EXHIBIT 10.15


 


FORM OF SECURITIES
PURCHASE AGREEMENT


 


This SECURITIES PURCHASE AGREEMENT
(the “Agreement”), dated as of February 11, 2022, is by and among Varian Biopharmaceuticals Inc., a Florida corporation
with offices located at 4851 Tamiami Trail North, Suite 200 Naples, FL 34103 (the “Company”), and each of the investors
listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively, the “Buyers”).


 


RECITALS


 


A.            The
Company and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of Regulation D (“Regulation D”)
as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the 1933 Act.


 


B.            The
Company has authorized a new series of senior secured notes of the Company, in the aggregate original principal amount of $3,192,496.36,
substantially in the form attached hereto as Exhibit A (the “Notes” or the “Securities”).


 


C.            Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, a Note in the aggregate
original principal amount set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers.


 


D.            The
Notes will rank senior to all outstanding and future indebtedness of the Company, and its Subsidiaries (as defined below) the Notes will
be secured by a first priority perfected security interest in that certain license (the “License”), dated July 5, 2019,
by and between Cancer Research Technology Limited, a company registered in England and Wales under number 1626049 (“CRT”)
and the Company (f/k/a Varian Biopharma LLC, a Delaware corporation), as evidenced by (i) a security agreement in the form attached hereto
as Exhibit B (the “Security Agreement” and the other security documents and agreements entered into in
connection with this Agreement and each of such other documents and agreements, as each may be amended or modified from time to time,
collectively, the “Security Documents”).


 


AGREEMENT


 


NOW, THEREFORE, in consideration
of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and each Buyer hereby agree as follows:


 


1.       PURCHASE
AND SALE OF NOTES.


 


(a)           Purchase
of Notes. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall issue
and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Closing Date (as defined
below) a Note in the original principal amount as is set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers.


 






     


     


    

 


(b)           Closing.
The closing (the “Closing”) of the purchase of the Notes by the Buyers shall occur at the offices of Kelley Drye &
Warren LLP, 3 World Trade Center, 175 Greenwich Street, New York, NY 10007. The date and time of the Closing (the “Closing Date”)
shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the conditions to the Closing set forth in Sections 6 and
7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and each Buyer). As used herein “Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial
banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York generally are open for use by customers on such day.


 


(c)           Purchase
Price. The aggregate purchase price for the Notes to be purchased by each Buyer (the “Purchase Price”) shall be
the amount set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers (less any prefunded amounts by such Buyer
as described on the Schedule of Buyers). Each Buyer shall pay approximately $800 for each $1,000 of principal amount of Notes to be purchased
by such Buyer at the Closing.


 


(d)           Form
of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the amounts
withheld pursuant to Section 4(d) and any prefunded amounts by such Buyer as described on the Schedule of Buyers) to the Company
for the Notes to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with
the by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the
Company shall deliver to each Buyer a Note, in the aggregate original principal amount as is set forth opposite such Buyer’s name
in column (3) of the Schedule of Buyers, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.


 


2.            BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


Each Buyer, severally and not jointly,
represents and warrants to the Company with respect to only itself that, as of the date hereof and as of the Closing Date:


 


(a)           Organization;
Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its
organization with the requisite power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
(as defined below) to which it is a party and otherwise to carry out its obligations hereunder and thereunder.


 






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(b)           No
Public Sale or Distribution. Such Buyer is acquiring its Note for its own account and not with a view towards, or for resale in connection
with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted
under the 1933 Act; provided, however, by making the representations herein, such Buyer does not agree, or make any representation or
warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at
any time in accordance with or pursuant to a registration statement or an exemption from registration under the 1933 Act. Such Buyer
does not presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities in
violation of applicable securities laws. For purposes of this Agreement, “Person” means an individual, a limited liability
company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any Governmental
Entity or any department or agency thereof.


 


(c)           Accredited
Investor Status. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of Regulation D.


 


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


 


(e)           Information.
Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and operations of the
Company and materials relating to the offer and sale of the Securities that have been requested by such Buyer. Such Buyer and its advisors,
if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence investigations
conducted by such Buyer or its advisors, if any, or its representatives shall modify, amend or affect such Buyer’s right to rely
on the Company’s representations and warranties contained herein. Such Buyer understands that its investment in the Securities
involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice as it has considered necessary to make an
informed investment decision with respect to its acquisition of the Securities.


 


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


 






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(g)           Transfer
or Resale. Such Buyer understands that, except as may be contemplated in connection with a Public Company Date (as defined in the
Notes): (i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may not be
offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have delivered to
the Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such
Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration,
or (C) such Buyer provides the Company with reasonable assurance that such Securities can be sold, assigned or transferred pursuant to
Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”); (ii)
any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule
144 is not applicable, any resale of the Securities under circumstances in which the seller (or the Person through whom the sale is made)
may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the
1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under
any obligation to register the Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions
of any exemption thereunder. Notwithstanding the foregoing, the Securities may be pledged in connection with a bona fide margin account
or other loan or financing arrangement secured by the Securities and such pledge of Securities shall not be deemed to be a transfer,
sale or assignment of the Securities hereunder, and no Buyer effecting a pledge of Securities shall be required to provide the Company
with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document (as
defined in Section 3(b)), including, without limitation, this Section 2(g).


 


(h)           Validity;
Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of such Buyer and shall constitute
the legal, valid and binding obligations of such Buyer enforceable against such Buyer in accordance with their respective terms, except
as such enforceability may be limited by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 


(i)            No
Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the consummation by such Buyer of the transactions
contemplated hereby will not (i) result in a violation of the organizational documents of such Buyer, or (ii) conflict with, or constitute
a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Buyer is a party, or (iii) result in
a violation of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to such
Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which could not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the ability of such Buyer to perform its obligations
hereunder.


 


3.            REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company represents and warrants
to each of the Buyers that, as of the date hereof and as of the Closing Date:


 






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(a)           Organization
and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing and in good
standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their properties
and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company and each of its
Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership
of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). As used
in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets,
liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any Subsidiary,
individually or taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other
agreements or instruments to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or
any of its Subsidiaries to perform any of their respective obligations under any of the Transaction Documents (as defined below). Other
than the Persons (as defined below) set forth on Schedule 3(a), the Company has no Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity or similar
interest of such Person or (II) controls or operates all or any part of the business, operations or administration of such Person, and
each of the foregoing, is individually referred to herein as a “Subsidiary.”


 


(b)           Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Agreement
and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The execution and delivery
of this Agreement and the other Transaction Documents by the Company, and the consummation by the Company of the transactions contemplated
hereby and thereby (including, without limitation, the issuance of the Notes) have been duly authorized by the Company’s board
of directors or other governing body, as applicable, and (other than the filing of a Form D with the SEC and the filing(s) required by
applicable state “blue sky” securities laws, rules and regulations (together the “Securities Filings”))
no further filing, consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors or their
stockholders or other governing body. This Agreement has been, and the other Transaction Documents to which it is a party will be prior
to the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by general principles
of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally,
the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be
limited by federal or state securities law. “Transaction Documents” means, collectively, this Agreement, the Notes,
the Security Documents and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection
with the transactions contemplated hereby and thereby, as may be amended from time to time.


 


(c)           Issuance
of Securities. The issuance of the Notes are duly authorized and upon issuance in accordance with the terms of the Transaction Documents
shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens,
pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”)
with respect to the issuance thereof. Subject to the accuracy of the representations and warranties of the Buyers in this Agreement,
the offer and issuance by the Company of the Securities is exempt from registration under the 1933 Act.


 






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(d)           No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Notes) will not (i) result in
a violation of the Articles of Incorporation (as defined below) (including, without limitation, any certificate of designation contained
therein), Bylaws (as defined below), certificate of formation, memorandum of association, articles of association, bylaws or other organizational
documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries,
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including, without limitation, foreign, federal and state securities laws and regulations) applicable to the Company or any
of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected.


 


(e)           Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or registration
with (other than the filing of a Form D with the SEC and any other filings as may be required by any state securities agencies), any
Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver
or perform any of its respective obligations under or contemplated by the Transaction Documents, in each case, in accordance with the
terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary is required
to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior to the Closing Date, and neither the
Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent the Company or any of its Subsidiaries
from obtaining or effecting any of the registration, application or filings contemplated by the Transaction Documents. “Governmental
Entity” means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal,
state, local, municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising,
or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any
nature or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public
international organization or any of the foregoing.


 


(f)            Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the capacity
of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby and
that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate” (as defined in
Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the
shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934
Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any
of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and
thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the
transactions contemplated hereby and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company further
represents to each Buyer that the Company’s and each Subsidiary’s decision to enter into the Transaction Documents to which
it is a party has been based solely on the independent evaluation by the Company, each Subsidiary and their respective representatives.


 






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(g)           No
General Solicitation; Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any Person
acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation
D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s
fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor)
relating to or arising out of the transactions contemplated hereby, including, without limitation, placement agent fees payable to Brighton
Capital, Ltd., as placement agent (the “Placement Agent”) in connection with the sale of the Securities. The fees
and expenses of the Placement Agent to be paid by the Company or any of its Subsidiaries are as set forth on Schedule 3(g) attached hereto.
The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation, attorney’s
fees and out-of-pocket expenses) arising in connection with any such claim. The Company acknowledges that it has engaged the Placement
Agent in connection with the sale of the Securities. Other than the Placement Agent, neither the Company nor any of its Subsidiaries
has engaged any placement agent or other agent in connection with the offer or sale of the Securities.


 


(h)           No
Integrated Offering. None of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances that
would require registration of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings
or otherwise, or cause this offering of the Securities to require approval of stockholders of the Company for purposes of the 1933 Act
or under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company are listed or designated for quotation. None of the Company,
its Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would require registration
of the issuance of any of the Securities under the 1933 Act or cause the offering of any of the Securities to be integrated with other
offerings of securities of the Company.


 


(i)            Material
Liabilities; Financial Information; Forecasts. Except as set forth on Schedule 3(i)(i), the Company has no liabilities or obligations,
absolute or contingent (individually or in the aggregate), except obligations under contracts made in the ordinary course of business
that as of the date of this Agreement would not be required to be reflected in financial statements prepared in accordance with generally
accepted accounting principles as applied in the United States, consistently applied for the periods covered thereby (“GAAP”).
The historical financial information of the Company delivered to the Buyers on or prior to the date hereof, and attached hereto as Schedule
3(i)(ii) (collectively, the “Financial Statements”), fairly present in all material respects the financial position
of the Company and its Subsidiaries, on a consolidated basis, at the respective dates thereof, subject to adjustments which are not expected
to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole. The forecasts and projections previously delivered
to the Buyers by the Company and attached hereto as Schedule 3(i)(iii) have been prepared in good faith and on the basis of assumptions
that are fair and reasonable in light of current and reasonably foreseeable circumstances. No other information provided by or on behalf
of the Company to any of the Buyers contains any untrue statement of a material fact or omits to state any material fact necessary in
order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is
not currently contemplating to amend or restate any of the Financial Statements, nor is the Company currently aware of facts or circumstances
which would require the Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials
Statements to be in compliance with GAAP. The Company has not been informed by its independent accountants that they recommend that the
Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of the Financial
Statements.


 






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(j)            Absence
of Certain Changes. Since January 1, 2021, there has been no Material Adverse Effect on the Company and its Subsidiaries, taken as
a whole. Specifically, except as set forth on Schedule 3(j), since January 1, 2021, neither the Company nor its Subsidiaries have:


 


(i)          declared,
set aside or paid any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries
or any direct or indirect redemption, purchase or other acquisition of any such shares;


 


(ii)         sold,
assigned, pledged, encumbered, transferred or other disposed of any tangible asset of the Company or any of its Subsidiaries (other than
sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or sold, assigned,
pledged, encumbered, transferred or other disposed of any Intellectual Property (as defined in Section 3(u)) (other than licensing of
products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);


 


(iii)        entered
into any licensing or other agreement with regard to the acquisition or disposition of any Intellectual Property other than licenses in
the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement filed
or required to be filed with respect to any Governmental Entity;


 


(iv)        capital
expenditures, individually or in the aggregate, in excess of $50,000;


 


(v)         any
obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company
or any of its Subsidiaries, in excess of $50,000 individually, other than obligations under customer contracts, current obligations and
liabilities, in each case incurred in the ordinary course of business and consistent with past practice;


 






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(vi)        any
Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described
on Schedules 3(j) (vi).


