Exhibit
10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as
of October __, 2017, between BioHiTech Global, Inc., a Delaware corporation (the “Company”), and [_______________________]
(the “Purchaser”). 


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 506(b) promulgated thereunder, the Company desires to issue and sell
to the Purchaser, and the Purchaser desires to purchase from the Company, convertible preferred stock of the Company designated
as Series A Preferred Stock, and warrants to purchase shares of common stock of the Company, subject to the terms and conditions
set forth in this Agreement;


 


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


 


ARTICLE
I. 


DEFINITIONS



 


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


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.6.


 


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


 


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


 


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


 


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


 


“Certificate of Designation”
means that certain Certificate of Designation of the Series A Convertible Preferred
Stock of the Company, in the form of Exhibit A hereto.


 


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


 




     


     


    

 


“Closing”
means one or more closings of the purchase and sale of the Securities pursuant to Section 2.2.


 


“Closing
Statement” means the Closing Statement in the form on Annex A attached hereto.


 


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


 


“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and
any other class of securities into which such securities may hereafter be reclassified or changed. 


 


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


 


“Company
Counsel” means Kane Kessler, P.C., 666 Third Avenue, New York, New York 10017, Attn: Peter Campitiello, Esq.  


 


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


 


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


 


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


  


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


 


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


 


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


 


“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.


 


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


 


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


  




    	 	2	 



     


    

 


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


 


“Preferred
Shares” means the shares of Series A Convertible Preferred Stock issued
to the Purchaser.


 


“Preferred
Stock Certificate” means one or more certificates representing Preferred Shares issued to the Purchaser at a Closing. 


 


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


 


“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.3(b).


 


“Public
Information Failure Payments” shall have the meaning ascribed to such term in Section 4.3(b). 


 


“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.9.


 


“Purchase
Price” shall mean the respective actual amounts of funds the Purchaser will transfer to the Company at each Closing, equal
to 90% of the Stated Value of the Preferred Shares.


 


“Registrable Securities”
means all Underlying Shares and any other shares of Common Stock issuable under the Certificate of Designation or the Warrants. 


 


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


 


“Maximum
Convertible Amount” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially
issuable or convertible in the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon the
conversion in full of all Preferred Shares or all, respectively, (including Underlying Shares issuable as payment of dividends,
late-charges, make-whole amounts, and any other amounts described in the Certificate of Designation). 


 


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


 


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


 




    	 	3	 



     


    

  


“Securities”
means the Preferred Shares, the Warrants, and the Underlying Shares. 


 


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


 


“Series A Preferred Stock”
means the Series A Convertible Preferred Stock of the Company.


 


“Shell
Company” means an entity that fits within the definition of a “shell company” under Section 12b-2 of the Exchange
Act and Rule 144.


 


“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.


 


“Stated
Value” means the Stated Value of the Series A Preferred Stock as set forth in the Certificate of Designation.


 


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


 


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


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the
date in question: the Nasdaq Capital Market; the Nasdaq Global Market; the Nasdaq Global Select Market; the New York Stock Exchange;
the NYSE American, any level of the OTC Markets operated by OTC Markets Group, Inc. or the OTC Bulletin Board (or any successors
to any of the foregoing). 


  


“Transaction
Documents” means this Agreement, the Certificate of Designation, the Warrants, the legal opinion of Company Counsel, the
Transfer Agent Instruction Letter, all exhibits and schedules thereto and hereto and any other documents or agreements executed
in connection with the transactions contemplated hereunder. 


 


“Transfer
Agent” means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette
Place, Woodmere, New York 11598 and a telephone number of (212) 828-8436, and any successor transfer agent of the Company.


 


“Transfer
Agent Instruction Letter” means the letter from the Company to the Transfer Agent which instructs the Transfer Agent to issue
Underlying Shares pursuant to the Transaction Documents, in the form of Exhibit C attached hereto. 


 




    	 	4	 



     


    

  


“Underlying
Shares” means the shares of Common Stock issued and issuable upon conversion of the Preferred Shares (including, without
limitation, any shares of Common Stock issuable as payment of dividends, late-charges, make-whole amounts, and any other amounts
described in the Certificate of Designation) and issued and issuable in lieu of the cash payment of dividends on the Preferred
Shares in accordance with the terms of the Certificate of Designation, or upon exercise of the Warrants.


