plans, procedures, protocols
and facilities appropriate for the nature of the risks associated with the business of the Company.





 


(iv) the
Company has taken reasonable actions to (i) reduce the potentially adverse effects of COVID-19 and COVID-19 Measures on the Company, and
(ii) assess and monitor risks which may arise from the continuation of the COVID-19 pandemic.





 


(v) Except
as set forth on Schedule 3.1(vv), as of the date hereof, the Company has not had, nor to the Knowledge of the Company are there
any facts that would give rise to, any workforce changes resulting from disruptions due to COVID-19 or COVID-19 Measures, whether directly
or indirectly, including any actual or expected terminations, layoffs, furlough, shutdowns (whether voluntary or by Order), or any changes
to benefit or compensation programs, nor are any such changes currently contemplated.





 


(vi) The
Company has no Knowledge that any of the Company’s personnel has any plans to terminate his, her or its status as an employee or
independent contractor of the Company or any of its Subsidiaries, including upon or in connection with the consummation of the transactions
contemplated by this Agreement or as a result of COVID-19 or COVID-19 Measures.


 


(xx)  Reporting
Requirements and General Instructions Form S-3. The Company is subject to and in compliance in all material respects with the reporting
requirements of Section 13 or Section 15(d), as applicable, of the Exchange Act and is currently eligible to use Form S-3 pursuant to
General Instructions I.A.3, I.B.1, or I.B.6. of Form S-3. The Company has availability on its effective shelf registration statement (No.
333-249532) under General Instruction I.B.1 of Form S-3.


 


(yy) Full
Disclosure. No representation or warranty by the Company in this Agreement and no statement contained in the Disclosure Schedules
to this Agreement or any certificate or other document furnished or to be furnished to the Purchaser pursuant to this Agreement contains
any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light
of the circumstances in which they are made, not misleading.


 


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


 


3.2 Representations
and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company that the following representations and
warranties are true and correct as of the date of this Agreement and the Closing Date:


 


(a) The
Purchaser has full power and authority to enter into this Agreement, the execution and delivery of which has been duly authorized, if
applicable, and this Agreement constitutes a valid and legally binding obligation of the Purchaser, except as may be limited by bankruptcy,
reorganization, insolvency, moratorium and similar laws of general application relating to or affecting the enforcement of rights of creditors,
and except as enforceability of the obligations hereunder are subject to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or law).


 


(b) The
Purchaser acknowledges its understanding that the Transaction and sale of the Securities is intended to be exempt from registration under
the Securities Act, by virtue of Section 4(a)(2) of the Securities Act and the provisions of Regulation D promulgated thereunder (“Regulation
D”). In furtherance thereof, the Purchaser represents and warrants to the Company as follows:


 


(i) The
Purchaser realizes that the basis for the exemption from registration may not be available if, notwithstanding the Purchaser’s representations
contained herein, the Purchaser is merely acquiring the Securities for a fixed or determinable period in the future, or for a market rise,
or for sale if the market does not rise. The Purchaser does not have any such intention.


 


(ii) The
Purchaser realizes that the basis for exemption would not be available if the Transaction is part of a plan or scheme to evade registration
provisions of the Securities Act or any applicable state or federal securities laws, except sales pursuant to a registration statement
or sales that are exempted under the Securities Act.


 


(iii) The
Purchaser is acquiring the Securities solely for the Purchaser’s own beneficial account, for investment purposes, and not with a
view towards, or resale in connection with, any distribution of the Securities.


 






    - 20 -


     


    

 


(iv) The
Purchaser has the financial ability to bear the economic risk of the Purchaser’s investment, has adequate means for providing for
its current needs and contingencies, and has no need for liquidity with respect to an investment in the Company.


 


(v) The
Purchaser and the Purchaser’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the “Advisors”)
has such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of a prospective
investment in the Securities. The Purchaser has not been organized solely for the purpose of acquiring the Securities.


 


(vi) The
Purchaser (together with its Advisors, if any) has received all documents requested by the Purchaser, if any, and has carefully reviewed
them and understands the information contained therein, prior to the execution of this Agreement.


 


(c) The
Purchaser is not relying on the Company or any of its employees, agents, sub-agents or advisors with respect to the legal, tax, economic
and related considerations involved in this investment. The Purchaser has relied on the advice of, or has consulted with, only its Advisors.


 


(d) The
Purchaser has carefully considered the potential risks relating to the Company and a purchase of the Securities, and fully understands
that the Securities are a speculative investment that involves a high degree of risk of loss of the Purchaser’s entire investment.