 


(vii)       any
payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any
of its Subsidiaries, except in the ordinary course of business and consistent with past practice;


 


(viii)      any
split, combination or reclassification of any equity securities;


 


(ix)         any
material loss, destruction or damage to any property of the Company or any Subsidiary, whether or not insured;


 


(x)          any
acceleration or prepayment of any Indebtedness (as defined below) for borrowed money or the refunding of any such Indebtedness;


 


(xi)         any
labor trouble involving the Company or any Subsidiary or any material change in their personnel or the terms and conditions of employment;


 


(xii)        any
waiver of any valuable right, whether by contract or otherwise;


 


(xiii)       except
as disclosed in Schedule 3(j) (xiii), any loan or extension of credit to any officer or employee of the Company;


 


(xiv)       any
change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting
practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies
or rates;


 


(xv)        any
resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;


 


(xvi)       any
change in any compensation arrangement or agreement with any employee, officer, director or stockholder that would result in the aggregate
compensation to such Person in such year to exceed $100,000;


 


(xvii)      any
material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written
bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or any increase in any such
compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having
an annual salary or remuneration in excess of $100,000, except as may be provided in projections contained in Schedule 3(j) (xvii);


 


(xviii)    any
revaluation of any of their respective assets, including, without limitation, writing down the value of capitalized inventory or writing
off notes or accounts receivable or any sale of assets other than in the ordinary course of business; or


 






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(xix)       any
acquisition or disposition of any material assets (or any contract or arrangement therefor), or any other material transaction by the
Company or any Subsidiary otherwise than for fair value in the ordinary course of business.


 


(xx)        written-down
the value of any asset of the Company or its Subsidiaries or written-off as uncollectible of any accounts or notes receivable or any portion
thereof except in the ordinary course of business and in a magnitude consistent with historical practice;


 


(xxi)       cancelled
any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries; or


 


(xxii)      any
agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (i) through (xxi).


 


Neither the Company nor any of its
Subsidiaries has taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to
believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact that would reasonably
lead a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, will not be, after giving effect
to the transactions contemplated hereby to occur at each Closing, Insolvent (as defined below). For purposes of this Section 3(j), “Insolvent”
means, (I) with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s
and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total Indebtedness
(as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they
will incur debts that would be beyond their ability to pay as such debts mature; and (II) with respect to the Company and each Subsidiary,
individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s (as the case may be) assets is less
than the amount required to pay its respective total Indebtedness, (B) the Company or such Subsidiary (as the case may be) is unable to
pay its respective debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured
or (C) the Company or such Subsidiary (as the case may be) intends to incur or believes that it will incur debts that would be beyond
its respective ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries has engaged in any business or in
any transaction, and is not about to engage in any business or in any transaction, for which the Company’s or such Subsidiary’s
remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted.


 


(k)           No
Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred or exists,
or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or any of their respective businesses,
properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that (i) could have
a material adverse effect on any Buyer’s investment hereunder or (ii) could have a Material Adverse Effect. The reserves, if any,
established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances known by the Company
on the date hereof and there are no loss contingencies that are required to be accrued by the Statement of Financial Accounting Standard
No. 5 of the Financial Accounting Standards Board which are not provided for by the Company in its financial statements or otherwise.


 






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(l)            Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default under
its Articles of Incorporation, any certificate of designation, preferences or rights of any other outstanding series of preferred stock
of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation, memorandum of association,
articles of association, Articles of Incorporation or certificate of incorporation or bylaws, respectively. Neither the Company nor any
of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable to the
Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation of any
of the foregoing, except in all cases for possible violations which could not, individually or in the aggregate, have a Material Adverse
Effect. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory
authorities necessary to conduct their respective businesses, except where the failure to possess such certificates, authorizations or
permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary
has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There
is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the
Company or any of its Subsidiaries is a party which has or would reasonably be expected to have the effect of prohibiting or materially
impairing any business practice of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries
or the conduct of business by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or
in the aggregate, which have not had and would not reasonably be expected to have a Material Adverse Effect on the Company or any of
its Subsidiaries.


 


(m)          Foreign
Corrupt Practices. Neither the Company, the Company’s subsidiary or any director, officer,
agent, employee, nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”)
have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption
laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised
to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for
any Governmental Entity to any political party or official thereof or to any candidate for political office (individually and collectively,
a “Government Official”) or to any person under circumstances where such Company Affiliate knew or was aware of a
high probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly, to
any Government Official, for the purpose of:


 


(xxiii)     (A)
influencing any act or decision of such Government Official in his/her official capacity, (B) inducing such Government Official to do
or omit to do any act in violation of his/her lawful duty, (C) securing any improper advantage, or (D) inducing such Government Official
to influence or affect any act or decision of any Governmental Entity, or


 






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(xxiv)     assisting
the Company or its Subsidiaries in obtaining or retaining business for or with, or directing business to, the Company or its Subsidiaries.


 


(n)           Transactions
With Affiliates. Except as disclosed in Schedule 3(n), no current or former employee, partner, director, officer or stockholder
(direct or indirect) of the Company or its Subsidiaries, or any associate, or, to the knowledge of the Company, any affiliate of any
thereof, or any relative with a relationship no more remote than first cousin of any of the foregoing, is presently, or has ever been,
(i) a party to any transaction with the Company or its Subsidiaries (including any contract, agreement or other arrangement providing
for the furnishing of services by, or rental of real or personal property from, or otherwise requiring payments to, any such director,
officer or stockholder or such associate or affiliate or relative Subsidiaries (other than for ordinary course services as employees,
officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct or indirect owner of an interest in any corporation,
firm, association or business organization which is a competitor, supplier or customer of the Company or its Subsidiaries (except for
a passive investment (direct or indirect) in less than 5% of the common stock of a company whose securities are traded on or quoted through
The New York Stock Exchange, the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Select Market or the Nasdaq Global Market
(each, an “Eligible Market”)), nor does any such Person receive income from any source other than the Company or its
Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly accrue to the Company or its Subsidiaries.
No employee, officer, stockholder or director of the Company or any of its Subsidiaries or member of his or her immediate family is indebted
to the Company or its Subsidiaries, as the case may be, nor is the Company or any of its Subsidiaries indebted (or committed to make
loans or extend or guarantee credit) to any of them, other than (i) for payment of salary for services rendered, (ii) reimbursement for
reasonable expenses incurred on behalf of the Company, and (iii) for other standard employee benefits made generally available to all
employees or executives (including stock option agreements outstanding under any stock option plan approved by the Board of Directors
of the Company).


 


(o)           Equity
Capitalization. 


 


(i)            Definitions:


 


(A)       “Common
Stock” means (x) the Company’s shares of common stock, $0.0001 par value per share, and (y) any capital stock into
which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(ii)           Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 500,000,000 shares
of Common Stock, of which, 31,617,920 are issued and outstanding and 450,000 shares are reserved for issuance pursuant to Convertible
Securities (as defined below) exercisable or exchangeable for, or convertible into, shares of Common Stock. No shares of Common Stock
are held in the treasury of the Company. “Convertible Securities” means any capital stock or other security of the
Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible into, exercisable
or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security of the Company (including,
without limitation, Common Stock) or any of its Subsidiaries.


 






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(iii)          Valid
Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance will be,
validly issued and are fully paid and nonassessable. Schedule 3(o)(iii) sets forth the number of shares of Common Stock that are
(A) reserved for issuance pursuant to Convertible Securities (as defined below) and (B) that are, as of the date hereof, owned by Persons
who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only officers, directors
and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates” without conceding
that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of its Subsidiaries.
To the Company’s knowledge, no Person owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated
based on the assumption that all Convertible Securities (as defined below), whether or not presently exercisable or convertible, have
been fully exercised or converted (as the case may be) taking account of any limitations on exercise or conversion (including
“blockers”) contained therein without conceding that such identified Person is a 10% stockholder for purposes of federal securities
laws).


 


(iv)          Existing
Securities; Obligations. Except as disclosed on Schedule 3(o)(iv): (A) none of the Company’s or any Subsidiary’s shares,
interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered or permitted by the Company or
any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares, interests or capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional shares, interests or capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into,
or exercisable or exchangeable for, any shares, interests or capital stock of the Company or any of its Subsidiaries; (C) there are no
agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities
under the 1933 Act; (D) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any
redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any
of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries; (E) there are no securities
or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities; and (F) neither
the Company nor any Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan
or agreement.


 






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(v)           Organizational
Documents. The Company has furnished to the Buyers true, correct and complete copies of the Company’s Articles of Incorporation,
as amended and as in effect on the date hereof (the “Articles of Incorporation”), and the Company’s bylaws, as
amended and as in effect on the date hereof (the “Bylaws”), and the terms of all Convertible Securities and the material
rights of the holders thereof in respect thereto.


 


(p)           Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed on Schedule 3(p), has any
outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing Indebtedness
of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii) is a party
to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such contract, agreement
or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements securing obligations
in any amounts filed in connection with the Company or any of its Subsidiaries; (iv) is in violation of any term of, or in default under,
any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults would not result, individually
or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract, agreement or instrument relating to any Indebtedness,
the performance of which, in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect. For
purposes of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed
money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without limitation,
“capital leases” in accordance with GAAP) (other than trade payables entered into in the ordinary course of business consistent
with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments,
(D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection
with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such
indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession
or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with GAAP, consistently
applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F)
above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any
Lien upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person which owns
such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in
respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above; and (y) “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.


 






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(q)           Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by any court, public board, other Governmental
Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the Company
or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors, whether
of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in Schedule 3(q). No director, officer
or employee of the Company or any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable
anticipation of litigation. After reasonable inquiry of its employees, the Company is not aware of any fact which might result in or
form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the Company nor any of its
Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.


 


(r)            Insurance.
The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the Company and its
Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied for,
and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at
a cost that would not have a Material Adverse Effect.


 


(s)           Employee
Matters; Benefit Plans.


 


(i)            Except
as set forth on Schedule 3(s)(i), the employment of each officer and employee of the Company is terminable at the will of the Company.
The Company and its Subsidiaries have complied in all material respects with all applicable laws relating to wages, hours, equal opportunity,
collective bargaining, workers’ compensation insurance and the payment of social security and other taxes. The Company is not aware
that any officer, key employee or group of employees intends to terminate his, her or their employment with the Company or its Subsidiaries,
as the case may be, nor does the Company have a present intention, or know of a present intention of its Subsidiaries, to terminate the
employment of any officer, key employee or group of employees. There are no pending or, to the knowledge of the Company, threatened employment
discrimination charges or complaints against or involving the Company or its Subsidiaries before any federal, state, or local board, department,
commission or agency, or unfair labor practice charges or complaints, disputes or grievances affecting the Company or its Subsidiaries.


 


(ii)           Since
the Company’s inception, neither the Company nor its Subsidiaries has experienced any labor disputes, union organization attempts
or work stoppage due to labor disagreements. There are no unfair labor practice charges or complaints against the Company or its Subsidiaries
pending, or to the knowledge of the Company, threatened before the National Labor Relations Board or any comparable state agency or authority.
There are no written or oral contracts, commitments, agreements, understandings or other arrangements with any labor organization, nor
work rules or practices agreed to with any labor organization or employee association, applicable to employees of the Company or any of
its Subsidiaries, nor is the Company or its Subsidiaries a party to, or bound by, any collective bargaining or similar agreement; there
is not, and since the Company’s inception there has not been, any representation of the employees of the Company or its Subsidiaries
by any labor organization and, to the knowledge of the Company, there are no union organizing activities among the employees of the Company
or its Subsidiaries, and to the knowledge of the Company, no question concerning representation has been raised or is threatened respecting
the employees of the Company or its Subsidiaries.