 


“Warrants”
means the warrants to purchase shares of common stock of the Company to be issued hereunder, with an exercise price of $5.00, in
the form of Exhibit B hereto.


 


ARTICLE
II.


PURCHASE
AND SALE; EXCHANGE


 


2.1          Purchase.  The
Purchaser shall purchase from the Company and the Company shall sell to the Purchaser an aggregate of $1,667,000 in Stated Value
of Preferred Shares at an aggregate purchase price of $1,500,300 (equal to ninety percent (90%) of the Stated Value thereof), together
with Warrants as set forth in this Section 2.1. The purchase and sale of the Preferred Shares and Warrants will occur in two Closings
as follows: (i) at the initial Closing (the “First Closing”), substantially concurrent with execution of this Agreement,
the Company shall sell, and the Purchaser shall purchase, $666,667 in Stated Value of Preferred Stock (133,334 Preferred Shares)
for a Purchase Price of $600,000, and (ii) at the second Closing (the “Second Closing”), 30 days after the First Closing,
at the option of the Company (which it may exercise by providing notice any time within twenty Business Days after the First Closing),
the Company shall sell, and the Purchaser shall purchase, $1,000,333 in Stated Value (200,067 Preferred Shares) for a Purchase
Price of $900,300. At each Closing, the Company shall issue to the Purchaser Warrants for the number of shares of Common Stock
equal to 100% of the shares issuable upon conversion of the Preferred Shares sold at such Closing. 


 


2.2          Closings.  
At each Closing, (i) the Purchaser shall deliver to the Company, via wire transfer to an account designated by the Company, immediately
available funds equal to the Purchase Price for such Closing; (ii) the Company shall deliver to the Purchaser its respective (a)
Preferred Stock Certificate representing the Preferred Shares purchased and sold at such Closing and (b) corresponding Warrants;
and (iii) the Company and the Purchaser shall deliver all other items set forth in Section 2.3. Upon satisfaction of the covenants
and conditions set forth in Sections 2.3 and 2.4 for each Closing, each Closing shall occur at the offices of Sichenzia Ross Ference
Kesner LLP or such other location as the parties shall mutually agree, and may by agreement be undertaken remotely by electronic
exchange of Closing documentation. 


 


2.3          Deliveries
Upon Closing.


 





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


 


		(i)	as to the First Closing,
this Agreement duly executed by the Company;



 




    	 	5	 



     


    

  


		(ii)	as to the First Closing,
a stamped copy of the Certificate of Designation that is filed with the Secretary of State of the State of Delaware;



 


		(iii)	as to the First Closing,
the Transfer Agent Instruction Letter duly executed by the Company and the Transfer Agent;



 


		(iv)	the Preferred Stock
Certificate for such Closing, registered in the name of the Purchaser;



 


		(v)	the Warrants for
such Closing;



 


		(vi)	as to the first Closing,
an opinion of Company Counsel in a form acceptable to the Purchaser.



 


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


 


(i)          as
to the First Closing, this Agreement duly executed by the Purchaser; and


 


(ii)         the
Purchaser’s Purchase Price as to such Closing, by wire transfer to the account specified in writing by the Company.


 


2.4          Closing
Conditions.


 


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


 


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


 


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


 


(iii)        the
delivery by the Purchaser of the applicable items set forth in Section 2.3(b) of this Agreement.


 


(b)          The
obligations of the Purchaser hereunder in connection with the First Closing and Second Closing, as applicable, are subject to the
following conditions being met:


 




    	 	6	 



     


    




 


(i)          the
accuracy in all material respects when made and on the applicable Closing Date of the representations and warranties of the Company
contained herein (unless as of a specific date therein);


 


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


 


(iii)        the
delivery by the Company of the applicable items set forth in Section 2.3(a) of this Agreement;


 


(iv)        the
Certificate of Designation has been filed with the Secretary of State of the State of Delaware;


 


(v)         there
is no Triggering Event (as defined in the Certificate of Designation); 


 


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


  


(vii)       from
the date hereof to the applicable Closing Date, trading in the Common Stock shall not have been suspended by the Commission or
the Company’s principal Trading Market and, at any time prior to the applicable Closing Date, trading in securities generally
as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities
whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by
the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities
or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of the Purchaser, and without regard to any factors unique to the Purchaser,
makes it impracticable or inadvisable to purchase the Preferred Stock at the applicable Closing.


