Exhibit
10.1


 


FORM
OF SECURITIES PURCHASE AGREEMENT


 


This
SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of January 17, 2017, is by and among
Uni-Pixel, Inc., a Delaware corporation with headquarters located at 4699 Old Ironsides Drive, Suite 300, Santa Clara, California
95054 (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 desire to enter into this transaction to purchase (i) the Preferred Shares (as defined below) and (ii)
Warrants (as defined below) pursuant to a currently effective shelf registration statement on Form S-3, which has at least 57,589,259
of unallocated securities, including Common Stock (as defined below), Preferred Stock (as defined below) and warrants to purchase
Common Stock registered thereunder (Registration Number 333-203691) (the “Registration Statement”), which Registration
Statement has been declared effective in accordance with the Securities Act of 1933, as amended (the “1933 Act”),
by the United States Securities and Exchange Commission (the “SEC”).


 


B. The
Company has authorized a new series of convertible Preferred Stock of the Company designated as Series A-1 Convertible Preferred
Stock, $0.001 par value, the terms of which are set forth in the certificate of designation for such series of Preferred Stock
(the “Series A-1 Certificate of Designations”) in the form attached hereto as Exhibit A (together
with any convertible preferred shares issued in replacement thereof in accordance with the terms thereof, the “Series
A-1 Preferred Stock”), which Series A-1 Preferred Stock shall be convertible into shares of Common Stock (such shares
of Common Stock issuable pursuant to the terms of the Series A-1 Certificate of Designations, including, without limitation, upon
conversion or otherwise, collectively, the “Conversion Shares”), in accordance with the terms of the Series
A-1 Certificate of Designations.


 


C. Each
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement at the Closing
(as defined below), (i) such aggregate number of shares of Series A-1 Preferred Stock set forth opposite such Buyer’s name
in column (3) on the Schedule of Buyers (which aggregate amount for all Buyers shall be 3,000 shares of Series A-1 Preferred Stock
and shall collectively be referred to herein as the “Preferred Shares”) and (ii) a series A-1 warrant to acquire
up to such aggregate number of shares of Common Stock set forth opposite such Buyer’s name in column (4) on the Schedule
of Buyers, as evidenced by a certificate in the form attached hereto as Exhibit B (the “Warrants”)
(as exercised, collectively, the “Warrant Shares”).


 


D The
Preferred Shares, the Conversion Shares, the Warrants and the Warrant Shares are collectively referred to herein as the “Securities”.


 




    	 	 	 



    	 		 



    

 


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 PREFERRED SHARES AND WARRANTS.


 


(a) Purchase
of Preferred Shares and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(a) and
7(a) 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) (i) such aggregate number of Preferred Shares as is set forth opposite such
Buyer’s name in column (3) on the Schedule of Buyers and (ii) a Warrant to acquire up to that aggregate number of Warrant
Shares as is set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers (the “Closing”).


 


(b) Closings.
The Closing shall occur at the offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. 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 (as defined below) (and including the date hereof, if a Business Day) on which the conditions to the Closing set forth in
Sections 6(a) and 7(a) below are satisfied or waived (or such later date as is mutually agreed to by the Company and each Buyer).
As used herein “Business Day” means any day other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to remain closed.


 


(c) Purchase
Price. The aggregate purchase price for the Preferred Shares and the Warrants 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.


 


(d) Form
of Payment; Deliveries. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price to the Company for the
Preferred Shares and the Warrants to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available
funds in accordance with the Flow of Funds Letter (as defined below) (less, in the case of the lead Buyer, the amounts withheld
pursuant to Section 4(j)); and (ii) the Company shall deliver to each Buyer (x) certificates representing such aggregate number
of Preferred Shares as is set forth opposite such Buyer’s name in column (3) of the Schedule of Buyers, and (y) a Warrant
pursuant to which such Buyer shall have the right to acquire up to such aggregate number of Warrant Shares as is set forth opposite
such Buyer’s name in column (4) of the Schedule of Buyers, in each case, 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) 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 its 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.


 


(c) 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, (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.


 


(d) Prohibited
Transactions. Such Buyer has not, directly or indirectly, and no Person (as defined below) acting on behalf of or pursuant
to any understanding with such Buyer which had knowledge of the transactions contemplated hereby and that (i) has or shares discretion
relating to such Buyer’s investments and trading or information concerning such Buyer’s investments or (ii) is subject
to such Buyer’s review or input concerning such Person’s investments or trading (the foregoing, “Buyer Trading
Affiliates”), has engaged in any purchases or sales of any securities, including any derivatives, of the Company (including,
without limitation, any short sales (as defined in Rule 200 promulgated under Regulation SHO of the 1934 Act, but not including
any sale marked “short exempt”) involving any of the Company’s securities) (a “Transaction”)
since the time that such Buyer was first contacted by the Company, the Placement Agent (as defined below) or any other Person
regarding the investment in the Company contemplated herein. Such Buyer covenants that neither it nor any Buyer Trading Affiliate
will engage, directly or indirectly, in any Transactions prior to the time the transactions contemplated by this Agreement are
publicly disclosed.


 


	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:


 


(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, (A) owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (B) 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”.


 




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(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 Preferred Shares, the
reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Preferred Shares, the issuance
of the Warrants and the reservation for issuance and issuance of the Warrant Shares issuable upon exercise of the Warrants) have
been duly authorized by the Company’s board of directors (the “Board”) and (other than the filing with
the SEC of the prospectus supplement required by the Registration Statement pursuant to Rule 424(b) under the 1933 Act (each,
a “Prospectus Supplement”) supplementing the base prospectus forming part of the Registration Statement (the
“Prospectus”) and any other filings as may be required by any state securities agencies) no further filing,
consent or authorization is required by the Company, its Board or its stockholders or other governing body. This Agreement has
been, and the other Transaction Documents 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. The
Series A-1 Certificate of Designations in the form attached hereto as Exhibit A has been filed with the Secretary
of State of the State of Delaware and is in full force and effect, enforceable against the Company in accordance with its terms
and has not have been amended. “Transaction Documents” means, collectively, this Agreement, the Series A-1
Certificate of Designations, the Preferred Shares, the Warrants, the Registration Statement, the Prospectus, the Prospectus Supplement
related hereto, the Irrevocable Transfer Agent Instructions (as defined below) 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.