 






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(iii)          Schedule
3(s)(iii) contains a true, correct and complete list of each pension, retirement, savings, deferred compensation and profit-sharing
plan and each stock option, stock appreciation, stock purchase, performance share, bonus or other incentive plan, severance plan, health,
group insurance or other welfare plan, or other similar plan (whether written or otherwise) and any “employee benefit plan”
within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), under
which the Company has any current or future obligation or liability (including any potential, contingent or secondary liability under
Title IV of ERISA) or under which any employee or former employee (or beneficiary of any employee or former employee) of the Company has
or may have any current or future right to benefits (the term “plan” shall include any contract, agreement (including an employment
or independent contractor agreement), policy or understanding, each such plan being hereinafter referred to in this Agreement individually
as a “Benefit Plan”). The Company has delivered to each Buyer true, correct and complete copies of (i) each material
Benefit Plan, including any amendments thereto, (ii) the summary plan description, if any, for each Benefit Plan, including any summaries
of material modifications made since the most recent summary plan description, (iii) the latest annual report which has been filed with
the Internal Revenue Service (the “IRS”) for each Benefit Plan required to file an annual report, and (iv) the most
recent IRS determination letter for each Benefit Plan that is a pension plan (as defined in ERISA) intended to be qualified under Section
401(a) of the Code. Each Benefit Plan intended to be tax qualified under Sections 401(a) and 501(a) of the Code is and has been determined
by the IRS to be tax qualified under Sections 401(a) and 501(a) of the Code and, since such determination, no amendment to or failure
to amend any such Benefit Plan and no other event or circumstance has occurred that could reasonably be expected to adversely affect its
tax qualified status.


 


(iv)          There
are no actions, claims, audits, lawsuits or arbitrations pending, or, to the knowledge of the Company, threatened, with respect to any
Benefit Plan or the assets of any Benefit Plan. Except as set forth in Schedule 3(s)(iv), each Benefit Plan has been administered
in all material respects in accordance with its terms and with all applicable law, rules and regulations (including, without limitation,
the Code and ERISA).


 


(v)           Except
as set forth in Schedule 3(s)(v), the consummation of the transactions contemplated by this Agreement will not (1) entitle any
employee or independent contractor of the Company or its Subsidiaries to severance pay or termination benefits, (2) accelerate the time
of payment or vesting, or increase the amount of compensation due to any current or former employee or independent contractor of the Company
or its Subsidiaries, (3) obligate the Company or any of its affiliates to pay or otherwise be liable for any compensation, vacation days,
pension contribution or other benefits to any current or former employee, consultant, agent or independent contractor of the Company or
its Subsidiaries for periods before the applicable Closing Date, (4) require assets to be set aside or other forms of security to be provided
with respect to any liability under a Benefit Plan, or (5) result in any “parachute payment” (within the meaning of Section
280G of the Code) under any Benefit Plan.


 






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(vi)          No
Benefit Plan is subject to the provisions of Section 412 of the Code or Part 3 of Subtitle B of Title I of ERISA. No Benefit Plan is subject
to Title IV of ERISA and no Benefit Plan is a “multiemployer plan” (within the meaning of Section 3(37) of ERISA). Since inception,
neither the Company, its Subsidiaries, nor any business or entity treated as a single employer with the Company or its Subsidiaries for
purposes of Title IV of ERISA contributed to or was obliged to contribute to a pension plan that was at any time subject to Title IV of
ERISA.


 


(vii)         No
Benefit Plan has provided, been required to provide, provides or is required to provide, at any time in the past, present, or future,
health, medical, dental, accident, disability, death or survivor benefits to or in respect of any Person beyond one year following termination
of employment, except to the extent required under any state insurance law or under Part 6 of Subtitle B of Title I of ERISA and under
Section 4980B of the Code. No Benefit Plan covers any individual that is not an employee or advisor of the Company or its Subsidiaries,
other than spouses and dependents of employees under health and child care policies listed in Schedule 3(s)(vii), true and
complete copies of which have been made available to each Buyer.


 


Except as otherwise permitted pursuant
to employment agreements with the Company disclosed to the Buyers, each officer of the Company is currently devoting all of such officer’s
business time to the conduct of the business of the Company. Except as otherwise permitted pursuant to employment agreements with the
Company disclosed to the Buyers, the Company is not aware of any officer or key employee of the Company or any of its Subsidiaries planning
to work less than full time at the Company or its Subsidiaries in the future.


 


(t)            Assets;
Title.


 


(i)            Each
of the Company and its Subsidiaries has good and valid title to, or a valid leasehold interest in, as applicable, all of its properties
and assets, free and clear of all Liens except (A) any Lien for taxes not yet due or delinquent or being contested in good faith by appropriate
proceedings for which adequate reserves have been established in accordance with GAAP, (B) any statutory Lien arising in the ordinary
course of business by operation of law with respect to a liability that is not yet due or delinquent, (C) any Lien created by operation
of law, such as materialmen’s liens, mechanics’ liens and other similar liens, arising in the ordinary course of business
with respect to a liability that is not yet due or delinquent or that are being contested in good faith by appropriate proceedings, and
(D) such as have been disposed of in the ordinary course of business. All tangible personal property owned by the Company and its Subsidiaries
has been maintained in good operating condition and repair, except (x) for ordinary wear and tear, and (y) where such failure would not
have a Material Adverse Effect. All assets leased by the Company or any of its Subsidiaries are in the condition required by the terms
of the lease applicable thereto during the term of such lease and upon the expiration thereof. The Company and its Subsidiaries have good
and marketable title in fee simple to all real property (the “Real Property”), if any, and good and marketable title
to all personal property owned by them which is material to the business of the Company and its Subsidiaries, in each case free and clear
of all liens, encumbrances and defects except such Liens set forth in Schedule 3(t)(i).


 






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(ii)           Schedule 3(t)(ii)
sets forth a complete list of all real property and interests in real property leased by the Company as of the date hereof. The Company
has good and valid leasehold interest in all real property and interests in real property shown on Schedule 3(t)(ii) to be
leased by it free and clear of all Liens except where such Liens would not have a Material Adverse Effect. Except as set forth on Schedule 3(t)(ii),
there exists no default, or any event which upon notice or the passage of time, or both, would give rise to any default, in the performance
of the Company or by any lessor under any such lease, nor, to the knowledge of the Company, is the landlord of any such lease in default
except where any such default would not have a Material Adverse Effect.


 


(u)           Intellectual
Property.


 


(i)            Except
as set forth on Schedule 3(u)(i), the Company and its Subsidiaries own all right, title and interest in and to, or have a valid
and enforceable license to use all the Intellectual Property used by them in connection with the their respective businesses, which represents
all intellectual property rights necessary to the conduct of the their business as now conducted (collectively, the “Intellectual
Property Rights”). The Company and its Subsidiaries are in compliance with all contractual obligations relating to the protection
of such of the Intellectual Property as they use pursuant to license or other agreement. The conduct of the business of the Company and
its Subsidiaries, to the knowledge of the Company, as currently conducted, or as reasonably be expected to be conducted, does not, and
is not reasonably expected to, conflict with or infringe any proprietary right or Intellectual Property of any third party, including,
without limitation, the transmission, reproduction, use, display or modification of any content or material (including framing, and linking
web site content) on a web site, bulletin board or other like medium hosted by or on behalf of the Company or any of its Subsidiaries,
except for such infringements and conflicts which would not reasonably be expected to have a Material Adverse Effect. There is no claim,
suit, action or proceeding pending or, to the knowledge of the Company, threatened against the Company or any Subsidiary: (i) alleging
any such conflict or infringement with any third party’s proprietary rights; or (ii) challenging the Company’s or any Subsidiary’s
ownership or use of, or the validity or enforceability of any Intellectual Property.


 


(ii)           Schedule
3(u)(ii) sets forth a complete and current list of registered trademarks or copyrights, issued patents, applications therefor, or
other forms of Intellectual Property registration anywhere in the world that is owned by the Company or a Subsidiary (“Listed
Intellectual Property”) and the owner of record, date of application or issuance and relevant jurisdiction as to each. All Listed
Intellectual Property is owned by the Company or a Subsidiary, free and clear of security interests, liens, encumbrances or claims of
any nature. All Listed Intellectual Property is valid, subsisting, unexpired, in proper form and enforceable and all renewal fees and
other maintenance fees that have fallen due on or prior to the effective date of this Agreement have been paid. No Listed Intellectual
Property is the subject of any proceeding before any governmental, registration or other authority in any jurisdiction, including any
office action or other form of preliminary or final refusal of registration, except as noted on Schedule 3(w)(ii). The consummation
of the transactions contemplated hereby will not alter or impair any Intellectual Property that is owned or licensed by the Company or
a Subsidiary.


 






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(iii)          Schedule
3(u)(iii) sets forth a complete list of all agreements relating to Intellectual Property to which the Company or a Subsidiary is a
party, subject or bound (the “Intellectual Property Contracts”) (other than agreements involving (A) the license of
the Company of standard, generally commercially available “off-the-shelf” third party products that are not and will not to
any extent be part of any product, service or intellectual property offering of the Company or (B) non-disclosure or non-use of information).
Each Intellectual Property Contract: (i) is valid and binding on the Company or a Subsidiary, as the case may be, and, to the Company’s
knowledge, the counterparties thereto, and is in full force and effect and (ii) upon consummation of the transactions contemplated hereby
shall continue in full force and effect without penalty or other adverse consequence.


 


(iv)          The
Company and its Subsidiaries are not under any obligation to pay royalties or other payments in connection with any agreement, nor restricted
from assigning their rights respecting Intellectual Property nor will the Company or any Subsidiary otherwise be, as a result of the execution
and delivery of this Agreement or the performance of the Company’s obligations under this Agreement, in breach of any agreement
relating to the Intellectual Property.


 


(v)           Except
as set forth on Schedule 3(u)(v), no present or former employee, officer or director of the Company or any Subsidiary, or agent
or outside contractor of the Company or any Subsidiary, holds any right, title or interest, directly or indirectly, in whole or in part,
in or to any Intellectual Property that is owned or licensed by the Company or any Subsidiary.


 


(vi)          To
the Company’s knowledge: (i) none of the Listed Intellectual Property has been used, disclosed or appropriated to the detriment
of the Company or any Subsidiary for the benefit of any Person other than the Company; and (ii) no employee, independent contractor or
agent of the Company or any Subsidiary has misappropriated any trade secrets or other confidential information of any other Person in
the course of the performance of his or her duties as an employee, independent contractor or agent of the Company or any Subsidiary.


 


(vii)         Any
programs, modifications, enhancements or other inventions, improvements, discoveries, methods or works of authorship (“Works”)
that were created by employees of the Company or any Subsidiary were made in the regular course of such employees’ employment or
service relationships with the Company or its Subsidiary using the Company’s or the Subsidiary’s facilities and resources
and, as such, constitute either works made for hire or all rights and title to and in such Works have been fully assigned to the Company
or a Subsidiary. Each such employee who has created Works or any employee who in the regular course of his employment may create Works
and all consultants have signed an assignment or similar agreement with the Company or the Subsidiary confirming the Company’s or
the Subsidiary’s ownership or, in the alternate, transferring and assigning to the Company or the Subsidiary all right, title and
interest in and to such programs, modifications, enhancements or other inventions including copyright and other intellectual property
rights therein.


 






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(viii)        For
the purpose of this Agreement, “Intellectual Property” shall mean all of the following: (A) trademarks and service
marks, trade dress, product configurations, trade names and other indications of origin, applications or registrations in any jurisdiction
pertaining to the foregoing and all goodwill associated therewith; (B) inventions, discoveries, improvements, ideas, know-how, formula
methodology, processes, technology, software (including password unprotected interpretive code or source code, object code, development
documentation, programming tools, drawings, specifications and data) and applications and patents in any jurisdiction pertaining to the
foregoing, including re-issues, continuations, divisions, continuations-in-part, renewals or extensions; (C) trade secrets, including
confidential information and the right in any jurisdiction to limit the use or disclosure thereof; (D) copyrights in writings, designs
software, mask works or other works, applications or registrations in any jurisdiction for the foregoing and all moral rights related
thereto; (E) database rights; (F) Internet Web sites, domain names and applications and registrations pertaining thereto and all intellectual
property used in connection with or contained in all versions of the Company’s Web sites; (G) rights under all agreements relating
to the foregoing; (H) books and records pertaining to the foregoing; and (I) claims or causes of action arising out of or related to past,
present or future infringement or misappropriation of the foregoing.