 


ARTICLE
III. 


REPRESENTATIONS
AND WARRANTIES 


 


3.1          Representations
and Warranties of the Company.  Except as set forth in the Disclosure Schedules or the Company’s SEC Reports
(as that term is defined herein), which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation
or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Disclosure Schedules, the
Company hereby makes the following representations and warranties to the Purchaser as of the date hereof:


 




    	 	7	 



     


    




 


(a)          Subsidiaries.  All
of the direct subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all
of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar
rights to subscribe for or purchase securities. 


 


(b)          Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to conduct business
and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as
the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity
or enforceability of any Transaction Document; (ii) a material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole; or (iii) a material
adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction
Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding has been instituted in any such
jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.


  


(c)          Authorization;
Enforcement.  The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder
and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on
the part of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders
in connection herewith or therewith other than in connection with the Required Approvals. This Agreement and each other Transaction
Document to which it is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against
the Company in accordance with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally;
(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies;
and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.


 




    	 	8	 



     


    

  


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


  



(e)          Filings,
Consents and Approvals.  The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority
or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents, other than:
(i) the filings required pursuant to Section 4.15 of this Agreement, and (ii) the filing of Form D with the Commission
and such filings as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).


 


(f)          Issuance
of the Securities.  The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company other than restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued
in accordance with the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear
of all Liens imposed by the Company other than restrictions on transfer provided for in the Transaction Documents. The Company
has reserved under the Purchaser’s name from its duly authorized capital stock a number of shares of Common Stock for issuance
of the Underlying Shares at least equal to 100% of the Maximum Convertible Amount on the date hereof.


 




    	 	9	 



     


    

  


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


 


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


 




    	 	10	 



     


    




 


(i)          Material
Changes; Undisclosed Events, Liabilities or Developments.  Since the date of the latest audited financial statements
included within the SEC Reports, except as specifically disclosed in a subsequent SEC Report filed prior to the date hereof: (i) there
has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse
Effect; (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and
accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities not required
to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission;
(iii) the Company has not altered its method of accounting; (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem
any shares of its capital stock; and (v) the Company has not issued any equity securities to any officer, director or Affiliate.
Except for the issuance of the Securities contemplated by this Agreement, no event, liability,
fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect to
the Company or its Subsidiaries or their respective businesses, properties, operations, assets or financial condition, that would
be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made
that has not been publicly disclosed at least one (1) Trading Day prior to the date that this representation is made. 


 


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


 




    	 	11	 



     


    




 


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


 


(l)          Compliance.  Except
as disclosed on Schedule 3.1(1), neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company
or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that
it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation
of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii) is or has been in violation
of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal,
state and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and
employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.


  



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


 




    	 	12	 



     


    




 


(n)         Title to Assets.  Except as disclosed in the SEC Reports, the Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them and good and marketable title in all personal property owned
by them that is material to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except
for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and
proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state
or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither
delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are
held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance.


 


(o)          Intellectual
Property.  The Company and the Subsidiaries have, or have rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights as described in the SEC Reports as necessary or required for use in connection with their respective
businesses as presently conducted and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). Neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual
Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within one (1)
year from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited
financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual
Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have
a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except
where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(p)          Transactions
with Affiliates and Employees.  Except as set forth on Schedule 3.1(p), none of the officers or directors of the
Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or
personal property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case
in excess of $120,000 annually other than for: (i) payment of salary or consulting fees for services rendered; (ii) reimbursement
for expenses incurred on behalf of the Company; and (iii) other employee benefits. 


 




    	 	13	 



     


    

  


(q)          Sarbanes-Oxley;
Internal Accounting Controls.  Except as disclosed in its SEC Reports, the Company and the Subsidiaries are in compliance
with any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and
all applicable rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of
the applicable Closing Date. Except as disclosed in its SEC Reports, the Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in
its SEC Reports, the Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to
ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and forms. The Company’s
certifying officers have evaluated the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries
as of the end of the period covered by the most recently filed periodic report under the Exchange Act (such date, the “Evaluation
Date”).  The Company presented in its most recently filed periodic report under the Exchange Act the conclusions
of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the
Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial reporting (as
such term is defined in the Exchange Act) that have materially affected, or is reasonably likely to materially affect, the internal
control over financial reporting of the Company and its Subsidiaries.


