Exhibit 10.1


 


EXECUTION COPY


 


SECURITIES PURCHASE
AGREEMENT


 


This SECURITIES PURCHASE
AGREEMENT (the “Agreement”), dated as of July 21, 2017, is by and among MagneGas Corporation, a Delaware
corporation with offices located at 11885 44th St. N. Clearwater, FL 33762 (the “Company”), and each of the
investors listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively, the “Buyers”).


 


RECITALS


 


A.           The
Company and each Buyer desire to enter into this transaction for the Company to sell and the Buyers to purchase (i) shares of Common
Stock (as defined below); and (ii) warrants to purchase Preferred Stock (as defined below) pursuant to a currently effective shelf
registration statement on Form S-3, which includes the Common Stock, Preferred Stock and warrants to purchase Preferred Stock registered
thereunder (Registration Number 333-207928) (the “Registration Statement”), which Registration Statement has
been declared effective in accordance with the Securities Act of 1933, as amended (the “1933 Act”), by the United
States Securities and Exchange Commission (the “SEC”).


 


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


 


C.           Each Buyer wishes
to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) such aggregate number
of shares of Common Stock as set forth opposite such Buyer’s name in column (3) on the Schedule of Buyers (which aggregate
amount for all Buyers shall be 150,000 shares of Common Stock and shall collectively be referred to herein as the “Common
Shares”); and (ii) a warrant to acquire up to that aggregate number of Preferred Shares as set forth opposite such Buyer’s
name in column (4) on the Schedule of Buyers, substantially in the form attached hereto as Exhibit B (the “Warrants”)
(as exercised, collectively, the “Warrant Preferred Shares”).


 


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


 




     


     


    

  


AGREEMENT


 


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


 


1.           PURCHASE
AND SALE OF COMMON SHARES AND WARRANTS.


 


(a)          Purchase
of Common Shares and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below,
the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company
on the Closing Date (as defined below) (i) such aggregate number of Common Shares set forth opposite such Buyer’s name in
column (3) on the Schedule of Buyers; and (ii) a Warrant to initially acquire up to that aggregate number of Warrant Preferred
Shares as set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers.


 


(b)          Closing.
The closing (the “Closing”) of the purchase of the Common Shares and Warrants by the Buyers shall occur at the
offices of Kelley Drye & Warren LLP, 101 Park Avenue, New York, NY 10178. The date and time of the Closing (the “Closing
Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day (as defined below) on which the conditions
to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such other date as is mutually agreed to by the
Company and each Buyer). As used herein “Business Day” means any day other than a Saturday, Sunday or other
day on which commercial banks in New York, New York are authorized or required by law to remain closed.


 


(c)          Purchase
Price. The aggregate purchase price for the Common Shares and Warrants to be purchased by each Buyer (the “Purchase
Price”) shall be the amount set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers.


 


(d)          Form
of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price (less, in the case of any Buyer, the
amounts withheld pursuant to Section 4(j)) to the Company for the Common Shares and Warrants to be issued and sold to such
Buyer at the Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below)
and (ii) the Company shall (A) cause Corporate Stock Transfer (together with any subsequent transfer agent, the “Transfer
Agent”) through the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, to
credit such aggregate number of Common Shares that each Buyer is purchasing as is set forth opposite such Buyer’s name in
column (3) of the Schedule of Buyers to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system, and (B) deliver to each Buyer a Warrant pursuant to which such Buyer shall have the right to initially acquire
up to such aggregate number of Warrant Preferred Shares as is set forth opposite such Buyer’s name in column (4) of the Schedule
of Buyers, in each case, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.


 




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2.           BUYER’S
REPRESENTATIONS AND WARRANTIES.


 


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



 


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


 


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


 


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


 


3.            REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


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


 


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


 




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(b)          Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of this Agreement and the other Transaction Documents by the Company, and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares, the issuance
of the Warrants and the reservation for issuance and issuance of the Warrant Preferred Shares issuable upon exercise of the Warrants
and the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Warrant Preferred Shares)
have been duly authorized by the Company’s board of directors or other governing body, as applicable, and (other than (x)
the filing with the SEC of the prospectus supplement related to the Securities required by Rule 424(b) under the 1933 Act (the
“Prospectus Supplement”) supplementing the base prospectus forming part of the Registration Statement (such
base prospectus as so supplemented, the “Prospectus”) and (y) a Form D with the SEC and any other filings as
may be required by any state securities agencies (collectively, the “Required Filings”)) no further filing,
consent or authorization is required by the Company, its Subsidiaries, their respective boards of directors or their stockholders
or other governing body. This Agreement has been, and the other Transaction Documents to which it is a party will be prior to the
Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with its respective terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to,
or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification
and to contribution may be limited by federal or state securities law. The Certificate of Designations in the form attached hereto
as Exhibit A will be filed with the Delaware Secretary of State and will be in full force and effect as of the Closing,
enforceable against the Company in accordance with its terms and will not have been amended as of the Closing. “Transaction
Documents” means, collectively, this Agreement, the Warrants, the Certificate of Designations, the Voting Agreement (as
defined below), the Irrevocable Transfer Agent Instructions (as defined below) and each of the other agreements and instruments
entered into or delivered by any of the parties hereto in connection with the transactions contemplated hereby and thereby, as
may be amended from time to time.


 




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(c)          Issuance
of Securities. The issuance of the Common Shares and the Warrants and the Warrant Preferred Shares are duly authorized and
upon issuance in accordance with the terms of the Transaction Documents shall be validly issued, fully paid and non-assessable
and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal,
encumbrances, security interests and other encumbrances (collectively “Liens”) with respect to the issuance
thereof. As of the Closing, the Company shall have reserved from its duly authorized capital stock not less than the sum of (i)
200% of the maximum number of Conversion Shares issuable upon conversion of the Warrant Preferred Shares (assuming for purposes
hereof that (x) the Warrants have been exercised in full, (y) the Warrant Preferred Shares are convertible at a conversion price
equal to the Alternate Conversion Price (as defined in the Certificate of Designations) assuming an Alternate Conversion Date (as
defined in the Certificate of Designations) as of the date hereof, and (z) any such conversion shall not take into account any
limitations on the conversion of the Warrant Preferred Shares set forth in the Certificate of Designations), and (ii) 100% of the
maximum number of Warrant Preferred Shares initially issuable upon exercise of the Warrants. Upon issuance or conversion in accordance
with the Warrant Preferred Shares, the Conversion Shares, when issued, will be validly issued, fully paid and non-assessable and
free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all rights
accorded to a holder of Common Stock. Upon issuance or exercise in accordance with the Warrants (as the case may be), the Warrant
Preferred Shares, when issued, will be validly issued, fully paid and non-assessable and free from all preemptive or similar rights
or Liens with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Preferred Shares.
The issuance by the Company of the Common Shares, the Warrants and the Warrant Preferred Shares (collectively, the “RD
Securities”) has been registered under the 1933 Act, the RD Securities are being issued pursuant to the Registration
Statement and all of the RD Securities are freely transferable and freely tradable by each of the Buyers without restriction, whether
by way of registration or some exemption therefrom. The Registration Statement is effective and available for the issuance of the
RD Securities thereunder and the Company has not received any notice that the SEC has issued or intends to issue a stop-order with
respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so. The “Plan of Distribution”
section under the Registration Statement (including the Prospectus Supplement) permits the issuance and sale of the RD Securities
hereunder and as contemplated by the other Transaction Documents. Upon receipt of the RD Securities, each of the Buyers will have
acquire ownership of the RD Securities free of any adverse claim. The Registration Statement and any prospectus included therein,
including the Prospectus and the Prospectus Supplement, complied in all material respects with the requirements of the 1933 Act,
and the documents incorporated by reference into the Registration Statement when filed, complied in all material respects with
the requirements of the 1934 Act and, in each case, with the rules and regulations of the SEC promulgated under the 1933 Act or
the 1934 Act, as the case may be. At the time the Registration Statement and any amendments thereto became effective the Registration
Statement and any amendments thereto complied and, upon the filing of the Prospectus Supplement after the date of this Agreement
the Registration Statement will comply in all material respects with the requirements of the 1933 Act and did not and will not
contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any amendments or supplements thereto, at the time the Prospectus
or any amendment or supplement thereto was issued and the Prospectus Supplement at the Closing Date, complied and will comply,
as the case may be, in all material respects with the requirements of the 1933 Act and did not, and will not, contain any untrue
statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Company meets all of the requirements of General Instruction I.B.6
for the use of Form S-3 under the 1933 Act for the offering and sale of the RD Securities contemplated by this Agreement and the
other Transaction Documents, and the SEC has not notified the Company of any objection to the use of the form of the Registration
Statement pursuant to Rule 401(g)(1) under the 1933 Act. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act. At the earliest time after the filing of the Registration Statement that the Company or another offering participant
made a bona fide offer (within the meaning of Rule 164(h)(2) under the 1933 Act) relating to any of the RD Securities, the Company
was not and is not an “Ineligible Issuer” (as defined in Rule 405 under the 1933 Act). The Company (i) has not distributed
any offering material in connection with the offer or sale of any of the RD Securities and (ii) until no Buyer holds any of the
RD Securities, shall not distribute any offering material in connection with the offer or sale of any of the RD Securities to,
or by, any of the Buyers (if required), in each case, other than the Registration Statement, the Prospectus or the Prospectus Supplement.
In accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority Manual, the offering of the RD Securities
has been registered with the SEC on Form S-3 under the 1933 Act, and the RD Securities are being offered pursuant to Rule 415 promulgated
under the 1933 Act.


 






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


 


(e)          Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing or
registration with (other than the Required Filings), any Governmental Entity (as defined below) or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated
by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders,
filings and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been
or will be obtained or effected on or prior to the Closing Date, and neither the Company nor any of its Subsidiaries are aware
of any facts or circumstances which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the
registration, application or filings contemplated by the Transaction Documents. The Company is not in violation of the requirements
of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to delisting or suspension
of the Common Stock in the foreseeable future. “Governmental Entity” means any nation, state, county, city,
town, village, district, or other political jurisdiction of any nature, federal, state, local, municipal, foreign, or other government,
governmental or quasi-governmental authority of any nature (including any governmental agency, branch, department, official, or
entity and any court or other tribunal), multi-national organization or body; or body exercising, or entitled to exercise, any
administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature or instrumentality
of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public international organization
or any of the foregoing.


 




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(f)          Acknowledgment
Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that each Buyer is acting solely in the
capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby
and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144 promulgated under the 1933 Act (or successor rule thereto) (collectively, “Rule 144”))
of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the shares
of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)).
The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company or any of its Subsidiaries
(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby, and
any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents and the transactions
contemplated hereby and thereby is merely incidental to such Buyer’s purchase of the Securities. The Company further represents
to each Buyer that the Company’s decision to enter into the Transaction Documents to which it is a party has been based solely
on the independent evaluation by the Company, each Subsidiary and their respective representatives.


 


(g)          Fees.
The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, or brokers’
commissions (other than for Persons engaged by any Buyer or its investment advisor) relating to or arising out of the transactions
contemplated hereby. The placement agent’s fees, financial advisory fees, or brokers’ commissions to be paid by the
Company or any of its Subsidiaries are as set forth on Schedule 3(g) attached hereto. The Company shall pay, and hold each Buyer
harmless against, any liability, loss or expense (including, without limitation, attorney's fees and out-of-pocket expenses) arising
in connection with any such claim. Other than as set forth on Schedule 3(g), neither the Company nor any of its Subsidiaries has
engaged any placement agents, financial advisors or brokers in connection with the offer or sale of the Securities.


 


(h)          No
Integrated Offering. Except as set forth on Schedule 3(h), none of the Company, its Subsidiaries or any of their affiliates,
nor any Person acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers
to buy any security, under circumstances that would cause this offering of the Securities to require approval of stockholders of
the Company for purposes of the 1933 Act or under any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are
listed or designated for quotation. None of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf
will take any action or steps that would cause the offering of any of the Securities to be integrated with other offerings of securities
of the Company.


 




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(i)          Dilutive
Effect. The Company understands and acknowledges that the number of Conversion Shares will increase in certain circumstances.
The Company further acknowledges that its obligation to issue the Warrant Preferred Shares in accordance with the Warrants and
the Conversion Shares pursuant to the terms of the Certificate of Designations is, in each case, absolute and unconditional regardless
of the dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.


 


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


 


(k)          SEC
Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all reports,
schedules, forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting
requirements of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein
and financial statements, notes and schedules thereto and documents incorporated by reference therein being hereinafter referred
to as the “SEC Documents”). The Company has delivered or has made available to the Buyers or their respective
representatives true, correct and complete copies of each of the SEC Documents not available on the EDGAR system. As of their respective
dates, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations
of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with
the SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
As of their respective dates, the financial statements of the Company included in the SEC Documents complied in all material respects
with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as
of the time of filing. Such financial statements have been prepared in accordance with generally accepted accounting principles
(“GAAP”), consistently applied, during the periods involved (except (i) as may be otherwise indicated in such
financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the
Company as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate).
The reserves, if any, established by the Company or the lack of reserves, if applicable, are reasonable based upon facts and circumstances
known by the Company on the date hereof and there are no loss contingencies that are required to be accrued by the Statement of
Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which are not provided for by the Company in its
financial statements or otherwise. No other information provided by or on behalf of the Company to any of the Buyers which is not
included in the SEC Documents (including, without limitation, information referred to in Section 2(b)  of this Agreement or
in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they are or
were made. The Company is not currently contemplating to amend or restate any of the financial statements (including, without limitation,
any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the
“Financial Statements”), nor is the Company currently aware of facts or circumstances which would require the
Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be
in compliance with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants
that they recommend that the Company amend or restate any of the Financial Statements or that there is any need for the Company
to amend or restate any of the Financial Statements.


 




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(l)          Absence
of Certain Changes. Since the date of the Company’s most recent audited financial statements contained in a Form 10-K,
there has been no material adverse change and no material adverse development in the business, assets, liabilities, properties,
operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries.
Since the date of the Company’s most recent audited financial statements contained in a Form 10-K, neither the Company nor
any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually or in the aggregate, outside
of the ordinary course of business or (iii) made any capital expenditures, individually or in the aggregate, outside of the ordinary
course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law
or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or
any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries,
individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated
hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(l), “Insolvent”
means, (i) with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the
Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’
total Indebtedness (as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend
to incur or believe that they will incur debts that would be beyond their ability to pay as such debts mature; and (ii) with respect
to the Company and each Subsidiary, individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s
(as the case may be) assets is less than the amount required to pay its respective total Indebtedness, (B) the Company or such
Subsidiary (as the case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to incur
or believes that it will incur debts that would be beyond its respective ability to pay as such debts mature. Neither the Company
nor any of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business or in
any transaction, for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital
with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be conducted.


 




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(m)          No
Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has occurred
or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or any of their respective
businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise), that
(i) would be required to be disclosed by the Company under applicable securities laws on a registration statement on Form S-1 filed
with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly announced, (ii)
could have a material adverse effect on any Buyer’s investment hereunder or (iii) could have a Material Adverse Effect.


 


(n)          Conduct
of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in default
under its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding series of
preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation,
memorandum of association, articles of association, Certificate of Incorporation or certificate of incorporation or bylaws, respectively.
Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule
or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct
its business in violation of any of the foregoing, except in all cases for possible violations which could not, individually or
in the aggregate, have a Material Adverse Effect. Except as otherwise disclosed in the SEC Documents, without limiting the generality
of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of the Principal Market and
has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension of the Common Stock by the
Principal Market in the foreseeable future. During the two years prior to the date hereof, (i) the Common Stock has been listed
or designated for quotation on the Principal Market, (ii) trading in the Common Stock has not been suspended or delisted by the
SEC or the Principal Market and (iii) except as otherwise disclosed in the SEC Documents, the Company has received no communication,
written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal
Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates,
authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or any
of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected to
have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any acquisition
of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries as currently
conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably be expected to
have a Material Adverse Effect on the Company or any of its Subsidiaries.


 




    	 	10	 



     


    

  


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


 


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


 


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


 


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


 


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


 




    	 	11	 



     


    

  


(r)          Equity
Capitalization. 


 


(i)          Definitions:


 


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


 


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


 


(ii)         Authorized
and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 190,000,000
shares of Common Stock, of which, 9,565,520 are issued and 7,065,520 outstanding, and (B) 10,000,000 shares of preferred stock,
1,000,075 of which are issued and outstanding as follows: (i) 1,000,000 are designated as Series A Preferred Stock all of which
are issued and outstanding, (ii) 2,700 are designated as Series B Convertible Preferred Stock none of which are issued and outstanding
and (ii) 25,000 are designated as Series C Convertible Preferred Stock 75 of which are issued and outstanding. 2,500,000 shares
of Common Stock are held in the treasury of the Company.


 


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


 




    	 	12	 



     


    

  


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


 


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


 




    	 	13	 



     


    

  


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


 


(t)          Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public
board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors , whether of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in
Schedule 3(t). No director, officer or employee of the Company or any of its subsidiaries has willfully violated 18 U.S.C.
§1519 or engaged in spoliation in reasonable anticipation of litigation. Without limitation of the foregoing, there has not
been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company,
any of its Subsidiaries or any current or former director or officer of the Company or any of its Subsidiaries. The SEC has not
issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the
1933 Act or the 1934 Act. After reasonable inquiry of its employees, the Company is not aware of any fact which might result in
or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the Company nor any
of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.


 




    	 	14	 



     


    

  


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


 


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


 


(w)          Title.


 


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


 




    	 	15	 



     


    

  


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


 


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


 


(y)          Environmental
Laws. (i) The Company and its Subsidiaries (A) are in compliance
with any and all Environmental Laws (as defined below), (B) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective businesses and (C) are in compliance with all terms and conditions
of any such permit, license or approval where, in each of the foregoing clauses (A), (B) and (C), the failure to so comply could
be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect. The term “Environmental Laws”
means all federal, state, local or foreign laws relating to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or subsurface strata), including, without limitation,
laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous
substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters,
orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.


 




    	 	16	 



     


    

  


(ii)         No
Hazardous Materials:


 


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


 


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


 


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


 


(iv)        No
Real Property is on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related
Liens.


 


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


 


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


 




    	 	17	 



     


    

  


(bb)         Internal
Accounting and Disclosure Controls. Except as otherwise disclosed on Schedule 3(bb), the Company and each of its Subsidiaries
maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles, including that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access to assets or incurrence
of liabilities is permitted only in accordance with management’s general or specific authorization and (iv) the recorded
accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any difference. Except as otherwise disclosed on Schedule 3(bb), the Company maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15(e) under the 1934 Act) that are effective in ensuring that information
required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded, processed, summarized
and reported, within the time periods specified in the rules and forms of the SEC, including, without limitation, controls and
procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits
under the 1934 Act is accumulated and communicated to the Company’s management, including its principal executive officer
or officers and its principal financial officer or officers, as appropriate, to allow timely decisions regarding required disclosure.
Neither the Company nor any of its Subsidiaries has received any notice or correspondence from any accountant, Governmental Entity
or other Person relating to any potential material weakness or significant deficiency in any part of the internal controls over
financial reporting of the Company or any of its Subsidiaries.


 


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


 


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


 




    	 	18	 



     


    

  


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


 


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


 


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


 


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


 


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


 




    	 	19	 



     


    

  


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


 


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


 


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


 


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


 


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


 


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


 




    	 	20	 



     


    

  


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




    	 	21	 



     


    

  


(oo)         No
Disagreements with Accountants and Lawyers. There are no material
disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants
and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants
and lawyers which could affect the Company's ability to perform any of its obligations under any of the Transaction Documents.
In addition, on or prior to the date hereof, the Company had discussions with its accountants about its financial statements previously
filed with the SEC. Based on those discussions, the Company has no reason to believe that it will need to restate any such financial
statements or any part thereof.


 


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


 


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


 


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


 


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


 


(tt)         Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents or
counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning
the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other
Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing representations
in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf
of the Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which
they were made, not misleading. All of the written information furnished after the date hereof by or on behalf of the Company or
any of its Subsidiaries to each Buyer pursuant to or in connection with this Agreement and the other Transaction Documents, taken
as a whole, will be true and correct in all material respects as of the date on which such information is so provided and will
not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not misleading. Each press release issued by the Company
or any of its Subsidiaries during the twelve (12) months preceding the date of this Agreement did not at the time of release contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they are made, not misleading. No event or circumstance
has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business, properties,
liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable
law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not
been so publicly disclosed. All financial projections and forecasts that have been prepared by or on behalf of the Company or any
of its Subsidiaries and made available to you have been prepared in good faith based upon reasonable assumptions and represented,
at the time each such financial projection or forecast was delivered to each Buyer, the Company’s best estimate of future
financial performance (it being recognized that such financial projections or forecasts are not to be viewed as facts and that
the actual results during the period or periods covered by any such financial projections or forecasts may differ from the projected
or forecasted results). The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties with
respect to the transactions contemplated hereby other than those specifically set forth in Section 2.


 




    	 	22	 



     


    

  


4.           COVENANTS.


 


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


 


(b)          Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses.


 


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


 




    	 	23	 



     


    

  


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


 


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


 




    	 	24	 



     


    

  


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


 


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


 


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


 


(g)          Use
of Proceeds. The Company will use the proceeds from the sale of the Securities for general corporate purposes and the repayment
of outstanding indebtedness.


 




    	 	25	 



     


    

  


(h)          Financial
Information. The Company agrees to send the following to each holder of Securities, as applicable (each, an “Investor”)
during the Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through
the EDGAR system, within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K
and Quarterly Reports on Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’
equity statements and/or cash flow statements for any period other than annual, any Current Reports on Form 8-K and any registration
statements (other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with
the SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire), on the
same day as the release thereof, facsimile copies of all press releases issued by the Company or any of its Subsidiaries and (iii)
unless the following are filed with the SEC through EDGAR, copies of any notices and other information made available or given
to the stockholders of the Company generally, contemporaneously with the making available or giving thereof to the stockholders.
In addition to the foregoing, the Company shall file with the SEC through EDGAR a Current Report on Form 8-K setting forth the
aggregate number of shares of Common Stock then outstanding (the “Current Outstanding Shares”) no later than
the first (1st) Business Day after such date that the Current Outstanding Shares has increased by more than 20% from
the aggregate number of outstanding shares of Common Stock set forth in the latest of the Company’s Current Report on Form
8-K, Quarterly Report on Form 10-Q or Annual Report on Form 10-K, as applicable, filed with the SEC through EDGAR prior to such
date of determination.


 


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


 




    	 	26	 



     


    

  


(j)          Fees.
The Company shall reimburse the lead Buyer for all costs and expenses incurred by it or its affiliates in connection with the structuring,
documentation, negotiation and closing of the transactions contemplated by the Transaction Documents (including, without limitation,
as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley Drye & Warren LLP, counsel to the lead
Buyer, any other reasonable fees and expenses in connection with the structuring, documentation, negotiation and closing of the
transactions contemplated by the Transaction Documents and due diligence and regulatory filings in connection therewith) less $15,000
previously paid by the Company to the lead Buyer (such net amount, the “Transaction Expenses”) and such Transaction
Expenses shall be withheld by the lead Buyer from its Purchase Price at the Closing; provided, that the Company shall promptly
reimburse Kelley Drye & Warren LLP on demand for any Transaction Expenses not so withheld by the lead Buyer at the Closing.
The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, transfer agent fees,
DTC (as defined below) fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising
out of the transactions contemplated hereby (including, without limitation, any fees or commissions payable as set forth on Schedule
3(g)). The Company shall pay, and hold each Buyer harmless against, any liability, loss or expense (including, without limitation,
reasonable attorneys’ fees and out-of-pocket expenses) arising in connection with any claim relating to any such payment.
Except as otherwise set forth in the Transaction Documents, each party to this Agreement shall bear its own expenses in connection
with the sale of the Securities to the Buyers.


 


(k)          Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that
the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement
that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or assignment of the Securities
hereunder, and no Investor effecting a pledge of Securities shall be required to provide the Company with any notice thereof or
otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document. The Company hereby agrees
to execute and deliver such documentation as a pledgee of the Securities may reasonably request in connection with a pledge of
the Securities to such pledgee by an Investor.


 


(l)          Disclosure
of Transactions and Other Material Information.


 


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


 




    	 	27	 



     


    

  


(ii)         Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective
officers, directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company
or any of its Subsidiaries from and after the date hereof without the express prior written consent of such Buyer (which may be
granted or withheld in such Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants, including,
without limitation, Section 4(q) of this Agreement, or any of the covenants or agreements contained in any other Transaction
Document, by the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees and agents
(as determined in the reasonable good faith judgment of such Buyer), in addition to any other remedy provided herein or in the
Transaction Documents, such Buyer shall have the right to make a public disclosure, in the form of a press release, public advertisement
or otherwise, of such breach or such material, non-public information, as applicable, without the prior approval by the Company,
any of its Subsidiaries, or any of its or their respective officers, directors, employees or agents. No Buyer shall have any liability
to the Company, any of its Subsidiaries, or any of its or their respective officers, directors, employees, affiliates, stockholders
or agents, for any such disclosure. To the extent that the Company delivers any material, non-public information to a Buyer without
such Buyer's consent, the Company hereby covenants and agrees that such Buyer shall not have any duty of confidentiality with respect
to, or a duty not to trade on the basis of, such material, non-public information. Subject to the foregoing, neither the Company,
its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with respect to the transactions contemplated
hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer, to make the Press Release and
any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing
and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause
(i) each Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to
its release). Without the prior written consent of the applicable Buyer (which may be granted or withheld in such Buyer’s
sole discretion), the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such
Buyer in any filing, announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and
without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Buyer shall
have (unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and binding agreement executed
by the Company and such particular Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)),
any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding
the Company or any of its Subsidiaries.


 




    	 	28	 



     


    

  


(iii)        Other
Confidential Information. Disclosure Failures; Disclosure Delay Payments. In addition to other remedies set forth in this Section
4(l), and without limiting anything set forth in any other Transaction Document, at any time after the Closing Date if the Company,
any of its Subsidiaries, or any of their respective officers, directors, employees or agents, provides any Buyer with material
non-public information relating to the Company or any of its Subsidiaries (each, the “Confidential Information”),
the Company shall, on or prior to the applicable Required Disclosure Date (as defined below), publicly disclose such Confidential
Information on a Current Report on Form 8-K or otherwise (each, a “Disclosure”). From and after such Disclosure,
the Company shall have disclosed all Confidential Information provided to such Buyer by the Company or any of its Subsidiaries
or any of their respective officers, directors, employees or agents in connection with the transactions contemplated by the Transaction
Documents. In addition, effective upon such Disclosure, the Company acknowledges and agrees that any and all confidentiality or
similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their
respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers or any of their affiliates,
on the other hand, shall terminate. In the event that the Company fails to effect such Disclosure on or prior to the Required Disclosure
Date and such Buyer provides the Company written notice of its belief it is in possession of Confidential Information and after
providing written notice to the Company of such and thereafter shall have possessed Confidential Information for at least ten (10)
consecutive Trading Days (each, a “Disclosure Failure”), then, as partial relief for the damages to such Buyer
by reason of any such delay in, or reduction of, its ability to buy or sell shares of Common Stock after such Required Disclosure
Date (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to such Buyer
an amount in cash equal to the greater of (I) one percent (1%) of the aggregate Purchase Price or (II) the applicable Disclosure
Restitution Amount (defined below), on each of the following dates (each, a “Disclosure Delay Payment Date”):
(i) on the date of such Disclosure Failure and (ii) on every thirty (30) day anniversary such Disclosure Failure until the earlier
of (x) the date such Disclosure Failure is cured and (y) such time as all such non-public information provided to such Buyer shall
cease to be Confidential Information (as evidenced by a certificate, duly executed by an authorized officer of the Company to the
foregoing effect) (such earlier date, as applicable, a “Disclosure Cure Date”). Following the initial Disclosure
Delay Payment for any particular Disclosure Failure, without limiting the foregoing, if a Disclosure Cure Date occurs prior to
any thirty (30) day anniversary of such Disclosure Failure, then such Disclosure Delay Payment (prorated for such partial month)
shall be made on the third (3rd) Business Day after such Disclosure Cure Date. The payments to which an Investor shall be entitled
pursuant to this Section 4(l)(iii) are referred to herein as “Disclosure Delay Payments.” In the event the Company
fails to make Disclosure Delay Payments in a timely manner in accordance with the foregoing, such Disclosure Delay Payments shall
bear interest at the rate of two percent (2%) per month (prorated for partial months) until paid in full.


 




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


 


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


 


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


 


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


 




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(m)          Additional
Issuance of Securities. So long as any Buyer beneficially owns any Securities, the Company will not, without the prior written
consent of the Required Holders (as defined below), issue any Preferred Shares (other than to the Buyers as contemplated hereby)
and the Company shall not issue any other securities that would cause a breach or default under any Transaction Document. The Company
agrees that for the period commencing on the date hereof and ending on the date immediately following the 90th Trading
Day after the date hereof (provided that such period shall be extended by the number of calendar days during such period and any
extension thereof contemplated by this provision on which any Registration Statement is not effective or any prospectus contained
therein is not available for use) (the “Restricted Period”), neither the Company nor any of its Subsidiaries
shall directly or indirectly: (i) amend or modify (whether by an amendment, waiver, exchange of securities, or otherwise) any of
the Company’s warrants to purchase Common Stock that are outstanding as of the date hereof; or (ii) issue, offer, sell, grant
any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any option or right to
purchase or other disposition of) any equity security or any equity-linked or related security (including, without limitation,
any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible Securities
(as defined below), any debt, any preferred stock or any purchase rights (any such issuance, offer, sale, grant, disposition or
announcement (whether occurring during the Restricted Period or at any time thereafter) is referred to as a “Subsequent
Placement”). Notwithstanding the foregoing, this Section 4(m) shall not apply in respect of the issuance of (i) shares
of Common Stock or standard options to purchase Common Stock to third party service providers in lieu of or in addition to cash
for services rendered; provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise
of such options) after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 15% of the Common
Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered,
none of such options are amended to increase the number of shares issuable thereunder and none of the terms or conditions of any
such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (ii) shares of Common Stock
or standard options to purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant
to an Approved Stock Plan (as defined below), provided that (1) all such issuances (taking into account the shares of Common Stock
issuable upon exercise of such options) after the date hereof pursuant to this clause (ii) do not, in the aggregate, exceed more
than 15% of the Common Stock issued and outstanding immediately prior to the date hereof and (2) the exercise price of any such
options is not lowered, none of such options are amended to increase the number of shares issuable thereunder and none of the terms
or conditions of any such options are otherwise materially changed in any manner that adversely affects any of the Buyers; (iii)
shares of Common Stock issued upon the conversion or exercise of Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (ii) above) issued prior to the date hereof,
provided that the conversion, exercise or other method of issuance (as the case may be) of any such Convertible Security is made
solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions of such Convertible Security
that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise or issuance price of
any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan
that are covered by clause (ii) above) is not lowered other than as may be required by the terms of such Convertible Securities
in effect as of the date hereof, none of such Convertible Securities (other than standard options to purchase Common Stock issued
pursuant to an Approved Stock Plan that are covered by clause (ii) above) are amended to increase the number of shares issuable
thereunder other than as may be required by the terms of such Convertible Securities in effect as of the date hereof and none of
the terms or conditions of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant
to an Approved Stock Plan that are covered by clause (ii) above) are otherwise materially changed in any manner that adversely
affects any of the Buyers; (iv) the Conversion Shares, (v) the Warrant Preferred Shares, (vi) the Warrant, (vii) the Common Shares
(each of the foregoing in clauses (i) through (vii), collectively the “Excluded Securities”) and (viii) a bona
fide public offering of securities of the Company, which (A) would not reasonably be expected to result in the occurrence of a
Triggering Event (as defined in the Certificate of Designations), (B) results in gross proceeds in an amount not less than $2 million
and not greater than $3 million, (C) consists of a single offering with only one closing (subject to any subsequent closing of
an overallotment option granted to the underwriters) and (D) is consummated pursuant to a registration statement on Form S-3. “Approved
Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to
or subsequent to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be
issued to any employee, officer or director for services provided to the Company in their capacity as such. “Convertible
Securities” means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and
under any circumstances directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the
holder thereof to acquire, any capital stock or other security of the Company (including, without limitation, Common Stock) or
any of its Subsidiaries.


 




    	 	31	 



     


    

  


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


 


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


 




    	 	32	 



     


    

  


(p)          Other
Preferred Shares; Variable Securities. So long as any Warrants or Warrant Preferred Shares remain outstanding, the Company
and each Subsidiary shall be prohibited from effecting or entering into an agreement to effect any Subsequent Placement involving
a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which the Company or any Subsidiary
(i) issues or sells any Convertible Securities either (A) at a conversion, exercise or exchange rate or other price that is based
upon and/or varies with the trading prices of or quotations for the shares of Common Stock at any time after the initial issuance
of such Convertible Securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at some future
date after the initial issuance of such Convertible Securities or upon the occurrence of specified or contingent events directly
or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant to a customary “weighted
average” anti-dilution provision or (ii) enters into any agreement (including, without limitation, an equity line of credit
or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future determined price
(other than standard and customary “preemptive” or “participation” rights). Each Buyer shall be entitled
to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition
to any right to collect damages.


 


(q)          Participation
Right. So long as any Warrants or Warrant Preferred Shares remain outstanding, neither the Company nor any of its Subsidiaries
shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this Section 4(q).
The Company acknowledges and agrees that the right set forth in this Section 4(q) is a right granted by the Company, separately,
to each Buyer.


 


(i)          At
least three (3) Trading Days prior to any proposed or intended Subsequent Placement, the Company shall deliver to each Buyer a
written notice (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information (including,
without limitation, material, non-public information) other than: (A) if the proposed Offer Notice (as defined below) constitutes
or contains material, non-public information, a statement asking whether the Investor is willing to accept material non-public
information or (B) if the proposed Offer Notice does not constitute or contain material, non-public information, (x) a statement
that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the statement in clause (x) above does
not constitute material, non-public information and (z) a statement informing such Buyer that it is entitled to receive an Offer
Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written request of a Buyer
within three (3) Trading Days after the Company’s delivery to such Buyer of such Pre-Notice, and only upon a written request
by such Buyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to such Buyer an irrevocable
written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”)
of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall
(A) identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold
or exchanged, and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if
known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (D) offer to issue and sell
to or exchange with such Buyer in accordance with the terms of the Offer such Buyer’s pro rata portion of 50% of the Offered
Securities, provided that the number of Offered Securities which such Buyer shall have the right to subscribe for under this Section
4(q) shall be (x) based on such Buyer’s pro rata portion of the aggregate number of Common Shares purchased hereunder by
all Buyers (the “Basic Amount”), and (y) with respect to each Buyer that elects to purchase its Basic Amount,
any additional portion of the Offered Securities attributable to the Basic Amounts of other Buyers as such Buyer shall indicate
it will purchase or acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription
Amount”), which process shall be repeated until each Buyer shall have an opportunity to subscribe for any remaining Undersubscription
Amount.


 




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(ii)         To
accept an Offer, in whole or in part, such Buyer must deliver a written notice to the Company prior to the end of the third (3rd)
Business Day (or first (1st) Business Day, if such Subsequent Placement is a registered public offering of securities of the Company)
after such Buyer’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of such
Buyer’s Basic Amount that such Buyer elects to purchase and, if such Buyer shall elect to purchase all of its Basic Amount,
the Undersubscription Amount, if any, that such Buyer elects to purchase (in either case, the “Notice of Acceptance”).
If the Basic Amounts subscribed for by all Buyers are less than the total of all of the Basic Amounts, then each Buyer who has
set forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts
subscribed for, the Undersubscription Amount it has subscribed for; provided, however, if the Undersubscription Amounts subscribed
for exceed the difference between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available
Undersubscription Amount”), each Buyer who has subscribed for any Undersubscription Amount shall be entitled to purchase
only that portion of the Available Undersubscription Amount as the Basic Amount of such Buyer bears to the total Basic Amounts
of all Buyers that have subscribed for Undersubscription Amounts, subject to rounding by the Company to the extent it deems reasonably
necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the terms and conditions of the Offer prior
to the expiration of the Offer Period, the Company may deliver to each Buyer a new Offer Notice and the Offer Period shall expire
on the third (3rd) Business Day (or first (1st) Business Day, if such Subsequent Placement is a registered public offering
of securities of the Company) after such Buyer’s receipt of such new Offer Notice.


 


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


 




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


 


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


 


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


 


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


 


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


 




    	 	35	 



     


    

  


(ix)         Notwithstanding
anything to the contrary in this Section 4(q), the Company shall not be obligated to comply with the terms and conditions of this
Section 4(q) (solely with respect to such applicable Subsequent Placement and not with respect to any future Subsequent Placement)
in the event the Buyer notifies the Company that it does not consent to receive material non-public information as provided in
the Pre-Notice delivered by the Company to the Buyer pursuant to Section 4(q)(i)(A).


 


(x)          The
restrictions contained in this Section 4(q) shall not apply in connection with the issuance of any Excluded Securities (for purposes
of this Section 4(q)(x), without giving effect to the percentage limitations set forth in clauses (i) and (ii) of the definition
of “Excluded Securities”). The Company shall not circumvent the provisions of this Section 4(q) by providing terms
or conditions to one Buyer that are not provided to all.


 


(r)          Dilutive
Issuances. For so long as any Warrants or Warrant Preferred Shares remain outstanding, the Company after the date hereof shall
not, in any manner, enter into or affect any Dilutive Issuance (as defined in the Certificate of Designations) if the effect of
such Dilutive Issuance is to cause the Company to be required to issue upon conversion of any Preferred Shares or exercise of any
Warrant any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue upon conversion
of the Preferred Shares and exercise of the Warrants without breaching the Company’s obligations under the rules or regulations
of the Principal Market.


 


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


 


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


 


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


 




    	 	36	 



     


    

  


(v)         Stock
Splits. Until the Warrants or Warrant Preferred Shares are no longer outstanding, the Company shall not effect any stock combination,
reverse stock split or other similar transaction (or make any public announcement or disclosure with respect to any of the foregoing)
without the prior written consent of the Required Holders (as defined below), unless the sole purpose of such transaction is to
maintain the Company’s listing on the Principal Market.


 


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


 


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


 


(y)          Stockholder
Approval. The Company shall prepare and file with the SEC, as promptly as practicable after the date hereof, but in no event
later than the forty-fifth (45th) calendar day after the Closing Date (the “Stockholder Approval Deadline”),
an information statement (the “Information Statement”), substantially in a form reasonably acceptable to the
Buyers and Kelley Drye & Warren LLP, at the expense of the Company, with the Company obligated to reimburse the expenses of
Kelley Drye & Warren LLP incurred in connection therewith, informing the stockholders of the Company of the receipt of the
consents, in form and substance reasonably acceptable to the Buyers, of the requisite stockholders (the “Stockholder
Consent” or “Stockholder Approval” and the date such Stockholder Consent is effective pursuant to
applicable law and regulation, the “Stockholder Approval Date”) including resolutions (the “Stockholder
Resolutions”) approving the Company's issuance of all of the Securities as described in the Transaction Documents in
accordance with applicable law and the rules and regulations of the Principal Market. The definitive Information Statement shall
have been mailed to the stockholders no later than three (3) Business Days after (i) the expiration of the ten (10) calendar day
waiting period required by Rule 14a-6 or (ii) in the event the Company receives comments from the SEC to the Information Statement,
the date the Company is notified (orally or in writing) by the SEC that such Information Statement will not be subject to further
review.


 


(z)          No
Waiver of Voting Agreements. The Company shall not amend, waive or modify any provision of any of the Voting Agreements (as
defined below).


 


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


 




    	 	37	 



     


    

  


5.           REGISTER;
TRANSFER AGENT INSTRUCTIONS; LEGEND.


 


(a)          Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate
by notice to each holder of Securities), a register for the Common Shares, Warrants and the Warrant Preferred Shares in which the
Company shall record the name and address of the Person in whose name the Common Shares, Warrants and the Warrant Preferred Shares
have been issued (including the name and address of each transferee), the aggregate number of the Common Shares, Warrant Preferred
Shares issuable upon exercise of the Warrants and Warrant Preferred Shares held by such Person and the number of Conversion Shares
issuable pursuant to the terms of the Certificate of Designations with respect to the Warrant Preferred Shares held by such Person.
The Company shall keep the register open and available at all times during business hours for inspection of any Buyer or its legal
representatives.


 


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


 




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


 


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


 


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


 


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


 


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


 


(ii)         Such
Buyer and each other Buyer shall have delivered to the Company the Purchase Price for the Common Shares and the related Warrants
(less, in the case of any Buyer, the amounts withheld pursuant to Section 4(j)) for the Warrants and Warrant Preferred Shares
being purchased by such Buyer at the Closing by wire transfer of immediately available funds in accordance with the Flow of Funds
Letter.


 


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


 


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


 


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


 


(i)          The
Company shall have duly executed and delivered to such Buyer each of the Transaction Documents to which it is a party and the Company
shall have duly executed and delivered to such Buyer (A) the aggregate number of Common Shares set forth opposite such Buyer’s
name in column (3) on the Schedule of Buyers, and (B) the aggregate number of Warrants as is set forth opposite such Buyer’s
name in column (4) of the Schedule of Buyers, in each case, being purchased by such Buyer at the Closing pursuant to this Agreement.


 




    	 	39	 



     


    

  


(ii)         Such
Buyer shall have received the opinion of Goodwin Procter LLP, the Company’s counsel, dated as of the Closing Date, in form
and substance reasonably acceptable to such Buyer.


 


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


 


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


 


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


 


(vi)        The
Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation (including the Certificate of Designations)
as certified by the Delaware Secretary of State within ten (10) days of the Closing Date.


 


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


 


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


 




    	 	40	 



     


    

  


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


 


(x)          The
Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been
suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension
by the SEC or the Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal
Market or (II) by falling below the minimum maintenance requirements of the Principal Market, in each case other than such notifications
received from the Principal Market and disclosed by the Company in the SEC Documents.


 


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


 


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


 


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


 


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


 


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


 


(xvi)      The
Company shall have duly executed and delivered to such Buyer a voting agreement in the form of Exhibit E hereof (the
“Voting Agreement”), duly executed and delivered to such Buyer by the holder of the Company’s Series A
Preferred Stock (the “Principal Stockholder”), representing at least 51% of the outstanding voting securities
of the Company as of the date hereof. The Company shall have delivered to such Buyer the Stockholder Consent executed by the Principal
Stockholder, in form and substance reasonably satisfactory to such Buyer.


 




    	 	41	 



     


    

  


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


 


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


 


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


 


8.           TERMINATION.


 


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


 




    	 	42	 



     


    

  


9.           MISCELLANEOUS.


 


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


 


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


 


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


 




    	 	43	 



     


    

  


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


 




    	 	44	 



     


    

  


(e)          Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the
Company, its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions
by any Buyer with respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement,
the other Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and
therein contain the entire understanding of the parties solely with respect to the matters covered herein and therein. Except as
specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking
with respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement
may be amended or waived other than by an instrument in writing signed by the Company and the Required Holders (as defined below),
and any amendment or waiver to any provision of this Agreement made in conformity with the provisions of this Section 9(e)
shall be binding on all Buyers and holders of Securities, as applicable. The Company has not, directly or indirectly, made any
agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the Transaction Documents except
as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that, except as set forth in this
Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any financing to the Company, any
Subsidiary or otherwise. As a material inducement for each Buyer to enter into this Agreement, the Company expressly acknowledges
and agrees that (x) no due diligence or other investigation or inquiry conducted by a Buyer, any of its advisors or any of its
representatives shall affect such Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to
any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document and (y)
unless a provision of this Agreement or any other Transaction Document is expressly preceded by the phrase “except as disclosed
in the SEC Documents,” nothing contained in any of the SEC Documents shall affect such Buyer’s right to rely on, or
shall modify or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained
in this Agreement or any other Transaction Document. “Required Holders” means (I) prior to the Closing Date,
each Buyer entitled to purchase Common Shares and Warrants at the Closing and (II) on or after the Closing Date, holders of sixty-five
(65%) of the Underlying Securities (on an as-converted and as-exercised basis (assuming the exercise, in full, of the Warrants),
without regard to any limitations on conversion or exercise thereof and using the Alternate Conversion Price or exercise price,
as applicable, then in effect) as of such time (excluding any Securities held by the Company or any of its Subsidiaries as of such
time) (or the Buyers, with respect to any waiver or amendment of Section 4(q)); provided, that such sixty-five (65%) must include
Alto Opportunity Master Fund, SPC - Segregated Master Portfolio B as long as it beneficially owns (or has the right to acquire
upon exercise of any Warrants) any Warrant Preferred Shares.


 


(f)          Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent
by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending
party) or electronic mail; or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses
for such communications shall be:


 


If to the Company:


 


MagneGas Corporation

11885 44th St. N.

Clearwater, FL 33762

Telephone: (727) 934-3448

Facsimile: (727) 290-4941

Attention: Chief Financial Officer

E-Mail: scottmahoney@magnegas.com


 


If to the Transfer Agent:


 


Corporate Stock Transfer, Inc.

3200 Cherry Creek Drive South, #430

Denver, CO 80209

Telephone: (303) 282-4800

Facsimile: (303) 282-5800

Attention: Karen Naughton

E-Mail: knaughton@corporatestock.com


 


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


 




    	 	45	 



     


    

  


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

101 Park Avenue

New York, NY 10178

Telephone: (212) 808-7540

Facsimile: (212) 808-7897

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


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


 


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


 


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


 


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


 


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


 




    	 	46	 



     


    

  


(k)          Indemnification.


 


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


 




    	 	47	 



     


    

  


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


 


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


 


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


 




    	 	48	 



     


    

  


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


 


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


 


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


 


(o)          Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of
the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such payment
or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared to be fraudulent
or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise restored to the Company,
a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy law, foreign, state or federal
law, common law or equitable cause of action), then to the extent of any such restoration the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other
Transaction Documents are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement
and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be
converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange
Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Agreement,
the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation.


 




    	 	49	 



     


    

  


(p)          Judgment
Currency.


 


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


 


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


 


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


 


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


 


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


 




    	 	50	 



     


    

  


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


 


[signature pages follow]


 




    	 	51	 



     


    

 


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


 


	 	COMPANY:
	 	 
	 	MAGNEGAS CORPORATION
	 	 
	 	By:	/s/ Ermanno Santilli
	 	 	Name: Ermanno Santilli
	 	 	Title: Chief Executive Officer


 






     

     


    

 


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


 


	 	BUYER:
	 	 
	 	ALTO OPPORTUNITY MASTER FUND, SPC - SEGREGATED MASTER PORTFOLIO B
	 	 	 
	 	By:	/s/ Waqas Khatri
	 	 	Name: Waqas Khatri
	 	 	Title: Director


 






     

     


    

 


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


 


	 	BUYER:
	 	 
	 	HUDSON BAY MASTER FUND LTD
	 	 	 
	 	By:	/s/ George Antonopoulos
	 	 	Name: George Antonopoulos
	 	 	Title: Authorized Signatory


 






     

     


    

 


SCHEDULE OF
BUYERS


 


	(1)	 	(2)	 	(3)	 	 	(4)	 	 	(5)	 	 	(6)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Buyer	 	Address and Facsimile Number	 	Aggregate
 Number of
 Common Shares	 	 	Aggregate
 Number of
 Warrant
 Preferred
 Shares	 	 	Purchase
 Price	 	 	Legal Representative’s
 Address and Facsimile Number
	Alto Opportunity
 Master Fund, SPC
 - Segregated
 Master Portfolio
 B	 	c/o Ayrton Capital LLC 
1180 Avenue of Americas 
Suite 842 
New York, NY 10036 
Attention Waqas Khatri 
E-mail: wk@ayrtonllc.com 
	 	 	112,500	 	 	 	520,817	 	 	$	112,500	 	 	Kelley Drye & Warren LLP 
101 Park Avenue 
New York, NY 10178 
Telephone: (212) 808-7540 
Facsimile: (212) 808-7897 
Attention: Michael A. Adelstein, Esq.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Hudson Bay Master Fund Ltd.	 	Please deliver any notices other than Pre-Notices to: 
  
777 Third
                                 Avenue, 30th Floor
 New York, NY 10017
 Attention: Yoav Roth
 Facsimile: (212) 571-1279
 E-mail:
                                 investments@hudsonbaycapital.com

                                  

                                 Please deliver any Pre-Notice to: 
  
777 Third Ave., 30th Floor 
New York, NY
                                 10017 
Facsimile: (646) 214-7946 
Attention: Scott Black 
General Counsel and Chief Compliance Officer 

	 	 	37,500	 	 	 	173,605	 	 	$	37,500	 	 	N/A
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	TOTAL	 	 	 	 	150,000	 	 	 	694,422	 	 	$	150,000