 


(v)           Environmental
Laws. (i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined below), (B) have
received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses
and (C) are in compliance with all terms and conditions of any such permit, license or approval where, in each of the foregoing clauses
(A), (B) and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse
Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution or protection
of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata), including, without limitation, 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.


 






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(ii)           No
Hazardous Materials:


 


(A)       have
been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or


 


(B)       are
present on, over, beneath, in or upon any Real Property or any portion thereof in quantities that would constitute a violation of any
Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates any Environmental
Laws, which violation would have a material adverse effect on the business of the Company or any of its Subsidiaries.


 


(iii)          Neither
the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed of or otherwise
located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and polychlorinated biphenyls.


 


(iv)          None
of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens.


 


(w)       Subsidiary
Rights. The Company or one of its Subsidiaries 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 such Subsidiary.


 


(x)       Tax
Status.


 


(i)            The
Company and the Subsidiaries has filed or caused to be filed in a timely manner (within any applicable extension periods) and in the appropriate
jurisdictions all material returns, reports, information statements and other documentation (including any additional or supporting materials)
filed or maintained, or required to be filed or maintained, in connection with the calculation, determination, assessment or collection
of any and all federal, state, local, foreign and other taxes, levies, fees, imposts, duties, governmental fees and charges of whatever
kind (including any interest, penalties or additions to the tax imposed in connection therewith or with respect thereto), including, without
limitation, taxes imposed on, or measured by, income, franchise, profits, gross income or gross receipts, and also ad valorem,
value added, sales, use, service, real or personal property, capital stock, stock transfer, license, payroll, withholding, employment,
social security, workers’ compensation, unemployment compensation, utility, severance, production, excise, stamp, occupation, premium,
windfall profits, environmental, transfer and gains taxes and customs duties (each a “Tax”) and shall include amended
returns required as a result of examination adjustments made by the IRS or other Governmental Entity responsible for the imposition of
any Tax (collectively, the “Returns”) and such Returns are true, correct and complete in all material respects.


 






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(ii)           Each
of the Company and the Subsidiaries has paid all material Taxes and other assessments due from and payable by the Company and the Subsidiaries
on or prior to the date hereof on a timely basis except as to those set forth in Schedule 3(x)(ii). The charges, accruals, and
reserves for Taxes with respect to the Company and the Subsidiaries are adequate to cover Tax liabilities of the Company and the Subsidiaries
accruing through the date hereof. Except as set forth in Schedule 3(x)(ii), each of the Company and the Subsidiaries has complied
in all material respects with all applicable laws, rules and regulations relating to the payment and withholding of Taxes (including withholding
and reporting requirements under Sections 1441 through 1464, 3401 through 3406, and 6041 and 6049 of the Code and similar provisions under
any other applicable laws, rules and regulations) and, within the time and in the manner prescribed by law, has withheld from wages, fees
and other payments and paid over to the proper governmental or regulatory authorities all amounts required. Except as set forth in Schedule
3(x)(ii), neither the Company nor any of the Subsidiaries has received notice of assessment or proposed assessment of any Taxes claimed
to be owed by it or any other Person on its behalf. To the knowledge of the Company, no Returns filed by or on behalf of the Company or
any of the Subsidiaries with respect to Taxes are currently being audited or examined. Except as set forth in Schedule 3(x)(ii),
neither the Company nor any of the Subsidiaries has received written notice of any such audit or examination. Except as set forth in Schedule
3(x)(ii), no issue has been raised by any taxing authority with respect to the Company or any of the Subsidiaries in any audit or
examination which, by application of similar principles, could reasonably be expected to result in a proposed material adjustment to the
liability for Taxes for any period not so examined.


 


(iii)          Except
as set forth in Schedule 3(x)(iii), no known Liens have been filed and no claims are being asserted by or against the Company or
any of the Subsidiaries with respect to any Taxes (other than Liens for Taxes not yet due and payable). Neither the Company nor any of
the Subsidiaries has elected pursuant to the Code to be treated as an S corporation or any comparable provision of local, state or foreign
law, or has made any other elections pursuant to the Internal Revenue Code of 1986, as amended (the “Code”) (other
than elections that relate solely to entity classification, methods of accounting, depreciation, or amortization) that would have a material
effect on the business, properties, prospects, or financial condition of the Company and the Subsidiaries, individually or in the aggregate.


 


(iv)          No
claim has ever been made in writing, or, to the knowledge of the Company, is threatened or pending, by any authority in a jurisdiction
where the Company or any of the Subsidiaries, respectively, does not file Returns that the Company or any of the Subsidiaries is or may
be subject to taxation by that jurisdiction, and neither the Company nor any of the Subsidiaries has received any written notice or request
for information from any such authority. Except as set forth in Schedule 3(x)(iv), neither the Company nor any of the Subsidiaries
has been a member of an affiliated group (as defined in Section 1504(a) of the Code) or filed or been included in a combined, consolidated
or unitary income tax return other than the affiliated group of which the Company is currently the common parent. Neither the Company
nor any of the Subsidiaries is required to include in income any adjustment pursuant to Section 481(a) of the Code by reason of a voluntary
change in accounting methods initiated by the Company or any of the Subsidiaries, and no Governmental Entity has proposed an adjustment
or change in accounting method. All transactions or methods of accounting that could give rise to a substantial understatement of federal
income tax as described in Section 6662(d)(2)(B)(i) of the Code have been adequately disclosed on the Company’s and the Subsidiaries’
federal income tax returns in accordance with Section 6662(d)(2)(B) of the Code. Neither the Company nor any of the Subsidiaries is a
party to any Tax sharing or Tax indemnity agreement or any other agreement of a similar nature that remains in effect. Neither the Company
nor any of the Subsidiaries has consented to any waiver of the statute of limitations for the assessment of any Taxes or has requested
any extension of time for the payment of any Taxes. Neither the Company nor any of the Subsidiaries has ever held a material beneficial
interest in any other Person, other than those listed in Schedule 3(x)(iv). Neither the Company nor any of the Subsidiaries is
obligated to make, nor as a result of any event connected with the transactions contemplated by this Agreement will become obligated to
make, any payment that would not be deductible under Section 280G of the Code. Neither the Company nor any Subsidiary is a “passive
foreign investment company” within the meaning of Section 1296 of the Code (a “PFIC”), and the Company does not
anticipate that the Company or any additional foreign Subsidiary will become a PFIC in the foreseeable future.


 






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(v)           The
net operating loss carryforwards (“NOLs”) for United States federal income tax purposes of the consolidated group of
which the Company is the common parent, if any, shall not be adversely effected by the issuance of the Notes to the Buyer. The issuance
of the Notes to the Buyers does not constitute an “ownership change” within the meaning of Section 382 of the Code.


 


(y)           Internal
Accounting and Disclosure Controls. The Company and each of its Subsidiaries maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations,
(ii) transactions are recorded as necessary to permit preparation of financial statements that accurately reflect the current status
of the business of the Company and its Subsidiaries and to maintain asset and liability accountability, (iii) access to assets or incurrence
of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability
for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate action is taken
with respect to any difference. Neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant,
Governmental Entity or other Person relating to any potential material weakness or significant deficiency in any part of the internal
controls over financial reporting of the Company or any of its Subsidiaries.


 


(z)            Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its Subsidiaries
and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act filings and is
not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.


 


(aa)        Investment
Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment company,”
an affiliate of an “investment company,” a company controlled by an “investment company” or an “affiliated
person” of, or “promoter” or “principal underwriter” for, an “investment company” as such terms
are defined in the Investment Company Act of 1940, as amended.


 






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(bb)        U.S. Real Property
Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been a U.S. real property holding corporation
within the meaning of Section 897 of the Code.


 


(cc)        Transfer Taxes.
On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required to be paid in connection
with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or will have been, fully paid or provided
for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


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


 


(ee)        Illegal or Unauthorized
Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best of the Company’s knowledge
(after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents or other representatives
of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company or any Subsidiary is or has
been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property,
or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person or (ii) to any political organization,
or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving
the direct or indirect use of funds of the Company or any of its Subsidiaries.


 


(ff)         Money Laundering.
The Company and its Subsidiaries are in compliance with, and have not previously violated, the USA Patriot Act of 2001 and all other
applicable U.S. and non-U.S. anti-money laundering laws and regulations, including, without limitation, the laws, regulations and Executive
Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive
Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.


 


(gg)       Books and Records.
The books of account, ledgers, order books, records and documents of the Company and its Subsidiaries accurately and completely reflect
all information relating to the respective businesses of the Company and its Subsidiaries, the nature, acquisition, maintenance, location
and collection of each of their respective assets, and the nature of all transactions giving rise to material obligations or accounts
receivable of the Company or its Subsidiaries, as the case may be, except where the failure to so reflect such information would not have
a Material Adverse Effect. The minute books of the Company and its Subsidiaries contain accurate records of all meetings and accurately
reflect all other actions taken by the stockholders, boards of directors and all committees of the boards of directors, and other governing
Persons of the Company and its Subsidiaries, respectively.


 






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(hh)       Acknowledgement Regarding
Buyers’ Trading Activity. It is understood and acknowledged by the Company (a) (i) that none of the Buyers have been asked by
the Company or its Subsidiaries to agree, nor has any Buyer agreed with the Company or its Subsidiaries, 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) that each Buyer shall not be deemed to have any affiliation with or control over
any arm’s length counter party in any “derivative” transaction and (iii) each Buyer may rely on the Company’s
obligation to timely deliver shares of Common Stock upon conversion, exercise or exchange, as applicable, of the Securities as and when
required pursuant to the Transaction Documents for purposes of effecting trading in the Common Stock of the Company. The Company further
understands and acknowledges that one or more Buyers may engage in hedging and/or trading activities at various times during the period
that the Securities are outstanding and (b) such hedging and/or trading activities, if any, can reduce the value of the existing
stockholders’ equity interest in the Company both at and after the time the hedging and/or trading activities are being conducted.
The Company acknowledges that such aforementioned hedging and/or trading activities do not constitute a breach of any of the Transaction
Documents.


 


(ii)           Management.
Except as set forth in Schedule 3(ii) hereto, during the past five year period, no current or former officer or director
or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company or any of its Subsidiaries has
been the subject of:


 


(i)            a
petition under bankruptcy laws or any other insolvency or moratorium law or the appointment by a court of a receiver, fiscal agent or
similar officer for such Person, or any partnership in which such person was a general partner at or within two years before the filing
of such petition or such appointment, or any corporation or business association of which such person was an executive officer at or within
two years before the time of the filing of such petition or such appointment;


 


(ii)           a
conviction in a criminal proceeding or a named subject of a pending criminal proceeding (excluding traffic violations that do not relate
to driving while intoxicated or driving under the influence);


 


(iii)          any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily
enjoining any such person from, or otherwise limiting, the following activities:


 


(1)       Acting
as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction
merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person of any of the foregoing,
or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment
company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with
such activity;


 






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(2)       Engaging
in any particular type of business practice; or


 


(3)       Engaging
in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of securities
laws or commodities laws;


 


(iv)          any
order, judgment or decree, not subsequently reversed, suspended or vacated, of any authority barring, suspending or otherwise limiting
for more than sixty (60) days the right of any such person to engage in any activity described in the preceding sub paragraph, or to be
associated with persons engaged in any such activity;


 


(v)           a
finding by a court of competent jurisdiction in a civil action or by the SEC or other authority to have violated any securities law, regulation
or decree and the judgment in such civil action or finding by the SEC or any other authority has not been subsequently reversed, suspended
or vacated; or


 


(vi)          a
finding by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any federal
commodities law, and the judgment in such civil action or finding has not been subsequently reversed, suspended or vacated.