 


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


  




    	 	14	 



     


    




 


(s)          Private
Placement.  Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2,
no registration under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchaser as
contemplated hereby. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading
Market.


 


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


 


(u)          Registration
Rights.  Except in Schedule 3.1(u), no Person has any right to cause the Company to effect the registration under the
Securities Act of any securities of the Company or any Subsidiaries.


 


(v)          Listing
and Maintenance Requirements.  The class of Common Stock is registered pursuant to Section 12(b) or 12(g) of
the Exchange Act, and except as disclosed in Schedule 3.1 (v), the Company has taken no action designed to, or which to its knowledge
is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received
any notification that the Commission is contemplating terminating such registration.  The Company has not, in the twelve
(12) months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed
or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market.
The Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all
such listing and maintenance requirements.


 


(w)          Application
of Takeover Protections.  The Company and the Board of Directors have taken all necessary action, if any, in order
to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s Certificate of Incorporation (or similar charter
documents) or the laws of its state of incorporation that is or could become applicable to the Purchaser as a result of the Purchaser
and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation
as a result of the Company’s issuance of the Securities and the Purchaser’s ownership of the Securities.


 




    	 	15	 



     


    

 


(x)          Disclosure.  Except
with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided the Purchaser or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information. The Company understands and confirms that the
Purchaser will rely on the foregoing representation in effecting transactions in securities of the Company.  All of the
disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct
and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the
statements made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges and
agrees that the Purchaser does not make or has not made any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in Section 3.2 hereof.


 


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


 


(z)          No
General Solicitation. In connection with the transaction contemplated herein, neither the Company nor any person acting on
behalf of the Company has offered or sold any of the Securities by any form of general solicitation or general advertising. The
Company has offered the Securities for sale only to the Purchaser and certain other “accredited investors” within the
meaning of Rule 501 under the Securities Act.


 


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


 




    	 	16	 



     


    

 


(bb)         Accountants.  
To the knowledge and belief of the Company, the Company’s accounting firm that audited the Company’s last audited financial
statements included in the Company’s Form 10-K is a registered public accounting firm as required by the Exchange Act.


 


(cc)         No
Disagreements with Accountants and Lawyers.  There are no disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the
Company and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s
ability to perform any of its obligations under any of the Transaction Documents.


 


(dd)         Acknowledgment
Regarding Purchaser’s Purchase of Securities.  The Company acknowledges and agrees that the Purchaser is acting
solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that the Purchaser is not acting as a financial advisor or fiduciary of the Company (or
in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given
by the Purchaser or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated
thereby is merely incidental to the Purchaser’s purchase of the Securities. The Company further represents to the Purchaser
that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on the
independent evaluation of the transactions contemplated hereby by the Company and its representatives.


  


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


 


(ff)          Reserved.


 


(gg)         Office
of Foreign Assets Control.  Neither the Company nor any Subsidiary nor, to the Company's knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department.


 


(hh)         U.S.
Real Property Holding Corporation.  The Company is not and has never been a U.S. real property holding corporation
within the meaning of Section 897 of the Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.


 




    	 	17	 



     


    

 


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


 


(jj)         RESERVED.


 


(kk)       Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company (i) has made or filed all United States federal, state and local income and all foreign
income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid
all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. Except as set forth on Schedule
3.1(kk), there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim.


 


(ll)          Shell
Company Status. The Company is not presently and has never been an issuer identified
as a “Shell Company” and otherwise complies with Rule 144(i).


 


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


 




    	 	18	 



     


    

 


3.2           Representations
and Warranties of the Purchaser. The Purchaser hereby represents and warrants as of the date hereof and as of each Closing
Date to the Company as follows (unless as of a specific date therein):


 


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


 


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


 


(c)          Purchaser
Status.  At the time the Purchaser was offered the applicable Securities, it was, and as of the date hereof it is,
and on each date on which it converts any Preferred Shares or exercises and Warrants, it will be an “accredited investor”
as defined in Rule 501 under the Securities Act.


 


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


 




    	 	19	 



     


    

 


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


 


(f)          Certain
Transactions and Confidentiality.  Other than consummating the transactions contemplated hereunder, the Purchaser
has not directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with the Purchaser, executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time
that the Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof.  Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage
separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions
made by the portfolio managers managing other portions of the Purchaser’s assets, the representation set forth above shall
only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase
the Securities covered by this Agreement.  Other than to other Persons party to this Agreement, the Purchaser has maintained
the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this
transaction). 