 


(e) The
Purchaser will not sell or otherwise transfer any Securities without registration under the Securities Act or an exemption therefrom,
and fully understands and agrees that the Purchaser must bear the economic risk of its purchase because, among other reasons, the Securities
have not been registered under the Securities Act or under the securities laws of any state and, therefore, cannot be resold, pledged,
assigned or otherwise disposed of unless they are subsequently registered under the Securities Act and under the applicable securities
laws of such states, or an exemption from such registration is available. In particular, the Purchaser is aware that the Securities are
“restricted securities,” as such term is defined in Rule 144, and may not be sold pursuant to Rule 144 unless all of the conditions
of Rule 144 are met. The Purchaser understands that any sales or transfers of the Securities are further restricted by state securities
laws and the provisions of this Agreement.


 


(f) No
oral or written representations or warranties have been made, or information furnished, to the Purchaser or its Advisors, if any, by the
Company or any of its officers, employees, agents, sub-agents, affiliates, advisors or subsidiaries in connection with the Transaction,
other than any representations of the Company contained herein, and in subscribing for the Securities, the Purchaser is not relying upon
any representations other than those contained herein.


 


(g) The
Purchaser’s overall commitment to investments that are not readily marketable is not disproportionate to the Purchaser’s net
worth, and an investment in the Securities will not cause such overall commitment to become excessive.


 


(h) The
Purchaser understands and agrees that the certificates for the Securities other than the Conversion Shares shall bear substantially the
following legend:


 


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


 






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(i) Certificates
evidencing Securities shall not be required to contain the legend set forth in Section 3.2 (h) above or any other legend (i) while
a registration statement covering the resale of such Securities is effective under the Securities Act, (ii) following any sale of such
Securities pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company), (iii) if such Securities are eligible to
be sold, assigned or transferred under Rule 144 (provided that the Purchaser provides the Company with reasonable assurances that such
Securities are eligible for sale, assignment or transfer under Rule 144 which shall not include an opinion of the Purchaser’s counsel),
(iv) in connection with a sale, assignment or other transfer (other than under Rule 144), provided that the Purchaser provides the Company
with an opinion of counsel, in a generally acceptable form, to the effect that such sale, assignment or transfer of the Securities may
be made without registration under the applicable requirements of the Securities Act or (v) if such legend is not required under applicable
requirements of the Securities Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the
Commission). If a legend is not required pursuant to the foregoing, the Company shall no later than three (3) business days following
the delivery by the Purchaser to the Company or the transfer agent (with notice to the Company) of a legended certificate representing
such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance
and/or transfer, if applicable), together with any other deliveries from the Purchaser as may be required above in this Section 3.2
(i), as directed by the Purchaser, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated
Securities Transfer Program and the Securities are Conversion Shares or Warrant Shares, credit the aggregate number of Conversion Shares
to which the Purchaser shall be entitled to the Purchaser’s or its designee’s balance account with DTC through its Deposit
and Withdrawal at Custodian system or (B) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and deliver (via reputable overnight courier) to the Purchaser, a certificate representing such Securities that
is free from all restrictive and other legends, registered in the name of the Purchaser or its designee. The Company shall be responsible
for any transfer agent fees, fees of legal counsel to the Company or DTC fees with respect to any issuance of Securities or the removal
of any legends with respect to any Securities in accordance herewith.


 


(j) Neither
the Commission nor any state securities commission has approved the Securities or passed upon or endorsed the merits of the Transaction.
There is no government or other insurance covering any of the Securities.


 


(k) The
Purchaser has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like
relating to this Agreement or the transactions contemplated hereby.


 


(l) The
Purchaser is not relying on the Company or any of its employees, agents, or advisors with respect to the legal, tax, economic and related
considerations of an investment in the Securities, and the Purchaser has relied on the advice of, or has consulted with, only its own
Advisors.


 


(m) No
oral or written representations have been made, or oral or written information furnished, to the Purchaser or its Advisors, if any, in
connection with the Transaction that are in any way inconsistent with the information contained herein.


 


(n) The
Purchaser is an “Accredited Investor” as defined in Rule 501(a) under the Securities Act.


 


(o) The
Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the Transaction, and has so evaluated the merits and risks of such investment.
The Purchaser has not authorized any person or entity to act as its Purchaser Representative (as that term is defined in Regulation D
of the General Rules and Regulations under the Securities Act) in connection with the Transaction. The Purchaser is able to bear the economic
risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such investment.