 


(jj)          Stock Option Plans.
Each stock option granted by the Company was granted (i) in accordance with the terms of the applicable stock option plan of the Company
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 policy or practice of the Company 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.


 


(kk)        No Disagreements with
Accountants and Lawyers. There are no material 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. In addition, on or prior to the date hereof, the Company had discussions with its accountants
about its financial statements. Based on those discussions, the Company has no reason to believe that it will need to restate any such
financial statements or any part thereof.


 






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(ll)          No Disqualification
Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the 1933 Act (“Regulation
D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other
officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405
under the 1933 Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”
and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described
in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “Disqualification Event”), except for a Disqualification Event
covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject
to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under Rule 506(e), and
has furnished to the Buyers a copy of any disclosures provided thereunder.


 


(mm)      Other Covered Persons.
The Company is not aware of any Person (other than the Placement Agent) that has been or will be paid (directly or indirectly) remuneration
for solicitation of Buyers or potential purchasers in connection with the sale of any Regulation D Securities.


 


(nn)       No Additional Agreements.
The Company does not have any agreement or understanding with any Buyer with respect to the transactions contemplated by the Transaction
Documents other than as specified in the Transaction Documents.


 


(oo)        Public
Utility Holding Act. None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate”
of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.


 


(pp)       Federal Power Act.
None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility” under the Federal Power Act,
as amended.


 


(qq)       Ranking of Notes.
No Indebtedness of the Company, at the Closing, will be senior to, or pari passu with, the Notes in right of payment, whether
with respect to payment or redemptions, interest, damages, upon liquidation or dissolution or otherwise.


 


(rr)         Potential Products;
FDA; EMEA.


 


(i)            The
Company possesses all certificates, authorizations and permits issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business as currently conducted, including without limitation all such certificates, authorizations and permits
required by the United States Food and Drug Administration (the “FDA”) or any other federal, state or foreign agencies
or bodies engaged in the regulation of pharmaceuticals or biohazardous materials, except where the failure to so possess such certificates,
authorizations and permits, individually or in the aggregate, would not result in a Material Adverse Effect. The Company has not received
any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, individually
or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect.


 






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(ii)           The
Company has not received any written notices or statements from the FDA, the European Medicines Agency (the “EMEA”)
or any other governmental agency, and otherwise has no knowledge or reason to believe, that (i) any drug candidate of the Company (each
a “Potential Product”) may or will be rejected or determined to be non-approvable; (ii) a delay in time for review
and/or approval of a marketing authorization application or marketing approval application in any jurisdiction for any Potential Product
is or may be required, requested or being implemented; (iii) one or more clinical studies for any Potential Product shall or may be requested
or required in addition to the clinical studies submitted to the FDA prior to the date hereof as a precondition to or condition of issuance
or maintenance of a marketing approval for any Potential Product; (iv) any license, approval, permit or authorization to conduct any clinical
trial of or market any product or Potential Product of the Company has been, will be or may be suspended, revoked, modified or limited,
except in the cases of clauses (i), (ii), (iii) and (iv) where such rejections, determinations, delays, requests, suspensions, revocations,
modifications or limitations might not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(iii)          To
the Company’s knowledge, the preclinical and clinical testing, application for marketing approval of, manufacture, distribution,
promotion and sale of the products and Potential Products of the Company is in compliance, in all material respects, with all laws, rules
and regulations applicable to such activities, including without limitation applicable good laboratory practices, good clinical practices
and good manufacturing practices, except for such non-compliance as would not, individually or in the aggregate, have a Material Adverse
Effect. The Company is not aware of any studies, tests or trial the results of which reasonably call into question the results of the
tests and trials conducted by or on behalf of the Company. The Company has not received notice of adverse finding, warning letter or clinical
hold notice from the FDA or any non-U.S. counterpart of any of the foregoing, or any untitled letter or other correspondence or notice
from the FDA or any other governmental authority or agency or any institutional or ethical review board alleging or asserting noncompliance
with any law, rule or regulation applicable in any jurisdiction, except notices, letters, and correspondences and non-U.S. counterparts
thereof alleging or asserting such noncompliance as would not, individually or in the aggregate, have a Material Adverse Effect. The Company
has not, either voluntarily or involuntarily, initiated, conducted or issued, or caused to be initiated, conducted or issued, any recall,
field correction, market withdrawal or replacement, safety alert, warning, “dear doctor” letter, investigator notice, or other
notice or action relating to an alleged or potential lack of safety or efficacy of any product or Potential Product of the Company, any
alleged product defect of any product or Potential Product of the Company, or any violation of any material applicable law, rule, regulation
or any clinical trial or marketing license, approval, permit or authorization for any product or potential product of the Company, and
the Company is not aware of any facts or information that would cause it to initiate any such notice or action and has no knowledge or
reason to believe that the FDA, the EMEA or any other governmental agency or authority or any institutional or ethical review board or
other non-governmental authority intends to impose, require, request or suggest such notice or action.


 






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(ss)        Disclosure. No
statement made by the Company in this Agreement, any other Transaction Document or the exhibits and schedules attached hereto or in any
certificate or schedule furnished or to be furnished by or on behalf of the Company to the Buyers or any of their representatives in
connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not misleading. The due diligence materials previously provided
by or on behalf of the Company to each Buyer (the “Due Diligence Materials”), have been prepared in a good faith effort
by the Company to describe the Company’s present and proposed products, and projected growth of the Company and do not contain
any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading, except
that with respect to assumptions, projections and expressions of opinion or predictions contained in the Due Diligence Materials, the
Company represents only that such assumptions, projections, expressions of opinion and predictions were made in good faith and that the
Company believes there is a reasonable basis therefor. The Company acknowledges and agrees that no Buyer makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.


 


4.            COVENANTS.


 


(a)           Best
Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by
it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 7 of this Agreement.


 


(b)           Form
D and Blue Sky. The Company shall file a Form D with respect to the Securities as required under Regulation D and to provide a copy
thereof to each Buyer promptly after such filing. The Company shall, on or before the Closing Date, take such action as the Company shall
reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Securities for sale to the Buyers at the Closing
pursuant to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain
an exemption from such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to the Closing
Date. Without limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports
relating to the offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable
federal securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable foreign, federal,
state and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to the Buyers.


 


(c)           Use
of Proceeds. The Company will use the proceeds from the sale of the Securities for general corporate purposes, but not, directly
or indirectly, for (i) except as set forth on Schedule 4(c), the satisfaction of any indebtedness of the Company or any of its Subsidiaries,
(ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement of any outstanding
litigation.


 






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(d)           Fees.
The Company shall pay Kelley Drye & Warren LLP a non-accountable amount of $70,000 for all costs and expenses incurred in connection
with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents (the “Transaction
Expenses”) and shall be withheld by the lead Buyer from its Purchase Price at the Closing; provided, that the Company shall
promptly reimburse Kelley Drye & Warren LLP on demand for all Transaction Expenses not so reimbursed through such withholding at
the Closing. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or broker’s
commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions contemplated hereby (including,
without limitation, any fees or commissions payable to the Placement Agent, who is the Company’s sole placement agent in connection
with the transactions contemplated by this Agreement). The Company shall pay, and hold each Buyer harmless against, any liability, loss
or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any
claim relating to any such payment. Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear
its own expenses in connection with the sale of the Securities to the Buyers.


 


(e)           Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the
Securities may be pledged by a holder of Notes (each, an “Investor”) in connection with a bona fide margin agreement
or other loan or financing arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer,
sale or assignment of the Securities hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company
with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document, including,
without limitation, Section 2(g) hereof; provided that an Investor and its pledgee shall be required to comply with the provisions
of Section 2(g) hereof in order to effect a sale, transfer or assignment of Securities to such pledgee. The Company hereby agrees to
execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities
to such pledgee by a Buyer.


 






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(f)            Disclosure
of Transactions and Other Material Information. On or before 8:30 a.m., New York City time, on the earliest to occur of the following
dates: (i) the date that the Company files a Form 10 registering the Company’s Common Stock under the 1934 Act, (ii) the date that
the Company files a registration statement under the 1933 Act for a public offering of Common Stock of the Company, and (iii) the Public
Company Date (as defined in the Notes), the Company shall issue a press release or include in a filing with the SEC (each, a “Press
Release”) reasonably acceptable to the Buyers describing the terms of the transactions contemplated by the Transaction Documents
if not already publicly disclosed and disclosing any other material non-public information provided to any Buyer on or prior to the public
disclosure of the Press Release (including, without limitation, this Agreement (and all schedules and exhibits to this Agreement), the
form of the Notes and the Security Documents (including all attachments), as well as any other material documents related to any such
other material nonpublic information, if not already publicly available), which documents must be available to the public either on the
Company’s website (or the website of a successor, subsidiary or parent company of the Company pursuant to such merger) or on the
SEC’s EDGAR website. From and after the public disclosure of the Press Release, no Buyer shall be in possession of any material,
nonpublic information received from the Company, any of its Subsidiaries or any of their respective officers, directors, employees or
agents, that is not disclosed in such Press Release. In addition, effective upon the public disclosure of the 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, affiliates, employees or agents, on the one hand,
and any of the Buyers or any of their affiliates, on the other hand, shall terminate. The Company shall not, and shall cause each of
its Subsidiaries and its and each of their respective officers, directors, affiliates, employees and agents, not to, provide any Buyer
with any material, nonpublic information regarding the Company or any of its Subsidiaries from and after the date that any such Buyer
shall instruct the Company in writing without the express prior written consent of such Buyer. If a Buyer has, or believes it has, received
or is otherwise in possession of any material, nonpublic information regarding the Company or any of its Subsidiaries from the Company,
any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents after the earlier of (i) the
date that the Company publicly discloses the Press Release and (ii) the date that the Company is required to publicly disclose the Press
Release, at any time and from time to time, it may provide the Company with written notice thereof. The Company shall, within one (1)
Business Day of receipt of such notice, make public disclosure of such material, nonpublic information. In the event of


 






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a breach of the
foregoing covenant by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, affiliates, employees
and agents, in addition to any other remedy provided herein or in the Transaction Documents, a Buyer shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise, of such material, nonpublic information without the prior
approval by the Company, its Subsidiaries, or any of its or their respective officers, directors, affiliates employees or agents. No
Buyer shall have any liability to the Company, its Subsidiaries, or any of its or their respective officers, directors, affiliates, employees,
stockholders or agents for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer
without such Buyer’s consent or the Company fails to publicly disclose any confidential information on or prior to the dates and
time periods specified in this Section 4(f), the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality
to the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents with respect
to, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents
not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company, its Subsidiaries
nor any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided,
however, that the Company shall be entitled, without the prior approval of any Buyer, to make any press release or other public disclosure
with respect to such transactions (i) in substantial conformity with the Press Release and contemporaneously therewith and (ii) as is
required by applicable law and regulations (provided that in the case of clause (i) each Buyer shall be consulted by the Company in connection
with any such press release or other public disclosure prior to its release). Without the prior written consent of any applicable Buyer,
neither the Company nor any of its Subsidiaries or affiliates shall disclose the name of such Buyer in any filing, announcement, release
or otherwise. Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise
be true, the Company expressly acknowledges and agrees that no Buyer shall have (unless expressly agreed to by a particular Buyer after
the date hereof in a written definitive and binding agreement executed by the Company and such particular Buyer (it being understood
and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty of confidentiality with respect to, or a duty not
to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries.


 






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(g)           Conduct
of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance or regulation
of any Governmental Entity, except where such violations would not reasonably be expected to result, either individually or in the aggregate,
in a Material Adverse Effect.


 


(h)           Participation
Right. At any time on or prior to the first anniversary of the Closing Date, neither the Company nor any of its Subsidiaries shall,
directly or indirectly, issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance,
offer, sale, grant of any option or right to purchase or other disposition of) any equity security or any equity-linked or related security
(including, without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933
Act), any Convertible Securities (as defined below), any debt, any preferred stock or any purchase rights) (any such issuance, offer,
sale, grant, disposition or announcement is referred to as a “Subsequent Placement”) unless the Company shall have
first complied with this Section 4(h). The Company acknowledges and agrees that the right set forth in this Section 4(h) is
a right granted by the Company, separately, to each Buyer.