 


(g)          Access
to Information. The Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all
exhibits and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has
deemed necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering
of the Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its
financial condition, results of operations, business, properties, management and prospects sufficient to enable it to evaluate
its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire without
unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment, including,
without limitation, such Purchaser’s review and discussion of the disclosure set forth in the litigation section of the Company’s
Form 10-Q for the quarterly period ended June 30, 2017 and any SEC Reports, press releases or publications related to litigation
of the Company. 


 




    	 	20	 



     


    

 


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


 


ARTICLE
IV. 


OTHER
AGREEMENTS OF THE PARTIES 


 


		4.1	Transfer Restrictions.



 


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


 


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


 


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


 




    	 	21	 



     


    

 


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


 


(c)          Certificates
evidencing the Underlying Shares. Certificates evidencing the Underlying Shares shall not contain any legend (including the
legend set forth in Section 4.1(b) hereof): (a) while a registration statement covering the resale of such security is effective
under the Securities Act; (b) following any sale of such Underlying Shares pursuant to Rule 144; (c) if such Underlying Shares
are eligible for sale under Rule 144 and such sale is contemplated at such time as certificates evidencing the Underlying Shares
are to be issued without legend; or (d) if such legend is not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall, upon request of a
Purchaser and at the Company’s expense, cause Company Counsel to issue a legal opinion to the Transfer Agent promptly after
any of the events described in (a)-(d) in the preceding sentence if required by the Transfer Agent to effect the removal of the
legend hereunder (with a copy to the Purchaser and its broker). If Underlying Shares are
sold under Rule 144 or if such legend is not otherwise required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission), then such Underlying Shares shall be issued
free of all legends. The Company agrees that, at such time as such legend is no longer required under this Section 4.1(c),
it will, no later than three (3) Trading Days following the delivery by the Purchaser to the Company or the Transfer Agent of a
certificate representing such Underlying Shares and an opinion acceptable to the Company for the availability of a resale exemption
with a restrictive legend (such third Trading Day, the “Underlying Share Legend Removal Date”), instruct the Transfer
Agent to deliver or cause to be delivered to the Purchaser a certificate representing such Underlying Shares that is free from
all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer
Agent that enlarge the restrictions on transfer set forth in this Section 4. Certificates for Underlying Shares subject to
legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s
prime broker with the Depository Trust Company System as directed by the Purchaser. 


 




    	 	22	 



     


    

 


(d)          In
addition to the Purchaser’s other available remedies, the Company shall pay to the Purchaser, in cash, as partial liquidated
damages and not as a penalty, $500 per Trading Day for each Trading Day after the Underlying Share Legend Removal Date until such
certificate is delivered without a legend. Nothing herein shall limit the Purchaser’s right to pursue actual damages for
the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and the
Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief. 


 


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


 


4.3           Furnishing
of Information; Public Information.


 


(a)          The
Company covenants to maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely
file (or obtain extensions in respect thereof and file within the applicable grace period) all reports required to be filed by
the Company after the date hereof pursuant to the Exchange Act, so long as the Purchaser owns any Securities.


 


(b)          At
any time during the period commencing from the six (6)-month anniversary of the date hereof and ending at such time that all of
the Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without
restriction or limitation pursuant to Rule 144, if the Company shall fail for any reason to satisfy the current public information
requirement under Rule 144(c) (a “Public Information Failure”), then, in addition to the Purchaser’s other available
remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, by reason of any such
delay in or reduction of its ability to sell the Securities, an amount in cash equal to two percent (2.0%) of the aggregate Stated
Value of the Purchaser’s Preferred Shares then owned by the Purchaser on the day of a Public Information Failure and on every
thirtieth (30th) day (pro-rated for periods totaling less than thirty days) thereafter until the earlier of (i) the
date such Public Information Failure is cured and (ii) such time that such public information is no longer required for the Purchaser
to transfer the Underlying Shares pursuant to Rule 144. The payments to which the Purchaser shall be entitled pursuant to
this Section 4.3(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments
shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments
are incurred and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information
Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments in a timely
manner, such Public Information Failure Payments shall bear interest at the rate of 1.5% per month (prorated for partial months)
until paid in full. Nothing herein shall limit the Purchaser’s right to pursue actual damages for the Public Information
Failure, and the Purchaser shall have the right to pursue all remedies available to it at law or in equity, including, without
limitation, a decree of specific performance and/or injunctive relief. 