 






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ARTICLE IV


OTHER AGREEMENTS
OF THE PARTIES


 


4.1 Transfer
Restrictions.


 


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


 


(b) The
Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on the Securities in the following form:


 


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


 


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


 


(c) Certificates
evidencing the Conversion Shares, Warrant Shares or Commitment Shares shall not contain any legend (including the legend set forth in
Section 4.1(b) hereof): (i) while a registration statement covering the resale of any such securities are effective under the Securities
Act; (ii) following any sale of such Conversion Shares, Warrant Shares or Commitment Shares pursuant to Rule 144; if such legend is not
required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff
of the Commission). The Company shall upon request of the Purchaser and at the Company’s sole expense cause its counsel (or at the
Purchaser’s option, counsel selected by the Purchaser) to issue a legal opinion reasonably satisfactory to the Company to the Transfer
Agent promptly after any of the events described in (i)-(ii) in the preceding sentence if required by the Transfer Agent to effect the
removal of the legend hereunder (with a copy to the applicable Purchaser and its broker). If all or any portion of any Shares or Warrant
is converted or exercised, respectively, at a time when there is an effective registration statement to cover the resale of the Conversion
Shares or Warrant Shares, or if such Conversion Shares or Warrant Shares may be sold under Rule 144 or if such legend is not otherwise
required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff
of the Commission) then such Conversion Shares or Warrant Shares shall be issued free of all legends. The Company agrees that following
such time as such legend is no longer required under this Section 4.1(c), it will, no later than 9:00 AM the next Trading Day following
the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Conversion Shares, Warrant Shares or Commitment
Shares issued with a restrictive legend (such Trading Day, the “Legend Removal Date”), instruct the Transfer Agent
to deliver or cause to be delivered to the Purchaser a certificate representing such shares of Common Stock that is free from all restrictive
and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions
on transfer set forth in this Section 4. Certificates for the Conversion Shares, Warrant Shares and Commitment Shares that are subject
to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s
prime broker with the Depository Trust Company System as directed by the Purchaser.


 






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


 


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


 


4.2 Furnishing
of Information; Public Information.


 


(a) From
the Closing Date until no Purchaser holds any Securities, the Company covenants to maintain the registration of the Common Stock under
Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is
not then subject to the reporting requirements of the Exchange Act.


 


(b) At
any time commencing on the Closing Date and ending at such time that all of the Securities may be sold without the requirement for the
Company to be in compliance with Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144, if the Company shall
fail for any reason to satisfy the current public information requirement under Rule 144(c) (a “Public Information Failure”)
then, in addition to the Purchaser’s other available remedies, the Company shall pay to the Purchaser, in cash, as partial liquidated
damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities, an amount in cash equal
to two percent (2.0%) of the Subscription Amount of the Purchaser’s Securities held by the Purchaser on the day of a Public Information
Failure and on every thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier
of (a) the date such Public Information Failure is cured and (b) such time that such public information is no longer required for the
Purchaser to transfer the Conversion Shares or Commitment Shares pursuant to Rule 144. The payments to which the Purchaser shall be entitled
pursuant to this Section 4.2(b) are referred to herein as “Public Information Failure Payments.” Public Information
Failure Payments shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments
are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is
cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure
Payments shall bear interest at the rate of 1.5% per month (pro-rated for partial months) until paid in full. Nothing herein shall limit
the Purchaser’s right to pursue actual damages for the Public Information Failure, and the Purchaser shall have the right to pursue
all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief.


 






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





 


4.4 Publicity. 
The Company and the Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor the Purchaser shall issue any such press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of the Purchaser, or without the prior consent of the Purchaser, with
respect to any press release of the Company, which consent shall not unreasonably be withheld, delayed, denied or conditioned, except
if such disclosure is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of
such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Purchaser,
or include the name of the Purchaser in any filing with the Commission or any regulatory agency or Trading Market unless the name of the
Purchaser is already included in the body of the Transaction Documents, without the prior written consent of the Purchaser, except: (a)
as required by federal or state securities law in connection with the filing of final Transaction Documents with the Commission, or (b)
to the extent such disclosure is required by law or Principal Market regulations, in which case the Company shall provide the Purchaser
with prior notice of such disclosure permitted under this clause (b).