 




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(c)
Issuance of Securities; Registration Statement. The issuance of the Preferred Shares and the Warrants are duly authorized
and, upon issuance and payment 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. As of the Closing Date, the Company shall have reserved from its duly authorized capital stock not less
than the sum of (i) 200% of the maximum number of shares of Common Stock issuable upon conversion of all the Preferred Shares
then outstanding and, if prior to July 1, 2017, all Preferred Shares issuable hereunder (assuming for purposes hereof that (x)
all Preferred Shares issuable hereunder are then convertible at the Alternate Conversion Price (as defined in the Series A-1 Certificate
of Designations) and (y) any such conversion shall not take into account any limitations on the conversion of the Preferred Shares
set forth in the Series A-1 Certificate of Designations) and (ii) 100% of the maximum number of shares of Common Stock issuable
upon exercise of the Warrants (without taking into account any limitations on the exercise of the Warrants set forth in the Warrants).
Upon issuance or conversion in accordance with the Series A-1 Certificate of Designations or exercise in accordance with the Warrants
(as the case may be), the Conversion Shares and the Warrant Shares, respectively, when issued, will be validly issued, fully paid
and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Common Stock. The issuance by the Company of the Securities has been registered
under the 1933 Act, the Securities are being issued pursuant to the Registration Statement and all of the Securities are freely
transferable and freely tradable by each of the Buyers without restriction, whether by way of registration or some exemption therefrom.
The Registration Statement is effective and available for the issuance of the Securities thereunder and the Company has not received
any notice that the SEC has issued or intends to issue a stop-order with respect to the Registration Statement or that the SEC
otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends
or has threatened in writing to do so. The “Plan of Distribution” section under the Registration Statement permits
the issuance and sale of the Securities hereunder and as contemplated by the other Transaction Documents. Upon receipt of the
Securities, each of the Buyers will have good and marketable title to the Securities. The Registration Statement and any prospectus
included therein, including the Prospectus and the Prospectus Supplement, complied in all material respects with the requirements
of the 1933 Act and the Securities Exchange Act of 1934, as amended (the “1934 Act”) and the rules and regulations
of the SEC promulgated thereunder and all other applicable laws and regulations. At the time the Registration Statement and any
amendments thereto became effective, at the date of this Agreement and at each deemed effective date thereof pursuant to Rule
430B(f)(2) of the 1933 Act, the Registration Statement and any amendments thereto complied and will comply in all material respects
with the requirements of the 1933 Act and did not and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and
any amendments or supplements thereto (including, without limitation, the Prospectus Supplement), at the time the Prospectus or
any amendment or supplement thereto was issued and at the Closing Date, complied, and will comply, in all material respects with
the requirements of the 1933 Act and did not, and will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading. The Company meets all of the requirements for the use of Form S-3 under the 1933 Act for the offering and sale of
the Securities contemplated by this Agreement and the other Transaction Documents, and the SEC has not notified the Company of
any objection to the use of the form of the Registration Statement pursuant to Rule 401(g)(1) under the 1933 Act. The Registration
Statement meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act. At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2)
under the 1933 Act) relating to any of the Securities, the Company was not and is not an “Ineligible Issuer” (as defined
in Rule 405 under the 1933 Act). The Company (i) has not distributed any offering material in connection with the offer or sale
of any of the Securities and (ii) until no Buyer holds any of the Securities, shall not distribute any offering material in connection
with the offer or sale of any of the Securities to, or by, any of the Buyers (if required), in each case, other than the Registration
Statement, the Prospectus or the Prospectus Supplement. In accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory
Authority Manual, the offering of the Securities has been registered with the SEC on Form S-3 under the 1933 Act pursuant to the
standards for Form S-3 in effect prior to October 21, 1992, and the Securities are being offered pursuant to Rule 415 promulgated
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 issuances of the Preferred
Shares, the Warrants, the Conversion Shares and the Warrant Shares and the reservation for issuance of the Conversion Shares and
the Warrant Shares) will not (i) result in a violation of the Certificate of Incorporation (as defined below) (including, without
limitation, the Series A-1 Certificate of Designations or any other 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 and the rules
and regulations of the Nasdaq Capital Market (the “Principal Market”) and including all applicable foreign,
federal and state laws, rules 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 with the SEC of the Prospectus Supplement 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. The Company is not in violation of the requirements
of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension
of the Common Stock in the foreseeable future. “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.


 




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(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 promulgated under the 1933 Act (or a successor rule thereto) (collectively, “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 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
decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company and its representatives.


 


(g)
Placement Agent’s Fees. 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 The
Benchmark Company, LLC, 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.


 




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(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 cause this offering of the Securities to require approval of stockholders of the Company 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 cause the offering of any of the
Securities to be integrated with other offerings of securities of the Company.


 


(i)
Dilutive Effect. The Company understands and acknowledges that the number of Conversion Shares and Warrant Shares will
increase in certain circumstances. The Company further acknowledges that its obligation to issue the Conversion Shares upon conversion
of the Preferred Shares in accordance with this Agreement and the Series A-1 Certificate of Designations and the Warrant Shares
upon exercise of the Warrants in accordance with this Agreement and the Warrants is absolute and unconditional regardless of the
dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.


 


(j)
Application of Takeover Protections; Rights Agreement. The Company and its Board have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill (including,
without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover provision
under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation
or otherwise which is or could become applicable to any Buyer as a result of the transactions contemplated by this Agreement,
including, without limitation, the Company’s issuance of the Securities and any Buyer’s ownership of the Securities.
The Company and its Board have taken all necessary action, if any, in order to render inapplicable any stockholder rights plan
or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a change in control of the
Company or any of its Subsidiaries.


 


(k)
SEC Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all
reports, schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to
the reporting requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices
included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter
referred to as the “SEC Documents”). The Company has delivered or has made available to the Buyers or their
respective representatives true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. As
of their respective filing dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and
the rules and regulations of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at
the time they were filed with the SEC, contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. As of their respective filing dates, the financial statements of the Company included in the SEC Documents
complied in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with
respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance with generally
accepted accounting principles (“GAAP”), consistently applied, during the periods involved (except (i) as may
be otherwise indicated in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements,
to the extent they may exclude footnotes or may be condensed or summary statements) and fairly present in all material respects
the financial position of the Company as of the dates thereof and the results of its operations and cash flows for the periods
then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will not be material, either
individually or in the aggregate). 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. No other information provided by or on behalf
of the Company to any of the Buyers which is not included in the SEC Documents (including, without limitation, information in
the disclosure schedules to this Agreement) 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 (including, without limitation,
any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (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 and the rules and regulations of the SEC. 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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(l)
Absence of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in
a Form 10-K, there has been no material adverse change and no material adverse development in the business, assets, liabilities,
properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any of its
Subsidiaries. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, neither
the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate,
outside of the ordinary course of business or (iii) made any capital expenditures, individually or in the aggregate, outside of
the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant
to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the
Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary
bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its
Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions
contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(l), “Insolvent”
means, (x) with respect to the Company and its Subsidiaries, on a consolidated basis, (1) 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), (2) 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 (3) 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 (y) 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.


 


(m)
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) would be required to be disclosed by the Company under applicable securities laws on a registration statement
on Form S-1 filed with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly
announced, (ii) could have a material adverse effect on any Buyer’s investment hereunder or (iii) could have a Material
Adverse Effect.


 




    	 	9	 



    


    

 


(n)
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 Certificate 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, Certificate 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, reasonably be expected to have a Material Adverse Effect. Without limiting the generality
of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market and
has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Common Stock by the
Principal Market in the foreseeable future. During the two years prior to the date hereof, (i) the Common Stock has been listed
or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended by the SEC or the
Principal Market and (iii) the Company has received no communication, written or oral, from the SEC or the Principal Market regarding
the suspension or delisting of the Common Stock from the Principal Market, except as otherwise disclosed by the Company in the
SEC Documents. 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.


 


(o)
Foreign Corrupt Practices. Neither the Company, nor its Subsidiaries, nor any director, officer, agent, employee or 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:


 


(i) (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


 


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


 


(p)
Sarbanes-Oxley Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.


 




    	 	10	 



    


    

 


(q)
Transactions With Affiliates. 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 an Eligible Market (as defined in the Warrants)), 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).


 


(r) Equity
Capitalization. 


 


 (i)   
Definitions: 




 


(A) “Common
Stock” means (x) the Company’s shares of common stock, $0.001 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.


 


(B) “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.001 par value per share, the terms of which may
be designated by the board of directors of the Company in a certificate of designations and (y) any capital stock into which such
preferred stock shall have been changed or any share capital resulting from a reclassification of such preferred stock (other
than a conversion of such preferred stock into Common Stock in accordance with the terms of such certificate of designations).


 


(ii) Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (1) 100,000,000
shares of Common Stock, of which, 45,122,841 are issued and outstanding and 13,207,806 shares are reserved for issuance pursuant
to Convertible Securities (as defined below) (other than the Preferred Shares and the Warrants) exercisable or exchangeable for,
or convertible into, shares of Common Stock and (2) 10,000,000 shares of Preferred Stock, none of which are issued and outstanding.
133,692 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.


 




    	 	11	 



    


    

 


(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. The SEC Documents set forth the number of shares of Common Stock
that are (A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Preferred Shares and
the Warrants) 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 in the SEC Documents: (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 (except pursuant to this
Agreement); (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.


 


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


 




    	 	12	 



    


    

 


(s) Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as set forth in the SEC Documents, 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. Neither the Company nor any of its Subsidiaries have any liabilities or
obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred
in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the
aggregate, do not or could not 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; (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; and (z) “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.


 




    	 	13	 



    


    

 


(t)
Litigation. There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market,
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, which
is outside of the ordinary course of business or individually or in the aggregate material to the Company or any of its Subsidiaries.
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. Without limitation of the foregoing, there has not been, and to the knowledge
of the Company, other than the litigation between the SEC against former officers of the Company as disclosed by the Company in
the SEC Documents, there is not pending or contemplated, any investigation by the SEC involving the Company, any of its Subsidiaries
or any current or former director or officer of the Company or any of its Subsidiaries. The SEC has not issued any stop order
or other order suspending the effectiveness of any registration statement filed by the Company under the 1933 Act or the 1934
Act, including, without limitation, the Registration Statement. 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. Except as disclosed by the Company in the SEC Documents, neither the Company nor any of its Subsidiaries is subject
to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity of a material nature.


 


(u) 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.


 


(v) Employee
Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any
member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer
(as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has
notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise
terminate such officer’s employment with the Company or any such Subsidiary. No executive officer or other key employee
of the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement
or any restrictive covenant, and the continued employment of each such executive officer or other key employee (as the case may
be) does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The
Company and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting labor,
employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where failure
to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.


 




    	 	14	 



    


    

 


(w) Title.


 


(i) Real
Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities
or other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”)
owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject
to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for
(a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or
anticipated use of the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries
are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.


 


(ii) Fixtures
and Equipment. Each of the Company and its Subsidiaries (as applicable) has good title to, or a valid leasehold interest in,
the tangible personal property, equipment, improvements, fixtures, and other personal property and appurtenances that are used
by the Company or its Subsidiary in connection with the conduct of its business (the “Fixtures and Equipment”).
The Fixtures and Equipment are structurally sound, are in good operating condition and repair, are adequate for the uses to which
they are being put, are not in need of maintenance or repairs except for ordinary, routine maintenance and repairs and are sufficient
for the conduct of the Company’s and/or its Subsidiaries’ businesses (as applicable) in the manner as conducted prior
to the Closing. Each of the Company and its Subsidiaries owns all of its Fixtures and Equipment free and clear of all Liens except
for (a) Liens for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present
or anticipated use of the property subject thereto.


 


(x) Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade
names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications
and registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses
as now conducted. Each of the patents owned by the Company or any of its Subsidiaries is listed on Schedule 3(x)(i). Except
as set forth in Schedule 3(x)(ii), none of the Company’s Intellectual Property Rights have expired or terminated
or have been abandoned or are expected to expire or terminate or are expected to be abandoned, within three years from the date
of this Agreement. The Company does not have any knowledge of any infringement by the Company or its Subsidiaries of Intellectual
Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or
any of its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual Property
Rights. Neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any of
the foregoing infringements or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security
measures to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights.


 




    	 	15	 



    


    

 


(y) 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.


 


(ii) No
Hazardous Materials:


 


(A) have
been disposed of or otherwise released into any Real Property (as defined below) 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 any Hazardous Materials on any Real Property, 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.


 




    	 	16	 



    


    

 


(z)
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.


 


(aa)
Tax Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid
all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Company and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify
as a passive foreign investment company, as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the
“Code”). 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
transactions contemplated hereby. The transactions contemplated hereby do not constitute an “ownership change” within
the meaning of Section 382 of the Code, thereby preserving the Company’s ability to utilize such NOLs.


 


(bb)
Internal Accounting and Disclosure Controls. The Company and each of its Subsidiaries maintains internal control over financial
reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including that (i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with GAAP and to maintain asset 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. The Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e)
under the 1934 Act) that are effective in ensuring that information required to be disclosed by the Company in the reports that
it files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the
rules and forms of the SEC, including, without limitation, controls and procedures designed to ensure that information required
to be disclosed by the Company in the reports that it files or submits under the 1934 Act is accumulated and communicated to the
Company’s management, including its principal executive officer or officers and its principal financial officer or officers,
as appropriate, to allow timely decisions regarding required disclosure. 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.


 




    	 	17	 



    


    

 


(cc)
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.


 


(dd)
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. 


 


(ee)
Acknowledgement Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that, except
as provided in Section 4(v) below (i) following the public disclosure of the transactions contemplated by the Transaction Documents,
in accordance with the terms thereof, none of the Buyers have been asked by the Company or any of its Subsidiaries to agree, nor
has any Buyer agreed with the Company or any of its Subsidiaries, to desist from effecting any transactions in or with respect
to (including, without limitation, purchasing or selling, long and/or short) any securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold any of the Securities for any specified term; (ii) any Buyer,
and counterparties in “derivative” transactions to which any such Buyer is a party, directly or indirectly, presently
may have a “short” position in the Common Stock which was established prior to such Buyer’s knowledge of the
transactions contemplated by the Transaction Documents; and (iii) each Buyer shall not be deemed to have any affiliation with
or control over any arm’s length counterparty in any “derivative” transaction. The Company further understands
and acknowledges that following the public disclosure of the transactions contemplated by the Transaction Documents pursuant to
any Press Release (as defined below) one or more Buyers may engage in hedging and/or trading activities at various times during
the period that the Securities are outstanding, including, without limitation, during the periods that the value and/or number
of the Warrant Shares or Conversion Shares, as applicable, deliverable with respect to the Securities are being determined and
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 this Agreement, the Series A-1 Certificate of Designations,
the Warrants or any other Transaction Document or any of the documents executed in connection herewith or therewith.


 


(ff)
Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person
acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of
the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other
than the Placement Agent), (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company or any of its Subsidiaries or (iv) paid or agreed to pay any Person for research services with respect
to any securities of the Company or any of its Subsidiaries.


 




    	 	18	 



    


    

 


 


(gg)
U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long
as any of the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning
of Section 897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.


 


(hh) Registration
Eligibility. The Company is eligible to register the issuance of the Securities by the Company using Form S-3 promulgated
under the 1933 Act.


 


(ii) 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.


 


(jj) 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.


 


(kk) Shell
Company Status. The Company is not, and has never been, an issuer identified in, or subject to, Rule 144(i).


 


(ll) 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.


 


(mm) 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, but not limited to,
the laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including,
without limitation, (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.


 




    	 	19	 



    


    

 


(nn) Management.
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;


 


(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.


 




    	 	20	 



    


    

 


(oo) 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.


 


(pp) 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 previously filed with the SEC. 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.


 


(qq) 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.


 


(rr) 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.


 


(ss) 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.


 


(tt) Registration
Rights. No holder of securities of the Company has rights to the registration of any securities of the Company because of
the filing of the Registration Statement or the issuance of the Securities hereunder that could expose the Company to material
liability or any Buyer to any liability or that could impair the Company’s ability to consummate the issuance and sale of
the Securities in the manner, and at the times, contemplated hereby, which rights have not been waived by the holder thereof as
of the date hereof.


 




    	 	21	 



    


    

 


(uu) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents
or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information
concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement
and the other Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations
in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf
of the Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading. All of the written information furnished after the date hereof by or on behalf of the Company
or any of its Subsidiaries to each Buyer pursuant to or in connection with this Agreement and the other Transaction Documents,
taken as a whole, will be true and correct in all material respects as of the date on which such information is so provided and
will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not misleading. Each press release issued by the Company
or any of its Subsidiaries during the twelve (12) months preceding the date of this Agreement did not at the time of release contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they are made, not misleading. No event or circumstance
has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties,
liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable
law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has
not been so publicly disclosed. All financial projections and forecasts that have been prepared by or on behalf of the Company
or any of its Subsidiaries and made available to you have been prepared in good faith based upon reasonable assumptions and represented,
at the time each such financial projection or forecast was delivered to each Buyer, the Company’s best estimate of future
financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts and that
the actual results during the period or periods covered by any such financial projections or forecasts may differ from the projected
or forecasted results). 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) Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses.


 


(i) Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses. Except as provided in this Agreement and
other than periodic reports required to be filed pursuant to the 1934 Act, the Company shall not file with the SEC any amendment
to the Registration Statement that relates to the Buyer, this Agreement or the transactions contemplated hereby or thereby or
file with the SEC any Prospectus Supplement that relates to the Buyers, this Agreement or the transactions contemplated hereby
or thereby with respect to which (a) the Buyers shall not previously have been advised, (b) the Company shall not have given due
consideration to any comments thereon received from the Buyers or each of their counsel, or (c) the Buyers shall reasonably object
after being so advised, unless the Company reasonably has determined that it is necessary to amend the Registration Statement
or make any supplement to the Prospectus to comply with the 1933 Act or any other applicable law or regulation, in which case
the Company shall promptly (but in no event later than 24 hours) so inform the Buyers, the Buyers shall be provided with a reasonable
opportunity to review and comment upon any disclosure relating to the Buyers and the Company shall expeditiously furnish to the
Buyer an electronic copy thereof. In addition, for so long as, in the reasonable opinion of counsel for the Buyers, the Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required to be delivered in connection with
any acquisition or sale of Securities by the Buyers, the Company shall not file any Prospectus Supplement with respect to the
Securities without delivering or making available a copy of such Prospectus Supplement, together with the Prospectus, to the Buyers
promptly.




 




    	 	22	 



    


    

 


(ii)
The Company has not made, and agrees that unless it obtains the prior written consent of the Buyers it will not make, an offer
relating to the Securities that would constitute an “issuer free writing prospectus” as defined in Rule 433 promulgated
under the Securities Act (an “Issuer Free Writing Prospectus”) or that would otherwise constitute a “free
writing prospectus” as defined in Rule 405 promulgated under the Securities Act (a “Free Writing Prospectus”)
required to be filed by the Company or the Buyers with the SEC or retained by the Company or the Buyer under Rule 433 under the
1933 Act. The Buyers haves not made, and agree that unless each of them obtains the prior written consent of the Company each
of them will not make, an offer relating to the Securities that would constitute a Free Writing Prospectus required to be filed
by the Company with the SEC or retained by the Company under Rule 433 under the 1933 Act. Any such Issuer Free Writing Prospectus
or other Free Writing Prospectus consented to by the Buyer or the Company is referred to in this Agreement as a “Permitted
Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat, as the case may be, each Permitted
Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be, with
the requirements of Rules 164 and 433 under the Securities Act applicable to any Permitted Free Writing Prospectus, including
in respect of timely filing with the SEC, legending and record keeping.


 


(c) Prospectus
Delivery. Immediately prior to execution of this Agreement, the Company shall have delivered to the Buyers, and as soon as
practicable after execution of this Agreement the Company shall file, a Prospectus Supplement with respect to the Securities to
be issued on the Closing Date, as required under, and in conformity with, the 1933 Act, including Rule 424(b) thereunder. The
Company shall provide the Buyers a reasonable opportunity to comment on a draft of the Prospectus Supplement and any Issuer Free
Writing Prospectus, shall give due consideration to all such comments and, subject to the provisions of Section 4(b) hereof, shall
deliver or make available to the Buyers, without charge, an electronic copy of the form of Prospectus Supplement, together with
the Prospectus, and any Permitted Free Writing Prospectus on the Closing Date. The Company consents to the use of the Prospectus
(and of the Prospectus Supplement thereto) in accordance with the provisions of the 1933 Act and with the securities or “blue
sky” laws of the jurisdictions in which the Securities may be sold by the Buyers, in connection with the offering and sale
of the Securities and for such period of time thereafter as the Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the 1933 Act) is required by the 1933 Act to be delivered in connection with sales of the Securities. If during such
period of time any event shall occur that in the judgment of the Company and its counsel is required to be set forth in the Registration
Statement or the Prospectus or any Permitted Free Writing Prospectus or should be set forth therein in order to make the statements
made therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or if it
is necessary to amend the Registration Statement or supplement or amend the Prospectus or any Permitted Free Writing Prospectus
to comply with the 1933 Act or any other applicable law or regulation, the Company shall forthwith prepare and, subject to Section
4(b) above, file with the SEC an appropriate amendment to the Registration Statement or Prospectus Supplement to the Prospectus
(or supplement to the Permitted Free Writing Prospectus) and shall expeditiously furnish or make available to the Buyers an electronic
copy thereof.


 




    	 	23	 



    


    

 


(d) Stop
Orders. The Company shall advise the Buyers promptly (but in no event later than 24 hours) and shall confirm such advice in
writing: (i) of the Company’s receipt of notice of any request by the SEC for amendment of or a supplement to the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus or for any additional information; (ii) of the Company’s
receipt of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or prohibiting
or suspending the use of the Prospectus or the Prospectus Supplement, or of the suspension of qualification of the Securities
for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose; (iii)
of the Company becoming aware of the happening of any event, which makes any statement of a material fact made in the Registration
Statement, the Prospectus or any Permitted Free Writing Prospectus untrue or which requires the making of any additions to or
changes to the statements then made in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in
order to state a material fact required by the 1933 Act to be stated therein or necessary in order to make the statements then
made therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, or of the
necessity to amend the Registration Statement or supplement the Prospectus or any Permitted Free Writing Prospectus to comply
with the 1933 Act or any other law; or (iv) if at any time following the date hereof the Registration Statement is not effective
or is not otherwise available for the issuance of the Securities or any Prospectus contained therein is not available for use
for any other reason. Thereafter, the Company shall promptly notify such holders when the Registration Statement, the Prospectus,
any Permitted Free Writing Prospectus and/or any amendment or supplement thereto, as applicable, is effective and available for
the issuance of the Securities. If at any time the SEC shall issue any stop order suspending the effectiveness of the Registration
Statement or prohibiting or suspending the use of the Prospectus or the Prospectus Supplement, the Company shall use best efforts
to obtain the withdrawal of such order at the earliest possible time.


 


(e) Blue
Sky. 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.


 




    	 	24	 



    


    




 


(f)
Reporting Status. Until the date on which the Buyers shall have sold all of the Underlying Securities (the “Reporting
Period”), the Company shall timely file all reports required to be filed with the SEC pursuant to the 1934 Act, and
the Company shall not terminate its status as an issuer required to file reports under the 1934 Act even if the 1934 Act or the
rules and regulations thereunder would no longer require or otherwise permit such termination.


 


(g)
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(g), 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.


 


(h)
Financial Information. The Company agrees to send the following to each holder of Preferred Shares or Warrants, as applicable,
(each, an “Investor”) during the Reporting Period (i) unless the following are filed with the SEC through EDGAR
and are available to the public through the EDGAR system, within one (1) Business Day after the filing thereof with the SEC, a
copy of its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, any interim reports or any consolidated balance sheets,
income statements, stockholders’ equity statements and/or cash flow statements for any period other than annual, any Current
Reports on Form 8-K and any registration statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii)
unless the following are either filed with the SEC through EDGAR or are otherwise widely disseminated via a recognized news release
service (such as PR Newswire), on the same day as the release thereof, facsimile copies of all press releases issued by the Company
or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR, copies of any notices and other
information made available or given to the stockholders of the Company generally, contemporaneously with the making available
or giving thereof to the stockholders.


 


(i)
Listing. The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the
Underlying Securities (as defined below) upon each national securities exchange and automated quotation system, if any, upon which
the Common Stock is then listed or designated for quotation (as the case may be) (subject to official notice of issuance) and
shall maintain such listing or designation for quotation (as the case may be) of all Underlying Securities from time to time issuable
under the terms of the Transaction Documents on such national securities exchange or automated quotation system. The Company shall
maintain the Common Stock’s listing or authorization for quotation (as the case may be) on the Principal Market, The New
York Stock Exchange, the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market or the Nasdaq Global Select Market (each,
an “Eligible Market”). Neither the Company nor any of its Subsidiaries shall take any action which could be
reasonably expected to result in the delisting or suspension of the Common Stock on an Eligible Market. The Company shall pay
all fees and expenses in connection with satisfying its obligations under this Section 4(i). “Underlying Securities”
means the (i) the Conversion Shares, (ii) the Warrant Shares and (iii) any capital stock of the Company issued or issuable with
respect to the Conversion Shares, the Warrant Shares, the Series A-1 Certificate of Designations, the Preferred Shares or the
Warrants, respectively, including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization, exchange
or similar event or otherwise and (2) shares of capital stock of the Company into which the shares of Common Stock are converted
or exchanged and shares of capital stock of a Successor Entity (as defined in the Warrants) into which the shares of Common Stock
are converted or exchanged, in each case, without regard to any limitations on conversion of the Preferred Shares or exercise
of the Warrants.


 




    	 	25	 



    


    




 


(j)
Fees. The Company shall reimburse the lead Buyer for all costs and expenses incurred by it or its affiliates in connection
with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents (including,
without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley Drye & Warren,
LLP, counsel to the lead Buyer, any other reasonable fees and expenses in connection with the structuring, documentation, negotiation
and closing of the transactions contemplated by the Transaction Documents and due diligence and regulatory filings in connection
therewith) (the “Transaction Expenses”) in an amount not to exceed $25,000 without the prior consent of the
Company and shall be withheld by the lead Buyer from its Purchase Price at the Closing, less $5,000 previously paid by the Company
to Kelley Drye & Warren, LLP; 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, transfer agent fees, Depository Trust Company (“DTC”)
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.


 


(k)
Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and
agrees that the Securities may be pledged by 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. 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.


 




    	 	26	 



    


    


 


(l)
Disclosure of Transactions and Other Material Information.


 


(i)
Disclosure of Transaction. The Company shall, on or before 9:30 a.m., New York time, on the first (1st) Business
Day after the date of this Agreement, issue a press release (the “Press Release”) reasonably acceptable to
the Buyers disclosing all the material terms of the transactions contemplated by the Transaction Documents. On or before 9:30
a.m., New York time, on the first (1st) Business Day after the date of this Agreement, the Company shall file a Current
Report on Form 8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form
required by the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (and
all schedules to this Agreement), the form of Series A-1 Certificate of Designations and the form of the Warrants) (including
all attachments, the “8-K Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed
all material, non-public information (if any) provided to any of the Buyers by the Company or any of its Subsidiaries or any of
their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon the filing of the 8-K Filing, 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.


 


(ii)
Limitations on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its
and their respective officers, directors, employees and agents not to, provide any Buyer with any material, non-public information
regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of such
Buyer (which may be granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing
covenants, or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment
of such Buyer), in addition to any other remedy provided herein or in the Transaction Documents, such Buyer shall have the right
to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material,
non-public information, as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their
respective officers, directors, employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees, affiliates, 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, the
Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect to, or a duty 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, the Company shall be entitled, without the prior approval of any Buyer, to make the Press Release and any press
release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing 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 the applicable Buyer (which may be granted or withheld in such Buyer’s sole discretion), the
Company shall not (and shall cause each of its Subsidiaries and affiliates to not) 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.


 




    	 	27	 



    


    


 


(iii)
Other Confidential Information. Disclosure Failures; Disclosure Delay Payments. In addition to other remedies set forth
in this Section 4(l), and without limiting anything set forth in any other Transaction Document, at any time after the Closing
Date if the Company, any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides any
Buyer with material non-public information relating to the Company or any of its Subsidiaries (each, the “Confidential
Information”), the Company shall, on or prior to the Required Disclosure Date (as defined below), publicly disclose
such Confidential Information on a Current Report on Form 8-K or otherwise (each, a “Disclosure”). From and
after such Disclosure, the Company shall have disclosed all Confidential Information provided to such Buyer by the Company or
any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon such Disclosure, 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. In the event that the Company fails to effect such Disclosure
on or prior to the Required Disclosure Date and such Buyer shall have possessed Confidential Information for at least ten (10)
consecutive Trading Days (each, a “Disclosure Failure”), then, as partial relief for the damages to such Buyer
by reason of any such delay in, or reduction of, its ability to buy or sell shares of Common Stock after such Required Disclosure
Date (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to such
Buyer an amount in cash equal to the greater of (I) one and a half percent (1.5%) of the aggregate Purchase Price and (II) the
applicable Disclosure Restitution Amount, on each of the following dates (each, a “Disclosure Delay Payment Date”):
(i) on the date of such Disclosure Failure and (ii) on every thirty (30) day anniversary such Disclosure Failure until the earlier
of (x) the date such Disclosure Failure is cured and (y) such time as all such non-public information provided to such Buyer shall
cease to be Confidential Information (as evidenced by a certificate, duly executed by an authorized officer of the Company to
the foregoing effect) (such earlier date, as applicable, a “Disclosure Cure Date”). Following the initial Disclosure
Delay Payment for any particular Disclosure Failure, without limiting the foregoing, if a Disclosure Cure Date occurs prior to
any thirty (30) day anniversary of such Disclosure Failure, then such Disclosure Delay Payment (prorated for such partial month)
shall be made on the third (3rd) Business Day after such Disclosure Cure Date. The payments to which an Investor shall be entitled
pursuant to this Section 4(l)(iii) are referred to herein as “Disclosure Delay Payments.” In the event the
Company fails to make Disclosure Delay Payments in a timely manner in accordance with the foregoing, such Disclosure Delay Payments
shall bear interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full.


 




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(iv)
For the purpose of this Agreement the following definitions shall apply:


 


(1)
“Disclosure Failure Market Price” means, as of any Disclosure Delay Payment Date, the price computed as the
quotient of (I) the sum of the five (5) highest VWAPs (as defined in the Warrants) of the Common Stock during the applicable Disclosure
Restitution Period (as defined below), divided by (II) five (5) (such period, the “Disclosure Failure Measuring Period”).
All such determinations to be appropriately adjusted for any share dividend, share split, share combination, reclassification
or similar transaction that proportionately decreases or increases the Common Stock during such Disclosure Failure Measuring Period.


 


(2)
“Disclosure Restitution Amount” means, as of any Disclosure Delay Payment Date, the product of (x) difference
of (I) the Disclosure Failure Market Price less (II) the lowest purchase price, per share of Common Stock, of any Common Stock
issued or issuable to such Buyer pursuant to this Agreement or any other Transaction Documents, multiplied by (y) 10% of the aggregate
daily dollar trading volume (as reported on Bloomberg (as defined in the Warrants)) of the Common Stock on the Principal Market
for each Trading Day either (1) with respect to the initial Disclosure Delay Payment Date, during the period commencing on the
applicable Required Disclosure Date through and including the Trading Day immediately prior to the initial Disclosure Delay Payment
Date or (2) with respect to each other Disclosure Delay Payment Date, during the period commencing the immediately preceding Disclosure
Delay Payment Date through and including the Trading Day immediately prior to such applicable Disclosure Delay Payment Date (such
applicable period, the “Disclosure Restitution Period”).


 


(3)
“Required Disclosure Date” means (x) if such Buyer authorized the delivery of such Confidential Information,
either (I) if the Company and such Buyer have mutually agreed upon a date (as evidenced by an e-mail or other writing) of Disclosure
of such Confidential Information, such agreed upon date or (II) otherwise, the seventh (7th) calendar day after the
date such Buyer first received any Confidential Information or (y) if such Buyer did not authorize the delivery of such Confidential
Information, the first (1st) Business Day after such Buyer’s receipt of such Confidential Information.


 




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(m)
Reservation of Shares. So long as any of the Preferred Shares or Warrants remain outstanding, the Company shall take all
action necessary to at all times have authorized, and reserved for the purpose of issuance, no less than the sum of (i) 200% of
the maximum number of shares of Common Stock issuable upon conversion of all the Preferred Shares then outstanding and, if prior
to July 1, 2017, all Preferred Shares issuable hereunder (assuming for purposes hereof that (x) the Preferred Shares are convertible
at the Alternate Conversion Price (as defined in the Series A-1 Certificate of Designations) then in effect and (y) any such conversion
shall not take into account any limitations on the conversion of the Preferred Shares set forth in the Series A-1 Certificate
of Designations); and (ii) 100% of the maximum number of Warrant Shares issuable upon exercise of all the Warrants then outstanding
(without regard to any limitations on the exercise of the Warrants set forth therein) (collectively, the “Required Reserve
Amount”); provided that at no time shall the number of shares of Common Stock reserved pursuant to this Section 4(m)
be reduced other than proportionally in connection with any conversion, exercise and/or redemption, as applicable of Preferred
Shares and Warrants. If at any time the number of shares of Common Stock authorized and reserved for issuance is not sufficient
to meet the Required Reserve Amount, the Company will promptly take all corporate action necessary to authorize and reserve a
sufficient number of shares, including, without limitation, calling a special meeting of stockholders to authorize additional
shares to meet the Company’s obligations pursuant to the Transaction Documents, in the case of an insufficient number of
authorized shares, obtain stockholder approval of an increase in such authorized number of shares, and voting the management shares
of the Company in favor of an increase in the authorized shares of the Company to ensure that the number of authorized shares
is sufficient to meet the Required Reserve Amount.


 


(n)
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.


 


(o)
Dilutive Issuances. For so long as any Preferred Shares or Warrants remain outstanding, the Company shall not, in any manner,
enter into or affect any Subsequent Placement (as defined below) if the effect of such Subsequent Placement is to cause the Company
to be required to issue upon conversion of any Preferred Shares or exercise of any Warrant any shares of Common Stock in excess
of that number of shares of Common Stock which the Company may issue upon conversion of the Preferred Shares and exercise of the
Warrants without breaching the Company’s obligations under the rules or regulations of the Principal Market. “Subsequent
Placement” means the sale, grant of any option to purchase, or other disposition of by the Company, directly or indirectly,
of any of the Company’s or its Subsidiaries’ equity or equity equivalent securities, including, without limitation,
any Convertible Securities, preferred stock or other instrument or security that is, at any time during its life and under any
circumstances, convertible into or exchangeable or exercisable for Common Stock or Convertible Securities.


 




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(p)
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.


 


(q)
Restriction on Redemption and Cash Dividends. So long as any Preferred Shares 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 (other than as required by the Series A-1 Certificate of Designations).


 


(r)
Corporate Existence. So long as any Buyer beneficially owns any Preferred Shares or Warrants, the Company shall not be
party to any Fundamental Transaction (as defined in the Warrants) unless the Company is in compliance with the applicable provisions
governing Fundamental Transactions set forth in the Series A-1 Certificate of Designations and the Warrants.


 


(s)
Stock Splits. Until the Preferred Shares and all preferred shares issued pursuant to the Series A-1 Certificate of Designations
are no longer outstanding, the Company shall not effect any stock combination, reverse stock split or other similar transaction
(or make any public announcement or disclosure with respect to any of the foregoing) without the prior written consent of the
Required Holders (as defined below).


 


(t)
Conversion and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice
of Conversion included in the Series A-1 Certificate of Designations set forth the totality of the procedures required of the
Buyers in order to exercise the Warrants and convert the Preferred Shares. No legal opinion or other information or instructions
shall be required of the Buyers to exercise their Warrants or convert their Preferred Shares. The Company shall honor exercises
of the Warrants and conversions of the Preferred Shares and shall deliver the Conversion Shares and Warrant Shares in accordance
with the terms, conditions and time periods set forth in the Series A-1 Certificate of Designations and the Warrants, respectively.


 


(u)
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.


 


(v)
Trading in Common Stock.


 


(i)
Each Buyer hereby agrees solely with the Company, severally and not jointly, and not with any other Buyer, for so long as such
Buyer owns any Preferred Shares, such Buyer shall not maintain a Net Short Position (as defined below).


 


(ii)
For purposes hereof, a “Net Short Position” by a person means a position whereby such person has executed one
or more sales of Common Stock that is marked as a short sale (but not including any sale marked “short exempt”) and
that is executed at a time when such Buyer has no equivalent offsetting long position in the Common Stock (or is deemed to have
a long position hereunder or otherwise in accordance with Regulation SHO of the 1934 Act). For purposes of determining whether
a Buyer has an equivalent offsetting long position in the Common Stock, all Common Stock (A) that is owned by such Buyer, (B)
that may be issued pursuant to the terms of the Preferred Shares issuable to such Buyer or then held by such Buyer, as applicable,
and/or (C) that would be issuable upon conversion or exercise in full of all Securities issuable to such Buyer or then
held by such Buyer, as applicable, (assuming, in cases of clauses (B) and (C), that such Securities are then fully
convertible or exercisable, notwithstanding any provisions to the contrary, and giving effect to any conversion or exercise price
adjustments or alternative conversion prices that would take effect given only the passage of time), shall be deemed to
be held long by such Buyer.


 




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(w)
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; TRANSFER AGENT INSTRUCTIONS;
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 Preferred Shares and the Warrants in which the
Company shall record the name and address of the Person in whose name the Preferred Shares and the Warrants have been issued (including
the name and address of each transferee), the number of Preferred Shares held by such Person, the number of Conversion Shares
issuable upon conversion of the Preferred Shares held by such Person and the number of Warrant Shares issuable upon exercise of
the Warrants 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) Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer
agent in a form acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”) to issue
certificates or credit shares to the applicable balance accounts at DTC, registered in the name of each Buyer or its
respective nominee(s), for the Conversion Shares and the Warrant Shares in such amounts as specified from time to time by
each Buyer to the Company upon conversion of the Preferred Shares or the exercise of the Warrants (as the case may be). The
Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in
this Section 5(b) will be given by the Company to its transfer agent with respect to the Securities, and that the Securities
shall otherwise be freely transferable on the books and records of the Company, as applicable, to the extent provided in this
Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or transfer of the Securities, the
Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates or credit
shares to the applicable balance accounts at DTC in such name and in such denominations as specified by such Buyer to effect
such sale, transfer or assignment. In the event that such sale, assignment or transfer involves the Conversion Shares, the
transfer agent shall issue such shares to such Buyer, assignee or transferee (as the case may be) without any restrictive
legend in accordance with Section 5(c) below. The Company acknowledges that a breach by it of its obligations hereunder will
cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of its
obligations under this Section 5(b) will be inadequate and agrees, in the event of a breach or threatened breach by the
Company of the provisions of this Section 5(b), that a Buyer shall be entitled, in addition to all other available remedies,
to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required. The Company shall cause its counsel to issue
each legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent as
follows: (i) upon each conversion of the Preferred Shares or exercise of the Warrants (unless such issuance covered by a
prior legal opinion previously delivered to the Company’s transfer agent), and (ii) on each date a registration
statement with respect to the issuance or resale of any of the Securities is declared effective by the SEC. Any fees (with
respect to the transfer agent, counsel to the Company or otherwise) associated with the issuance of such opinions or the
removal of any legends on any of the Securities shall be borne by the Company.


 




    	 	32	 



    


    


 


(c)
Legends. Certificates and any other instruments evidencing the Securities shall not bear any restrictive or other legend.


 


(d) FAST
Compliance. While any Warrants remain outstanding, the Company shall maintain a transfer agent that participates in the
DTC Fast Automated Securities Transfer Program.


 


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


 


The
obligation of the Company hereunder to issue and sell the Preferred Shares and the related Warrants 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:


 


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


 


(b)
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(j)) for the Preferred Shares and the related Warrants being purchased by such Buyer at the Closing
by wire transfer of immediately available funds in accordance with the Flow of Funds Letter.


 


(c)
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.


 


The
obligation of each Buyer hereunder to purchase its Preferred Shares and its related Warrants 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:


 



(a)
The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents and the Company shall have
duly executed and delivered to such Buyer (i) such aggregate number of Preferred Shares set forth across from such Buyer’s
name in column (3) of the Schedule of Buyers and (ii) Warrants (for such aggregate number of Warrant Shares as is set forth across
from such Buyer’s name in column (4) of the Schedule of Buyers) being purchased by such Buyer at the Closing pursuant to
this Agreement.


 


(b)
Such Buyer shall have received the opinion of Crowell & Moring LLP, the Company’s counsel, dated as of the Closing Date,
in the form acceptable to such Buyer.


 


(c)
The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to
such Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.


 


(d)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each
of its Subsidiaries in each 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.


 


(e)
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.


 


(f)
The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation and the Series A-1 Certificate
of Designations as certified by the Delaware Secretary of State within ten (10) days of the Closing Date.


 


(g)
The Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, executed by the Secretary
of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Board
in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the
Company, each as in effect at the Closing.


 


(h)
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.


 




    	 	34	 



    


    


 


(i)
The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares
of Common Stock outstanding on the Closing Date immediately prior to the Closing.


 


(j)
The Common Stock (i) shall be designated for quotation or listed (as applicable) on the Principal Market and (ii) shall not have
been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension
by the SEC or the Principal Market have been threatened, as of the Closing Date, either (x) in writing by the SEC or the Principal
Market or (y) by falling below the minimum maintenance requirements of the Principal Market.


 


(k)
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the
sale of the Securities, including without limitation, those required by the Principal Market, if any.


 


(l)
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.


 


(m)
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.


 


(n)
The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Conversion
Shares and the Warrant Shares.


 


(o)
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 with respect to the Closing
(the “Flow of Funds Letter”).


 


(p)
From the date hereof to the Closing Date, (i) trading in the Common Stock shall not have been suspended by the SEC or the Principal
Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated
prior to the Closing), and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are
reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national
or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in
each case, in the reasonable judgment of each Buyer, makes it impracticable or inadvisable to purchase the Securities at the Closing.


 


(q)
The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company
shall have delivered to such Buyer the Prospectus and the Prospectus Supplement with respect to the Closing as required thereunder.


 




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(r)
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 Preferred Shares and the Warrants 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(j) 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). 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 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 Preferred Shares or all holders of the Warrants (as the case may be). From the date hereof and while any Preferred
Shares or Warrants are outstanding, the Company shall not be permitted to receive any consideration from a Buyer or a holder of
Preferred Shares or Warrants 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 Preferred Shares or Warrants in a manner that is more
favorable than to other similarly situated Buyers or holders of Preferred Shares or Warrants, as applicable, or (ii) to treat
any Buyer(s) or holder(s) of Preferred Shares or Warrants in a manner that is less favorable than the Buyer or holder of Preferred
Shares or Warrants 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) unless a provision of this Agreement or any other Transaction Document is expressly preceded
by the phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents 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, Buyers entitled to purchase, in the aggregate, at least a majority of the number of Preferred
Shares at the Closing and (II) on or after the Closing Date, holders of, in the aggregate, at least a majority of the Underlying
Securities as of such time (excluding any Underlying Securities held by the Company or any of its Subsidiaries as of such time)
issued or issuable hereunder or pursuant to the Series A-1 Certificate of Designations and/or the Warrants.


 




    	 	38	 



    


    


 


(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 facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on
file by the sending party) or electronic mail; 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 addresses, facsimile numbers
and e-mail addresses for such communications shall be:


 


If
to the Company:


 


Uni-Pixel,
Inc.


4699
Old Ironsides Drive, Suite 300


Santa
Clara, CA 95054


Telephone:
(281) 825-4500


Attention:
Chief Financial Officer


E-Mail:
crussell@unipixel.com


 


With
a copy (for informational purposes only) to:


 


Crowell
& Moring LLP


3
Embarcadero Center, 26th Floor


San
Francisco, CA 91111


Telephone:
(415)365-7442


Facsimile:
(415) 986-2827


Attention:
Jeffrey Selman, Esq.


E-Mail:
jselman@crowell.com


 


If
to the Transfer Agent:


 


Securities
Transfer Corporation


2901
Dallas Parkway


Suite
380


Plano,
TX 75093


Telephone:
(469)633-0101


Attention:
Jason Freeman


E-Mail:
jfreeman@stctransfer.com


 


If
to a Buyer, to its address, e-mail address and facsimile number 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


101
Park Avenue


New
York, NY 10178


Telephone:
(212) 808-7540


Facsimile:
(212) 808-7897


Attention:
Michael A. Adelstein, Esq.


E-mail:
madelstein@kelleydrye.com


 


or
to such other address, e-mail address and/or facsimile number and/or to the attention of such other Person as the recipient party
has specified by written notice given to each other party 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 facsimile machine or e-mail containing the time, date, recipient facsimile number and, with respect to each
facsimile transmission, an image of the first page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from an overnight courier service in accordance with
clause (i), (ii) or (iii) above, respectively.


 




    	 	39	 



    


    


 


(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 Preferred Shares and the Warrants (but excluding any purchasers
of Underlying Securities, unless pursuant to a written assignment by such Buyer). 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 Warrants) (unless the Company is in compliance with the applicable provisions
governing Fundamental Transactions set forth in the Warrants) or a Fundamental Transaction (as defined in the Series A-1 Certificate
of Designations) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth
in the Certificate of Designations). 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).


 


(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(l), 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.


 




    	 	40	 



    


    


 


(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.


 




    	 	41	 



    


    


 


(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.


 


(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. It is expressly understood and agreed that for all purposes of this Agreement,
and without implication that the contrary would otherwise be true, neither transactions nor purchases nor sales shall include
the location and/or reservation of borrowable shares of Common Stock.


 


(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).


 




    	 	42	 



    


    


 


(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.


 


(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 Trading 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)(1) 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)(1) 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.


 




    	 	43	 



    


    


 


(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) 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]


 




    	 	44	 



    


    


 


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:
	 	 	 
	 	UNI-PIXEL,
    INC.
	 	 	 
	 	By:	 
	 	Name:
    	Christine
    Russell
	 	Title:	Chief
    Financial Officer


 





Signature
Page to Uni-pixel, Inc.’s Securities Purchase Agreement




 




    	 	 	 



    


    


 


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:
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 


 


Signature
Page to Uni-pixel, Inc.’s Securities Purchase Agreement


 




    	 	 	 



    


    


 


SCHEDULE
OF BUYERS


 


	(1)	 	(2)	 	(3)	 	(4)	 	(5)	 	(6)
	 	 	 	 	 	 	 	 	 	 	 
	Buyer	 	Address
    and Facsimile Number	 	Aggregate
    Number of Preferred Shares	 	Aggregate
    Number of Warrant Shares	 	Purchase
    Price	 	Legal
    Representative’s Address and Facsimile Number
	 	 	 	 	 	 	 	 	 	 	 
	[INVESTOR]	 	 	 	 	 	 	 	 	 	 



 



    	 	 	 



    


    


 


EXHIBIT
A


 


SERIES
A-1 CERTIFICATE OF DESIGNATION


 




    	 	 	 



    


    


 


EXHIBIT
B


 


FORM
OF WARRANT