Exhibit
10.10


 


EXECUTION VERSION


 


SECURITIES
PURCHASE AGREEMENT


 


THIS
SECURITIES PURCHASE AGREEMENT (the “Agreement”) is made as of June 7, 2022, by and among Optimus Healthcare Services,
Inc., a Florida corporation (and together with all of its current and future, direct and/or indirect, wholly owned and/or partially owned
Subsidiaries, collectively, the “Company”), and Arena Investors, LP, on behalf of its clients listed in Schedule 1
hereto (including its successors and assigns, collectively, the “Purchasers”).


 


RECITALS


 


A. The
Company and the Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act (as defined below), and/or Rule 506(b) of Regulation D (“Regulation D”) as
promulgated by the United States Securities and Exchange Commission under the Securities Act.


 


B. The
Purchaser wishes to purchase, and the Company wishes to sell at closing, upon the terms and conditions stated in this Agreement, the
Securities (as defined herein), all in the amounts and for the price set forth on Schedule 1 hereto.


 


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 hereby agrees as follows:


 


ARTICLE
1

DEFINITIONS


 


1.1 Defined
Terms. In addition to terms defined elsewhere in this Agreement or in any supplement, amendment or exhibit hereto, when used herein,
the following terms shall have the following meanings:


 


(a) 
“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 of the Securities Act, including,
among others, executive officers, directors, large stockholders, subsidiaries, parent entities and sister companies.


 


(b) “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.


 


(c) “Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed
and delivered by the applicable parties thereto, and all conditions precedent to (i) the Purchaser’ obligations to pay the Purchase
Price and (ii) the Company’s obligations to deliver the Notes and the Warrants, in each case, have been satisfied or waived with
respect to the Closing.


 






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(d) “Collateral”
shall have the meaning ascribed to such term as set forth in the Security Agreement.


 


(e) “Commitment
Shares” means an aggregate of 200,000 shares of the Company’s Common Stock to be issued to the Purchasers at Closing.


 


(f) “Common
Stock” means (i) the Company’s common stock, par value $0.001 per share, and (ii) any capital stock into which such common
stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(g) “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, rights, options, warrants or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.


 


(h) “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.


 


(i) “Conversion
Date” has the meaning set forth in the Note.


 


(j) “Conversion
Shares” means all shares of Common Stock issuable upon conversion of any portion of the Note (including, at the Purchaser’s
election pursuant to the conditions set forth in the Note, accrued and unpaid interest thereon), but solely to the extent and subject
to any conditions set forth in the Note.


 


(k) “Dollar(s)”
and “$” means lawful money of the United States.


 


(l) “Effective
Date” means the date that the initial Registration Statement filed by the Company pursuant to the Registration Rights Agreement
is first declared effective by the Commission.


 


(m) “Event
of Default” shall have the meaning set forth in the Note.


 


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


 


(o) “Exempt
Issuance” means the issuance of (a) shares of Common Stock or options 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 non-employee members of the Board of Directors or a majority of the non-employee members of a committee of directors established
for such purpose, (b) securities upon the exercise or exchange of or conversion 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, (c) Permitted Indebtedness incurred in accordance with Section 1.1(cc)
hereunder and (d) shares of Common Stock to be sold to persons other than the Purchasers and/or securities issued on or prior to the
date of this Agreement, at a price per share equal to $1.00 per share.


 






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(p) 
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time.


 


(q) “Indebtedness”
means, with respect to any Person at any date, without duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or services (but excluding trade payables incurred in the ordinary
course of business), (c) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (d) all
indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or the Purchaser under such agreement in the event of default are limited to
repossession or sale of such property), (e) all capital lease obligations of such Person, (f) all obligations of such Person,
contingent or otherwise, as an account party or applicant under acceptance, letter of credit, surety bond or similar facilities, (g) all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any capital stock of
such Person, (h) all obligations for any earn-out consideration, (i) the liquidation value of preferred capital stock of such Person,
(j) all guarantee obligations of such Person in respect of obligations of the kind referred to in clauses (a) through (i) above,
(k) all obligations of the kind referred to in clauses (a) through (i) above secured by (or for which the holder of such obligation
has an existing right, contingent or otherwise, to be secured by) any lien on property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation and all obligations
of such Person in respect of hedge agreements; and (l) all Contingent Obligations in respect to indebtedness or obligations of any Person
of the kind referred to in clauses (a)-(k) above. The Indebtedness of any Person shall include, without duplication, the Indebtedness
of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.


 


(r) “Investment”
means any investment (including, without limitation, any loan or advance) in or to any Person, whether payment therefor is made in cash
or capital stock or other equity interests or otherwise, and whether such Investment is by acquisition of capital stock or other equity
interests or Indebtedness, or by loan, advance, transfer of property out of the ordinary course of business, capital contribution, equity
or profit sharing interest, extension of credit on terms other than those normal in the ordinary course of business or otherwise.


 


(s) 
“Liens” or “liens” means a lien, mortgage, charge pledge, security interest, encumbrance, right
of first refusal, preemptive right or other restriction, or other clouds on title.


 






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(t) “Liabilities”
means all direct or indirect liabilities, Indebtedness and obligations of any kind of Company to the Purchaser, howsoever created, arising
or evidenced, whether now existing or hereafter arising (including those acquired by assignment), absolute or contingent, due or to become
due, primary or secondary, joint or several, whether existing or arising through discount, overdraft, purchase, direct loan, participation,
operation of law, or otherwise, including, but not limited to, pursuant to the Note, this Agreement and/or any of the other Transaction
Documents, all accrued but unpaid interest on the Note the principal, any letter of credit, any standby letter of credit, and/or outside
attorneys’ and paralegals’ fees or charges relating to the preparation of the Transaction Documents and the enforcement of
the Purchaser’s rights, remedies and powers under this Agreement, the Note and/or the other Transaction Documents.


 


(u) “Material
Adverse Effect” means a material adverse effect on (a) the business, assets, property, operations, prospects, or condition
(financial or otherwise) of the Company, (b) the validity or enforceability of this Agreement or any of the other Transaction Documents,
(c) the rights or remedies of the Purchaser hereunder or thereunder, or (d) the ability of the Company to perform its obligations
under any Transaction Document.


 


(v) 
“Note” means the Original Issue Discount Senior Secured Convertible Promissory Notes due on the second anniversary
of the Closing Date in such amounts as set forth on Schedule 1 next to the heading “Note,”
in United States Dollars, which, subject to the terms and conditions set forth in this Agreement, shall be purchased from the
Company pursuant to this Agreement, and any and all Note(s) issued in exchange, transfer or replacement of the Note(s); the form of Note
is annexed hereto as Exhibit A.


 


(w) “Permitted
Indebtedness” means (a) the indebtedness evidenced by the Note, (b) any indebtedness of the Company outstanding as of the date
of this Agreement and set forth on Schedule (w), (c) lease obligations and purchase money indebtedness incurred in connection
with the acquisition of capital assets and lease obligations with respect to newly acquired or leased assets in the ordinary course of
business, (d) any indebtedness issued by the Company to any SBA-approved lender and (e) any indebtedness issued after the date of this
Agreement that (1) is subordinated in right of payment to the Notes; (2) matures at a date later than 10 days after the Maturity Date;
and (3) is subject to a subordination agreement in such form that is reasonably acceptable to Purchasers.


 


(x) “Permitted
Lien” 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) Liens incurred in connection with Permitted
Indebtedness thereunder; (d) pledges and deposits made in the ordinary course of business in compliance with workers’ compensation,
unemployment insurance and other social security laws or regulations; (e) 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, in each case in the
ordinary course of business; (f) any Liens in favor of the Purchaser; and (g) Liens securing Indebtedness of the type described in clause
(f) of the definition of Permitted Indebtedness, provided such Liens do not extend to any Collateral.


 






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(y) “Person”
means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state, county, city, municipal or otherwise including, without limitation,
any instrumentality, division, agency, body or department thereof).


 


(z) 
“Principal Market” means the principal Trading Market on which the Common Stock is listed or quoted for trading on
the date in question.


 


(aa) “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. 


 


(bb) “Purchase
Price” shall have the meaning as set forth on Schedule 1 next to the heading “Purchase
Price,” in United States Dollars.


 


(cc) “Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, by and between the Company and the
Purchaser as hereinafter amended and/or supplemented altogether with all exhibits, schedules and annexes to such Registration Rights
Agreement, which Registration Rights Agreement is annexed hereto as Exhibit D.


 


(dd) 
“Registration Statement” means
a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering the resale of the Conversion
Shares issuable upon conversion of the Note, the Warrant Shares issuable upon exercise of the Warrants and the Commitment Shares as provided
for in the Registration Rights Agreement.


 


(ee) 
“SEC” or “Commission” means the United States Securities and Exchange Commission.


 


(ff) “Securities”
means the Note, the Warrants, the Warrant Shares and the Commitment Shares purchased pursuant
to this Agreement and all Underlying Shares and any securities of the Company issued to the Purchaser in replacement, substitution and/or
in connection with any exchange, conversion and/or any other transaction involving all or any of such securities of the Company.


 


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


 






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(hh) “Security
Agreement” means the Amended and Restated Security Agreement, dated on or about the date hereof, by and among the Company,
the Subsidiaries of the Company, and the Purchaser as hereinafter amended and/or supplemented altogether with all exhibits, schedules
and annexes to such Security Agreement, pursuant to which the Note is secured by the Collateral, which security interest in the Collateral
shall be perfected by the Purchaser’s UCC-1, filed with the Secretary of State of the State of New York, to the extent perfectable
by the filing of a UCC-1 Financing Statement and such other documents and instruments related thereto, which Security Agreement is annexed
hereto as Exhibit B.


 


(ii) “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).


 


(jj) “SMRH”
means Sheppard, Mullin, Richter & Hampton LLP, with offices located at 30 Rockefeller Plaza, 39th Floor, New York, New
York 10112.


 


(kk) “Subsidiary”
means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or
other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by
reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership
or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. All of the Company’s Subsidiaries are set forth on Schedule 3.1(a) hereto.


 


(ll) “Subsidiary
Guaranty Agreement” means each Guaranty Agreement, substantially in the form of annexed hereto as Exhibit E,
between a Subsidiary and the Purchaser, with respect to a guarantee of the Company’s obligations under a Securities Purchase Agreement
dated as of May 25, 2021 and under this Agreement, as amended, restated, supplemented or otherwise modified from time to time.


 


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


 


(nn) “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 MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange,
any market or quotation service of the OTC Markets Group (or any successors to any of the foregoing).


 






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(oo) “Transaction
Documents” means, collectively, this Agreement, the Note, the Registration Rights Agreement, the Security Agreement, each Subsidiary
Guaranty Agreement, Transfer Agent Instruction Letter, and all financing statements (or comparable documents now or hereafter filed in
accordance with the UCC or other comparable or similar laws, rules or regulations) in favor of the Purchaser as secured parties perfecting
all Liens the Purchaser have on the Collateral (which security interests and Liens of the Purchaser shall be senior to all Indebtedness
of the Company), and such other documents, instruments, certificates, supplements, amendments, exhibits and schedules required and/or
attached pursuant to this Agreement and/or any of the above documents, and/or any other document and/or instrument related to the above
agreements, documents and/or instruments, and the transactions hereunder and/or thereunder and/or any other agreement, documents or instruments
required or contemplated hereunder or thereunder, whether now existing or at any time hereafter arising.


 


(pp) “Transfer
Agent” means Action Stock Transfer the current transfer agent of the Company, with a mailing address of 2469 E. Fort Union
Blvd, Suite 214, Salt Lake City, UT 84121 and a phone number of (801) 274-1088, and any
successor transfer agent of the Company.


 


(qq) “UCC”
means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, in
the event that, by reason of mandatory provisions of law, any or all of the attachment, perfection, priority, or remedies with respect
to the Purchaser’s Liens on any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction
other than the State of New York, the term “UCC” shall mean the Uniform Commercial code as enacted and in effect in
such other jurisdiction solely for purposes of the provisions thereof relating to such attachment, perfection, priority, or remedies.


 


(rr) “Underlying
Shares” means all Conversion Shares and Warrant Shares.


 


(ss) “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 OTCQB or OTCQX is not a Trading Market, the volume weighted
average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Sheets”
published by OTC Markets, Inc. (or a similar organization or agency succeeding to its functions of reporting prices), the most recent
bid price per share of the Common Stock so reported, or (d) 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.


 






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(tt) “Warrants”
means the five-year Warrant delivered to the Purchaser at the Closing in accordance with Section 2.2(a) hereof, in such amounts as
set forth on Schedule 1 next to the heading “Warrant,” in the form of Exhibit C attached hereto.


 


(uu) “Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.


 


1.2 Other
Definitional Provisions.


 


(a) Use
of Defined Terms. Unless otherwise specified therein, all terms defined in this Agreement shall have the defined meanings when used
in the other Transaction Documents or any certificate or other document made or delivered pursuant hereto or thereto.


 


(b) Accounting
Terms. As used herein and in the other Transaction Documents, and any certificate or other document made or delivered pursuant hereto
or thereto, accounting terms relating to the Company not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them under GAAP (provided that all terms of an accounting
or financial nature used herein shall be construed, and all computations of amounts referred to herein shall be made without giving effect
to (i) any election under Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards
159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of the Company at “fair value”, as defined therein, and (ii) any treatment of Indebtedness
in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification
or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner
as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof).


 


(c) Construction.
The words “hereof”, “herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, schedule
and exhibit references are to this Agreement unless otherwise specified. The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.


 


(d) UCC
Terms. Terms used in this Agreement that are defined in the UCC shall, unless the context indicates otherwise or are otherwise defined
in this Agreement, have the meanings provided for by the UCC.


 


ARTICLE
2

PURCHASE AND SALE


 


2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchaser
agrees to purchase, the Note and the Warrant. Purchaser shall deliver to the Company, via wire transfer immediately available funds equal
to the Purchase Price, and the Company shall deliver to the Purchasers the Notes and Warrants on the Closing Date, and the Company and
the Purchaser shall 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, the Closing shall occur at the offices of Sullivan & Worchester LLP, or such other
location as the parties shall mutually agree and may by agreement be undertaken remotely by electronic exchange of Closing documentation.
Notwithstanding anything herein to the contrary, if the Closing Date does not occur by June 10, 2022, this Agreement shall terminate
and be null and void.


 






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2.2 Deliveries.


 


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


 


(i) on
the Closing Date, this Agreement duly executed by the Company;


 


(ii) on
the Closing Date, an Amended and Restated Security Agreement providing the Purchaser with a lien on all of the assets of the Company
and each Subsidiary, duly executed by the Company;


 


(iii) on
the Closing Date, the Notes and the Warrants registered in the name of the Purchaser as set forth on Schedule 1;


 


(iv) on
the Closing Date, the Commitment Shares, registered in the name of the Purchaser as set forth on Schedule 1;


 


(v) on
the Closing Date, the Registration Rights Agreement duly executed by the Company;


 


(vi) on
the Closing Date, the Transfer Agent Instruction Letter in a form acceptable to the Purchasers, duly executed by the Company and the
Transfer Agent;


 


(vi) a
certificate, in the form acceptable to the Purchaser and its counsel, executed by the secretary of the Company dated as of the Closing
Date, as to (i) the resolutions as adopted by the Company’s board of directors relating to the transactions contemplated by this
Agreement in a form acceptable to the Purchaser, (ii) Certificate of Incorporation or other similar organizational document of the Company,
and (iii) the Bylaws or other similar organizational document of the Company, each as in effect at the Closing;


 


(vii) a
certificate for each Subsidiary of the Company, in the form acceptable to the Purchaser and its counsel, executed by the secretary of
such Subsidiary dated as of the Closing Date, as to (i) the resolutions as adopted by the Subsidiary’s board of directors or other
governing body relating to the transactions contemplated by this Agreement in a form acceptable to the Purchaser, (ii) Certificate of
Incorporation or other similar organizational document of such Subsidiary, and (iii) the Bylaws or other similar organizational document
of such Subsidiary, each as in effect at the Closing;


 


(vii) a
certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, confirming compliance with Section
2.3(a)(i) and (ii) below and as to such other matters as may be reasonably requested by the Purchaser and its counsel in the form acceptable
to the Purchaser;


 


(viii) certificates
evidencing the good standing of the Company and each Company Subsidiary in such entity’s jurisdiction of incorporation issued by
the Secretary of State (or comparable office) of such jurisdiction of formation or in such other jurisdictions the Company and each Subsidiary
transacts business, as of a date within five (5) days of the Closing Date;


 






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(ix) an
opinion of counsel to the Company, in such form as reasonably acceptable to the Purchaser;


 


(x) a
Subsidiary Guaranty Agreement for each Subsidiary of the Company; and


 


(xi) such
other documents, instruments, opinions or certificates relating to the transactions contemplated by this Agreement as the Purchaser or
its counsel may reasonably request.


 


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


 


(i) on
the Closing Date, this Agreement duly executed by the Purchaser;


 


(ii) one-hundred
percent (100%) of the Purchase Price to the Company subject to the closing by wire transfer;


 


(iii) on
the Closing Date, the Security Agreement duly executed by the Purchaser; and


 


(iv) on
the Closing Date, the Registration Rights Agreement duly executed by the Purchaser.


 


2.3 Conditions
to Purchase the Securities.


 


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


 


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


 


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


 


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


 


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


 






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(v) no
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or other federal, state, local or other governmental authority of competent jurisdiction that prohibits the consummation of
any of the transactions contemplated by the Transaction Documents;


 


(vi) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on 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
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.


 


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


 


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


 


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


 


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


 


(iv) there
shall have been no Event of Default under any of the Transaction Documents, Material Adverse Effect or Change of Control with respect
to the Company since the date hereof;


 


(v) the
Company shall have obtained all governmental, regulatory and third party consents and approvals, if any, necessary for the entry into
the Transaction Documents and the sale of the Securities;


 






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(vi) no
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or other federal, state, local or other governmental authority of competent jurisdiction that prohibits the consummation of
any of the transactions contemplated by the Transaction Documents; and


 


(vii) Purchaser’s
due diligence has been completed to its satisfaction.


 


2.4 Purchase
Price and Payment of the Purchase Price for the Securities. The Purchase Price for the Securities to be purchased by the Purchaser
at the Closing shall be as set forth on Schedule 1 and shall be paid at the Closing, as applicable, (less all of the Purchaser’s
Expenses (as defined below)) by the Purchaser by wire transfer of immediately available funds to the Company in accordance with the Company’s
written wiring instructions, against delivery of the Securities.


 


ARTICLE
3

REPRESENTATIONS AND WARRANTIES; OTHER ITEMS


 


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 otherwise made herein to the extent of the disclosure contained in the corresponding section
of the Disclosure Schedules (but in no event shall qualify any indemnity obligation of the Company hereunder), the Company (which for
purposes of this Section 3.1 means the Company and all of its Subsidiaries) represents and warrants to the Purchaser that
on the Closing Date (unless as of a specific date set forth below):


 


(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company and the locations thereof 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, and
all of the issued and outstanding shares of capital stock or other interests 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. Schedule 3.1(a) sets forth,
as of the Closing Date, the jurisdiction of organization and the location of the Company’s and its subsidiaries’ executive
offices and other places of business.


 


(b) Organization,
Etc. The Company and each of the Subsidiaries is duly organized, validly existing and in good standing under the laws of the state
of their respective organization and are duly qualified and in good standing as a foreign corporation authorized to do business in each
jurisdiction where, because of the nature of its activities or properties, such qualification is required except where the failure to
be so qualified would not reasonably be expected to have a Material Adverse Effect.


 






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(c) Authorization:
No Conflict. The execution, delivery and performance of the Transaction Documents and the transactions contemplated thereby by the
Company, including, but not limited to, the sale and issuance of the Securities for the Purchase Price, the reservation for issuance
of the Underlying Shares required to be reserved pursuant to the terms of the Note, of the issuance the Underlying Shares into which
the Note is convertible and the issuance and sale of the Commitment Shares (i) are within the Company’s corporate powers, (ii)
have been duly authorized by all necessary action by or on behalf of the Company (and/or its stockholders to the extent required by law),
(iii) have received all necessary and/or required governmental, regulatory and other approvals and consents (if any shall be required),
(iv) do not and shall not contravene or conflict in any material respect with any provision of, or require any consents under (1) any
law, rule, regulation or ordinance, (2) the Company’s organizational documents; and/or (3) 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, and (v) other than the Liens granted
to the Purchaser pursuant to the Transaction Documents, do not result in, or require, the creation or imposition of any Lien and/or encumbrance
on any of the Company’s properties or revenues pursuant to any law, rule, regulation or ordinance or otherwise.


 


(d) Validity
and Binding Nature. The Transaction Documents to which the Company is a party are the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective terms, except as enforceability may be limited by bankruptcy,
insolvency, reorganization and other similar laws of general application affecting the rights and remedies of creditors and by general
equitable principles (whether enforcement is sought by proceedings in equity or at law).


 


(e) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property 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 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, (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and the payment of which
is not delinquent, and (iii) Permitted Liens. Any real property and facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.


 


(f) 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, including, without limitation, those relating to securities, corporate law, 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.


 






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(g) Taxes.
Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect,
the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income and all foreign income
and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and
other governmental assessments and charges that are material in amount, whether or not shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material 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 or of any Subsidiary know of no basis
for any such claim.


 


(h) Licenses
and Permits. The Company possesses all certificates, authorizations, consents, approvals, orders,
licenses and permits issued by the appropriate federal, state or foreign regulatory authorities (collectively, the “Permits”),
necessary to conduct its business as now conducted. All of such Permits are valid and in full force and effect. There is no pending or,
to the Company’s knowledge, threatened action, suit, proceeding or investigation that individually or in the aggregate would reasonably
be expected to lead to the revocation, modification, termination, suspension or any other impairment of the rights of the holder of any
such Permit.


 


(i) Investment
Company. The Company is not (i) an “investment company” or a company “controlled”, whether directly or indirectly,
by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended; or (ii) engaged principally,
or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve System).


 


(j) Absence
of Defaults and Conflicts. The Company is not (i) in violation of its charter, by-laws
or similar incorporation or organizational documents or (ii) in violation or default in the
performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or instrument to which the Company is a party or by which it
may be bound, or to which any of the property or assets of the Company is subject (collectively, “Agreements and Instruments”).
The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated in this Agreement and
the other Transaction Documents, and compliance by the Company with its obligations under this Agreement and the other Transaction Documents,
do not and will not, whether with or without the giving of notice or passage of time or both, (w) conflict with or result in a breach
of any of the terms and provisions of, or constitute a default or Repayment Event (as defined below) under, (x) result in the creation
or imposition of any lien, charge or encumbrance (other than Permitted Liens) upon any property or assets of the Company pursuant to,
the Agreements and Instruments, (y) result in any violation of the provisions of the charter, by-laws or
similar organizational documents of the Company, or (z) result in any applicable law, statute, rule, regulation, judgment, order, writ
or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Company or any of
its assets, properties or operations, except in the case of this clause (z) for such conflicts, violations, breaches or defaults which
would not reasonably be expected to result in a Material Adverse Effect on the Company. As used herein, a “Repayment
Event” means any event or condition which gives the holder of any note, debenture or
other evidence of indebtedness that is material to the operations or financial results of the Company (or any person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company.


 






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(k) Foreign
Corrupt Practices Act. Neither the Company nor, to the Company’s knowledge, any
of its affiliates, directors, officers, employees, agents or other person acting on behalf of the Company is aware of or has taken any
action, directly or indirectly, that would result in a material violation by such person of the Foreign Corrupt Practices Act of 1977,
as amended, and the rules and regulations thereunder (the “FCPA”), including,
without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of money, or other property, gift, promise to give, or authorization of the giving
of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the Company and, to the Company’s knowledge,
its affiliates have conducted their businesses in material compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.


 


(l) Rule
506(d) Bad Actor Disqualification Representations and Covenants.


 


(i) No
Disqualification Events. Neither the Company, nor any of its predecessors, affiliates, any manager, executive officer, other officer
of the Company participating in the offering, any beneficial owner (as that term is defined in Rule 13d-3 under the Exchange Act) 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 as of the date of this Agreement
and on the Closing Date (each, a “Company Covered Person” and, together, “Company Covered Persons”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company
has exercised reasonable care to determine (A) the identity of each person that is a Company Covered Person; and (B) whether
any Company Covered Person is subject to a Disqualification Event. The Company has complied with its disclosure obligations under Rule
506(e).


 


(ii) Other
Covered Persons. The Company is not aware of any person (other than any Company Covered Person) who has been or will be paid (directly
or indirectly) remuneration in connection with the purchase and sale of the Note and the Commitment Shares who is subject to a Disqualification
Event (each, an “Other Covered Person”).


 






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(iii) Reasonable
Notification Procedures. With respect to each Company Covered Person, the Company has established procedures reasonably designed
to ensure that the Company receives notice from each such Company Covered Person of (A) any Disqualification Event relating to that Company
Covered Person, and (B) any event that would, with the passage of time, become a Disqualification Event relating to that Company Covered
Person; in each case occurring up to and including the Closing Date.


 


(iv) Notice
of Disqualification Events. The Company will notify the Purchaser immediately in writing upon becoming aware of (A) any Disqualification
Event relating to any Company Covered Person and (B) any event that would, with the passage of time, become a Disqualification Event
relating to any Company Covered Person and/or Other Covered Person.


 


(m) Accuracy
of Information, etc. No statement or information contained in this Agreement, any other Transaction Document or any other document,
schedule, certificate or statement furnished to the Purchaser by or on behalf of the Company in writing for use in connection with the
transactions contemplated by this Agreement and/or the other Transaction Documents contained, as of the date such statement, information,
document or certificate was made or furnished, as the case may be, any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements contained herein or therein, taken as a whole, not materially misleading. There is no fact known
to the Company that would reasonably be expected to materially affect the Company that has not been expressly disclosed herein, in the
other Transaction Documents, or in any other documents, certificates and written statements furnished to the Purchaser for use in connection
with the transactions contemplated hereby and by the other Transaction Documents.


 


(n) Solvency.
Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the receipt by the Company
of the proceeds from the sale of the Securities hereunder: (i) the 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(n) sets
forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company
or any Subsidiary has commitments. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 






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


 


(p) Intellectual
Property. The Company has, or has rights to use, all patents, patent applications, trademarks, trademark applications, service marks,
trade names, trade secrets, inventions, copyrights, licenses and other intellectual property rights and similar rights as described on
Schedule 3.1(p) that are material to the conduct of its business (collectively, the “Intellectual Property Rights”).
The Company has not received a notice (written or otherwise) that any material Intellectual Property Right has expired, terminated or
been abandoned, or is expected to expire or terminate or be abandoned. The Company has not received, since the Balance Sheet Date, a
written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate or infringe upon the rights of
any Person, except as would not have or reasonably be expected to have a Material Adverse Effect. To the knowledge of the Company, all
such Intellectual Property Rights are enforceable and there is no infringement by another Person of any of the Intellectual Property
Rights. The Company has taken commercially reasonable security measures to protect the secrecy, confidentiality and value of all of its
intellectual property.


 


(q) USA
Patriot Act. The Company is in compliance, in all material respects, with (i) the Trading with the Enemy Act, as amended, and each
of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) and
any other enabling legislation or executive order relating thereto, and (ii) the USA Patriot Act (Title III of Pub. L. 107-56, signed
into law on October 26, 2001) (the “Act”). No part of the proceeds of the Note will be used, directly or indirectly,
for any payments to any governmental official or employee, political party, official of a political party, candidate for political office,
or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation
of the United States Foreign Corrupt Practices Act of 1977, as amended.


 


(r) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
joint venture employee or affiliate of the Company or any Subsidiary is currently, or in the past 5 years, has been subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).


 






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(s) 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 the Registration Rights Agreement and the declaration of effectiveness by the SEC of the Registration
Statement, (ii) the notice and/or application(s) to each applicable Trading Market for the issuance and sale of the Securities and the
listing of the Conversion Shares and 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”).


 


(t) Authorization;
Enforcement. All corporate action on the part of the Company, its officers, directors and stockholders necessary for the authorization,
execution and delivery of the Transaction Documents and the performance of all obligations of the Company under the Transaction Documents
and have been taken on or prior to the date hereof. Each of the Transaction Documents has 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 applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by general equitable
principles regardless of whether such enforcement is considered in a proceeding in equity or at law, (iii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iv) insofar as indemnification and contribution
provisions may be limited by applicable law.


 


(u) Valid
Issuance of Securities. The Note has been duly authorized and, when issued and paid for in accordance with this Agreement, will be
duly and validly issued, fully paid and nonassessable, free and clear of all Liens and all restrictions on transfer other than those
expressly imposed by the federal securities laws and vest in the Purchaser full and sole title and power to the Note purchased hereby
by the Purchaser, free and clear of all Liens, and restrictions on transfer other than those imposed by the federal securities laws.
All Conversion Shares, when issued pursuant to conversion of the Note, and all Commitment Shares, when issued pursuant to this Agreement,
will be duly and validly issued, fully paid and nonassessable, will be free and clear of all Liens and vest in the holder full and sole
title and power to such securities. The Warrant and the Warrant Shares, when issued upon exercise of the Warrants, will be duly and validly
issued, fully paid and nonassessable, will be free and clear of all Liens and vest in the holder full and sole title and power to such
securities. The Company has reserved from its duly authorized unissued Common Stock, the Warrant Shares, and the Required Minimum (as
defined in the Note), which Required Minimum shall be continuously determined by the Company to ensure that the Required Minimum is in
reserve with the Transfer Agent at all times.


 






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(v) Offering.
The offer and sale of the Note, the Warrants and the Commitment Shares, when issued pursuant to this Agreement, as contemplated by this
Agreement, are exempt from the registration requirements of the Securities Act, and the qualification or registration requirements of
state securities laws or other applicable blue sky laws. Neither the Company nor any authorized agent acting on its behalf will take
any action hereafter that would cause the loss of such exemptions.


 


(w) Capitalization
and Voting Rights. The capitalization of the Company is as set forth on Schedule
3.1(w), which Schedule 3.1(w) shall also
include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The
authorized capital stock of the Company and all securities of the Company issued and outstanding are set forth on Schedule 3.1(w)
as of the dates reflected therein. All of the outstanding shares of Common Stock and other securities of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. Except as set forth on Schedule
3.1(w), 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, and there are no outstanding
securities or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset
price of such security or instrument upon an issuance of securities by the Company or any Subsidiary. There are no outstanding securities
or instruments of the Company or any Subsidiary that contain any redemption or similar provisions, and there are no contracts, commitments,
understandings or arrangements by which the Company or any Subsidiary is or may become bound to redeem a security of the Company or such
Subsidiary. The Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar
plan or agreement. Except as set forth on Schedule 3.1(w), there are no agreements or arrangements under which the Company is
obligated to register the sale of any of the Company’s securities under the Securities Act. Except as set forth on Schedule
3.1(w), no shares of Common Stock and/or other securities of the Company are entitled to preemptive rights and there are no outstanding
debt securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue additional
shares of the capital stock and/or other securities of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of
the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive and/or
compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the Company to
sell restricted securities and/or as set forth on Schedule 3.1(w), the Company is not a party to, and it has no knowledge of,
any agreement restricting the voting or transfer of any shares of the capital stock and/or other securities of the Company. Except as
set forth on Schedule 3.1(w), the offer and sale of all capital stock, convertible or exchangeable securities, rights, warrants,
options and/or any other securities of the Company, when any such securities of the Company were issued, complied in all material respects
with all applicable federal and state securities laws, and no current and/or prior holder of any securities of the Company has any right
of rescission or damages or any “put” or similar right with respect thereto. Except as set forth on Schedule 3.1(w),
there are no securities or instruments of the Company containing anti-dilution or similar provisions that will be triggered by the issuance
and/or sale of the Securities and/or the consummation of the transactions described herein or in any of the other Transaction Documents.


 






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(x) Shell
Company Status; Financial Statements. The Company has been an issuer subject to Rule 144(i) under the Securities Act, but has not
been a shell corporation and satisfied the requirements under Rule 144(i) since December 22, 2021. The unaudited financial statements
of the Company as of December 31, 2021 is included in Schedule 3.1(x) hereto. The financial statements of the Company included
on Schedule 3.1(x) have been prepared in accordance with 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 to normal, immaterial, year-end audit adjustments. For purposes
of this Section 3.1, December 31, 2021 is referred to as the “Balance Sheet Date”.


 


(y) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the Balance Sheet Date: (i) there has been no event, occurrence or
development that has had or that could reasonably be expected to be materially adverse to the Company, (ii) the Company has not incurred
any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to
GAAP or disclosed in filings made with the Commission (if the Company is an issuer required to file periodic reports under the Exchange
Act), (iii) the Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution
of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital
stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company
stock option plans. Except for the issuance of the Securities contemplated by this Agreement or as set forth on Schedule 3.1(y),
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, prospects, 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 1 Trading Day prior to the date that this representation is made.


 


(z) Litigation.
Except as set forth on Schedule 3.1(z), 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
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. Except as set forth on Schedule 3.1(z), 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. 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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(aa) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any Purchaser or its respective agents or counsel with any information
that constitutes material, non-public information. The Company understands that the Purchaser may rely on the Transaction Documents,
the information included therein, including, but not limited to, the foregoing representation in purchasing the Securities. All of the
disclosure furnished by or on behalf of the Company to the Purchaser in the Transaction Documents regarding, among other matters relating
to the Company, its business and the transactions contemplated in the Transaction Documents, is true and correct in all material respects
as of the date made 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 Company acknowledges
and agrees that the Purchaser does not make nor has made any representations or warranties with respect to the transactions contemplated
in the Transaction Documents other than those specifically set forth in Section 3.2 hereof.


 


(bb) No
Integrated Offering. Assuming the accuracy of the 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 the issuance and/or sale of the Securities
to be integrated with prior offerings of securities by the Company for purposes of (i) the Securities Act that would require the registration
of any such Securities and/or any other securities of the Company under the Securities Act, or that would invalidate the exemptions from
registration relied upon by the Company, or (ii) any stockholder-approval provisions of any Trading Market on which any of the securities
of the Company are listed, eligible for quotation and/or designated.


 


(cc) Insurance.
The Company is insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the business in which it is engaged; the Company has not been refused any coverage
sought or applied for; and the Company does not have 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.


 


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


 






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(ee) Registration
Rights. Except as set forth on Schedule 3.1(ee),
no Person has any right to cause the Company to affect the registration under the Securities Act of any securities of the Company or
any Subsidiaries.


 


(ff) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect
to any of the employees of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s
or its Subsidiaries’ employees is a member of a union that relates to such employee’s relationship with the Company or such
Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and
its Subsidiaries believe that their relationships with their employees are good. To the knowledge of the Company, no executive officer
of the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant
in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries
to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all U.S. federal,
state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect.


 


(gg) Dilutive
Effect. The Company understands and acknowledges that the number of Underlying Shares issuable upon conversion of the Note, pursuant
to the terms thereof, will increase in certain circumstances. The Company further acknowledges that its obligations to issue Underlying
Shares pursuant to the terms of the Note in accordance with this Agreement and the Note is absolute and unconditional regardless of the
dilutive effect that any such issuances may have on the percentage ownership interests of other stockholders of the Company.


 


(hh) Application
of Takeover Protections; Rights Agreement.  The Company and its board of directors have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a
rights agreement) or other similar anti-takeover provisions under the Company’s certificate of incorporation, as amended, or the
laws of the jurisdiction of its formation that are or could become applicable to the Purchaser as a result of the transactions contemplated
by this Agreement and/or the other Transaction Documents, including, without limitation, the Company’s issuance of the Securities
and the Purchaser’s ownership of the Securities. The Company has not adopted a stockholder rights plan or similar arrangement relating
to accumulations of beneficial ownership of Common Stock or a change in control of the Company.


 






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


 


(jj) DTC
Eligible. The Common Stock is DTC eligible and DTC has not placed a “freeze” or a “chill” on the Common Stock
and the Company has no reason to believe that DTC has any intention to make the Common Stock not DTC eligible, or place a “freeze”
or “chill” on the Common Stock. No federal or state regulatory authority has indicated that it will prohibit the listing
of the Company’s securities based upon its prior business in the cannabis or cannabis-related markets nor will the Purchaser be
prohibited from depositing, clearing or settling the Securities, including through the DTC or otherwise, on account of the Company’s
prior business in the cannabis or cannabis-related markets.


 


(kk) Listing
and Maintenance Requirements. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading 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 Trading Market. The Common Stock is eligible for quotation on the Principal Market and the Company has no reason
to believe that the Principal Market has any intention of delisting or no longer quoting the Common Stock from the Principal Market.
The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market. All Commitment
Shares and Underlying Shares have been approved, if so required, for listing or quotation on the Trading Market, subject only to notice
of issuance.


 


(ll) No
General Solicitation.  Neither the Company, nor any of its affiliates, nor, to the knowledge of the Company, any Person acting
on its behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection
with the offer or sale of the Securities. 


 


(mm) Acknowledgment
Regarding the 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 other Transaction Documents and the transactions contemplated
hereby and thereby and that the Purchaser is not (i) an officer or director of the Company, (ii) an Affiliate of the Company
or (iii) to the knowledge of the Company, a “beneficial owner” of more than 10% of the shares of Common Stock (as defined
for purposes of Rule 13d-3 of the Exchange Act).  The Company further acknowledges that the Purchaser is not acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by the Purchaser or any of its representatives or agents in connection with the Transaction
Documents and the transactions contemplated hereby and thereby is merely incidental to the Purchaser’s purchase of the Securities. 
The Company further represents to the Purchaser that the Company’s decision to enter into the Transaction Documents has been based
solely on the independent evaluation by the Company and its representatives.


 






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(nn) Off-Balance
Sheet Arrangements.  There is no transaction, arrangement, or other relationship between the Company and an unconsolidated or
other off-balance sheet entity that is required to be disclosed by the Company in its Exchange Act filings and is not so disclosed.


 


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


 


(pp) Anti-Money
Laundering, Anti-Bribery and Anti-Corruption; Sanctions. 


 


(i) Neither
the Company nor, any of its Subsidiaries or Affiliates or any director or officer of any of them is an individual or entity currently,
or has not in the past 5 years been, subject to any Sanctions or is on any Sanctions List.


 


(ii) Each
of the Company, any of its Subsidiaries and Affiliates and their respective directors, officers, employees and, to the knowledge of the
Company, agents and any other person or entity acting on behalf of the Company, has complied with the Money Laundering, Anti-Corruption
and Anti-Bribery Laws, in each case as applicable to them, and no action, suit or proceeding by or before any court or any arbitrator
or any governmental agency, authority or body involving the Company and any of its Subsidiaries or their respective directors or officers
and, to the knowledge of the Company, the employees, agents, or representatives of each of them, is pending or threatened with respect
to Money Laundering, Anti-Corruption and Anti-Bribery Laws.


 


(iii) Neither
the Company nor any of its Subsidiaries nor their respective directors or officers, nor, to the knowledge of the Company, the employees
or agents of any of them has:


 


		A.	used
                                            any corporate funds (nor will it use any proceeds from the Notes) for any unlawful contribution,
                                            gift, entertainment or unlawful expense relating to political activity;



 


		B.	taken
                                            any action in furtherance of an unlawful offer, payment, promise to pay, or authorization
                                            or approval of the payment or giving of money, property, gifts or (anything else of value,
                                            directly or indirectly, to any “government official” (including any officer or
                                            employee of a government or government owned or controlled entity or of a public international
                                            organization, or any person acting in an official capacity for or on behalf of any of the
                                            foregoing, or any political party or party official or candidate for public office) or made
                                            any other bribe, rebate, payoff, influence payment or kickback intended to improperly influence
                                            official action or secure an improper advantage;



 






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		C.	nor
                                            will it use any proceeds from the Notes in furtherance of any such unlawful payment or violation
                                            of Sanctions or Money Laundering, Anti-Corruption and Anti-Bribery Laws.



 


(iv) The
Company and each Subsidiary will promote and ensure compliance with Money Laundering, Anti-Corruption and Anti-Bribery Laws in all jurisdictions
where they operate and with the representations and warranties contained herein.


 


(v) As
used in this Section 3.1(pp):


 


		A.	“Money
                                            Laundering, Anti-Corruption and Anti-Bribery Laws” means money laundering and anti-
                                            corruption statutes of all jurisdictions (including, the Foreign Corrupt Practices Act of
                                            1977, the OECD Convention on Bribery of Foreign Public Officials in International Business
                                            Transactions, and any similar national or local law or regulation in the United Kingdom or
                                            elsewhere where the Company and each other Subsidiary conducts business), the rules and regulations
                                            thereunder and any related or similar rules, regulations or guidelines, issued, administered
                                            or enforced by any governmental agency or any such jurisdiction.



 


		B.	“Sanctions”
                                            means any laws or regulations or restrictive measures relating to economic or financial sanctions
                                            or trade embargoes imposed, administered or enforced from time to time by a Sanctions Authority.



 


		C.	“Sanctions
                                            Authority” means (i) the United Nations Security Council; (ii) the United States
                                            government; (iii) the European Union; (iv) the United Kingdom government; (v) the respective
                                            governmental institutions and agencies of any of the foregoing, including without limitation,
                                            OFAC, the United States Department of State and Department of Commerce, and Her Majesty’s
                                            Treasury; and (vi) any other governmental institution or agency with responsibility for imposing,
                                            administering or enforcing Sanctions with jurisdiction over the Company or any of its subsidiaries
                                            (together, “Sanctions Authorities”).



 






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		D.	“Sanctions
                                            List” means the Specially Designated Nationals and Blocked Persons List maintained
                                            by OFAC, the Denied Persons List maintained by the U.S. Department of Commerce, the Consolidated
                                            List of Financial Sanctions Targets maintained by Her Majesty’s Treasury, or any other list
                                            issued or maintained by any Sanctions Authority of persons subject to Sanctions (including
                                            investment or related restrictions), each as amended, supplemented or substituted from time
                                            to time.



 


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


 


(rr) Seniority.
As of the Closing Date and for so long as any Notes remain outstanding, except for Indebtedness issued to other funds affiliated with
Arena Investors LP, (i) all Indebtedness, is subordinated to the Note and (ii) no Indebtedness or other claim against the Company is
senior to or pari passu with the Note in right of payment, whether with respect to interest or upon liquidation or dissolution, or otherwise,
other than indebtedness secured by purchase money security interests (which is senior only as to underlying assets covered thereby) and
capital lease obligations (which is senior only as to the property covered thereby).


 


(ss) [Reserved].


 


(tt) No
Disagreements with Accountants and Lawyers. 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. 4


 






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(uu) 
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere
herein to the contrary notwithstanding, except for Section 3(g) , it is understood and acknowledged by the Company that: (i) none of
the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or
short, securities of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities
for any specified term, (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation,
Short Sales or “derivative” transactions, before or after the closing of this or future private placement transactions, may
negatively impact the market price of the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock and (iv) each 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) one or more Purchasers
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 Conversion Shares or 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 stockholders’ equity interests in the Company at and
after the time that the hedging activities are being conducted.  The Company acknowledges that such aforementioned hedging activities
do not constitute a breach of any of the Transaction Documents.


 


(vv) Stock
Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance
with the terms of the Company’s 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 the
Company’s 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.


 


(ww) Cybersecurity.
(i) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information
technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are
presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as
would not, individually or in the aggregate, have a Material Adverse Effect; (iii) the Company and the Subsidiaries have implemented
and maintained commercially reasonable safeguards to maintain and protect its material confidential information and the integrity, continuous
operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have implemented backup and
disaster recovery technology consistent with industry standards and practices.


 






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


 


(yy) Promotional
Stock Activities. Neither the Company nor any Subsidiary of the Company and none of their respective officers, directors, managers,
affiliates or agents have engaged in any stock promotional activity that could give rise to a complaint, inquiry, or trading suspension
by the Securities and Exchange 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.


 


(zz) No
Cash Payments. Except as disclosed on the Disclosure Schedules, neither the Company, its officers, or any Affiliates or agents of
the Company have withdrawn or paid cash (not including a check or other similar negotiable instrument) to any vendor in an aggregate
amount that exceeds Five Thousand Dollars ($5,000) for any purpose.


 


3.2 Representation
and Warranties of the Purchaser. The Purchaser, severally and not jointly, hereby represents and warrants as of the date hereof and
as of the Closing Date to the Company as follows:


 


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


 


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


 






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(c) Purchaser
Status. At the time the Purchaser was offered the Securities, it was, and as of the date hereof
it is an “accredited investor” as defined in Rule 501(a) under the Securities Act.


 


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


 


(e)  General
Solicitation. The Purchaser is not, to the Purchaser’s knowledge, purchasing the Securities
as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any seminar or any other general solicitation or general advertisement.


 


(f) Access
to Information. The Purchaser acknowledges that it has had the opportunity to review the Transaction
Documents (including all exhibits and schedules thereto) and has been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the
Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment.  


 


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


 






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The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transaction contemplated hereby.


 


ARTICLE
4

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 transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement 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 any of the Securities in the following
form:


 


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


 






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 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, if required under
the terms of such arrangement, the Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge
or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor
shall be required in connection therewith. Further, no notice shall be required of such pledge. At the 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, including, if the Securities are then registered for resale on a registration
statement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable
provision of the Securities Act to appropriately amend the list of selling stockholders thereunder.


 


(c) Certificates
evidencing the Commitment Shares, Warrant Shares and the Underlying Shares shall not contain any legend (including the legend set forth
in Section 4.1(b) hereof): (i) when they have been sold while a registration statement (including
the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following any sale of such
Commitment Shares, Warrant Shares and/or the Underlying Shares pursuant to Rule 144, (iii) if such Commitment Shares, Warrant Shares
and/or the Underlying Shares are eligible for sale under Rule 144 and a sale or transfer will be taking place prior to the Company’s
next periodic report becomes due under the Exchange Act or (iv) 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 cause its counsel
to issue a legal opinion to the Transfer Agent promptly after the Effective Date or at such time as such legend is no longer required
under this Section 4.1(c) if required by the Transfer Agent to affect the removal of the legend hereunder, or if requested by the Purchaser.
If any portion of the Note is converted or the Warrants are exercised at a time when there is an effective registration statement to
cover any sale of the Underlying Shares, Warrant Shares, or if such Commitment Shares, Warrant Shares and/or the Underlying Shares have
been sold under Rule 144 and the Company is then in compliance with the current public information required under Rule 144, or if the
Commitment Shares, Warrant Shares and/or the Underlying Shares may be sold under Rule 144 without the requirement for the Company to
be in compliance with the current public information required under Rule 144 as to such Commitment Shares, Warrant Shares and/or Underlying
Shares and without volume or manner-of-sale restrictions provided the conditions of Rule 144(i)(2) have been satisfied and a sale of
such shares will be taking place prior to the Company’s next annual or quarterly report becoming due under its reporting obligations
under the Exchange Act 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 Commitment Shares, Warrant Shares and/or the Underlying
Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such legend is no
longer required under this Section 4.1(c), it will, no later than the earlier of (i) three (3) Trading Days and (ii) the number of Trading
Days comprising the Standard Settlement Period (as defined below) following the delivery by the Purchaser to the Company or the Transfer
Agent of certificate(s) representing the Commitment Shares, Warrant Shares and/or the Underlying Shares, as applicable, issued with a
restrictive legend (such date, the “Legend Removal Date”), deliver or
cause to be delivered to the Purchaser a certificate representing such shares that is free from all restrictive and other legends. The
Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer
set forth in this Section 4. Certificates for Commitment Shares, Warrant Shares and/or Underlying Shares subject to legend removal hereunder
shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository
Trust Company System as directed by the Purchaser. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of a certificate representing the Commitment Shares, Warrant Shares and/or the
Underlying Shares, as applicable, issued with a restrictive legend.


 






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(d) In
addition to the Purchaser’s other available remedies, the Company shall pay to the Purchaser, in cash, the greater of (i) as partial
liquidated damages and not as a penalty, for each $1,000 of Commitment Shares, Warrant Shares and/or Underlying Shares (based on the
VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend
and subject to Section 4.1(c), $5 per Trading Day (increasing to $10 per Trading Day three (3) Trading Days after such damages have begun
to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend and (ii) if the Company
fails to (x) issue and deliver (or cause to be delivered) to the Purchaser by the Legend Removal Date a certificate representing the
Securities so delivered to the Company by the Purchaser that is free from all restrictive and other legends or (y) if after the Legend
Removal Date the Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by the Purchaser of all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock
equal to all or any portion of the number of shares of Common Stock that the Purchaser anticipated receiving from the Company without
any restrictive legend, then, an amount equal to the excess of the Purchaser’s total purchase price (including brokerage commissions
and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket
expenses, if any) (the “Buy-In Price”) over the product of (A) such number
of Commitment Shares, Warrant Shares and/or Conversion Shares, as applicable, that the Company was required to deliver to the Purchaser
by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing
on the date of the delivery by the Purchaser to the Company of the applicable Commitment Shares, Warrant Shares and/or Conversion Shares
(as the case may be) and ending on the date of such delivery and payment under this clause (ii).


 


4.2 Furnishing
of Information. Beginning on the Closing Date, the Company shall use commercially reasonable
efforts to comply with the Pink Basic Disclosure Guidelines which set forth the disclosure obligations that make up the “Alternative
Reporting Standard” for OTC Pink companies as such obligations are published by the OTC Markets Group, Inc. In addition, the Company
shall file a Registration Statement on Form 8-A as soon as practicable, but in no event no later than five (5) Trading Days, after the
effective date of first registration statement filed by the Company that is declared effective by the SEC which registers securities
held by the Purchaser or any of its Affiliates. If after the date hereof the Company becomes subject to the rules and regulations
of the Exchange Act and as long as the Purchaser owns Securities, the Company covenants
to timely file (or obtain extensions in respect thereof and file within the applicable grace period) and simultaneously provide to Purchasers,
all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act. As long as the
Purchaser owns Securities, if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish
to the Purchaser and make publicly available in accordance with Rule 144(c) such information as is required for the Purchaser to sell
the Securities, including without limitation, under Rule 144. In addition, the Company shall file with Commission current “Form
10 information”, as defined in Rule 144(i)(3), as soon as practicable after the date the Company becomes subject to the rules and
regulations of the Exchange Act, reflecting its status as an entity that is no longer an issuer described in Rule 144(i)(1)(i). The Company
further covenants that it will take such further action as any holder of Securities may reasonably request, to the extent required from
time to time to enable such Person to sell such Securities without registration under the Securities Act, including without limitation,
within the requirements of the exemption provided by Rule 144. 


 


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 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.


 






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4.4 Securities
Laws Disclosure; Publicity. The Company shall by 9:00am on the first Trading Day after the date of this Agreement, issue a press
release disclosing the material terms of the transactions contemplated hereby, which press release shall have been approved by the Purchaser
prior to its release (which approval shall not unreasonably be withheld or delayed). From and after the issuance of such press release,
the Company represents to the Purchaser that it shall have publicly disclosed all material, non-public information delivered to the Purchaser
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the
transactions contemplated by the Transaction Documents. In addition, effective upon the issuance of such press release, the Company acknowledges
and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand, and the Purchaser
or any of its Affiliates on the other hand, shall terminate. 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 or delayed, 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, without the prior written consent of the Purchaser, (a) use the name of the Purchaser, “Arena Investors LP,” “Arena”
or any other derivative thereof (each, a “Trade Name”) in any press releases or other public disclosures (including
in any filing with the Commission or any regulatory agency or Trading Market), offering documents, sales materials, brochures or similar
publicity or promotional materials, or for promotional purposes, whether orally or in writing, except (x) as required by federal
securities law and the rules and regulations promulgated thereunder in connection with the filing of final Transaction Documents, any
disclosure required pursuant to any reports required to be filed by the Company pursuant to the Exchange Act after the date hereof or
the Registration Statement with the Commission, (y) to the extent such disclosure is required by law or Trading Market regulations,
including the “Alternative Reporting Standard” required by OTC Markets, in which
case the Company shall provide the Purchaser with prior notice of such disclosure permitted under this clause (y), or (z) as required
under Delaware General Corporation Law or (b) represent that an investment in the Company or any product or any service provided by the
Company has been approved or endorsed by the Purchaser. Following any such written consent, which
shall not be unreasonably withheld or delayed, the Company shall provide the Purchaser with a copy of such written or other materials
using the Trade Name if requested by the Purchaser. The Purchaser shall be deemed to have provided prior written consent of the disclosure
of the Purchaser’s name to other stockholders and investors in the Company, and to potential investors in the Company (that to
the extent such information has not already been publicly disclosed, have been informed of the confidential nature thereof) that in the
course of their due diligence require disclosure of the identity of the existing investors in the Company.


 


4.5 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.


 






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4.6 Non-Public
Information.    Except with respect to the material terms and conditions
of the transactions contemplated by the Transaction Documents, which shall be disclosed pursuant to Section 4.4, 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 constitutes, or the Company reasonably believes constitutes, material non-public information,
unless prior thereto the Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information
confidential. The Company understands and confirms that the Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company. To the extent that the Company delivers any material, non-public information
to the Purchaser without the Purchaser’s consent, the Company hereby covenants and agrees that the Purchaser shall not have any
duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or
Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates
not to trade on the basis of, such material, non-public information, provided that the Purchaser
shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company
shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K or if not subject to the reporting
requirements under the Commission, file a press release. The Company understands and confirms that
the Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.


 


4.7 Use
of Proceeds. Subject to the terms and conditions set forth on Schedule 4.7 attached
hereto, the Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes and shall not use
such proceeds: (a) for the satisfaction of any 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 FCPA, OFAC regulations or Money Laundering, Anti-Corruption
and Anti-Bribery Laws. Notwithstanding the foregoing, the Company may receive permission to use such funds to the extent expressly agreed
to in advance, in writing (including electronic mail) by the Purchaser. Notwithstanding anything to the contrary in the Transaction Documents
or otherwise, neither the Company nor its Subsidiaries may use any portion of the Purchase Price or any other proceeds from the
Purchaser or any of its Affiliates to pay any liquidated damages, penalties, fees or other amounts due and payable to the Purchaser or
its Affiliates under the Transaction Documents or otherwise without the express advance written consent of the Purchaser.


 






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4.8 Indemnification
of Purchaser.    Subject to the provisions of this Section 4.8, in
addition to and not in substitution for any other indemnification provision by the Company, the
Company will indemnify and hold the Purchaser and its respective directors, officers, shareholders, 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, shareholders, agents, managers, members, partners, advisers, 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 such Purchaser Party may suffer
or incur as a result of or relating to (a) the administration, performance or enforcement by the Purchasers of any of the Transaction
Documents or consummation of any transaction described therein, (b) 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 (c) any Proceeding, whether or not any Purchaser
Party is a party thereto (including Proceedings instituted by any governmental authority or any holder of any equity interest in, or
other direct or indirect investor in, the Company who is not an Affiliate of such Purchaser Party) with respect to any of the Transaction
Documents or the transactions contemplated therein (unless such action is solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may
have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser
Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct). Additionally, if any taxes
(excluding taxes imposed upon or measured solely by the net income of the recipient of any payment made under any Transaction Document,
but including any intangibles tax, stamp tax, recording tax or franchise tax) shall be imposed on the Company or Purchaser Party, whether
or not lawfully payable, on account of the execution or delivery of this Agreement, or the execution, delivery, issuance or recording
of any of the other Transaction Documents, or the creation or repayment of any of obligations hereunder, by reason of any applicable
regulations now or hereafter in effect, the Company shall pay (or shall promptly reimburse such Purchaser Party for the payment
of) all such taxes, including any interest, penalties, expenses and other Losses with respect thereto), and will indemnify and hold the
Purchaser Parties harmless from and against all Losses arising therefrom or in connection therewith, as
incurred, and in addition to items set forth above, arising out of or relating to (i) any untrue or alleged untrue statement of
a material fact contained in any registration statement filed by the Company, any prospectus or any form of prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus or supplement thereto,
in the light of the circumstances under which they were made) not misleading, except to the extent, but only to the extent, that such
untrue statements or omissions are based solely upon information regarding such Purchaser Party furnished in writing to the Company by
such Purchaser Party expressly for use therein, or (ii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act or any state securities law, or any rule or regulation thereunder in connection therewith. If any action shall be brought
against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after
a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion
of counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party, in
which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company
will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the
extent that a loss, claim, damage or liability is solely attributable to any Purchaser Party’s knowing breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification
required by this Section 4.8 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 indemnity agreements contained herein shall be in addition to any cause
of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant
to law. 


 






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4.9 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue
to reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock equal to the Required
Minimum (as defined in the Note) for the purpose of enabling the Company to issue the Conversion Shares and any other shares that may
be issuable pursuant to the Note together with any Warrant Shares issuable upon exercise of the Warrants. If, on any date, the
number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum 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 Minimum at such time, as soon as possible
and in any event not later than the 75th day after such date


 


4.10 Listing
of Common Stock. The Company hereby agrees to use reasonable best efforts to maintain the listing
or quotation of the Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company
shall apply to list or quote all of the Commitment Shares, Warrant Shares and the Underlying Shares on such Trading Market and promptly
secure the listing of all of the Commitment Shares, Warrant Shares and the Underlying Shares on such Trading Market. The Company further
agrees, if the Company applies to have the Common Stock traded on any other Trading Market (including in accordance with Section 4.23),
it will then include in such application all of the Commitment Shares, Warrant Shares and the Underlying Shares, and will take such other
action as is necessary to cause all of the Commitment Shares, Warrant Shares and the Underlying Shares to be listed or quoted on such
other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and
trading of its Common Stock on such Trading Market and will comply in all respects with the Company’s reporting, filing and other
obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic
transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment
of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.


 


4.11 Certain
Transactions and Confidentiality. The Purchaser covenants that neither it nor any
Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales
of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time
that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly
disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules.
Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in
effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are
first publicly announced, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of
the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this
Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (iii) the Purchaser
has not been asked by the Company to agree, nor has the Purchaser agreed, to desist
from purchasing or selling Securities which have been issued under the terms of this Agreement, the Note or any other Transaction
Document, or “derivative” securities based on securities issued by the Company or to hold the Securities for any
specified term, (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, (v) the Purchaser may engage in hedging activities, other than Short
Sales at various times during the period that the Securities are outstanding, and (vi) no
Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company or its
Subsidiaries after the issuance of the initial press release. Except as contemplated above, Company acknowledges that such
aforementioned hedging activities do not constitute a breach of any of the Transaction Documents.


 






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


 


4.13 Form
D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities
with the Commission as required under Regulation D, and with the applicable securities regulators in the states in which the Securities
were sold, and to provide copies thereof, promptly upon request of the Purchaser. The Company shall take such further 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.


 


4.14 Maintenance
of Property. So long as the Note remains outstanding, the Company shall use its commercially reasonable efforts to 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.


 


4.15 Preservation
of Corporate Existence. So long as the Note remains outstanding, the Company shall preserve and maintain its corporate existence,
rights, privileges and franchises in the jurisdiction of its incorporation, and qualify and remain qualified, as a foreign corporation
in each jurisdiction in which such qualification is necessary in view of its business or operations and where the failure to qualify
or remain qualified would reasonably be expected to have a Material Adverse Effect.


 


4.16 DTC
Program. At all times that the Securities are outstanding, the Company will employ as the transfer agent for the Common Stock and
Conversion Shares a participant in the Depository Trust Company Automated Securities Transfer Program and cause the Common Stock to be
transferable pursuant to such program.


 






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4.17 Subsequent
Equity Sales. From the date hereof until such time as the Purchaser no longer holds
the Note, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of
its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.
“Variable Rate Transaction” means a transaction which is not Permitted Indebtedness and in which the Company (i) issues
or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional
shares of Common Stock 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 shares of 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 or (ii) enters into, or effects a transaction under, any agreement, including,
but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined price. The foregoing restrictions
shall not include any agreement for an at-the-market offering. The Purchaser shall be entitled to obtain injunctive relief against the
Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.


 


4.18 Transfer
Agent Instructions. The Company shall issue irrevocable instructions to the Transfer Agent in a form acceptable to the Purchaser
(the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit shares via DWAC or otherwise to the
applicable balance accounts at The Depository Trust Company (“DTC”), registered in the name of the Purchaser or its
respective nominee(s), for the Underlying Shares and Warrant Shares in such amounts as specified from time to time by the Purchaser to
the Company upon conversion of the Note or exercise of the Warrant. The Company represents and warrants that no instruction other than
the Irrevocable Transfer Agent Instructions referred to in this Section will be given by the Company to its Transfer Agent with respect
to the Securities, and that the Securities shall otherwise be freely transferable on the books and records of the Company, as applicable,
to the extent provided in this Agreement and the other Transaction Documents. In the event that such sale, assignment or transfer involves
Conversion Shares and/or Warrant Shares sold, assigned or transferred pursuant to an effective registration statement or in compliance
with Rule 144, the transfer agent shall issue such shares to such Buyer, assignee or transferee (as the case may be) without any restrictive
legend in accordance with Section 4.1. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to Purchaser. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section will
be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section, that Purchaser
shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate
issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company
shall cause its counsel to issue the legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Company’s
transfer agent from and after the Applicable Date. Any fees (with respect to the transfer agent, counsel to the Company or otherwise)
associated with the issuance of such opinion or the removal of any legends on any of the Securities shall be borne by the Company. “Applicable
Date” means the first date on which all of the Underlying Shares are eligible to be resold by the Purchaser pursuant to Rule
144 or an effective registration statement is in effect.


 






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4.19 Public
Information. At any time during the period commencing from the six (6) month anniversary of the Effective 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 aggregate Purchase Price of the Purchaser’s Securities 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 Underlying Shares pursuant to Rule 144. The payments to which the
Purchaser shall be entitled pursuant to this Section 4.19 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. If an Event (as defined in the Registration Rights Agreement) is occurring at the time of a Public Information
Failure, and the Company is (x) then obligated to pay, and (y) timely pays the Purchaser partial liquidated damages under Section 2(d)
of the Registration Rights Agreement for the period occurring simultaneous with the applicable Public Information Failure (such payments,
the “Simultaneous Registration Rights Partial Liquidated Damages”) and (z) has timely paid the Purchaser all previously
accrued partial liquidated damages under Section 2(d) of the Registration Rights Agreement, the Company may deduct the amounts paid in
connection with such Simultaneous Registration Rights Partial Liquidated Damages from such Public Information Failure Payments due for
such simultaneous Public Information Failure. 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 (prorated for partial months) until
paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for the Public Information Failure, and
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.


 


4.20 Litigation.
For as long as the Note is outstanding, the Company shall promptly, to the extent not prohibited by law, give the Purchaser notice in
writing of any Action before or by any court, arbitrator, governmental or administrative agency
or regulatory authority (federal, state, county, local or foreign) affecting the Company, any Subsidiary, any director and/or
officer including but not limited to, any Action involving a claim of violation of or liability
under federal or state securities laws, a claim of breach of fiduciary duty or any investigation by a governmental or administrative
agency or regulatory authority (federal, state county, local or foreign). Any such information provided to the
Purchaser shall comply with the requirements of Section 4.6 above.


 






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4.21 Access
to Records. The Company shall provide the Purchaser and/or any of its duly authorized
representatives, attorneys or accountants access to any and all bank records at the premises of the Company where such records are kept,
such access being afforded without charge, but only during normal business hours. Any such information provided to the
Purchaser shall comply with the requirements of Section 4.6 above.


 


4.22 OTC
Markets; National Securities Exchange.  


 


(a) As
soon as reasonably practicable after the Closing, the Company shall use its reasonable best efforts to meet the eligibility requirements
for listing its shares of Common Stock on the OTCQB or OTCQX and upon meeting such requirements, the Company shall promptly take all
necessary and appropriate actions to quote its shares of Common Stock on such over-the-counter market. 


 


(b) As
soon as reasonably practicable after the Company meets the qualitative and quantitative listing standards for listing on a national securities
exchange, the Company shall use reasonable best efforts to take all necessary and appropriate actions to list its shares of Common
Stock for trading on such national securities exchange.


 


4.23 Post-Closing
Actions. The Company shall and shall cause each of its relevant Subsidiaries to execute and deliver the documents and complete
the tasks set forth in this Section as soon as reasonably practicable and in each case no later than the time limit specified in this
Section or such longer time as the Purchaser may agree in its sole discretion:


 


(a) Any
Person acquired by the Company, or that otherwise becomes a Subsidiary of the Company, on or after the date of this Agreement shall enter
into a Subsidiary Guaranty Agreement and be joined to the Security Agreement as a debtor not later than one (1) calendar day after the
consummation of such acquisition by the Company or the date the Person otherwise becomes a Subsidiary of the Company.


 


4.24 Except
for Permitted Indebtedness and for so long as Liabilities are outstanding, neither the Company, nor any of its Subsidiaries, shall enter
into, create, incur, assume, guarantee or suffer to exist any Indebtedness. Despite the foregoing prohibition and for so long as Liabilities
are outstanding, if at any time the Company or any of its Subsidiaries issues or incurs any Indebtedness other than Permitted Indebtedness,
in addition to the Purchaser’s other available remedies and rights under the Notes, the Company shall pay to the Purchaser, in
cash, as partial liquidated damages and not as a penalty, on each date of any such issuance or incurrence of Indebtedness, $30,000. Any
such Indebtedness shall be expressly subordinated to the Note and the holders of such Indebtedness pursuant to a subordination agreement
acceptable to Purchasers, shall not be granted any registration rights, nor shall the Company register, or cause to be registered, with
the SEC or any state securities commission the notes or other debt instruments representing such Indebtedness or any equity securities
issuable in connection with such Indebtedness.


 






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ARTICLE
5

MISCELLANEOUS


 


5.1 Fees
and Expenses. Except as expressly set forth below and in the Transaction Documents to the contrary, each party shall pay the reasonable,
documented fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such
party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer
Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company
and any exercise notice delivered by the Purchaser), stamp taxes and other taxes and duties
levied in connection with the delivery of any Securities to the Purchaser. Notwithstanding the foregoing, the Company agrees to pay all
direct and indirect costs and expenses of the Purchaser related to the negotiation, due diligence, preparation, closing, and all other
items regarding or related to this Agreement and the other Transaction Documents and all of the transactions contemplated herein and/or
therein, including, but not limited to, the legal fees and expenses of the Purchaser’s legal counsel (collectively, the “Purchaser’s
Expenses”), all of which will be deducted and paid on Closing Date.


 


5.2 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.


 


5.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered via receipted
confirmed email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York
City time) on a Business Day, (b) the next Business Day after the date of transmission, if such notice or communication is delivered
via receipt confirmed email attachment at the email address as set forth on the signature pages attached hereto on a day that is not
a Business Day or later than 5:30 p.m. (New York City time) on any Business Day, (c) the second (2nd) Business Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, receipt acknowledged or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto.


 


5.4 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. Any amendment effected in accordance with accordance with this Section 5.4 shall be binding upon the Purchaser and
holder of Securities and the Company.


 






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5.5 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 then
holding the outstanding Note (other than by merger). Purchaser may assign any or all of its rights under this Agreement to any Person
to whom Purchaser assigns or transfers any Securities in compliance with the Transaction Documents, provided that such transferee agrees
in writing to be bound, with respect to the transferred Securities, by the provisions of the Transaction Documents that apply to the
“Purchaser,” and provided further that (i) such transferee is an “accredited investor” within the meaning of
Rule 501 under the Securities Act and (ii) such transferee is not a direct competitor of the Company or any Subsidiary.


 


5.6 No
Third-Party Beneficiaries. Except with respect to the indemnification provisions, 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.


 


5.7 Governing
Law; Exclusive Jurisdiction. 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 Nevada, 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 County of Clark, Nevada. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state and federal courts sitting in the County of Clark, Nevada for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition
to the obligations of the Company elsewhere in this Agreement, the prevailing party in such Action or Proceeding shall be reimbursed
by the non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Action or Proceeding.


 






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


 


5.9 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.


 


5.10 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, as long as the essential terms and conditions of the Note for each
party remain valid, binding, and enforceable. The parties 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.


 


5.11 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 of the Note, 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.


 


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


 


5.13 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.


 






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5.14 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.


 


5.15 Usury.
To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will
resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter
in force, in connection with any Action or Proceeding that may be brought by the Purchaser in order to enforce any right or remedy under
any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document, it is expressly agreed
and provided that the total liability of the Company under the Transaction Documents for payments in the nature of interest shall not
exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”),
and, without limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with
any other sums in the nature of interest that the Company may be obligated to pay under the Transaction Documents exceed such Maximum
Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Transaction Documents is increased
or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract rate of interest
allowed by law will be the Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such
application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate is paid by
the Company to the Purchaser with respect to indebtedness evidenced by the Transaction Documents, such excess shall be applied by the
Purchaser to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such excess
to be at the Purchaser’s election.


 


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


 






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5.17 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 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.


 


5.18 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.


 


5.19 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.


 


5.20 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.


 


(Signature
Pages Follow)


 






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


 


	OPTIMUS HEALTHCARE SERVICES, INC. 


 


 


	 	Address
                                            for Notice:

    1400
    Old Country Road

    Suite
    306

    Westbury,
NY 11590

	 	 	 
	By:	 	 	Email:
	 	Name: 	Marc Wiener	 	mwiener@theoptimushealthcare.com
	 	Title:	Chief Executive Officer	 	 
	 	 	 	 	 
	With a copy to (which shall not constitute notice):	 	 
	 	 	 	 	 
	Cliff Saffron	 	 
	General Counsel and Chief Financial Officer	 	 
	1400 Old Country Road	 	 
	Suite 306	 	 
	Westbury, NY  11590	 	 


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


 


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 






     -46-


     


    

 


PURCHASER
SIGNATURE PAGES TO HOPS SECURITIES PURCHASE AGREEMENT


 


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


 


Name
of Purchaser: Arena Investors, LP, on behalf of its clients listed in Schedule 1


 


Signature
of Authorized Signatory of Purchaser: __________________________________


 


Name
of Authorized Signatory: Lawrence Cutler


 


Title
of Authorized Signatory: Chief Operating Officer


 


Email
Address of Authorized Signatory: lcutler@arenaco.com


 


Facsimile
Number of Authorized Signatory: 212.612.3207


 


Address
for Notice to Purchaser:


 


405
Lexington Avenue, 59th Floor


 


New
York, NY 10174


 


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


 


FEIN
Number: ______________


 






     -47-


     


    

 


EXHIBIT
A


 


Form
of Note


 




     -48-


     


    

 


EXHIBIT
B


 


Form
of Security Agreement


 




     -49-


     


    

 


EXHIBIT
C


 


Form
of Warrant


 




     -50-


     


    

 


EXHIBIT
D


 


Form
of Registration Rights Agreement



 






     -51-


     


    

 


EXHIBIT E


 


Form
of Subsidiary Guaranty Agreement


 




     -52-


     


    

 


Schedule
1


 


Purchase
Price; Securities Purchased


 


	Name of Purchaser	 	Closing

Purchase 
Price	 	 	Aggregate 

Principal 

Amount of 

Notes being 

Purchased	 	 	Number of 

Warrant Shares 

issuable upon 

exercise of 

Warrant being 

Purchased	 	 	Number of 

Commitment 

Shares	 
	 	 	 	      	 	 	 	        	 	 	 	         	 	 	 	        	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 



 

 


-53-