 


4.5 Non-Public
Information. Except for the schedules and exhibits to this Agreement and the Transaction Documents, and except to the extent the Company
has entered into a non-disclosure, confidentiality or similar agreement with the Purchaser, the Company covenants and agrees that neither
it, nor any other Person acting on its behalf, will provide the Purchaser or its agents or counsel with any information that the Company
believes constitutes material non-public information (“MNPI”), unless prior thereto the Purchaser shall have entered
into a written agreement with the Company regarding the confidentiality and use of such information. The Company understands and confirms
that the Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. At any time, the
Company may deliver written notice to the Purchaser or its assigns, and offer to deliver MNPI (an “MNPI Pre-Notice”).
Within three Business Days after receipt of an MNPI Notice, the Purchaser or its assigns shall give written notice to the Company of whether
it wishes to accept receipt of MNPI.


 






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4.6 Use
of Proceeds.  The Company will use the net proceeds to the Company from the sale of the Shares hereunder as set forth on Schedule
4.6. The Company shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s debt (other than
payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption of any Common
Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of the law, including FCPA
or OFAC.


 


4.7 Right
of Participation. The Company acknowledges and agrees that the right set forth in this Section 4.7 is a right granted by the
Company, separately, to the Purchaser, provided that the Purchaser owns no fewer than One Hundred and Twenty (120) Shares.


 


(a) If
the Company has delivered to the Purchaser or its assigns a MNPI Pre-Notice and the Purchaser or its assigns has delivered written notice
that it will accept such MNPI and only in that event, at least ten (10) trading days prior to any proposed or intended sale by the Company
of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof (each,
a “Subsequent Placement”), the Company shall deliver to the Purchaser a written notice of its proposal or intention
to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information
(including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to
effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information
and (C) a statement informing the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent
Placement upon its written request. Upon the written request of the Purchaser within five (5) Business Days after the Company’s
delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later
than one (1) Business Day after such request, deliver to the Purchaser an irrevocable written notice (the “Offer Notice”)
of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered
Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe
the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be
issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued,
sold or exchanged and (IV) offer to issue and sell to or exchange with the Purchaser in accordance with the terms of the Offer such number
of Offered Securities entitling the Purchaser to maintain its percentage beneficial ownership of the Company held prior to the Subsequent
Placement (the “Participation Amount”). As used in this Section 4.7, the word “Purchaser” includes its
assigns.


 


(b) To
accept an Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth (5th)
Business Day after the Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion
of the Purchaser’s Participation Amount that the Purchaser elects to purchase. Notwithstanding the foregoing, if the Company desires
to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to the Purchaser
a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of
such new Offer Notice.


 


(c) If
the Company or any Subsidiary including White River or any Subsidiaries of White River decide to drill or participate in the drilling
by a third party of an oil and gas well (an O&G Venture”), the Company shall offer the Purchaser or a designee of the
Purchaser the right to participate in such O&G Venture by investing up to 25% of the Company’s funding obligation of such O&G
Venture. If the O&G Venture is successfully drilled, logged, and completed and is determined to be economically viable then the Purchaser
or its designee will receive its proportionate ownership through an assigned working interest in the division order which is supplied
to the midstream carrier selected to purchase the well’s production. By way of example, if the Company has the right to invest $1
million in exchange for an 80% a working interest in an O&G Venture, the Purchaser may elect to invest $250,000 and receive a 20%
working interest, or such proportionate percentage if it invests less than $250,000. For avoidance of doubt, the 25% right is a total
for each of the Purchaser and its assigns. At least ten (10) calendar days prior to any proposed or intended investment in an O&G
Venture, the Company or any Subsidiary (including a White River Subsidiary) shall deliver to the Purchaser a written notice of its proposal
or intention to effect an investment in an O&G Venture (each such notice, an “Authority for Expenditure”), which
Authority for Expenditure shall not contain any information (including, without limitation, MNPI) other than: (A) a statement that the
Company proposes or intends to invest in an O&G Venture, (B) a statement that the statement in clause (A) above does not constitute
MNPI and (C) a statement informing the Purchaser that it is entitled to invest in an O&G Venture and (D) an itemized list of estimated
drilling and completion expenses, and (E) identification of the proposed persons (if known) and drilling or workover rig proposed for
the O&G Venture, and finally, an offer the Purchaser the right to invest in the O&G Venture (the “O&G Participation
Amount”). Upon the written request of the Purchaser within five (5) Business Days after the Company’s delivery to the
Purchaser of such Authority for Expenditure, the Purchaser may request additional information about the O&G Venture, and thereafter
the Company shall promptly, but no later than one (1) Business Day after such request, deliver to the Purchaser any additional readily
available or reasonably obtainable information so requested by the Purchaser on the drilling prospect of the O&G Venture such as geology,
seismic, or comparable well information in the same field as the proposed drilling prospect (the “O&G Additional Information”).
As used in this Section 4.7, the word “Purchaser” includes its assigns, except as apparent from the context.