 




    	 	23	 



     


    

 


4.4           Integration.  Except
as set forth on Schedule 4.4, the Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect
of any security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities
in a manner that would require the registration under the Securities Act of the sale of the Securities or that would be integrated
with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require
stockholder approval prior to the closing of such other transaction unless stockholder approval is obtained before the closing
of such subsequent transaction. 


 


4.5           Reserved.


 


4.6           Stockholder
Rights Plan.  The Company will not make or enforce or consent to any claim, by any Person, that the Purchaser is
an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that the
Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the
Transaction Documents or under any other agreement between the Company and the Purchaser.


 


4.7           Non-Public
Information.  Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company covenants and agrees that neither it, nor any other Person acting on its behalf, will provide the Purchaser
or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior
thereto the Purchaser shall have entered into a written agreement with the Company regarding the confidentiality and use of such
information.  The Company understands and confirms that the Purchaser shall be relying on the foregoing covenant in effecting
transactions in the Company’s Securities.


 


4.8           Use
of Proceeds.  The Company may use the net proceeds hereunder at its sole and absolute discretion.


 




    	 	24	 



     


    

 


4.9           Indemnification
of the Purchaser.  Subject to the provisions of this Section 4.9, the Company will indemnify and hold the Purchaser
and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless
from any and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any Purchaser Party
may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against any Purchaser
Party in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate
of the Purchaser Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is
based upon a breach of the Purchaser’s representations, warranties or covenants under the Transaction Documents or any agreements
or understandings the Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state
or federal securities laws or any conduct by the Purchaser Party which constitutes fraud, gross negligence, willful misconduct
or malfeasance). If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant
to this Agreement, the Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume
the defense thereof with counsel of its own choice that is reasonably acceptable to the Purchaser Party being sued. Any Purchaser
Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment thereof has
been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume
such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel, a material conflict
on any material issue between the position of the Company and the position of the Purchaser Party, in which case the Company shall
be responsible for the reasonable fees and expenses of no more than one such separate counsel.  The Company will not
be liable to any Purchaser Party under this Agreement (x) for any settlement by a Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a
loss, claim, damage or liability is attributable to any Purchaser’s breach of any of the representations, warranties, covenants
or agreements made by the Purchaser in this Agreement or in the other Transaction Documents. The indemnification required
by this Section 4.9 shall be made by periodic payments of the amount thereof during the course of the investigation or defense,
as and when bills are received or are incurred. The indemnification contained herein shall be in addition to any cause of
action or similar right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to
under applicable laws.


  




    	 	25	 



     


    

 


4.10        Reservation
and Listing of Securities.


 


(a)          The
Company shall maintain a reserve from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents
in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.


 


(b)          If,
on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than 100% of the Maximum
Convertible Amount on such date, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s
certificate or articles of incorporation to increase the number of authorized but unissued shares of Common Stock to at least 100%
of the Maximum Convertible Amount at such time, as soon as possible and in any event not later than the seventy-fifth (75th)
day after such date.


 


(c)          The
Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with such Trading
Market an additional shares listing application covering a number of shares of Common Stock at least equal to the Maximum Convertible
Amount on the date of such application; (ii) take all steps necessary to cause such shares of Common Stock to be approved for listing
or quotation on such Trading Market as soon as possible thereafter; (iii) provide to the Purchaser evidence of such listing or
quotation; and (iv) maintain the listing or quotation of such Common Stock on any date at least equal to the Maximum Convertible
Amount on such date on such Trading Market or another Trading Market.


 


4.11         Prohibition on Variable Securities.  So long the Purchaser owns any Preferred Shares, the Company shall not, without
written consent of the Purchaser, issue any Variable Security (as defined herein). A Variable Security shall mean any security
issued by the Company that (i) has or may have conversion rights of any kind, contingent, conditional or otherwise in which the
number of shares that may be issued pursuant to such conversion right varies with the market price of the Company’s common
stock; (ii) is or may become convertible into the Company’s common stock (including without limitation convertible debt,
warrants or convertible preferred stock), with a conversion or exercise price that varies with the market price of the common stock,
even if such security only becomes convertible or exercisable following an event of default, the passage of time, or another trigger
event or condition; or (iii) was issued or may be issued in the future in exchange for or in connection with any contract, security,
or instrument, whether convertible or not, where the number of shares of common stock issued or to be issued is based upon or related
in any way to the market price of the common stock, including, but not limited to, common stock issued in connection with a Section
3(a)(9) exchange, a Section 3(a)(10) settlement, or any other similar settlement or exchange.