 


(i)            At
least five (5) Business Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Buyer a written
notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including, without limitation,
material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes or contains material, non-public
information, a statement asking whether the Investor is willing to accept material non-public information or (B) if the proposed Offer
Notice does not constitute or contain material, non-public information, (x) a statement that the Company proposes or intends to effect
a Subsequent Placement, (y) a statement that the statement in clause (x) above does not constitute material, non-public information and
(z) a statement informing such Buyer that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent
Placement upon its written request. Upon the written request of a Buyer within three (3) Business Days after the Company’s delivery
to such Buyer of such Pre-Notice, and only upon a written request by such Buyer, the Company shall promptly, but no later than one (1)
Business Day after such request, deliver to such Buyer an irrevocable written notice (the “Offer Notice”) of any proposed
or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered Securities”)
in a Subsequent Placement, which Offer Notice shall (A) identify and describe the Offered Securities, (B) describe the price and other
terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged,
(C) identify the Persons (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (D)
offer to issue and sell to or exchange with such Buyer in accordance with the terms of the Offer no less than such Buyer’s pro rata
allocation of $3,750,000 in aggregate purchase price of the Offered Securities (less the aggregate purchase price of any securities of
the Company purchased by such Buyer pursuant to this Section 4(h)), provided that the number of Offered Securities which such Buyer shall
have the right to subscribe for under this Section 4(h) shall be (x) based on such Buyer’s pro rata portion of the aggregate original
principal amount of the Notes purchased hereunder by all Buyers (the “Basic Amount”), and (y) with respect to each
Buyer that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of
other Buyers as such Buyer shall indicate it will purchase or acquire should the other Buyers subscribe for less than their Basic Amounts
(the “Undersubscription Amount”), which process shall be repeated until each Buyer shall have an opportunity to subscribe
for any remaining Undersubscription Amount.


 






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(ii)           To
accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the fifth (5th)
Business Day after such Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of
such Buyer’s Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount,
the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”).
If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has set forth
an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for,
the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference
between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”),
each Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription
Amount as the Basic Amount of such Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts,
subject to rounding by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires
to modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to each
Buyer a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after such Buyer’s receipt
of such new Offer Notice.


 


(iii)          The
Company shall have five (5) Business Days from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any
part of such Offered Securities as to which a Notice of Acceptance has not been given by a Buyer (the “Refused Securities”)
pursuant to a definitive agreement(s) (the “Subsequent Placement Agreement”), but only to the offerees described in
the Offer Notice (if so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest
rates) that are not more favorable to the acquiring Person or Persons or less favorable to the Company than those set forth in the Offer
Notice and (B) to publicly announce (x) the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the
transactions contemplated by such Subsequent Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which,
if after the Public Company Date, shall be filed with the SEC on a Current Report on Form 8-K with such Subsequent Placement Agreement
and any documents contemplated therein filed as exhibits thereto.


 






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(iv)          In
the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified
in Section 4(h)(iii) above), then each Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance
or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than
the number or amount of the Offered Securities that such Buyer elected to purchase pursuant to Section 4(h)(ii) above multiplied
by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue,
sell or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section 4(h) prior to such reduction)
and (ii) the denominator of which shall be the original amount of the Offered Securities. In the event that any Buyer so elects to reduce
the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than
the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Buyers in accordance
with Section 4(h)(i) above.


 


(v)           Upon
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, such Buyer shall acquire from the Company,
and the Company shall issue to such Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced
pursuant to Section 4(h)(iv) above if such Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase
by such Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and such Buyer
of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to such Buyer and its
counsel.


 


(vi)          Any
Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(h) may not be issued, sold or exchanged
until they are again offered to such Buyer under the procedures specified in this Agreement.


 


(vii)         The
Company and each Buyer agree that if any Buyer elects to participate in the Offer, neither the Subsequent Placement Agreement with respect
to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”)
shall include any term or provision whereby such Buyer shall be required to agree to any restrictions on trading as to any securities
of the Company or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection
with, any agreement previously entered into with the Company or any instrument received from the Company.


 


(viii)        Notwithstanding
anything to the contrary in this Section 4(h) and unless otherwise agreed to by such Buyer, the Company shall either confirm in writing
to such Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention
to issue the Offered Securities, in either case, in such a manner such that such Buyer will not be in possession of any material, non-public
information, by the fifth (5th) Business Day following delivery of the Offer Notice. If by such fifth (5th) Business
Day, no public disclosure regarding a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment
of such transaction has been received by such Buyer, such transaction shall be deemed to have been abandoned and such Buyer shall not
be in possession of any material, non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide
to pursue such transaction with respect to the Offered Securities, the Company shall provide such Buyer with another Offer Notice and
such Buyer will again have the right of participation set forth in this Section 4(h). The Company shall not be permitted to deliver more
than one such Offer Notice to such Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section
4(h)(ii).


 






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(ix)           The
restrictions contained in this Section 4(h) shall not apply in connection with the issuance of (i) shares of Common Stock or standard
options to purchase Common Stock issued to directors, officers or employees of the Company for services rendered to the Company in their
capacity as such pursuant to any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee,
officer or director for services provided to the Company in their capacity as such (each, an “Approved Stock Plan”),
provided that (A) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options) after the
date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately
prior to the date hereof and (B) the exercise price of any such options is not lowered, none of such options are amended to increase the
number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner
that adversely affects any of the Buyers; or (ii) shares of Common Stock issued upon the conversion or exercise of Convertible Securities
(other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above)
issued prior to the date hereof, provided that the conversion price of any such Convertible Securities (other than standard options to
purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (i) above) is not lowered, none of such Convertible
Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause
(i) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such Convertible
Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause
(i) above) are otherwise materially changed in any manner that adversely affects any of the Buyers. The Company shall not circumvent the
provisions of this Section 4(h) by providing terms or conditions to one Buyer that are not provided to all.


 


(i)            Passive
Foreign Investment Company. The Company shall conduct its business, and shall cause its Subsidiaries to conduct their respective
businesses, in such a manner as will ensure that the Company will not be deemed to constitute a passive foreign investment company within
the meaning of Section 1297 of the Code.


 


(j)            Restriction
on Redemption and Cash Dividends. So long as any Notes are outstanding, the Company shall not, directly or indirectly, redeem, or
declare or pay any cash dividend or distribution on, any securities of the Company without the prior express written consent of the Buyers.


 






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(k)           Corporate
Existence. So long as any Buyer beneficially owns any Notes, the Company shall not be party to any Fundamental Transaction (as defined
in the Notes) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the
Notes.


 


(l)            Collateral
Agent. Each Buyer hereby (i) appoints Keystone Capital Partners, LLC, as the collateral agent hereunder and under the other Security
Documents (in such capacity, the “Collateral Agent”), and (ii) authorizes the Collateral Agent (and its officers, directors,
employees and agents) to take such action on such Buyer’s behalf in accordance with the terms hereof and thereof. The Collateral
Agent shall not have, by reason hereof or any of the other Security Documents, a fiduciary relationship in respect of any Buyer. Neither
the Collateral Agent nor any of its officers, directors, employees or agents shall have any liability to any Buyer for any action taken
or omitted to be taken in connection hereof or any other Security Document except to the extent caused by its own gross negligence or
willful misconduct, and each Buyer agrees to defend, protect, indemnify and hold harmless the Collateral Agent and all of its officers,
directors, employees and agents (collectively, the “Collateral Agent Indemnitees”) from and against any losses, damages,
liabilities, obligations, penalties, actions, judgments, suits, fees, costs and expenses (including, without limitation, reasonable attorneys’
fees, costs and expenses) incurred by such Collateral Agent Indemnitee, whether direct, indirect or consequential, arising from or in
connection with the performance by such Collateral Agent Indemnitee of the duties and obligations of Collateral Agent pursuant hereto
or any of the Security Documents. The Collateral Agent shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the instructions
of the Required Holders, and such instructions shall be binding upon all holders of Notes; provided, however, that the Collateral Agent
shall not be required to take any action which, in the reasonable opinion of the Collateral Agent, exposes the Collateral Agent to liability
or which is contrary to this Agreement or any other Transaction Document or applicable law. The Collateral Agent shall be entitled to
rely upon any written notices, statements, certificates, orders or other documents or any telephone message believed by it in good faith
to be genuine and correct and to have been signed, sent or made by the proper Person, and with respect to all matters pertaining to this
Agreement or any of the other Transaction Documents and its duties hereunder or thereunder, upon advice of counsel selected by it.


 


(m)          Successor
Collateral Agent.


 


(i)            The
Collateral Agent may resign from the performance of all its functions and duties hereunder and under the other Transaction Documents at
any time by giving at least ten (10) Business Days’ prior written notice to the Company and each holder of Notes. Such resignation
shall take effect upon the acceptance by a successor Collateral Agent of appointment pursuant to clauses (ii) and (iii) below or as otherwise
provided below. If at any time the Collateral Agent (together with its affiliates) beneficially owns less than $100,000 in aggregate principal
amount of Notes, the Required Holders may, by written consent, remove the Collateral Agent from all its functions and duties hereunder
and under the other Transaction Documents.


 






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(ii)           Upon
any such notice of resignation or removal, the Required Holders shall appoint a successor collateral agent. Upon the acceptance of any
appointment as Collateral Agent hereunder by a successor agent, such successor collateral agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the collateral agent, and the Collateral Agent shall be discharged from its
duties and obligations under this Agreement and the other Transaction Documents. After the Collateral Agent’s resignation or removal
hereunder as the collateral agent, the provisions of this Section 4(m) shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was the Collateral Agent under this Agreement and the other Transaction Documents.


 


(iii)          If
a successor collateral agent shall not have been so appointed within ten (10) Business Days of receipt of a written notice of resignation
or removal, the Collateral Agent shall then appoint a successor collateral agent who shall serve as the Collateral Agent until such time,
if any, as the Required Holders appoint a successor collateral agent as provided above.


 


(iv)          In
the event that a successor Collateral Agent is appointed pursuant to the provisions of this Section 4(m) that is not a Buyer or an affiliate
of any Buyer (or the Required Holders or the Collateral Agent (or its successor), as applicable, notify the Company that they or it wants
to appoint such a successor Collateral Agent pursuant to the terms of this Section 4(m)), the Company and each Subsidiary thereof covenants
and agrees to promptly take all actions reasonably requested by the Required Holders or the Collateral Agent (or its successor), as applicable,
from time to time, to secure a successor Collateral Agent satisfactory to the requesting part(y)(ies), in their sole discretion, including,
without limitation, by paying all reasonable and customary fees and expenses of such successor Collateral Agent, by having the Company
and each Subsidiary thereof agree to indemnify any successor Collateral Agent pursuant to reasonable and customary terms and by each of
the Company and each Subsidiary thereof executing a collateral agency agreement or similar agreement and/or any amendment to the Security
Documents reasonably requested or required by the successor Collateral Agent.


 


(n)           Regulation
M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the distribution of the
Securities contemplated hereby.


 


(o)           General
Solicitation. None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any person acting on behalf
of the Company or such affiliate will solicit any offer to buy or offer or sell the Securities by means of any form of general solicitation
or general advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication
published in any newspaper, magazine or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees
have been invited by any general solicitation or general advertising.


 






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(p)           Integration.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of the Company
or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration of the Securities
under the 1933 Act and the Company will take all action that is appropriate or necessary to assure that its offerings of other securities
will not be integrated for purposes of the 1933 Act or the rules and regulations of the Principal Market, with the issuance of Securities
contemplated hereby.


 


(q)           Notice
of Disqualification Events. The Company will notify the Buyers in writing, prior to the Closing Date of (i) any Disqualification
Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event
relating to any Issuer Covered Person.


 


(r)            Books
and Records. The Company will keep proper books of record and account, in which full and correct entries shall be made of all financial
transactions and the asset and business of the Company and its Subsidiaries in accordance with GAAP.