 






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(d) To
accept an O&G Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the fifth
(5th) Business Day after the Purchaser’s receipt of the O&G Additional Information (the “O&G Offer Period”),
setting forth the portion of the Purchaser’s O&G Participation Amount that the Purchaser elects to purchase. Notwithstanding
the foregoing, if the Company desires to modify or amend the terms and conditions of the O&G Offer prior to the expiration of the
O&G Offer Period, the Company may deliver to the Purchaser a new O&G Offer Notice in which case the new O&G Offer Period shall
expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new O&G Offer Notice.


 


4.8 Maintenance
of Registration Statement. Subject to SEC Guidance, for so long as any of the Shares or Warrant remain outstanding, the Company shall
use its reasonable best efforts to maintain the effectiveness of the Registration Statement for the sale thereunder of the Registrable
Shares, and the Company shall promptly amend the Registration Statement on such other form as may be necessary to maintain the effectiveness
of the Registration Statement for this purpose. If at any time following the date hereof the Registration Statement is not effective or
is not otherwise available for the sale of the Registrable Shares any prospectus contained therein is not available for use, the Company
shall immediately notify the Purchaser in writing that the Registration Statement is not then effective or a prospectus contained therein
is not available for use and thereafter shall promptly notify such holders when the Registration Statement is effective again and available
for the sale of the Registrable Shares or such prospectus is again available for use.


 


4.9 Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses.


 


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


 


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


 






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


 


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


 


4.12 Reservation
of Common Stock. The Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the
Transaction Documents in amount equal to 300% of the Required Minimum and 100% of the Warrant Shares (the “Required Reserve”).
If, on any date including the Effective Date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock
is less than the Required Reserve on such date, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s
certificate or articles of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required
Reserve at such time, as soon as possible and in any event not later than the 75th day after such date; provided that the Company
will not be required at any time to authorize a number of shares of Common Stock greater than the maximum remaining number of shares of
Common Stock that could possibly be issued after such time pursuant to the Transaction Documents.


 






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4.13 Listing
of Common Stock. At all times subsequent to the Closing Date, the Company hereby agrees to maintain the listing of the Common Stock
on the Trading Market on which it is listed, and following the Closing and shareholder and Principal Market approval , the Company, shall
apply to list all of the Conversion Shares and the Warrant Shares on such Trading Market and promptly secure the listing of all of the
Conversion Shares and the Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common
Stock traded on any other Trading Market, it will then include in such application all of the Conversion Shares and the Warrant Shares,
and will take such other action as is necessary to cause all of the Conversion Shares and Warrant Shares to be listed or quoted on such
other Trading Market as promptly as possible. The Company will then take all action necessary to continue the listing or quotation and
trading of its Common Stock on a Trading Market until five years after the Closing Date and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market until at least five years after the Closing Date.
The Company will list the Commitment Shares and Conversion Shares (to the extent permissible under the Rules of the Principal Market)
on the Principal Market immediately following the record date for shareholders eligible to vote on the approval to issue more than 19.99%
of outstanding shares in accordance with the Rules of the Principal Market. In the event the afore-described listing is not continuously
maintained for five years after the date of such listing (a “Listing Default”), then in addition to any other rights
the Purchaser may have hereunder or under applicable law, on the first day of a Listing Default and on each monthly anniversary of each
such Listing Default date (if the applicable Listing Default shall not have been cured by such date) until the applicable Listing Default
is cured, the Company shall pay to the Purchaser an amount in cash, as partial liquidated damages and not as a penalty, equal to 2% of
the Subscription Amount of the Securities then held by the Purchaser on the day of a Listing Default and on every thirtieth (30th)
day (pro-rated for periods less than thirty days) thereafter until the date such Listing Default is cured. If the Company fails to pay
any liquidated damages pursuant to this Section in a timely manner, the Company will pay interest thereon at a rate of 1.5% per month
(pro-rated for partial months) to the Purchaser.




 


4.14 Reserved.


 


4.15 Notice
of Disqualification Events. The Company will notify the Purchaser in writing, prior to the Closing Date of (i) any Disqualification
Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating
to any Issuer Covered Person not otherwise disclosed herein.


 


4.16 Acknowledgment
of Dilution.  The Company acknowledges that the issuance of the Conversion Shares upon conversion of the Shares, Commitment Shares
and of the Warrant Shares upon exercise of the Warrant may result in dilution of the outstanding shares of Common Stock, which dilution
may be substantial. The Company further acknowledges that its obligations under the Transaction Documents, including, without limitation,
its obligation to issue the Conversion Shares, Commitment Shares and the Warrant Shares pursuant to the Transaction Documents, are unconditional
and absolute, but subject to the terms and conditions of the Transaction Documents, and not subject to any right of set off, counterclaim,
delay or reduction, regardless of the effect of any such dilution or any claim the Company may have against the Purchaser and regardless
of the dilutive effect that such issuance may have on the ownership of the other shareholders of the Company.


 


4.17 Certain
Equity Limitations.


 


(a) Limitations
on Issuances and Financings. For a period of twelve (12) months from the final Closing Date (the “Prohibition Period”),
the Company shall not, without the consent of the Purchaser (“Required Consent”) issue any Common Stock or securities
convertible into or exercisable for shares of Common Stock to any person or entity solely for capital raising purposes or incur any financing
debt or enter into other incremental financing arrangements at a price per share that is less than the Conversion Price. This Section
4.17(a) shall not apply to Subsidiaries.


 


(b) Subsequent
Equity Sales; Variable Rate Transactions; Other. During the Prohibition Period:


 


(i) the
Company shall not, directly or indirectly, amend, modify, waive or alter any terms of conditions of any Common Stock Equivalents outstanding
as of the date hereof to decrease the exercise, conversion and/or exchange price, as applicable, thereunder or otherwise increase the
aggregate number of shares of Common Stock issuable in connection therewith (other than pursuant to anti-dilution terms and conditions
applicable to such Common Stock Equivalents in effect as of the date hereof and disclosed in filings of the Company with the Commission
prior to the date hereof).


 


(ii) 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. “Variable Rate Transaction”
means a transaction in which the Company issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable
for, or include the right to receive, additional Common Stock either (A) at a conversion price, exercise price or exchange rate or other
price that is based upon, and/or varies with, the trading prices of or quotations for the Common Stock at any time after the initial issuance
of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly
related to the business of the Company or the market for the Common Stock (other than pursuant to terms and conditions applicable to such
Common Stock Equivalents in effect as of the date hereof and disclosed in filings of the Company with the Commission prior to the date
hereof).


 


(iii) 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 an equity line of credit, at-the-market offering (as defined in SEC Rule
415) or similarly structured transaction, whereby the Company may issue securities at a future determined price.


 






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(iv) the
Company shall not enter into any transaction or arrangement structured in accordance with, based upon, or related or pursuant to Section
3(a)(9) or 3(a)(10) of the Securities Act.


 


(v) The
Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance in this Section 4.17(b) (without
the need for the posting of any bond or similar item, which the Company hereby expressly and irrevocably waives the requirement for),
which remedy shall be in addition to any right to collect damages.


 


(c)  Exempt
Issuances. Notwithstanding anything herein to the contrary, the provisions of this Section 4.17 shall not apply to any Exempt Issuance
other than (v) thereof.


 


4.18 Indemnification
of Purchaser. Subject to the provisions of this Section 4.18, the Company will indemnify and hold the Purchaser and its officers,
managers, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such
titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, managers, shareholders, agents, members, partners
or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court
costs and reasonable attorneys’ fees and costs of investigation that any the Purchaser Party may suffer or incur as a result of
or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or any of them or their
respective Affiliates, by any shareholder of the Company who is not an Affiliate of the Purchaser Party, with respect to any of the transactions
contemplated by the Transaction Documents (unless such action is based upon a breach of the Purchaser Party’s representations, warranties
or covenants under the Transaction Documents or any agreements or understandings the Purchaser Party may have with any such shareholder
or any violations by such Purchaser Party of state or federal securities laws or any conduct by the Purchaser Party which constitutes
fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser Party in respect of which indemnity
may be sought pursuant to this Agreement, the Purchaser Party shall promptly notify the Company in writing, and the Company shall have
the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ
counsel or (iii) in such action there is, in the reasonable opinion of counsel retained to represent such Purchaser Party, a material
conflict on any material issue between the position of the Company and the position of the Purchaser Party, in which case the Company
shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will not be liable to
any Purchaser Party under this Agreement (x) for any settlement by the Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements
made by the Purchaser Party in this Agreement or in the other Transaction Documents or such Purchaser Party’s fraud, gross negligence
or willful misconduct. The indemnification required by this Section 4.16 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or are incurred. The indemnification contained herein shall
be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company
may be subject to pursuant to applicable law.