 


4.12         Reserved.


 


4.13         Reserved.


 




    	 	26	 



     


    

 


4.14         Certain
Transactions and Confidentiality. The Purchaser, covenants that neither it, nor any Affiliate acting on its behalf or pursuant
to any understanding with it will execute any Short Sales, of any of the Company’s securities during the period commencing
with the execution of this Agreement and ending on the date that the Preferred Shares are no longer outstanding, provided
that, the Purchaser will be deemed the owner of any Underlying Shares upon its submission of a conversion notice for such Underlying
Shares, such that, upon its submission of such conversion notice, no sale of such Underlying Shares will be deemed a Short Sale.


 


4.15         Securities
Laws Disclosure; Publicity. The Company shall by the Trading Day immediately following the date hereof file a Current Report
on Form 8-K, including the Transaction Documents as exhibits thereto, with the Commission, disclosing the material terms of the
Transaction Documents in accordance with the Exchange Act. From and after the filing of such Current Report, the Company represents
to the Purchaser that it shall have publicly disclosed all material, non-public information delivered to the Purchaser by the Company
or any of its Subsidiaries, or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. The Company and the Purchaser shall consult with each other in issuing any press releases
with respect to the transactions contemplated hereby, and neither the Company nor the Purchaser shall issue any such press release
nor otherwise make any such public statement regarding the transactions hereunder without the prior consent of the Company, with
respect to any press release of the Purchaser, or without the prior consent of the Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld, delayed, denied, or conditioned except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of the Purchaser, or include
the name of the Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written
consent of the Purchaser, except: (a) as required by federal securities law in connection with any registration statement filed
in connection with the resale of the Securities purchased hereunder and (b) to the extent such disclosure is required by law or
Trading Market regulations, in which case the Company shall provide the Purchaser with prior notice of such disclosure permitted
under this clause (b).


 


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


 


4.17         Reserved.


 




    	 	27	 



     


    

 


4.18         Piggyback
Registration Right. If at any time while the Purchaser owns any Securities, the Company shall determine to prepare and file
with the Commission a registration statement relating to an offering for its own account or the account of others under the Securities
Act of any of its equity securities, other than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their
then equivalents relating to equity securities to be issued solely in connection with any acquisition of any entity or business
or equity securities issuable in connection with stock option or other employee benefit plans, then the Company shall send to the
Purchaser written notice of such determination and, if within fifteen days after receipt of such notice, any such holder shall
so request in writing, the Company shall include in such registration statement all or any part of the Registrable Securities such
holder requests to be registered; provided, that, the Company shall not be required to register any Registrable Securities that
are eligible for resale pursuant to Rule 144 promulgated under the Securities Act or that are the subject of a then effective registration
statement.


 


4.19         Rollover
Rights. If at any time while the Purchaser owns any Preferred Shares, the Company completes any public offering or private
placement of equity or debt securities (each, a “Future Transaction”), the Purchaser may, in its sole discretion, elect
to apply all, or any portion, of the Stated Value and any accrued dividends, as purchase consideration for such Future Transaction
(the “Rollover Rights”). The Company shall give written notice to Purchaser as soon as practicable, but in no event
less than fifteen (15) days before the anticipated closing date of such Future Transaction. The Purchaser may exercise its Rollover
Rights under this Section 4.19 by providing the Company written notice of such exercise within five Business Days of the public
announcement of the completion of the Future Transaction. In the event Purchaser exercises its Rollover Rights the Preferred Shares
relating to such exercise will automatically convert to the corresponding securities issued in such Future Transaction under the
terms of such Future Transaction, such that the Purchaser will receive all securities (including, without limitation, any warrants)
issuable under the Future Transaction at a purchase price equal to the Stated Value and any accrued dividends for such Preferred
Shares. For the avoidance of doubt, the Purchaser will retain any Warrants the Purchaser owns upon exercise of the Purchaser’s
Rollover Rights.


 


4.20         Most
Favored Nations. If any time while the Purchaser owns any Preferred Shares, the Company completes any Future Transaction in
which the terms of such Future Transaction are more favorable than those provided under the Transaction Documents, then at the
option of the Purchaser, the terms of the Transaction Documents (including, without limitation, the terms of any Preferred Shares
or Warrants then owned by the Purchaser) will be adjusted to have such terms and conditions be similar to those of the Future Transaction
(the “MFN Right”). The Purchaser may exercise its MFN Right under this Section 4.20 by providing the Company written
notice of such exercise within five Business Days of the public announcement of the completion of the Future Transaction.


 


ARTICLE
V.


MISCELLANEOUS


 


5.1           Termination. 
This Agreement may be terminated by any party by written notice to the other parties if the First Closing has not been consummated
on or before November 30, 2017; provided, however, that such termination will not affect the right of any party to
sue for any breach by any other party (or parties).


 




    	 	28	 



     


    

 


5.2           Fees
and Expenses.  The Company has agreed to pay its legal fees and those of the Purchaser relating to the Closing
of the transactions contemplated herein in an amount not exceeding an aggregate of $15,000, which shall be deducted and paid directly
out of the respective Purchase Price at the First Closing unless pre-paid. The Company shall deliver to the Purchaser, prior to
each applicable Closing, a completed and executed copy of the Closing Statement, attached hereto as Annex A. Except as expressly
set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses of its advisers, counsel, accountants
and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery
and performance of this Agreement.


 


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


 


5.4           Notices.  Any
and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (i) the date of transmission, if such notice or communication is delivered via
facsimile or e-mail at the facsimile number or e-mail address set forth on the signature pages attached hereto at or prior to 12:00
noon (New York City time) on a Trading Day; (ii) the next Trading Day after the date of transmission, if such notice or communication
is delivered via facsimile or e-mail at the facsimile number or e-mail address set forth on the signature pages attached hereto
on a day that is not a Trading Day or later than 12:00 noon (New York City time) on any Trading Day; or (iii) the second (2nd)
Trading Day following the date of physical transmittal, if sent by a United States nationally recognized overnight courier service
or upon actual receipt of the physically transmitted notice by the party to whom such notice is required to be given.  The
address for such notices and communications shall be as set forth on the signature pages attached hereto.


 


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


 


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


 




    	 	29	 



     


    

 


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


 


5.8           No
Third-Party Beneficiaries.  This Agreement is intended for the benefit of the parties hereto and their respective
successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person,
except as otherwise set forth in Section 4.9.


 


5.9           Governing
Law.  All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to
the principles of conflicts of law thereof.  Each party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and any other Transaction Documents (whether brought
against a party hereto or its respective affiliates, directors, officers, stockholders, partners, members, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the City of New York.  Each party hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough of Manhattan for
the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and
notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any other
manner permitted by law.  If either party shall commence an action, suit or proceeding to enforce any provisions of the
Transaction Documents, then, in addition to the obligations of the Company under Section 4.9, the prevailing party in such action,
suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such action or proceeding.


 


5.10         Survival.  The
representations and warranties contained herein shall survive each Closing and the deliveries of the Securities.


 




    	 	30	 



     


    

 


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


 


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


 


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


 


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


 


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


 




    	 	31	 



     


    

 


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


 


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


 


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


 


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


 


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


 


(Signature
Pages Follow) 


 




    	 	32	 



     


    

 


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


 


	 	Address for Notice:  
	 	 
	BioHiTech Global, Inc.	 
	 	 
	By: 	 	 
	Name: 	 
	Title:	 


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK 


SIGNATURE
PAGE FOR PURCHASER FOLLOWS] 


 





    	 	33	 



     


    

 


[PURCHASER
SIGNATURE PAGES TO BIOHITECH GLOBAL, Inc.


SECURITIES PURCHASE AGREEMENT]


 


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


 


	Name of Purchaser: 	 
	 	 
	Signature of Authorized Signatory of Purchaser: 	 
	 	 
	 	 
	 	 
	Name of Authorized Signatory: 	 
	 	 
	 	 



 





	Title of Authorized Signatory:	 	 
	 	 
	 	 
	Email Address of Authorized Signatory:	 	 
	 	 
	 	 
	Facsimile Number of Authorized Signatory:	 	 
	 	 
	 	 
	Address for Notice to Purchaser: 	 
	 	 
	 	 


 


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


 


 


 


EIN Number: _______________________



 




    	 	34