 


(s)           Confidentiality,
Non-Compete, Non-Solicit and Assignment of Inventions Agreements. The Company shall cause every employee and consultant to be hired
by the Company after the date hereof to enter into a Confidentiality, Non-Compete, Non-Solicit and Assignment of Inventions Agreement
prior to being hired. The Company shall not amend, waive or terminate any material provision of any Confidentiality, Non-Compete, Non-Solicit
and Assignment of Inventions Agreement and shall enforce the provisions of each the Confidentiality, Non-Compete, Non-Solicit and Assignment
of Inventions Agreements in accordance with its terms. If any party to a Confidentiality, Non-Compete, Non-Solicit and Assignment of
Inventions Agreement breaches any material provision of a Confidentiality, Non-Compete, Non-Solicit and Assignment of Inventions Agreement,
the Company shall promptly use its best efforts to specific performance of the terms of such Confidentiality, Non-Compete, Non-Solicit
and Assignment of Inventions Agreement.


 


(t)            Financial
Statements and Inspection.


 


(i)            The
Company shall deliver to each Buyer (unless any such Buyer has elected by written notice to the Company that it does not want to receive
any or all of the following):


 


(1)         as
soon as practicable following the end of each fiscal quarter (other than the fourth fiscal quarter of each fiscal year), but in no event
later than fifteen (15) days after the end of such fiscal quarter, the Company’s consolidated unaudited balance sheet, income statement,
a statement of stockholder’s equity and a statement of cash flows for such quarter, such quarter-end financial reports to be in
reasonable detail, prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit
adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP);


 






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(2)         as
soon as practicable following the end of each fiscal year, but in no event later than ninety (90) days following the end of such fiscal
year, the Company’s audited consolidated balance sheet, income statement, a statement of stockholder’s equity and a statement
of cash flows for such year and, if applicable, the immediately preceding fiscal year, such year-end financial reports to be in reasonable
detail, prepared in accordance with GAAP, and audited by independent public accountants of nationally recognized standing selected by
the Company and reasonably acceptable to the Required Holders;


 


(3)         as
soon as practicable, all material communications with stockholders or the financial community, including press releases, but in no event
later than two (2) days after the date of each such communication;


 


(4)         as
soon as practicable, (x) all material reports prepared for the Company by outside consultants, and (y) all reports prepared for the Company
by outside legal counsel and auditors, but in no event later than two (2) days after receipt thereof by the Company, provided that the
Company shall have no obligation to deliver to any Investor any report prepared by outside legal counsel to the extent such report is
privileged communication and is subject to the attorney/client privilege, in the reasonable opinion of such legal counsel;


 


(5)         as
soon as practicable (but in no event later than two (2) Business Days after any such communication), all material communications with
and from United States federal or state or foreign regulatory agencies or other governmental or quasi-governmental authorities of any
kind;


 


(6)         as
soon as practicable, notice of any material events, including any pending or threatened litigation and/or events that is reasonably likely
to materially delay the advancement of the business objectives of the Company or any of its Subsidiaries, but in no event later than five
(5) Business Days after the occurrence thereof; and


 


(7)         notice
of any Material Adverse Effect as soon as practicable after upon the occurrence thereof, but in no event later than five (5) Business
Days thereafter.


 


(ii)           The
Company shall notify the Buyers in writing of (i) any default under any of the Company’s agreements governing its Indebtedness and
(ii) the receipt by the Company of any default notices in connection therewith, in each case promptly and in no event later than five
(5) Business Days after the occurrence of any such default or the receipt of any such default notice.


 


(iii)          The
Company shall permit each Buyer to visit and inspect the Company’s properties, to examine its books of account, records, contracts
and agreements and to discuss the Company’s affairs, finances and accounts with its Chief Executive Officer or Chief Financial Officer,
all at such times as may be reasonably requested by the Investor.


 






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(iv)          The
covenants set forth in this Section 4(t) shall terminate as to Buyers and be of no further force or effect upon the earlier of the Public
Company Date and the time when no Notes are outstanding.


 


(u)           Closing
Documents. On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered,
to each Buyer and Kelley Drye & Warren LLP a complete closing set of the executed Transaction Documents, Securities and any other
document required to be delivered to any party pursuant to Section 7 hereof or otherwise.


 


5.            REGISTER;
LEGEND.


 


(a)           Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice
to each holder of Securities), a register for the Notes in which the Company shall record the name and address of the Person in whose
name the Notes have been issued (including the name and address of each transferee), the principal amount of the Notes held by such Person.
The Company shall keep the register open and available at all times during business hours for inspection of any Buyer or its legal representatives.


 


(b)           Legends.
Each Buyer understands that the Securities have been issued pursuant to an exemption from registration or qualification under the 1933
Act and applicable state securities laws, and except as set forth below, the Securities shall bear any legend as required by the “blue
sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against
transfer of such stock certificates):


 


[THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE
OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE
144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.]


 






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(c)           Removal
of Legends. Certificates evidencing Securities shall not be required to contain the legend set forth in Section 5(b) above or
any other legend (i) while a registration statement (including a Registration Statement) covering the resale of such Securities is effective
under the 1933 Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor is not an affiliate of the
Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule 144 (provided that a Buyer provides the
Company with reasonable assurances that such Securities are eligible for sale, assignment or transfer under Rule 144 which shall not
include an opinion of Buyer’s counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144),
provided that such Buyer provides the Company with an opinion of counsel to such Buyer, in a generally acceptable form, to the effect
that such sale, assignment or transfer of the Securities may be made without registration under the applicable requirements of the 1933
Act or (v) if such legend is not required under applicable requirements of the 1933 Act (including, without limitation, controlling judicial
interpretations and pronouncements issued by the SEC). If a legend is not required pursuant to the foregoing, the Company shall no later
than two (2) Business Days (or such earlier date as required pursuant to the 1934 Act or other applicable law, rule or regulation for
the settlement of a trade initiated on the date such Buyer delivers such legended certificate representing such Securities to the Company)
following the delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of a legended certificate representing
such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance
and/or transfer, if applicable), together with any other deliveries from such Buyer as may be required above in this Section 5(c),
issue and deliver (via reputable overnight courier) to such Buyer, a certificate representing such Securities that is free from all restrictive
and other legends, registered in the name of such Buyer or its designee. The Company shall be responsible for any fees with respect to
any issuance of Securities or the removal of any legends with respect to any Securities in accordance herewith.


 


6.            CONDITIONS
TO THE COMPANY’S OBLIGATION TO SELL.


 


(a)           The
obligation of the Company hereunder to issue and sell the Notes to each Buyer at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may
be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof:


 


(i)            Such
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(ii)           Such
Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of any Buyer, the amounts withheld
pursuant to Section 4(d) and any prefunded amounts by such Buyer as described on the Schedule of Buyers) for the Note being purchased
by such Buyer at the Closing by wire transfer of immediately available funds in accordance with the Flow of Funds Letter.


 


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


 






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7.            CONDITIONS
TO EACH BUYER’S OBLIGATION TO PURCHASE.


 


(a)           The
obligation of each Buyer hereunder to purchase its Note at the Closing is subject to the satisfaction, at or before the Closing Date,
of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived by such
Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:


 


(i)            The
Company shall have duly executed and delivered to such Buyer each of the Transaction Documents to which it is a party and the Company
shall have duly executed and delivered to such Buyer a Note in such original principal amount as is set forth across from such Buyer’s
name in column (3) of the Schedule of Buyers as being purchased by such Buyer at the Closing pursuant to this Agreement.


 


(ii)           Such
Buyer shall have received opinions of Dorsey & Whitney LLP, the Company’s securities law counsel and of Jonathan D. Leinwand,
P.A., special Floridian counsel to the Company, dated as of the Closing Date, in the forms acceptable to such Buyer.


 


(iii)          The
Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company in such entity’s
jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within
ten (10) days of the Closing Date.


 


(iv)          The
Company shall have delivered to such Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good
standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required
to so qualify, as of a date within ten (10) days of the Closing Date.


 


(v)           The
Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Florida Secretary of
State within ten (10) days of the Closing Date.


 


(vi)          The
Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Chief Executive Officer
of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s
board of directors in a form reasonably acceptable to such Buyer, (ii) the Articles of Incorporation of the Company and (iii) the
Bylaws of the Company, each as in effect at the Closing.


 


(vii)         Each
and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Closing Date as
though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements
and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. Such Buyer shall have
received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect
and as to such other matters as may be reasonably requested by such Buyer in the form acceptable to such Buyer.


 






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(viii)        The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the
Securities.


 


(ix)           No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by
any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by
the Transaction Documents.


 


(x)            Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect.


 


(xi)           In
accordance with the terms of the Security Documents, the Company shall have delivered to the Collateral Agent appropriate financing statements
on Form UCC-1 to be duly filed in such office or offices as may be necessary or, in the opinion of the Collateral Agent, desirable to
perfect the security interests purported to be created by each Security Document (the “Perfection Certificate”).


 


(xii)          Within
two (2) Business Days prior to the Closing, the Company shall have delivered or caused to be delivered to each Buyer and the Collateral
Agent (A) certified copies of requests for copies of information on Form UCC-11, listing all effective financing statements which name
as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion
of the Collateral Agent or the Buyers, desirable to perfect the security interests purported to be created by the Security Agreement,
together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall
cover any of the Collateral (as defined in the Security Agreement), and the results of searches for any tax Lien and judgment Lien filed
against such Person or its property, which results, except as otherwise agreed to in writing by the Collateral Agent and the Buyers, shall
not show any such Liens; and (B) a perfection certificate, duly completed and executed by the Company and each of its Subsidiaries, in
form and substance satisfactory to the Buyers (the “Perfection Certificate”).


 


(xiii)         The
Collateral Agent shall have received the Security Agreement, duly executed by the Company.


 


(xiv)        With
respect to the License, the Company shall have duly executed and delivered to the Collateral Agent the Assignment For Security for the
Intellectual Property of the Company, in the form attached as Exhibit A to the Security Agreement.


 


(xv)         Such
Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company, setting
forth the wire amounts of each Buyer and the wire transfer instructions of the Company (the “Flow of Funds Letter”).


 






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(xvi)        The
Company and its Subsidiaries shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions
contemplated by this Agreement as such Buyer or its counsel may reasonably request.


 


8.             TERMINATION.


 


In the event that the Closing shall
not have occurred with respect to a Buyer within five (5) days of the date hereof, then such Buyer shall have the right to terminate its
obligations under this Agreement with respect to itself at any time on or after the close of business on such date without liability of
such Buyer to any other party; provided, however, (i) the right to terminate this Agreement under this Section 8 shall not be available
to such Buyer if the failure of the transactions contemplated by this Agreement to have been consummated by such date is the result of
such Buyer’s breach of this Agreement and (ii) the abandonment of the sale and purchase of the Notes shall be applicable only to
such Buyer providing such written notice, provided further that no such termination shall affect any obligation of the Company under this
Agreement to reimburse such Buyer for the expenses described in Section 4(d) above. Nothing contained in this Section 8 shall
be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other
Transaction Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this
Agreement or the other Transaction Documents.


 


9.             MISCELLANEOUS.


 


(a)           Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or under
any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from
bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations
to such Buyer or to enforce a judgment or other court ruling in favor of such Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION
DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY
OR THEREBY.


 






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(b)           Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature
is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature
page, such signature page 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 signature page were an original thereof.


 


(c)           Headings;
Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words
of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in
which they are found.


 


(d)           Severability;
Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended
to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall
not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express,
without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity
or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations
of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor
in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of
which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything to the contrary
contained in this Agreement or any other Transaction Document (and without implication that the following is required or applicable),
it is the intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the
case may be), or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts
that would be characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly,
if any obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally judicially
determined to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed to have been made
by mutual mistake of such Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been adjusted with retroactive
effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment
shall be effected, to the extent necessary, by reducing or refunding, at the option of such Buyer, the amount of interest or any other
amounts which would constitute unlawful amounts required to be paid or actually paid to such Buyer under the Transaction Documents. For
greater certainty, to the extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by such
Buyer under any of the Transaction Documents or related thereto are held to be within the meaning of “interest” or another
applicable term to otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which they relate.