 


4.19 DTC
Program. For a period of two (2) years from the Closing Date, the Company will employ as the transfer agent for the Common Stock a
participant in the Depository Trust Company Automated Securities Transfer Program and cause the Common Stock to be transferable pursuant
to such program.


 


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


 


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


 






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


 


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


 


4.24 Restriction
on Redemption and Cash Dividends. For as long as the Purchaser holds any Shares (the “Obligation Period”), the
Company shall not, directly or indirectly, redeem, or declare or pay any cash dividend or distribution on, any securities of the Company
without the written consent of the Purchaser. This Section 4.24 shall not apply to any spin-off by the Company of any securities of any
Subsidiary.


 


4.25 Corporate
Existence. During the Obligation Period, the Company shall not be party to any Fundamental Transaction (as defined in the Series A
Certificate of Designation) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set
forth in the Series A Certificate of Designation.


 


4.26 Conversion
Procedures. The form of Notice of Conversion included in the Series A Certificate of Designation sets forth the totality of the procedures
required of the Purchaser in order to convert the Shares. No legal opinion, other information or instructions shall be required of the
Purchaser to convert its Shares. The Company shall promptly honor conversions of the Shares and shall deliver the Conversion Shares in
accordance with the terms, conditions and time periods set forth in the Series A Certificate of Designation.


 


4.27 Inspection
Rights. A representative of each of the Purchaser shall have the right upon reasonable notice and at its expense, to visit and inspect
any of the properties, books and records of the Company and to discuss the Company’s affairs, finances and accounts with its directors,
officers and employees. All inspection rights and information rights are subject to the confidentiality restrictions contained in any
agreement entered into between the Company and the Purchaser.


 


4.28 Conduct
of Business. The business of the Company shall not be conducted in violation of any law, ordinance or regulation of any governmental
entity, except where such violations would not result, either individually or in the aggregate, in a Material Adverse Effect.


 


4.29 Passive
Foreign Investment Company. The Company shall conduct its business in such a manner as will ensure that the Company will not be deemed
to constitute a passive foreign investment company within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.


 


4.30 Capital
Changes. Until the one year anniversary of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification
of the Common Stock without 10 days prior written notice to the Purchaser, unless such reverse split is made in conjunction with the listing
or maintenance of the Common Stock on a national securities exchange.


 


4.31 Dividend
Participation. In the event the Company declares or pays any cash dividend or distribution on, the shares of outstanding Common Stock
of the Company, the Purchaser shall have the right to participate in such dividend or distribution with respect to the Shares then held
by the Purchaser on an as-converted basis.


 


4.31 Certain
Limitations. Notwithstanding anything contained in any Transaction Document to the contrary, the parties covenant and agree that the
Purchaser shall not convert any Shares or exercise any of the Warrant into shares of Common Stock, or to sell any Commitment Shares, Conversion
Shares, or Warrant Shares, unless and until the Company obtains Exchange Approval and, if applicable, Shareholder Approval of the Transaction
in accordance with the Principal Market Rules. The Purchaser further covenants and agrees not to vote any of its Securities at the meeting
of the shareholders held for the purpose of obtaining such Shareholder Approval.


 


4.32 Primary
Market Compliance. Notwithstanding anything in this Agreement or any other Transaction Document to the contrary, the parties shall
use commercially reasonable efforts to comply with the Principal Market Rules, including the listing requirements, and as long as the
Common Stock remains listed on the Principal Market the parties shall not enforce any provision of any Transaction Document which does
not comply with the Principal Market Rules.


 


4.33 Subsequent
Transactions. Notwithstanding anything in any Transaction Document to the contrary, the Company may enter into, engage in and effect
the agreements and transactions described on Schedule 4.33 (the “Subsequent Transactions”).


 






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ARTICLE V


TERMINATION


5.1 Termination.



 


(a) The
Purchaser may elect to terminate this Agreement upon the occurrence of any of the following:


 


(i) if
at any time the Company has filed for and/or is subject to any bankruptcy, insolvency, reorganization or liquidation proceedings or other
proceedings for relief under any bankruptcy law or any law for the relief of debtors instituted by or against the Company or any Subsidiary
of the Company;


 


(ii) the
Company is in breach or default of any Material Agreement, which breach or default could reasonably be expected to have a Material Adverse
Effect;


 


(iii) the
Company is in breach or default of this Agreement, any Transaction Document, or any agreement with any Purchaser or any Affiliate of the
Purchaser; or


 


(iv) upon
the occurrence of a Fundamental Transaction.


 


(b) This
Agreement will automatically terminate if the Closing has not occurred prior to June 17, 2022.


 


5.2 Effect
of Termination. Notwithstanding anything to the contrary above, nothing contained in this Section 5 shall be deemed to release any
party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents
or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement or the other
Transaction Documents.


 


ARTICLE VI


MISCELLANEOUS


 


6.1 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever the Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then the Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that in the case of a rescission of a conversion or exercise of
any Share or Warrant, respectively, the Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
conversion or exercise notice concurrently with the return to the Purchaser of the aggregate exercise price paid to the Company for such
shares.


 


6.2 Fees
and Expenses.  Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its Advisors, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement.  The Company shall pay all Transfer Agent fees,
DTC fees, stamp taxes and other similar taxes and duties levied in connection with the delivery of any Securities to the Purchaser in
addition to paying the cost of any counsel or other expenses incurred in rendering Rule 144 opinions of any the Purchaser upon request.


 


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


 


6.4 Notices. 
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, , (ii) delivered by reputable air courier service with charges
prepaid, or (iv) transmitted by email, addressed as set forth below or to such other address as such party shall have specified most recently
by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand
delivery or delivery by email, at the address or number designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during
normal business hours where such notice is to be received) or (b) on the second business day following the date of express courier service,
fully prepaid, addressed to such address, or upon actual receipt of such delivery, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: Ecoark Holdings, Inc., 303 Pearl Parkway Suite 200, San Antonio, TX 78215, Attn. Randy
May, CEO, email: rmay@ecoarkusa.com, with a copy by e-mail only to (which shall not constitute notice): Nason, Yeager, Gerson, Harris
& Fumero, P.A., 3001 PGA Boulevard, Suite 305, Palm Beach Gardens, FL 33410, Attn: Michael Harris, Esq., email: MHarris@nasonyeager.com,
and (ii) if to the Purchaser, to: the addresses and email address indicated on the signature pages hereto.


 






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6.5 Amendments;
Waivers.  No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and the Purchaser, or, in the case of a waiver, by the party against whom enforcement of any
such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise
of any such right.


 


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


 


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


 


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


 


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


 


6.10 Survival. 
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities at the Closing for the
applicable statute of limitations.


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


6.21 Equitable
Adjustment. Trading volume amounts, price/volume amounts and similar figures in the Transaction Documents shall be equitably adjusted
(but without duplication) to offset the effect of stock splits, similar events and as otherwise described in this Agreement, if such events
shall occur between the date of this Agreement and Closing. 


 


(Signature Pages Follow)


 




    - 34 -


     


    

 


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


 





	Ecoark
    Holdings, Inc.	 	Address for Notice:
	 	 	 
	By:	 	 	303 Pearl Parkway
    Suite 200
	Name: 	Randy May	 	San Antonio, TX 78215
	Title: 	Chief Executive Officer	 	
	 	 	 
	With
                                            a copy to (which shall not constitute notice):

	 	Nason, Yeager, Gerson,
    Harris & Fumero, P.A.
	 	 	3001
                                    PGA Boulevard, Suite 305


	Michael
                                            Harris, Esq.

	 	Palm Beach Gardens, FL
    33410
		 	


 


[REMAINDER OF PAGE
INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR
PURCHASER FOLLOWS]


 




     


     


    

 


[PURCHASER
SIGNATURE PAGE TO ECOARK HOLDINGS, INC.


SECURITIES
PURCHASE AGREEMENT]


 


IN
WITNESS WHEREOF, the undersigned has caused this Securities Purchase Agreement to be duly executed by its duly authorized signatory as
of the date first indicated above.


 


Name of Purchaser:
________________________________________________________


 


Signature of
Authorized Signatory of Purchaser: __________________________________


Name of Authorized
Signatory: ____________________________________________________


Title of Authorized
Signatory: _____________________________________________________


Email Address of
Authorized Signatory: _____________________________________________


 


Address for Notice
to Purchaser:


 


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


 


______________________________________________________________________________


 


______________________________________________________________________________


 


______________________________________________________________________________


 


Subscription Amount:
US$12,000,000


 


Series A Convertible
Preferred Stock: ___________________ Shares


 


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


 




     


     


    

  


EXHIBIT A


 


Certificate of
Designation of Rights, Preferences and Limitations of Series A Convertible Preferred Stock 


 




     


     


    

 


EXHIBIT B


 


Warrant


 




     


     


    

 


EXHIBIT C


 


Transfer Agent
Instruction Letter


 




     


     


    

 


EXHIBIT D


 


Opinion of Counsel