 






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(e)           Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company,
its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any Buyer with
respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement, the other Transaction
Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain the entire
understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained in this
Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any Buyer has entered
into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date hereof with respect
to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or amend in any respect any obligations of the
Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement entered into prior
to the date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received from
the Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall continue in full force
and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision
of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below),
and any amendment to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding
on all Buyers and holders of Securities, as applicable; provided that no such amendment shall be effective to the extent that it (A)
applies to less than all of the holders of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without
such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion); and provided further
that the provisions of Sections 4(l) and 4(m) above cannot be amended or waived without the additional prior written approval of the
Collateral Agent or its successor. No waiver shall be effective unless it is in writing and signed by an authorized representative of
the waiving party, provided that the Required Holders may waive any provision of this Agreement, and any waiver of any provision of this
Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities,
as applicable, provided that no such waiver shall be effective to the extent that it (1) applies to less than all of the holders of the
Securities then outstanding (unless a party gives a waiver as to itself only) or (2) imposes any obligation or liability on any Buyer
without such Buyer’s prior written consent (which may be granted or withheld in such Buyer’s sole discretion). No consideration
(other than reimbursement of legal fees) shall be offered or paid to any Person to


 






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amend or consent to a waiver or modification of any
provision of any of the Transaction Documents unless the same consideration also is offered to all of the parties to the Transaction
Documents, all holders of the Notes. From the date hereof and while any Notes are outstanding, the Company shall not be permitted to
receive any consideration from a Buyer or a holder of Notes that is not otherwise contemplated by the Transaction Documents in order
to, directly or indirectly, induce the Company or any Subsidiary (i) to treat such Buyer or holder of Notes in a manner that is more
favorable than to other similarly situated Buyers or holders of Notes, as applicable, or (ii) to treat any Buyer(s) or holder(s) of Notes
in a manner that is less favorable than the Buyer or holder of Notes that is paying such consideration; provided, however, that the determination
of whether a Buyer has been treated more or less favorably than another Buyer shall disregard any securities of the Company purchased
or sold by any Buyer. The Company has not, directly or indirectly, made any agreements with any Buyers relating to the terms or conditions
of the transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the
foregoing, the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other
obligation to provide any financing to the Company, any Subsidiary or otherwise. As a material inducement for each Buyer to enter into
this Agreement, the Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted by
a Buyer, any of its advisors or any of its representatives shall affect such Buyer’s right to rely on, or shall modify or qualify
in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other
Transaction Document and (y) nothing contained in any of the Due Diligence Materials shall affect such Buyer’s right to rely on,
or shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained in
this Agreement or any other Transaction Document. “Required Holders” means (I) prior to the Closing Date, each Buyer
entitled to purchase Notes at the Closing and (II) on or after the Closing Date, holders of a majority of aggregate principal amount
of the Notes then outstanding (or the Buyers, with respect to any waiver or amendment of Section 4(h)).


 


(f)            Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic
mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party
does not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to
such recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each
case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications shall be:


 


If to the Company:


 


Varian Biopharmaceuticals, Inc.

4851 Tamiami Trail North, Suite 200

Naples, FL 34103

Attn: Jeff Davis

E-mail: jdavis@varianbio.com


 






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With a copy (for informational purposes only) to:


 


Dorsey & Whitney LLP

111 South Main Street Suite 2100

Salt Lake City, UT

Attn: Anthony W. Epps

E-mail: epps.anthony@dorsey.com


 


If to a Buyer, to its mailing address and e-mail address
set forth on the Schedule of Buyers, with copies to such Buyer’s representatives as set forth on the Schedule of Buyers,


 


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

3 World Trade Center

175 Greenwich Street

New York, NY 10007

Telephone: (212) 808-7540

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


or to such other mailing address and/or e-mail address
and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5)
days prior to the effectiveness of such change, provided that Kelley Drye & Warren LLP shall only be provided copies of notices sent
to the lead Buyer. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C)
provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 


(g)           Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns,
including any purchasers of any of the Notes. The Company shall not assign this Agreement or any rights or obligations hereunder without
the prior written consent of the Required Holders, including, without limitation, by way of a Fundamental Transaction (as defined in
the Notes) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Notes).
A Buyer may assign some or all of its rights hereunder in connection with any transfer of any of its Securities without the consent of
the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights.


 


(h)           No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the Indemnitees
referred to in Section 9(k).


 






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(i)            Survival.
The representations, warranties, agreements and covenants shall survive the Closing. Each Buyer shall be responsible only for its own
representations, warranties, agreements and covenants hereunder.


 


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


 


(k)           Indemnification.


 


(i)            In
consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and in
addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless each Buyer and each holder of any Securities and all of their stockholders, partners, members, officers, directors,
employees and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without
limitation, those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee
as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company
or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the Company or any
Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding or claim brought or made against
such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or any Subsidiary)
or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance or enforcement
of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with
the proceeds of the issuance of the Securities, (C) any disclosure properly made by such Buyer pursuant to Section 4(f), or (D) the
status of such Buyer or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by the
Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action
or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law.


 






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(ii)           Promptly
after receipt by an Indemnitee under this Section 9(k) of notice of the commencement of any action or proceeding (including any governmental
action or proceeding) involving an Indemnified Liability, such Indemnitee shall, if a claim in respect thereof is to be made against the
Company under this Section 9(k), deliver to the Company a written notice of the commencement thereof, and the Company shall have the right
to participate in, and, to the extent the Company so desires, to assume control of the defense thereof with counsel mutually satisfactory
to the Company and the Indemnitee; provided, however, that an Indemnitee shall have the right to retain its own counsel with the fees
and expenses of such counsel to be paid by the Company if: (A) the Company has agreed in writing to pay such fees and expenses; (B) the
Company shall have failed promptly to assume the defense of such Indemnified Liability and to employ counsel reasonably satisfactory to
such Indemnitee in any such Indemnified Liability; or (C) the named parties to any such Indemnified Liability (including any impleaded
parties) include both such Indemnitee and the Company, and such Indemnitee shall have been advised by counsel that a conflict of interest
is likely to exist if the same counsel were to represent such Indemnitee and the Company (in which case, if such Indemnitee notifies the
Company in writing that it elects to employ separate counsel at the expense of the Company, then the Company shall not have the right
to assume the defense thereof and such counsel shall be at the expense of the Company), provided further, that in the case of clause (C)
above the Company shall not be responsible for the reasonable fees and expenses of more than one (1) separate legal counsel for the Indemnitees.
The Indemnitee shall reasonably cooperate with the Company in connection with any negotiation or defense of any such action or Indemnified
Liability by the Company and shall furnish to the Company all information reasonably available to the Indemnitee which relates to such
action or Indemnified Liability. The Company shall keep the Indemnitee reasonably apprised at all times as to the status of the defense
or any settlement negotiations with respect thereto. The Company shall not be liable for any settlement of any action, claim or proceeding
effected without its prior written consent, provided, however, that the Company shall not unreasonably withhold, delay or condition its
consent. The Company shall not, without the prior written consent of the Indemnitee, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnitee of a release from all liability in respect to such Indemnified Liability or litigation, and such settlement shall not include
any admission as to fault on the part of the Indemnitee. Following indemnification as provided for hereunder, the Company shall be subrogated
to all rights of the Indemnitee with respect to all third parties, firms or corporations relating to the matter for which indemnification
has been made. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such action shall
not relieve the Company of any liability to the Indemnitee under this Section 9(k), except to the extent that the Company is materially
and adversely prejudiced in its ability to defend such action.


 


(iii)          The
indemnification required by this Section 9(k) shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, within ten (10) days after bills are received or Indemnified Liabilities are incurred.


 


(iv)          The
indemnity agreement contained herein shall be in addition to (A) any cause of action or similar right of the Indemnitee against the Company
or others, and (B) any liabilities the Company may be subject to pursuant to the law.


 






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(l)            Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability
of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock and any other numbers
in this Agreement that relate to the Common Stock shall be automatically adjusted for any stock splits, stock dividends, stock combinations,
recapitalizations or other similar transactions that occur with respect to the Common Stock after the date of this Agreement. Notwithstanding
anything in this Agreement to the contrary, for the avoidance of doubt, nothing contained herein shall constitute a representation or
warranty against, or a prohibition of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability
of, and/or securing of, securities of the Company in order for such Buyer (or its broker or other financial representative) to effect
short sales or similar transactions in the future.


 


(m)          Remedies.
Each Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have all
rights and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time
under any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under
any provision of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to
recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore,
the Company recognizes that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such
Subsidiary’s (as the case may be) obligations under the Transaction Documents, any remedy at law would inadequate relief to the
Buyers. The Company therefore agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent
injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual
damages and without posting a bond or other security. The remedies provided in this Agreement and the other Transaction Documents shall
be cumulative and in addition to all other remedies available under this Agreement and the other Transaction Documents, at law or in
equity (including a decree of specific performance and/or other injunctive relief).


 


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


 


(o)           Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of the
other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or 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, foreign, 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.
Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents are in United
States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction Documents shall
be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount
in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount
of currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street
Journal on the relevant date of calculation.


 






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(p)       Judgment
Currency.


 


(i)            If
for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document
in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this
Section 9(p) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement, the conversion
shall be made at the Exchange Rate prevailing on the Business Day immediately preceding:


 


(1)       the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(2)       the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 9(p)(i)(2) being hereinafter referred to as the “Judgment Conversion Date”).


 


(ii)           If
in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(2) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall
pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.


 


(iii)          Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.


 


(q)           Successor
Entity and Fundamental Transactions. Notwithstanding anything herein or in any other Transaction Documents to the contrary, upon
the consummation of any Fundamental Transaction (as defined in the Notes), the defined term the “Company” as used herein,
shall automatically be deemed to include any Successor Entity (as defined in the Notes), including, without limitation, with respect
to Section 4(h) and any Subsequent Placement of such Successor Entity occurring in connection with the consummation of such Fundamental
Transaction), mutatis mutandis.


 






    53 


     


    

 


(r)            Independent
Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents are several and not
joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of
any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by
any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not
so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the
Buyers are in any way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect to such
obligations or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Buyers
are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions
contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction Documents has
been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted as agent for such Buyer
in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as agent of such Buyer in connection
with monitoring such Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents. The Company
and each Buyer confirms that each Buyer has independently participated with the Company and its Subsidiaries in the negotiation of the
transaction contemplated hereby with the advice of its own counsel and advisors. Each Buyer shall be entitled to independently protect
and enforce its rights, including, without limitation, the rights arising out of this Agreement or out of any other Transaction Documents,
and it shall not be necessary for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of
a single agreement to effectuate the purchase and sale of the Securities contemplated hereby was solely in the control of the Company,
not the action or decision of any Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because
it was required or requested to do so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement
and in each other Transaction Document is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its
Subsidiaries and the Buyers collectively and not between and among the Buyers.


 


[signature pages follow]


 






    54 


     


    

 


IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 





	 	COMPANY:
	 	 
	 	VARIAN BIOPHARMACEUTICALS INC.
	 	 	 
	 	By:	 
	 	 	Name: Jeffrey Davis
	 	 	Title: Chief Executive Officer



 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 


	 	BUYER:
	 	 
	 	Keystone capital partners, llc
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:


 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 


	 	BUYER:
	 		 
	 	 	PAUL MANN


 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 


	 	BUYER:
	 	 
	 	Mastiff Group, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:


 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 





	 	BUYER:
	 		 
	 	 	ROBERT WELNER


 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 


	 	BUYER:
	 	 
	 	Seven Knots, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:


 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 


	 	BUYER:
	 	 
	 	Cavalry Investment Fund LP
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title:


 






     



     


    

 





IN WITNESS WHEREOF, each
Buyer and the Company have caused their respective signature page to this Agreement to be duly executed as of the date first written above.


 


	 	BUYER:
	 	 
	 	Mercer Street Global Opportunity
    Fund, LLC
	 	 	 
	 	By:	 
	 	 	Name: 
	 	 	Title: