Exhibit
10.1


 





PURCHASE
AGREEMENT


 


THIS
PURCHASE AGREEMENT (the “Agreement”), dated as of December 5, 2019 (the “Execution Date”),
is entered into by and between POLARITYTE, INC., a Delaware corporation (the “Company”), and KEYSTONE
CAPITAL PARTNERS, LLC, a Delaware limited liability company (the “Investor”). Capitalized terms used herein
and not otherwise defined herein are defined in Section 1 hereof.


 


RECITAL


 


Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to
buy from the Company, up to Twenty Five Million Dollars ($25,000,000) of the Company’s common stock, par value $0.001 per
share (the “Common Stock”). The shares of Common Stock to be purchased hereunder at the direction of the Company
are referred to herein as the “Purchase Shares.”


 


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


 


	1.	CERTAIN
    DEFINITIONS.


 


For
purposes of this Agreement, the following terms shall have the following meanings:


 


	 	(a)	“Administrative
    Fee” has the meaning set forth in Section 5(e).
	 	 	 
	 	(b)	“Applicable
    Laws” has the meaning set forth in Section 4(dd).
	 	 	 
	 	(c)	“Available
    Amount” means Twenty Five Million Dollars ($25,000,000) in the aggregate, which amount shall be reduced by the Purchase
    Amount each time the Investor purchases Purchase Shares pursuant to Section 2 hereof
	 	 	 
	 	(d)	“Bankruptcy
    Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
	 	 	 
	 	(e)	“Base
    Prospectus” means the Company’s final base prospectus, dated February 22, 2019, a form of which is included
    in the Registration Statement, including the documents incorporated by reference therein.
	 	 	 
	 	(f)	“Business
    Day” means any day on which the Principal Market is open for trading, including any day on which the Principal Market
    is open for trading for a period of time less than the customary time.
	 	 	 
	 	(g)	“Closing
    Sale Price” means, for any security as of any date, the last closing sale price for such security on the Principal
    Market as reported by the Principal Market.
	 	 	 
	 	(h)	“Commencement
    Date” means the date on which the Initial Prospectus Supplement is filed with the SEC pursuant to the Registration
    Rights Agreement.
	 	 	 
	 	(i)	“Common
    Stock Equivalents” means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire
    at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument
    that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
    Common Stock.



 



    	 		 



    	 



    

 


	 	(j)	“Confidential
    Information” means any information disclosed by either party to the other party, either directly or indirectly,
    in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant
    and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation.
    Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information
    shall not, however, include any information which (i) was publicly known and made generally available in the public domain
    prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure
    by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the
    possession of the receiving party without confidential restriction at the time of disclosure by the disclosing party as shown
    by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving
    party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently
    developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as
    shown by documents and other competent evidence in the receiving party’s possession; or (vi) is required by law to be
    disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice
    of such requirement prior to such disclosure and assists the disclosing party in obtaining an order protecting the information
    from public disclosure.
	 	 	 
	 	(k)	“Custodian”
    means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
	 	 	 
	 	(l)	“DTC”
    means The Depository Trust Company, or any successor performing substantially the same function for the Company.
	 	 	 
	 	(m)	“DWAC
    Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable
    and without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s
    specified Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program,
    or any similar program hereafter adopted by DTC performing substantially the same function.
	 	 	 
	 	(n)	“Exchange
    Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
	 	 	 
	 	(o)	“Floor
    Price” means Two Dollars and No Cents ($2.00) (which shall be appropriately adjusted for any reorganization, recapitalization,
    non-cash dividend, stock split, reverse stock split or other similar transaction).
	 	 	 
	 	(p)	“Initial
    Prospectus Supplement” means the prospectus supplement of the Company relating to the Securities, including the
    accompanying Base Prospectus, to be prepared and filed by the Company with the SEC pursuant to Rule 424(b)(5) under the Securities
    Act and in accordance with Section 5(a) hereof, together with all documents and information incorporated therein by reference.



 



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	 	(q)	“Material
    Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document, (ii) the
    results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, provided
    that none of the following, individually or in the aggregate, shall be taken into account in determining whether a Material
    Adverse Effect has occurred (A) any change in the United States or foreign economies or securities or financial markets in
    general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (B) any change
    that generally affects the industry in which the Company and its Subsidiaries operate that does not have a disproportionate
    effect on the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with earthquakes, hostilities,
    acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts
    of war, sabotage or terrorism or military actions existing as of the Execution Date, (D) any action taken by the Investor,
    its affiliates or its or their successors and assigns with respect to the transactions contemplated by this Agreement, (E)
    the effect of any change in Applicable Laws or accounting rules that does not have a disproportionate effect on the Company
    and its Subsidiaries, taken as a whole, or (F) any change resulting from compliance with terms of this Agreement or the consummation
    of the transactions contemplated by this Agreement, or (iii) the Company’s ability to perform in any material respect
    on a timely basis its obligations under any Transaction Document to be performed as of the date of determination.
	 	 	 
	 	(r)	“Maturity
    Date” means the first day of the month immediately following the thirty-six (36) month anniversary of the Commencement
    Date.
	 	 	 
	 	(s)	“Person”
    means an individual or entity including but not limited to any limited liability company, a partnership, a joint venture,
    a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.
	 	 	 
	 	(t)	“Principal
    Market” means the Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however,
    that in the event the Company’s Common Stock is ever listed or traded on the Nasdaq Global Market, the Nasdaq Global
    Select Market, the New York Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin Board, or the OTCQX or OTCQB
    operated by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing), then the “Principal
    Market” shall mean such other market or exchange on which the Company’s Common Stock is then listed or traded.
	 	 	 
	 	(u)	“Prospectus”
    means the Base Prospectus, as supplemented by any Prospectus Supplement (including the Initial Prospectus Supplement), including
    the documents and information incorporated by reference therein.
	 	 	 
	 	(v)	“Prospectus
    Supplement” means any prospectus supplement to the Base Prospectus (including the Initial Prospectus Supplement)
    filed with the SEC pursuant to Rule 424(b) under the Securities Act in connection with the transactions contemplated by this
    Agreement, including the documents and information incorporated by reference therein.
	 	 	 
	 	(w)	“Purchase
    Amount” means, with respect to any purchase made hereunder, as applicable, the portion of the Available Amount to
    be purchased by the Investor pursuant to Section 2 hereof.



 



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	 	(x)	“Purchase
    Date” means, with respect to a purchase made pursuant to Section 2(b) hereof, the Business Day on which the Investor
    receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m., Eastern time, on such Business Day, a valid Purchase Notice
    for such Purchase in accordance with this Agreement.
	 	 	 
	 	(y)	“Purchase
    Notice” means, with respect to any purchase pursuant to Section 2(b) hereof, an irrevocable written notice from
    the Company to the Investor directing the Investor to buy such applicable amount of Purchase Shares at the applicable Purchase
    Price as specified by the Company therein on the applicable Purchase Date for such Purchase.
	 	 	 
	 	(z)	“Purchase
    Price” means, with respect to any Purchase made pursuant to Section 2(b) hereof, Ninety Percent (90%) of the VWAP
    during the previous five (5) trading days prior to the Purchase Notice Date, but in no case less than the Floor Price.
	 	 	 
	 	(aa)	“Purchase
    Shares” has the meaning set forth in the Recital.
	 	 	 
	 	(bb)	“Registration
    Rights Agreement” means that certain Registration Rights Agreement, of even date herewith between the Company and
    the Investor.
	 	 	 
	 	(cc)	“Registration
    Statement” has the meaning set forth in the Registration Rights Agreement.
	 	 	 
	 	(dd)	“Sale
    Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal
    Market.
	 	 	 
	 	(ee)	“SEC”
    means the U.S. Securities and Exchange Commission.
	 	 	 
	 	(ff)	“Securities”
    means, collectively, the Purchase Shares.
	 	 	 
	 	(gg)	“Securities
    Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
	 	 	 
	 	(hh)	“Subsidiary”
    means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of
    the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation
    S-K promulgated under the Securities Act.
	 	 	 
	 	(ii)	“Transaction
    Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration Rights Agreement
    and the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered
    into or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby.
	 	 	 
	 	(jj)	“Transfer
    Agent” means Equity Stock Transfer, LLC, or such other Person who is then serving as the transfer agent for the
    Company in respect of the Common Stock.
	 	 	 
	 	(kk)	“VWAP”
    means the volume weighted average price of the Common Stock on the Principal Market, as reported by the Principal Market or
    by another reputable source such as Bloomberg, L.P.


 




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	2.	PURCHASE
    OF COMMON STOCK.


 


Subject
to the terms and conditions set forth in this Agreement, the Company has the right, but not the obligation, to sell to the Investor,
in the Company’s sole and absolute discretion, and the Investor has the obligation to purchase from the Company, Purchase
Shares as follows:


 


(a)
Initial Purchase. The Company shall be restricted from issuing the initial Purchase Notice to the Investor for a period
of ten (10) Business Days following the signing of this Agreement. The initial Purchase Notice shall not exceed Two Hundred Fifty
Thousand Dollars ($250,000) and may not be issued unless the Closing Sale Price of the Common Stock is equal to or greater than
the Floor Price on the Purchase Date.


 


(b)
Commencement of Sales of Common Stock. Beginning ten (10) Business Days following the delivery of the initial Purchase
Notice pursuant to Section 2(a) and thereafter, the Company shall have the right, but not the obligation, to direct the Investor,
by its delivery to the Investor of a Purchase Notice from time to time, to purchase up to Two Million Five Hundred Thousand Dollars
($2,500,000) of Common Stock; provided that the Closing Sale Price of the Common Stock is not below the Floor Price on
the Purchase Date. If the Company delivers any Purchase Notice for a Purchase Amount in excess of the limitations contained in
the immediately preceding sentence, such Purchase Notice shall be void ab initio to the extent of the amount by which the
number of Purchase Shares set forth in such Purchase Notice exceeds the number of Purchase Shares which the Company is permitted
to include in such Purchase Notice in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase
Shares in respect of such Purchase Notice; provided, however, that the Investor shall remain obligated to purchase
the number of Purchase Shares which the Company is permitted to include in such Purchase Notice. The date on which the Investor
receives a Purchase Notice shall be no less than five (5) calendar days after any previous Purchase Notice Date.


 


(c)
Payment for Purchase Shares. For each Purchase, the Investor shall pay to the Company an amount equal to the Purchase Amount
with respect to such Purchase as full payment for such Purchase Shares via wire transfer of immediately available funds on the
same Business Day that the Investor receives such Purchase Shares, if such Purchase Shares are received by the Investor before
1:00 p.m., Eastern time, or, if such Purchase Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business
Day. If the Company or the Transfer Agent shall fail for any reason or for no reason to electronically transfer any Purchase Shares
as DWAC Shares submitted by the Investor or its agent in respect to any Purchase, \within two (2) Business Days following the
receipt by the Company of the price for the Purchase, and if on or after such two (2) Business Days the Investor purchases (in
an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of such Purchase
Shares that the Investor anticipated receiving from the Company in respect of such Purchase, then the Company shall, within two
(2) Business Days after the Investor’s request, either (i) pay cash to the Investor in an amount equal to the Investor’s
total purchase price (including customary brokerage commissions, if any) for the shares of Common Stock so purchased (the “Cover
Price”), at which point the Company’s obligation to deliver such Purchase Shares as DWAC Shares shall terminate,
or (ii) promptly honor its obligation to deliver to the Investor such Purchase Shares as DWAC Shares and pay cash to the Investor
in an amount equal to the excess (if any) of the Cover Price over the total Purchase Amount paid by the Investor pursuant to this
Agreement for all of the Purchase Shares to be purchased by the Investor in connection with such purchases. The Company shall
not issue any fraction of a share of Common Stock upon the Purchase. If the issuance would result in the issuance of a fraction
of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up or down to the nearest whole share.
All payments made under this Agreement shall be made in lawful money of the United States of America or wire transfer of immediately
available funds to such account as the Company may from time to time designate by written notice in accordance with the provisions
of this Agreement. Whenever any amount expressed to be due by the terms of this Agreement is due on any day that is not a Business
Day, the same shall instead be due on the next succeeding day that is a Business Day.


 




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(d)
Compliance with Principal Market Rules.


 


(i)
Exchange Cap. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor
shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto,
the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated
hereby would be equal to or greater than 5,394,000 shares of Common Stock (subject to adjustment for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction), representing 19.99% of the
shares of Common Stock outstanding on the Execution Date (which number of shares shall be reduced, on a share-for-share basis,
by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated
with the transactions contemplated by this Agreement under applicable rules of the Nasdaq Capital Market or any other Principal
Market on which the Common Stock may be listed or quoted) (the “Exchange Cap”), unless and until the Company
elects to solicit stockholder approval of the issuance of Common Stock as contemplated by this Agreement and the stockholders
of the Company have in fact approved such issuance in accordance with the applicable rules and regulations of the Nasdaq Capital
Market, any other Principal Market on which the Common Stock may be listed or quoted, and the Company’s Certificate of Incorporation,
as amended and in effect as of the Execution Date (the “Certificate of Incorporation”), and the Company’s
Bylaws, as amended and in effect as of the Execution Date (the “Bylaws”). For the avoidance of doubt, the Company
may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock as contemplated by
this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i), the Exchange
Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term
of this Agreement (except as set forth in Section 2(e)(ii) below).


 


(ii)
General. The Company shall not issue any Securities pursuant to this Agreement if such issuance would reasonably be expected
to result in (A) a violation of the Securities Act or (B) a breach of the rules and regulations of the Principal Market. Furthermore,
the Company agrees that it shall not issue any Securities pursuant to this Agreement if, at the time of such issuance (Y) the
effectiveness of the Registration Statement registering the Securities has lapsed for any reason (including, without limitation,
the issuance of a stop order or similar order) or (Z) the Registration Statement is unavailable for the sale by the Company to
the Investor (or the resale by the Investor, as the case may be) of any or all of the Securities to be issued to the Investor
under the Transaction Documents. The provisions of this Section 2(e) shall be implemented in a manner otherwise than in
strict conformity with the terms hereof only if necessary to ensure compliance with the Securities Act and the rules and regulations
of the Principal Market.


 


(e)
Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall
not issue or sell, and the Investor shall not purchase or acquire, any Common Stock under this Agreement which, when aggregated
with all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section
13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder) would result in the beneficial ownership by the Investor and
its affiliates of more than 9.99% of the then issued and outstanding Common Stock (the “Beneficial Ownership Limitation”);
provided, however, that if such Beneficial Ownership Limitation is reached due, in whole or in part, to purchases
of Common Stock by the Investor other than from the Company, the Investor shall promptly dispose of such shares purchased other
than from the Company to the extent necessary to permit the Company to issue Common Stock to the Investor pursuant to this Agreement.
Upon the written or oral request of the Investor, the Company shall promptly (but not later than 24 hours) confirm orally or in
writing to the Investor the amount of Common Stock then outstanding. The Investor and the Company shall each cooperate in good
faith in the determinations required hereby and the application hereof.


 




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	3.	INVESTOR’S
    REPRESENTATIONS AND WARRANTIES.


 


The
Investor represents and warrants to the Company that as of the Execution Date and as of the Commencement Date:


 


(a)
Organization, Authority. Investor 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 this Agreement and otherwise to carry out its obligations hereunder and thereunder.


 


(b)
Accredited Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3)
of Regulation D promulgated under the Securities Act.


 


(c)
Information. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor
(i) is able to bear the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge
and experience in financial and business matters that it is capable of evaluating the merits and risks of the proposed investment
in the Securities and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning
the financial condition and business of the Company and others matters related to an investment in the Securities. Neither such
inquiries nor any other due diligence investigations conducted by the Investor or its representatives shall modify, amend or affect
the Investor’s right to rely on the Company’s representations and warranties contained in Section 4 below. The Investor
has sought such accounting, legal and tax advice from its own independent advisors as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Securities and is not relying on any accounting, legal, tax or other
advice from the Company or its officers, employees, representatives or advisors. The Investor acknowledges and agrees that the
Company neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other
than those specifically set forth in Section 4 hereof.


 


(d)
No Governmental Review. The Investor understands that no federal, state or any other government or governmental agency
has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment in the
Securities nor have such authorities passed upon or endorsed the merits of the transactions contemplated hereby.


 


(e)
Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor
and is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as
to enforceability to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 


(f)
Residency. The Investor’s principal place of business is in the State of Delaware.


 


(g)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, the Investor
has not, nor has any Person acting on behalf of or pursuant to any understanding with the Investor, directly or indirectly executed
any purchases or sales, including “short sales” as described in the following paragraph, of the securities of the
Company during the period commencing as of the time that the Investor first received a term sheet proposed by the Investor and
signed by the Company setting forth the material terms of the transactions contemplated hereunder and ending immediately prior
to the execution hereof. Other than disclosure to other Persons party to this Agreement and their counsel, the Investor has maintained
the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this
transaction).


 




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(h)
No Short Selling. The Investor represents and warrants to the Company that at no time prior to the Execution Date has any
of the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock
or (ii) hedging transaction, which establishes a net short position with respect to the Common Stock.


 


	4.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY.







 


The
Company represents and warrants to the Investor that as of the Execution Date and as of the Commencement Date:


 


(a)
Organization and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation, organization or formation (or the
equivalent under applicable law with respect to foreign Subsidiaries), with the requisite corporate or other power and authority
to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any of its
Subsidiaries is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents. Each of the Company and its Subsidiaries is duly qualified to conduct business and
is in good standing (or the equivalent under applicable law with respect to foreign Subsidiaries) as a foreign corporation or
other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification
necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or would not reasonably
be expected to result in a Material Adverse Effect, and to the Company’s knowledge, no proceeding has been instituted in
any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification.
The Company has no Subsidiaries, except as set forth on Exhibit 21.1 to the Company’s Annual Report on Form 10-KT for the
year ended December 31, 2018 filed with the SEC on March 18, 2019.


 


(b)
Authorization; Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and
perform its obligations under this Agreement and each of the other Transaction Documents to which it is a party, and to issue
the Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by
the Company to which it is a party and the consummation by it of the transactions contemplated hereby and thereby, including,
without limitation, the issuance of the Purchase Shares under this Agreement, have been duly authorized by the Board of Directors
of the Company (the “Board of Directors”) and no further consent or Authorization is required by the Company,
its Board of Directors or its stockholders (subject to Section 2(e)(i), if applicable), (iii) this Agreement has been, and each
other Transaction Document shall be on the Commencement Date, duly executed and delivered by the Company and (iv) this Agreement
constitutes, and each other Transaction Document upon its execution on behalf of the Company, shall constitute, the valid and
binding obligations of the Company enforceable against the Company in accordance with their 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 creditors’ rights and remedies. The Board of Directors
has adopted all applicable resolutions (the “Resolutions”) to authorize this Agreement and the transactions
contemplated hereby. The Resolutions are valid, in full force and effect and have not been modified or supplemented in any respect.
The Company has delivered to the Investor a certified copy of the Resolutions adopted by the Board of Directors. Except as set
forth in this Agreement, no other approvals or consents of the Board of Directors, any authorized committee thereof or the Company’s
stockholders is necessary under Applicable Laws, the Certificate of Incorporation or the Bylaws to authorize the execution and
delivery of this Agreement or any of the transactions contemplated hereby, including, but not limited to, the issuance of the
Purchase Shares.


 




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(c)
Capitalization. As of the Execution Date, the authorized capital stock of the Company is set forth in Schedule 4(c).
Except as disclosed in the SEC Documents (as defined below) or on Schedule 4(c), (i) no shares of the Company’s capital
stock are subject to preemptive rights or any other similar rights or any Liens or encumbrances suffered or permitted by the Company,
(ii) there are no outstanding debt securities, (iii) 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, any shares of 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 of 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, any shares of capital stock of the Company or any of its Subsidiaries, (iv) 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 Securities Act (except the Registration Rights Agreement), (v) 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, (vi) there are no securities or instruments containing anti-dilution or similar provisions
that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company has not granted
any stock appreciation rights or “phantom stock” rights. The Company has furnished to the Investor true and correct
copies of (A) the Certificate of Incorporation, (B) the Bylaws, and (C) summaries of the material terms of all securities convertible
into or exercisable for Common Stock, if any, and copies of any documents containing the material rights of the holders thereof
in respect thereto, which in the case of this clause (C), are not disclosed in any SEC Document or filed as an exhibit thereto.


 


(d)
Issuance of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement,
the Purchase Shares shall be validly issued, fully paid and nonassessable and free from all taxes, Liens, charges, restrictions,
rights of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights
accorded to a holder of Common Stock. Upon issuance in accordance with the terms and conditions of this Agreement shall be validly
issued, fully paid and nonassessable and free from all taxes, Liens, charges, restrictions, rights of first refusal and preemptive
rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock.
A total of 7,500,000 shares of Common Stock (subject to any reorganization, recapitalization, non-cash dividend, stock split,
reverse stock split or other similar transaction) (the “Reserve Amount”) have been duly authorized and reserved
for issuance under this Agreement as the Purchase Shares.


 




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(e)
No Conflicts or Violations. 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 reservation
for issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate of Incorporation (including
any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company) or the Bylaws
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 the Company or any of its Subsidiaries is a party, or to the knowledge of the Company, result in a violation of any law,
rule, regulation, order, judgment or decree (including federal and state securities laws and regulations and the rules and regulations
of the Principal Market 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, except in the case of conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations under clause (ii), which would not reasonably be expected to result in a Material Adverse Effect.
Except as disclosed in the SEC Documents, neither the Company nor any Subsidiary is in violation or default of or under (i) any
provision of the Certificate of Incorporation or Bylaws or under its respective certificate or articles of incorporation, any
certificate of designation, preferences and rights of any outstanding series of preferred stock, organizational charter or bylaws,
respectively, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other
agreement, obligation, condition, covenant or instrument to which it is a party or bound or to which its property is subject,
or (iii) any judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or any of its properties, which, in the case of clauses (ii) or (iii), would
be reasonably expected to have a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required
under the Securities Act or applicable state securities laws and the rules and regulations of the Principal Market, the Company
is not required to obtain any consent, Authorization or order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under
or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except as set forth elsewhere in
this Agreement, all consents, Authorizations, orders, filings and registrations which the Company is required to obtain pursuant
to the preceding sentence shall be obtained or effected on or prior to the Commencement Date.


 


(f)
SEC Documents; Financial Statements. The Company is, and has been during the 12-month period immediately preceding the
Execution Date, required to file reports, schedules, forms, statements and other documents with the SEC pursuant to Section 13
or 15(d) of the Exchange Act. The Company has filed all reports, schedules, forms, statements and other documents required to
be filed by the Company with the SEC under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, and under the
Securities Act, in each case during the 12-month period immediately preceding the Execution Date (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein together with each Prospectus and the current report on Form
8-K reporting, among other things, this Agreement under Item 1.01 filed with the SEC on the Effective Date, being collectively
referred to herein as the “SEC Documents”) on a timely basis or has received a valid extension of such time
of filing and has filed any such SEC Documents prior to the expiration of any such extension. As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
None of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading. The financial statements of the Company included in the SEC Documents comply in all material respects
with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time
of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles
applied on a consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in
such financial statements or the notes thereto and except that unaudited financial statements may not contain all footnotes required
by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated Subsidiaries as
of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of
unaudited statements, to normal, immaterial, year-end audit adjustments. Except as set forth in the SEC Documents, the Company
has received no notices or correspondence from the SEC for the one year preceding the Execution Date. The SEC has not commenced
any enforcement proceedings against the Company or any of its Subsidiaries.


 




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(g)
Absence of Certain Changes. Except as disclosed in the SEC Documents, since November 12, 2019, there has been no material
adverse change in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as
they become due.


 


(h)
Absence of Litigation. Except as disclosed in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory organization or body pending or, to the knowledge of
the Company or any of its Subsidiaries, threatened against or affecting the Company, the Common Stock or any of the Company’s
or its Subsidiaries’ officers or directors in their capacities as such, which would reasonably be expected to have a Material
Adverse Effect.


 


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


 


(j)
No Aggregated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has,
directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances
that would cause the transactions contemplated hereby to be integrated or aggregated with prior offerings by the Company in a
manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the securities of
the Company are listed or designated.


 


(k)
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material
trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental Authorizations, trade secrets and rights necessary to conduct their respective businesses as
now conducted. Except as described in the SEC Documents, none of the Company’s material trademarks, trade names, service
marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals, government
Authorizations, trade secrets or other intellectual property rights have expired or terminated, or, by the terms and conditions
thereof, could expire or terminate within two years from the Execution Date, except as would not reasonably be expected to have
a Material Adverse Effect. The Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its
Subsidiaries of any material trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names,
service marks, service mark registrations, trade secret or other similar rights of others, or of any such development of similar
or identical trade secrets or technical information by others, and there is no claim, action or proceeding being made or brought
against, or to the Company’s knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade
name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret
or other infringement, which would reasonably be expected to have a Material Adverse Effect.


 




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(l)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with any and all applicable foreign, federal,
state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or approval, except where, in each of the three foregoing
clauses, the failure to so comply would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect.


 


(m)
Title. Except as set forth in the SEC Documents, the Company and its Subsidiaries have good and marketable title in all
real property and personal property owned by them that is material to the business of the Company and its Subsidiaries, in each
case free and clear of all liens, encumbrances and defects (“Liens”), except (i) for Liens as do not materially
affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by
the Company and its Subsidiaries, (ii) for Liens for the payment of federal, state or other taxes, the payment of which is neither
delinquent nor subject to penalties, and (iii) purchase money security interests and lease financing agreements secured by equipment,
software and related assets. Any real property and facilities held under lease by the Company and its Subsidiaries are held by
them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are in compliance 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
and its Subsidiaries.


 


(n)
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 not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.


 


(o)
Regulatory Permits. The Company and its Subsidiaries possess all material certificates, Authorizations and permits issued
by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses, 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, except for such revocations or modifications that would not be reasonably expected
to have a Material Adverse Effect.


 


(p)
Tax Status. Except as set forth on Schedule 4(p), the Company and each of its Subsidiaries has made or filed all
federal and state income and all other material tax returns, reports and declarations required by any jurisdiction to which it
is subject (unless and only to the extent that the Company and each of its Subsidiaries has set aside on its books provisions
reasonably adequate for the payment of all unpaid and unreported taxes) and has paid all taxes and other governmental assessments
and charges that are material in amount, shown or determined to be due on such returns, reports and declarations, except those
being contested in good faith and 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, and except as could not reasonably be expected
to have a Material Adverse Effect. There are no unpaid taxes in any material amount claimed to be due by the taxing authority
of any jurisdiction, and the officers of the Company know of no basis for any such claim.


 




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(q)
Transactions with Affiliates. Except as set forth in the SEC Documents, none of the officers or directors of the Company
and, to the knowledge of the Company, none of the Company’s stockholders, the officers or directors of any stockholder of
the Company, or any family member or affiliate of any of the foregoing, has either directly or indirectly any interest in, or
is a party to, any transaction that is required to be disclosed as a related party transaction pursuant to Item 404 of Regulation
S-K promulgated under the Securities Act.


 


(r)
Application of Takeover Protections. Except for the rights agreement dated as of November 7, 2019, between the Company
and Equity Stock Transfer, LLC, as rights agent, the Company and its Board of Directors have taken or will take prior to the Commencement
Date all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison
pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation,
the laws of the state of its incorporation or otherwise which is or would become applicable to the Investor as a result of the
transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities and
the Investor’s ownership of the Securities.


 


(s)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents that will be timely publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute
material, non-public information which is not otherwise disclosed in the Registration Statement or the SEC Documents. The Company
understands and confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Investor regarding the Company, its business
and the transactions contemplated hereby, taken as a whole, including the disclosure schedules to this Agreement, is true and
correct in all material respects and does not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.
The press releases disseminated by the Company during the twelve (12) months preceding the Execution Date taken as a whole do
not 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 light of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that the Investor neither makes nor has made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 3 hereof.


 




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(t)
Foreign Corrupt Practices; Money Laundering Laws; Sanctions. Neither the Company nor any of the Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the Company or any of the Subsidiaries is aware
of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation,
making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the
giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention of the FCPA; and the Company, the Subsidiaries
and, to the knowledge of the Company, its affiliates have conducted their businesses in compliance with the FCPA and have instituted
and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith. The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with applicable
financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency,
including, without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international
anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task
Force on Money Laundering, of which the United States is a member and with which designation the United States representative
to the group or organization continues to concur, all as amended, and any Executive order, directive or regulation pursuant to
the authority of any of the foregoing, or any orders or licenses issued thereunder (collectively, the “Money Laundering
Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of
the Company, threatened. Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company any of the directors,
officers or employees, agents, affiliates or representatives of the Company or its Subsidiaries, is an individual or entity that
is, or is owned or controlled by an individual or entity that is: (i) the subject of any sanctions administered or enforced by
the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union,
Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor (ii) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, the Balkans,
Belarus, Burma/Myanmar, Cote D’Ivoire, Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, Libya, North Korea, Sudan,
Syria, Venezuela and Zimbabwe). Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds
of the transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other individual or entity: (i) to fund or facilitate any activities or business of or with any individual
or entity or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions or (ii)
in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity
participating in the transactions contemplated hereby, whether as underwriter, advisor, investor or otherwise). For the past five
years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any dealings
or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction
is or was the subject of Sanctions.


 


(u)
Registration Statement. The Company has prepared and filed the Registration Statement with the SEC in accordance with the
Securities Act. The Registration Statement was declared effective by order of the SEC on February 22, 2019. The Registration Statement
is effective pursuant to the Securities Act and available for the issuance of the Securities thereunder, and the Company has not
received any written notice that the SEC has issued or intends to issue a stop order or other similar order with respect to the
Registration Statement or the Prospectus or that the SEC otherwise has (i) suspended or withdrawn the effectiveness of the Registration
Statement or (ii) issued any order preventing or suspending the use of the Prospectus or any Prospectus Supplement, in either
case, either temporarily or permanently or intends or, to the knowledge of the Company, has threatened in writing to do so. The
“Plan of Distribution” section of the Prospectus permits the issuance of the Securities under the terms of this Agreement.
At the time the Registration Statement and any amendments thereto became effective, at the Execution Date and at each deemed effective
date thereof pursuant to Rule 430B(f)(2) of the Securities Act, the Registration Statement and any amendments thereto complied
and will comply in all material respects with the requirements of the Securities 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; and the Base Prospectus and any Prospectus Supplement thereto, at the time such Base Prospectus or such
Prospectus Supplement thereto was issued and on the Commencement Date, complied and will comply in all material respects with
the requirements of the Securities Act and did not and will not contain an 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; provided that this representation and warranty does not apply to statements in or omissions from any Prospectus
Supplement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing
by or on behalf of the Investor expressly for use therein. The Company meets all of the requirements for the use of a registration
statement on Form S-3 pursuant to the Securities Act in reliance on General Instruction I.B.1 of Form S-3 and the conditions set
forth in Instruction 3 to General Instruction I.B.6 of Form S-3 for the offering and sale of the Securities contemplated by this
Agreement, 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) of the Securities Act. The Registration Statement, as of its effective date, meets the requirements set forth
in Rule 415(a)(1)(x) pursuant to the Securities Act. At the earliest time after the filing of the Registration Statement that
the Company or another participant in the transactions contemplated hereby made a bona fide offer (within the meaning of Rule
164(h)(2) of the Securities Act) relating to any of the Securities, the Company was not, and as of the Execution Date the Company
is, not an “Ineligible Issuer” (as defined in Rule 405 of the Securities Act). The Company has not distributed any
offering material in connection with the offering and sale of any of the Securities, and, until the Investor does not hold any
of the Securities, shall not distribute any offering material in connection with the offering and sale of any of the Securities,
to or by the Investor, in each case, other than the Registration Statement or any amendment thereto, the Prospectus or any Prospectus
Supplement required pursuant to applicable law or the Transaction Documents. The Company has not made and shall not make an offer
relating to the Securities that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities
Act.


 




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(v)
DTC Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer
(FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer
(FAST) Program.


 


(w)
Accounting Controls; Sarbanes-Oxley. The Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (A) transactions are executed in accordance with management’s general or specific authorization;
(B) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain
accountability for assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization;
and (D) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action
is taken with respect to any differences. Except as disclosed in the SEC Documents, the Company has concluded that its internal
control over financial reporting is effective and the Company is not aware of any “significant deficiencies” or “material
weaknesses” (each as defined by the rules adopted by the SEC) in its internal control over financial reporting, or any fraud,
whether or not material, that involves management or other employees of the Company and its Subsidiaries who have a significant
role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been no change in
the Company’s internal control over financial reporting (whether or not remediated) that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial reporting. The Board of Directors
has, subject to the exceptions, cure periods and the phase in periods specified in the applicable stock exchange rules of the
Principal Market (“Exchange Rules”), validly appointed an audit committee to oversee internal accounting controls
whose composition satisfies the applicable independence and other requirements of the Exchange Rules and the rules under the Exchange
Act, and the Board of Directors has adopted a charter for the audit committee that satisfies the requirements of the Exchange
Rules and the rules under the Exchange Act. No relationship, direct or indirect, exists between or among the Company, on the one
hand, and the directors, officers, stockholders, customers or suppliers of the Company, on the other hand, which is required to
be described in the Registration Statement and the Prospectus which is not so described. The Company has not, directly or indirectly,
extended or maintained credit, or arranged for the extension of credit, or renewed an extension of credit, in the form of a personal
loan to or for any of its directors or executive officers in violation of Applicable Laws, including Section 402 of the Sarbanes-Oxley
Act of 2002 and the rules and regulations promulgated in connection therewith (the “Sarbanes-Oxley Act”).


 




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(x)
Certain Fees. Except as disclosed on Schedule 4(x), no brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or
other Person with respect to the transactions contemplated by the Transaction Documents. Except as disclosed on Schedule 4(x),
the Investor shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons
for fees of a type contemplated in this Section 4(x) that may be due in connection with the transactions contemplated by
the Transaction Documents.


 


(y)
Investment Company. The Company is not, and immediately after giving effect to the sale of the Purchase Shares in accordance
with this Agreement and the application of the proceeds as described in the Prospectus under the caption “Use of Proceeds,”
will not be, an “investment company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment
Company Act”).


 


(z)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating
terminating such registration. Except as disclosed in the SEC Documents, the Company has not, in the twelve (12) months preceding
the Execution Date, received any notice from the Principal Market to the effect that the Company is not in compliance with the
listing or maintenance requirements of the Principal Market. Except as disclosed in the SEC Documents, the Company is, and has
no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance
requirements.


 


(aa)
Accountants. The Company’s accountants are set forth in the SEC Documents and, to the knowledge of the Company, such
accountants are an independent registered public accounting firm as required by the Securities Act.


 


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


 


(cc)
Benefit Plans; Labor Matters. Each benefit and compensation plan, agreement, policy and arrangement that is maintained,
administered or contributed to by the Company for current or former employees or directors of, or independent contractors with
respect to, the Company has been maintained in compliance with its terms and the requirements of any applicable statutes, orders,
rules and regulations, and the Company has complied in all material respects with all applicable statutes, orders, rules and regulations
in regard to such plans, agreements, policies and arrangements. Each stock option granted under any equity incentive plan of the
Company (each, a “Stock Plan”) was granted with a per share exercise price no less than the market price per
common share on the grant date of such option in accordance with the rules of the Principal Market, and no such grant involved
any “back-dating,” “forward-dating” or similar practice with respect to the effective date of such grant;
each such option (i) was granted in compliance in all material respects with Applicable Laws and with the applicable Stock Plan(s),
(ii) was duly approved by the Board of Directors or a duly authorized committee thereof, and (iii) has been (or will be, if granted
after June 30, 2019) properly accounted for in the Company’s financial statements and disclosed, to the extent required,
in the Company’s filings or submissions with the SEC, and the Principal Market. No labor problem or dispute with the employees
of the Company exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers or contractors, that would have a Material Adverse Effect.


 




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(dd)
Regulatory. During the 12-month period immediately preceding the Execution Date, except as described in the SEC Documents,
the Company and each of its Subsidiaries: (A) is and at all times has been in material compliance with all applicable U.S. and
foreign statutes, rules, regulations, or guidance applicable to Company and its Subsidiaries (“Applicable Laws”),
except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (B) have
not received any notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the U.S. Food
and Drug Administration or any other federal, state, or foreign governmental authority having authority over the Company (“Governmental
Authority”) alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances,
authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(C) possess all material Authorizations and such material Authorizations are valid and in full force and effect and are not in
violation of any term of any such material Authorizations; (D) have not received notice of any claim, action, suit, proceeding,
hearing, enforcement, investigation, arbitration or other action from any Governmental Authority or third party alleging that
any product, operation or activity is in violation of any Applicable Laws or Authorizations and have no knowledge that any such
Governmental Authority or third party is considering any such claim, litigation, arbitration, action, suit, investigation or proceeding;
(E) have not received notice that any Governmental Authority has taken, is taking or intends to take action to limit, suspend,
modify or revoke any Authorizations and the Company has no knowledge that any such Governmental Authority is considering such
action; and (F) have filed, obtained, maintained or submitted all material reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments as required by any Applicable Laws or material Authorizations and that all such
reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments were complete and
correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission). During the
12-month period immediately preceding the Execution Date, to the Company’s knowledge, the studies, tests and preclinical
and clinical trials conducted by or on behalf of the Company were and, if still pending, are, in all material respects, being
conducted in accordance with experimental protocols, procedures and controls pursuant to accepted professional scientific standards
and all Applicable Laws, including, without limitation and to the extent applicable, the United States Public Health Service Act,
the United States Federal Food, Drug and Cosmetic Act and the laws, rules and regulations of the Therapeutic Products Directorate,
the European Medicines Agency, the European Commission’s Enterprise Directorate General and the regulatory agencies within
each Member State granting Marketing Authorization through the Mutual Recognition Procedure or any other federal, provincial,
state, local or foreign governmental or quasi-governmental body exercising comparable authority; the descriptions of the results
of such studies, tests and trials contained in the SEC Documents are accurate and complete in all material respects and fairly
present the data derived from such studies, tests and trials; the descriptions in the SEC Documents of the results of such clinical
trials are consistent in all material respects with such results and to the Company’s knowledge there are no other studies
or other clinical trials whose results are materially inconsistent with or otherwise materially call into question the results
described or referred to in the SEC Documents; and the Company has not received any notices or correspondence from any Governmental
Authority requiring the termination, suspension or material modification of any studies, tests or preclinical or clinical trials
conducted by or on behalf of the Company or its Subsidiaries. The Company has concluded that it uses commercially reasonable efforts
to review, from time to time, the progress and results of the studies, tests and preclinical and clinical trials and, based upon
(i) the information provided to the Company by the third parties conducting such studies, tests, preclinical studies and clinical
trials that are described in the SEC Documents and the Company’s review of such information, and (ii) the Company’s
actual knowledge, the Company reasonably believes that the descriptions of the results of such studies, tests, preclinical studies
and clinical trials are accurate and complete in all material respects.


 


(ee)
Absence of Schedules. In the event that on the Commencement Date, the Company does not deliver any disclosure schedule
contemplated by this Agreement, the Company hereby acknowledges and agrees that each such undelivered disclosure schedule shall
be deemed to read as follows: “Nothing to Disclose.”


 




    	 	17	 



    	 



    

 


5.
COVENANTS.


 


(a)
Filing of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the
Exchange Act, file with the SEC a Current Report on Form 8-K relating to the transactions contemplated by, and describing the
material terms and conditions of, the Transaction Documents (the “Current Report”). The Company further agrees
that it shall, within the time required under Rule 424(b) under the Securities Act, file with the SEC the Initial Prospectus Supplement
pursuant to Rule 424(b) under the Securities Act specifically relating to the transactions contemplated by, and describing the
material terms and conditions of, the Transaction Documents, containing information previously omitted at the time of effectiveness
of the Registration Statement in reliance on Rule 430B under the Securities Act, and disclosing all information relating to the
transactions contemplated hereby required to be disclosed in the Registration Statement and the Prospectus as of the date of the
Initial Prospectus Supplement, including, without limitation, information required to be disclosed in the section captioned “Plan
of Distribution” in the Prospectus. The Investor acknowledges that it will be identified in the Initial Prospectus Supplement
as an underwriter within the meaning of Section 2(a)(11) of the Securities Act. The Company shall permit the Investor to review
and comment upon the Current Report and the Initial Prospectus Supplement at least two (2) Business Days prior to their filing
with the SEC, the Company shall give due consideration to all such comments, and the Company shall not file the Current Report
or the Initial Prospectus Supplement with the SEC in a form to which the Investor reasonably objects. The Investor shall use its
reasonable best efforts to comment upon the Current Report and the Initial Prospectus Supplement within one (1) Business Day from
the date the Investor receives the final pre-filing draft version thereof from the Company. The Investor shall furnish to the
Company such information regarding itself, the Securities held by it and the intended method of distribution thereof, including
any arrangement between the Investor and any other Person relating to the sale or distribution of the Securities, as shall be
reasonably requested by the Company in connection with the preparation and filing of the Current Report and the Initial Prospectus
Supplement, and shall otherwise cooperate with the Company as reasonably requested by the Company in connection with the preparation
and filing of the Current Report and the Initial Prospectus Supplement with the SEC.


 


(b)
Blue Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for
or to qualify (i) the sale of the Purchase Shares to the Investor under this Agreement and (ii) any subsequent resale of all Purchase
Shares by the Investor, in each case, under applicable securities or “Blue Sky” laws of the states of the United States
in such states as is reasonably requested by the Investor during the Registration Period as defined in the Registration Rights
Agreement, and shall provide evidence of any such action so taken to the Investor.


 


(c)
Listing/DTC. The Company shall promptly secure the listing of all of the Purchase Shares to be issued to the Investor hereunder
on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange or automated
quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to maintain,
so long as any shares of Common Stock shall be so listed, such listing of all such Securities from time to time issuable hereunder.
The Company shall use commercially reasonable efforts to maintain the listing of the Common Stock on the Principal Market and
shall comply in all material respects with the Company’s reporting, filing and other obligations under the bylaws or rules
and regulations of the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably
be expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company shall promptly,
and in no event later than the following Business Day, provide to the Investor copies of any notices it receives from the Principal
Market regarding the continued eligibility of the Common Stock for listing on the Principal Market; provided, however,
that the Company shall not be required to provide the Investor copies of any such notice that the Company reasonably believes
constitutes material non-public information and the Company would not be required to publicly disclose such notice in any report
or statement filed with the SEC and under the Exchange Act or the Securities Act. The Company shall pay all fees and expenses
in connection with satisfying its obligations under this Section 5(c). The Company shall take all action necessary to ensure that
its Common Stock can be transferred electronically as DWAC Shares.


 




    	 	18	 



    	 



    

 


(d)
Prohibition of Short Sales and Hedging Transactions. The Investor agrees that, beginning on the Execution Date and ending
on the date of termination of this Agreement as provided in Section 11, the Investor and its agents, representatives and affiliates
shall not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term
is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock.


 


(e)
Administrative Fee.


 


(i)
In consideration for the Investor’s underlying fees and expenses, the Issuer shall deliver to the Investor Two Hundred Fifty
Thousand Dollars ($250,000), as an administrative fee immediately upon the execution and delivery of this Agreement (the “Initial
Administrative Fee”) and then $50,000 in cash or Company Common Shares, or a combination thereof as elected by the Company,
every six months thereafter while the Agreement remains in effect or such pro rata amount as may due if this Agreement is terminated
prior to the completion of a six month period (the “Supplemental Administration Fee”). For the avoidance of
doubt, all of the Initial Administrative Fee shall be considered fully earned at the time of the execution of this Agreement,
whether or not any Purchase Shares are purchased by the Investor under this Agreement and irrespective of any subsequent termination
of this Agreement.


 


(f)
Due Diligence; Non-Public Information. During the term of this Agreement, the Investor shall have the right, from time
to time as the Investor may reasonably deem appropriate and upon reasonable advance notice to the Company, to perform reasonable
due diligence on the Company during normal business hours. The Company and its officers and employees shall provide information
and reasonably cooperate with the Investor in connection with any reasonable request by the Investor related to the Investor’s
due diligence of the Company; provided, however, the Company shall not be obligated to provide information it reasonably
believes is material non-public information unless the Company elects to disclose such information in accordance with Regulation
FD as provided in this paragraph below. Each party hereto agrees not to disclose any Confidential Information of the other party
to any third party and shall not use the Confidential Information for any purpose other than in connection with, or in furtherance
of, the transactions contemplated hereby in full compliance with applicable securities laws. Each party hereto acknowledges that
the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable measures
to protect the secrecy of any Confidential Information disclosed by the other party. From and after the Execution Date, the Company
confirms that neither it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any
information that the Company believes constitutes material, non-public information, unless a simultaneous public announcement
thereof is made by the Company in the manner contemplated by Regulation FD under the Exchange Act. In the event of a breach of
the foregoing covenant by the Company or any Person acting on its behalf (as determined in the reasonable good faith judgment
of the Investor), in addition to any other remedy provided herein or in the other Transaction Documents, the Investor shall have
the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material, non-public
information without the prior approval by the Company; provided the Investor shall have first provided notice to the Company
that it believes it has received information that constitutes material, non-public information, the Company shall have at least
24 hours to publicly disclose such material, non-public information prior to any such disclosure by the Investor, and the Company
shall have failed to publicly disclose such material, non-public information within such time period. The Investor shall not have
any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders
or agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing covenants
in effecting transactions in securities of the Company.


 




    	 	19	 



    	 



    

 


(g)
Purchase Records. The Investor and the Company shall each maintain records showing the remaining Available Amount at any
given time and the dates and Purchase Amounts for each Purchase or shall use such other method, reasonably satisfactory to the
Investor and the Company.


 


(h)
Taxes. The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance
and delivery of any Common Stock to the Investor made under this Agreement.


 


(i)
Effective Registration Statement; Current Prospectus. The Company shall use its reasonable best efforts to keep the Registration
Statement effective pursuant to Rule 415 promulgated under the Securities Act and keep the Registration Statement and the Prospectus
current and available for issuances and sales of all of the Securities by the Company to the Investor and for the resale of Securities
by the Investor during the term of this Agreement and for the period prescribed by Registration Rights Agreement. The Company
shall comply with all applicable federal, state and foreign securities laws in connection with the offer, issuance and sale of
the Securities contemplated by the Transaction Documents.


 


(j)
Compliance with Laws. The Company and each of its Subsidiaries shall maintain, or cause to be maintained, all material
permits, licenses and other Authorizations required by federal, state and local law in order to conduct their businesses substantially
as described in the SEC Documents, and the Company and each of its Subsidiaries shall conduct their businesses, or cause their
businesses to be conducted, in substantial compliance with such permits, licenses and Authorizations and with Applicable Laws,
except where the failure to maintain or be in compliance with such permits, licenses, Authorizations and Applicable Laws would
not reasonably be expected to have a Material Adverse Effect. The Company shall comply with all requirements imposed upon it by
the Securities Act and the Exchange Act and applicable U.S. state securities or “blue sky” laws as from time to time
may be in force in connection with the offer, issuance and sale of the Securities contemplated by the Transaction Documents. Without
limiting the generality of the foregoing, neither the Company nor any of its officers, directors or affiliates will take, directly
or indirectly, any action designed or intended to stabilize or manipulate the price of any security of the Company, or which would
reasonably be expected to cause or result in, stabilization or manipulation of the price of any security of the Company. The Company
will conduct its affairs in such a manner so as to reasonably ensure that neither it nor the Subsidiaries will be or become, at
any time prior to the termination of this Agreement, an “investment company,” as such term is defined in the Investment
Company Act, assuming no change in the SEC’s current interpretation as to entities that are not considered an investment
company. Specifically, the Company and the Subsidiaries will use their best efforts to comply with all effective applicable provisions
of the Sarbanes-Oxley Act and The Dodd–Frank Wall Street Reform and Consumer Protection Act applicable to it.


 




    	 	20	 



    	 



    

 





(k)
Stop Orders. The Company shall advise the Investor promptly (but in no event later than 24 hours) and shall confirm such
advice in writing: (i) of the Company’s receipt of notice of any request by the SEC for amendment of or a supplement to
the Registration Statement, the Prospectus, any Prospectus Supplement or for any additional information; (ii) of the Company’s
receipt of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or prohibiting
or suspending the use of the Prospectus or any Prospectus Supplement, or of the Company’s receipt of any notification of
the suspension of qualification of the Securities for offering or sale in any jurisdiction or the initiation or contemplated initiation
of any proceeding for such purpose; and (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 Prospectus Supplement 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 Prospectus
Supplement in order to state a material fact required by the Securities Act to be stated therein or necessary in order to make
the statements then made therein (in the case of the Prospectus or any Prospectus Supplement, 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 Prospectus Supplement to comply with the Securities Act or any other law. The Company shall not be required to disclose to
the Investor the substance or specific reasons of any of the events set forth in clauses (i) through (iii) of the immediately
preceding sentence, but rather, shall only be required to disclose that the event has occurred. The Company shall not deliver
to the Investor any Purchase Notice, and the Investor shall not be obligated to purchase any shares of Common Stock under this
Agreement, during the continuation or pendency of any of the foregoing events. 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 commercially reasonable efforts to obtain the withdrawal of such order at the earliest possible
time. The Company shall furnish to the Investor, without charge, a copy of any correspondence from the SEC or the staff of the
SEC to the Company or its representatives relating to the Registration Statement or the Prospectus, as the case may be.


 


(l)
Amendments to Registration Statement; Prospectus Supplements. Except as provided in this Agreement and other than periodic
and current reports required to be filed pursuant to the Exchange Act, the Company shall not file with the SEC any amendment to
the Registration Statement or any supplement to the Base Prospectus that refers to the Investor, the Transaction Documents or
the transactions contemplated thereby (including, without limitation, any Prospectus Supplement filed in connection with the transactions
contemplated by the Transaction Documents), in each case with respect to which (a) the Investor shall not previously have been
advised and afforded the opportunity to review and comment thereon at least two (2) Business Days prior to filing with the SEC,
as the case may be, (b) the Company shall not have given due consideration to any comments thereon received from the Investor
or its counsel, or (c) the Investor shall reasonably object, 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 Securities Act or any other applicable
law or regulation, in which case the Company shall promptly (but in no event later than 24 hours) so inform the Investor, the
Investor shall be provided with a reasonable opportunity to review and comment upon any disclosure referring to the Investor,
the Transaction Documents or the transactions contemplated thereby, as applicable, and the Company shall expeditiously furnish
to the Investor a copy thereof. In addition, for so long as, in the reasonable opinion of counsel for the Investor, the Prospectus
is required to be delivered in connection with any acquisition or sale of Securities by the Investor, the Company shall not file
any Prospectus Supplement with respect to the Securities without furnishing to the Investor as many copies of such Prospectus
Supplement, together with the Prospectus, as the Investor may reasonably request.


 


(m)
Prospectus Delivery. The Company consents to the use of the Prospectus (and of each Prospectus Supplement thereto) in accordance
with the provisions of the Securities Act and with the securities or “blue sky” laws of the jurisdictions in which
the Securities may be sold by the Investor, in connection with the offering and sale of the Securities and for such period of
time thereafter as the Prospectus is required by the Securities Act to be delivered in connection with sales of the Securities.
The Company will make available to the Investor upon request, and thereafter from time to time will furnish to the Investor, as
many copies of the Prospectus (and each Prospectus Supplement thereto) as the Investor may reasonably request for the purposes
contemplated by the Securities Act within the time during which the Prospectus is required by the Securities Act to be delivered
in connection with sales of the Securities. If during such period of time any event shall occur that in the reasonable judgment
of the Company and its counsel, or in the reasonable judgment of the Investor and its counsel, is required to be set forth in
the Registration Statement, the Prospectus or any Prospectus Supplement or should be set forth therein in order to make the statements
made therein (in the case of the Prospectus or any Prospectus Supplement, in light of the circumstances under which they were
made) not misleading, or if in the reasonable judgment of the Company and its counsel, or in the reasonable judgment of the Investor
and its counsel, it is otherwise necessary to amend the Registration Statement or supplement the Prospectus or any Prospectus
Supplement to comply with the Securities Act or any other applicable law or regulation, the Company shall forthwith prepare and,
subject to Section 5(l) above, file with the SEC an appropriate amendment to the Registration Statement or an appropriate Prospectus
Supplement and in each case shall expeditiously furnish to the Investor, at the Company’s expense, such amendment to the
Registration Statement or such Prospectus Supplement, as applicable, as may be necessary to reflect any such change or to effect
such compliance. The Company shall have no obligation to separately advise the Investor of, or deliver copies to the Investor
of, the SEC Documents, all of which the Investor shall be deemed to have notice of.


 




    	 	21	 



    	 



    

 


(n)
Use of Proceeds. The Company will use the net proceeds from the transactions contemplated hereby as described in the Prospectus
in the section entitled “Use of Proceeds.”


 


(o)
Aggregation. From and after the Execution Date, neither the Company, nor or any of its affiliates will, and the Company
shall use its reasonable best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers
or sales of any security or solicit any offers to buy any security, under circumstances that would cause the transactions contemplated
hereby to be aggregated with other offerings by the Company in a manner that would require stockholder approval pursuant to the
rules of the Principal Market on which any of the securities of the Company are listed or designated, unless stockholder approval
is obtained before the closing of such subsequent transaction in accordance with the rules of such Principal Market.


 


(p)
Other Transactions. During the term of this Agreement, the Company shall not enter into, announce or recommend to its stockholders
any agreement, plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with
or impair the ability or right of the Company to perform its obligations under the Transaction Documents, including, without limitation,
the obligation of the Company to deliver the Purchase Shares to the Investor in accordance with the terms of the Transaction Documents.


 


(q)
Required Filings Relating to Purchases. To the extent required under the Securities Act or under interpretations by the
SEC thereof, as promptly as practicable after the close of each of the Company’s fiscal quarters (or on such other dates
as required under the Securities Act or under interpretations by the SEC thereof), the Company shall prepare a Prospectus Supplement,
which will set forth the number of Purchase Shares sold to the Investor during such quarterly period (or other relevant period),
the purchase price for such Purchase Shares and the net proceeds received by the Company from such sales, and shall file such
Prospectus Supplement with the SEC pursuant to Rule 424(b) under the Securities Act (and within the time periods required by Rule
424(b) and Rule 430B under the Securities Act). If any such quarterly Prospectus Supplement is not required to be filed under
the Securities Act or under interpretations by the SEC thereof, the Company shall disclose the information referenced in the immediately
preceding sentence in its annual report on Form 10-K or its quarterly report on Form 10-Q (as applicable) in respect of the quarterly
period that ended immediately before the filing of such report in which sales of Purchase Shares were made to the Investor under
this Agreement, and file such report with the SEC within the applicable time period required by the Exchange Act. The Company
shall not file any Prospectus Supplement pursuant to this Section 5(q), and shall not file any report containing disclosure relating
to such sales of Purchase Shares, unless a copy of such Prospectus Supplement or disclosure has been submitted to the Investor
a reasonable period of time before the filing and the Investor has not reasonably objected thereto (it being acknowledged and
agreed that the Company shall not submit any portion of any Form 10-K or Form 10-Q other than the specific disclosure relating
to any sales of Purchase Shares). The Company shall also furnish copies of all such Prospectus Supplements to each exchange or
market in the United States on which sales of the Purchase Shares may be made as may be required by the rules or regulations of
such exchange or market, if applicable.


 




    	 	22	 



    	 



    

 





	6.	TRANSFER AGENT INSTRUCTIONS.






 


On
the Commencement Date, the Company shall issue to the Transfer Agent, (i) irrevocable instructions in the form substantially similar
to those used by the Investor in substantially similar transactions (the “Commencement Irrevocable Transfer Agent Instructions”)
and (ii) the notice of effectiveness of the Registration Statement in the form attached as an exhibit to the Registration Rights
Agreement (the “Notice of Effectiveness of Registration Statement”), to issue the Purchase Shares in accordance
with the terms of this Agreement and the Registration Rights Agreement. All Purchase Shares to be issued from and after Commencement
to or for the benefit of the Investor pursuant to this Agreement shall be issued only as DWAC Shares. The Company represents and
warrants to the Investor that, while this Agreement is effective, no instruction other than the Commencement Irrevocable Transfer
Agent Instructions and the Notice of Effectiveness of Registration Statement referred to in this Section 6 will be given by the
Company to the Transfer Agent with respect to the Purchase Shares from and after Commencement, and the Purchase Shares covered
by the Registration Statement shall otherwise be freely transferable on the books and records of the Company. The Company agrees
that if the Company fails to fully comply with the provisions of this Section 6 within five (5) Business Days of the Investor
providing the deliveries referred to above, the Company shall, at the Investor’s written instruction, purchase such shares
of Common Stock containing the legended certificates or book-entry statements from the Investor at the greater of the (i) purchase
price paid for such shares of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common Stock on the date of
the Investor’s written instruction.


 


	7.	CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE SALES OF COMMON STOCK.







 


The
right of the Company hereunder to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction
or, where legally permissible, the waiver of each of the following conditions:


 


(a)
The Investor shall have executed each of the Transaction Documents and delivered the same to the Company;


 


(b)
No stop order with respect to the Registration Statement shall be pending or threatened by the SEC; and


 


(c)
The representations and warranties of the Investor shall be true and correct in all material respects as of the Execution Date
and as of the Commencement Date as though made at that time.


 





	8.	CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE COMMON STOCK.





















 


The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction or, where legally permissible,
the waiver of each of the following conditions on or prior to the Commencement Date and, once such conditions have been initially
satisfied, there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred:


 


(a)
The Company shall have executed each of the Transaction Documents and delivered the same to the Investor;


 




    	 	23	 



    	 



    

 





(b)
The Common Stock shall be listed or quoted on the Principal Market and all Securities to be issued by the Company to the Investor
pursuant to this Agreement shall have been approved for listing on the Principal Market in accordance with the applicable rules
and regulations of the Principal Market, subject only to official notice of issuance;


 


(c)
The Investor shall have received the opinion letter of the Company’s legal counsel dated as of the Commencement Date substantially
in the forms agreed to prior to the Execution Date by the Company’s legal counsel and the Investor’s legal counsel;


 


(d)
The representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects
(except to the extent that any of such representations and warranties is qualified as to materiality, in which case any of such
representations and warranties shall be true and correct as so qualified) as of the Execution Date and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true
and correct in all material respects as of such date) and the Company shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied
with by the Company at or prior to the Commencement Date. The Investor shall have received a certificate, executed by the President
and Chief Executive Officer or the Chief Financial Officer of the Company, dated as of the Commencement Date, to the foregoing
effect in the form attached hereto as Exhibit A;


 


(e)
The Board of Directors shall have adopted the Resolutions, which shall be in full force and effect without any amendment or supplement
thereto as of the Commencement Date;


 


(f)
As of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock the Reserve Amount,
solely for the purpose of effecting purchases by the Investor of Purchase Shares hereunder;


 


(g)
The Irrevocable Transfer Agent Instructions, the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness
of Registration Statement shall have been delivered to the Transfer Agent and acknowledged in writing by the Company and the Transfer
Agent;


 


(h)
The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in
the State of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) Business Days before
the Commencement Date;


 


(i)
The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary
of State of the State of Delaware within ten (10) Business Days before the Commencement Date;


 


(j)
The Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated
as of the Commencement Date, in the form attached hereto as Exhibit B;


 


(k)
The Registration Statement shall continue to be effective and no stop order with respect to the Registration Statement shall be
pending or threatened by the SEC. The Company shall have a maximum dollar amount of Common Stock registered under the Registration
Statement which is sufficient to issue to the Investor not less than the full Available Amount worth of Purchase Shares. The Current
Report and the Initial Prospectus Supplement each shall have been filed with the SEC, as required pursuant to Section 5(a), and
copies of the Prospectus shall have been delivered to the Investor in accordance with the Registration Rights Agreement. The Prospectus
shall be current and available for issuances and sales of all of the Securities by the Company to the Investor, and for the resale
of all of the Securities by the Investor. Any other Prospectus Supplements required to have been filed by the Company with the
SEC under the Securities Act at or prior to the Commencement Date shall have been filed with the SEC within the applicable time
periods prescribed for such filings under the Securities Act. All reports, schedules, registrations, forms, statements, information
and other documents required to have been filed by the Company with the SEC at or prior to the Commencement Date pursuant to the
reporting requirements of the Exchange Act shall have been filed with the SEC within the applicable time periods prescribed for
such filings under the Exchange Act;


 




    	 	24	 



    	 



    

 


(l)
(i) No Event of Default has occurred, and (ii) no event which, after notice and/or lapse of time, would become an Event of Default
has occurred;


 


(m)
All federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction
Documents and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall have been complied with, and all consents, Authorizations and
orders of, and all filings and registrations with, all federal, state and local courts or governmental agencies and all federal,
state and local regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction
Documents and the consummation of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained
or made, including, without limitation, in each case those required under the Securities Act, the Exchange Act, applicable state
securities or “Blue Sky” laws or applicable rules and regulations of the Principal Market, or otherwise required by
the SEC, the Principal Market or any state securities regulators;


 


(n)
No statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, or, to the knowledge
of the Company, shall have been threatened or endorsed, by any federal, state, local or foreign court or Governmental Authority
of competent jurisdiction which prohibits the consummation of or which would materially modify or delay any of the transactions
contemplated by the Transaction Documents;


 


(o)
No action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or Governmental Authority of
competent jurisdiction shall have been commenced or, to the knowledge of the Company, threatened, and no inquiry or investigation
by any federal, state, local or foreign Governmental Authority of competent jurisdiction shall have been commenced or, to the
knowledge of the Company, threatened, against the Company, or any of the officers, directors or affiliates of the Company, seeking
to restrain, prevent or change the transactions contemplated by the Transaction Documents, or seeking material damages in connection
with such transactions; and


 


(p)
The Company shall have provided the Investor with the information requested by the Investor in connection with its due diligence
requests in accordance with the terms of Section 5(f) hereof.


 




    	 	25	 



    	 



    

 


	9.	INDEMNIFICATION.


 


In
consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect,
indemnify and hold harmless the Investor and all of its affiliates, stockholders, officers, directors, members, managers, employees
and direct or indirect investors and any of the foregoing Person’s 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: (a) any misrepresentation or breach of any representation
or warranty made by the Company in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, (b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any
other certificate, instrument or document contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made
against such Indemnitee and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction
Documents or any other certificate, instrument or document contemplated hereby or thereby, (d) any violation of the Securities
Act, the Exchange Act, state securities or “blue sky” laws, or the rules and regulations of the Principal Market in
connection with the transactions contemplated by the Transaction Documents by the Company or any of its Subsidiaries, affiliates,
officers, directors or employees, (e) any untrue statement or alleged untrue statement of a material fact contained, or incorporated
by reference, in the Registration Statement or any amendment thereto or any omission or alleged omission to state therein, or
in any document incorporated by reference therein, a material fact required to be stated therein or necessary to make the statements
therein not misleading, or (f) any untrue statement or alleged untrue statement of a material fact contained, or incorporated
by reference, in the Prospectus, or any omission or alleged omission to state therein, or in any document incorporated by reference
therein, a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that (I) the indemnity contained in clause (c) of
this Section 9 shall not apply to any Indemnified Liabilities which directly and primarily result from the fraud, gross negligence
or willful misconduct of an Indemnitee, (II) the indemnity contained in clauses (d), (e) and (f) of this Section 9 shall not apply
to any Indemnified Liabilities to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to
the Company by or on behalf of the Investor expressly for use in any Prospectus Supplement (it being hereby acknowledged and agreed
that the written information set forth on Exhibit C attached hereto is the only written information furnished to the Company
by or on behalf of the Investor expressly for use in the Initial Prospectus Supplement), if the Prospectus was timely made available
by the Company to the Investor pursuant to Section 5(l), (III) the indemnity contained in clauses (d), (e) and (f) of this Section
9 shall not inure to the benefit of the Investor to the extent such Indemnified Liabilities are based on a failure of the Investor
to deliver or to cause to be delivered the Prospectus made available by the Company, if such Prospectus was timely made available
by the Company pursuant to Section 5(l), and if delivery of the Prospectus would have cured the defect giving rise to such Indemnified
Liabilities, and (IV) the indemnity in this Section 9 shall not apply to amounts paid in settlement of any claim if such settlement
is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or
delayed. 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, provided that no seller of Securities guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any seller of Securities who was not guilty of fraudulent misrepresentation.


 


Payment
under this indemnification shall be made within thirty (30) days from the date the Investor makes written request for it. The
Indemnitee shall undertake to repay any amount paid to it hereunder if it is ultimately determined, by a final and non-appealable
order of a court of competent jurisdiction, that the Indemnitee is not entitled to be indemnified against such Indemnified Liabilities
by the Company pursuant to this Agreement. If any action shall be brought against any Indemnitee in respect of which indemnity
may be sought pursuant to this Agreement, such Indemnitee shall promptly notify the Company in writing, and the Company shall
have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to the Indemnitee. Any Indemnitee
shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnitee, except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and
to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on
any material issue between the position of the Company and the position of such Indemnitee, in which case the Company shall be
responsible for the reasonable fees and expenses of no more than one such separate counsel.


 




    	 	26	 



    	 



    

 


	10.	EVENTS
    OF DEFAULT.


 


An
“Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:


 


(a)
the effectiveness of the Registration Statement registering the Securities lapses for any reason (including, without limitation,
the issuance of a stop order or similar order), the Registration Statement or any Prospectus is unavailable for the sale by the
Company to the Investor (or the resale by the Investor) of any or all of the Securities to be issued to the Investor under the
Transaction Documents (including, without limitation, as a result of any failure of the Company to satisfy all of the requirements
for the use of a registration statement on Form S-3 pursuant to the Securities Act for the offering and sale of the Securities
contemplated by this Agreement), and any such lapse or unavailability continues for a period of ten (10) consecutive Business
Days or for more than an aggregate of thirty (30) Business Days in any 365-day period;


 


(b)
the suspension of the Common Stock from trading or the failure of the Common Stock to be listed on the Principal Market for a
period of one (1) Business Day, provided that the Company may not direct the Investor to purchase any shares of Common
Stock during any such suspension;


 


(c)
the delisting of the Common Stock from the Nasdaq Capital Market unless the Common Stock is immediately thereafter trading on
the New York Stock Exchange, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE American, the NYSE Arca, the
OTC Bulletin Board or OTC Markets (or nationally recognized successor to any of the foregoing);


 


(d)
the failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within three (3) Business Days after
the applicable Purchase Date on which the Investor is entitled to receive such Purchase Shares;


 


(e)
the Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such
breach would have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably curable, only
if such breach continues for a period of at least five (5) Business Days;


 


(f)
if any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;


 


(g)
if the Company is at any time insolvent, or pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary
case, (ii) consents to the entry of an order for relief against it in an involuntary case, (iii) consents to the appointment of
a Custodian of it or for all or substantially all of its property, or (iv) makes a general assignment for the benefit of its creditors
or is generally unable to pay its debts as the same become due;


 


(h)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company
in an involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders
the liquidation of the Company or any Subsidiary;


 




    	 	27	 



    	 



    

 


(i)
if at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares; or


 


(j)
if at any time after the Commencement Date, the Exchange Cap is reached (to the extent the Exchange Cap is applicable pursuant
to Section 2(e) hereof) and the Company’s stockholders have not approved the transactions contemplated by this Agreement
in accordance with the applicable rules and regulations of the Nasdaq Capital Market, any other Principal Market on which the
Common Stock may be listed or quoted after the Execution Date, the Certificate of Incorporation and the Bylaws.


 


In
addition to any other rights and remedies under applicable law and this Agreement, so long as any event constituting an Event
of Default has occurred and is continuing, or if any event which, after notice and/or lapse of time would become an Event of Default
has occurred and is continuing, the Company shall not deliver to the Investor any Purchase Notice, and the Investor shall not
purchase any shares of Common Stock under this Agreement.


 





	11.	TERMINATION



 


This
Agreement may be terminated only as follows:


 


(a)
If pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company
makes a general assignment for the benefit of its creditors (any of which would be an Event of Default as described in Sections
10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without any liability or payment to the Company (except
as set forth below) without further action or notice by any Person.


 


(b)
In the event that the Commencement Date shall not have occurred on or before January 5, 2020, due to the failure to satisfy the
conditions set forth in Sections 7 and 8 above with respect to the Commencement Date, either the Company or the Investor shall
have the option to terminate this Agreement at the close of business on such date or thereafter without liability of any party
to any other party (except as set forth below); provided, however, that the right to terminate this Agreement under
this Section 11(b) shall not be available to any party if such party is then in breach of any covenant or agreement contained
in this Agreement, or any representation or warranty of such party contained in this Agreement fails to be true and correct such
that the conditions set forth in Section 7(c) or Section 8(d), as applicable, could not then be satisfied.


 


(c)
At any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no
reason by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement
without any liability whatsoever of any party to any other party under this Agreement (except as set forth below in this Section
11). The Company Termination Notice shall not be effective until one (1) Business Day after it has been received by the Investor.


 


(d)
This Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available
Amount as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party
to any other party under this Agreement (except as set forth below).


 


(e)
If for any reason or for no reason the full Available Amount has not been purchased in accordance with Section 2 of this Agreement
by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part
of any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).


 




    	 	28	 



    	 



    

 


Except
as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f), 10(g), 10(h), 11(d) and 11(e)), any termination
of this Agreement pursuant to this Section 11 shall be effected by written notice from the Company to the Investor, or the Investor
to the Company, as the case may be, setting forth the basis for the termination hereof. The representations and warranties and
covenants of the Company and the Investor contained in Sections 3, 4, 5 (except for Subsections 5(f) and 5(p)), and 6 hereof,
the indemnification provisions set forth in Section 9 hereof and the agreements and covenants set forth in Sections 11 and 12
shall survive the Commencement and any termination of this Agreement. No termination of this Agreement shall (i) affect the Company’s
or the Investor’s rights or obligations under this Agreement with respect to pending Purchases, and the Company and the
Investor shall complete their respective obligations with respect to any pending Purchases under this Agreement or (ii) be deemed
to release the Company or the Investor from any liability for intentional misrepresentation or willful breach of any of the Transaction
Documents.


 





	12.	MISCELLANEOUS.






 


(a)
Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning
the relative rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement
and interpretation of this Agreement and the other Transaction Documents 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. Each
party hereby irrevocably submits to the exclusive jurisdiction of and venue in the U.S. District Court for the Southern District
of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of
New York, for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or
therewith, or with any transaction contemplated hereby or discussed herein, 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. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT
IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR
ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 


(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; provided that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file shall
be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature
were an original signature.


 


(c)
Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement.


 


(d)
Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or
the validity or enforceability of any provision of this Agreement in any other jurisdiction.


 




    	 	29	 



    	 



    

 


(e)
Entire Agreement; Amendment. This Agreement supersedes all other prior oral or written agreements between the Investor,
the Company, their affiliates and Persons acting on their behalf with respect to the subject matter hereof, and this Agreement,
the other Transaction Documents and the instruments referenced herein contain the entire understanding of the parties with respect
to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the
Investor makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges and
agrees that is has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than as
expressly set forth in the Transaction Documents. No provision of this Agreement may be amended other than by a written instrument
signed by both parties hereto.


 


(f)
Notices. Any notices, consents 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 or email (provided confirmation of transmission is mechanically or electronically generated and kept on file
by the sending party); or (iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses for such communications shall be:


 


If
to the Company:


 


PolarityTE,
Inc.

123 Wright Brothers Drive

Salt Lake City, UT 84116

Telephone: (800) 560-3983

E-mail: davidseaburg@polarityte.com

Attention: Mr. David Seaburg, President


 


With
a copy to (which shall not constitute notice or service of process):


 


King
& Spalding LLP

601 South California Avenue

Palo Alto, CA 94304

Telephone: (650) 422-6713

E-mail: lbushnell@kslaw.com

Attention: Laura I. Bushnell, Esq.


 


If
to the Investor:


 


Keystone
Capital Partners, LLC

139 Fulton Street, Suite 412

New York, NY 10038

Telephone: (646) 349-0916

E-mail: fz@keystone-cp.com

Attention: Mr. Fredric G. Zaino


 




    	 	30	 



    	 



    

 


With
a copy to (which shall not constitute notice or service of process):


 


Olshan
Frome Wolosky LLP

1325 Avenue of the Americas, 15th Floor

New York, New York 10019

Telephone: (212) 451-2300

Facsimile: (212) 451-2222

E-mail: sfeldman@olshanlaw.com

Attention: Spencer G. Feldman, Esq.


 


or
at such other 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 three (3) Business Days prior to the effectiveness of such change. Written confirmation
of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or email address,
as applicable, and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight
delivery 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. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written
consent of the Investor, including by merger or consolidation. The Investor may not assign its rights or obligations under this
Agreement.


 


(h)
No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns and, except as set forth in Section 9, is not for the benefit of, nor may any provision hereof be enforced
by, any other Person.


 


(i)
Publicity. The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall
consult with the Investor and its counsel on the form and substance of, and shall give due consideration to all such comments
from the Investor or its counsel on, any press release, SEC filing or any other public disclosure by or on behalf of the Company
relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated
thereby, not less than 24 hours prior to the issuance, filing or public disclosure thereof. The Investor must be provided with
a final version of any information related to the Investor contained within such press release, SEC filing or other public disclosure
at least 24 hours prior to any release, filing or use by the Company thereof, or such shorter time as is reasonably necessary.
The Company agrees and acknowledges that its failure to fully comply with this provision constitutes a Material Adverse Effect.


 


(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 the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby.


 


(k)
No Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has
not engaged any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby.
The Investor represents and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or
finder in connection with the transactions contemplated hereby. The Company shall be responsible for the payment of any fees or
commissions, if any, of any financial advisor, placement agent, broker or finder engaged by the Company relating to or arising
out of the transactions contemplated hereby. The Company shall pay, and hold the Investor harmless against, any liability, loss
or expense (including, without limitation, reasonable attorneys’ fees and out of pocket expenses) arising in connection
with any such claim.


 




    	 	31	 



    	 



    

 


(l)
No Strict 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.


 


(m)
Remedies, Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement,
including, without limitation, the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all
other remedies available to the Investor under this Agreement, at law or in equity (including a decree of specific performance
and/or other injunctive relief), no remedy of the investor contained herein shall be deemed a waiver of compliance with the provisions
giving rise to such remedy and nothing herein shall limit the Investor’s right to pursue actual damages for any failure
by the other party to comply with the terms of this Agreement. The parties acknowledge that a breach by any party of its obligations
hereunder will cause irreparable harm to the non-breaching party and that the remedy at law for any such breach may be inadequate.
The parties therefore agree that, in the event of any such breach or threatened breach, the non-breaching party shall be entitled,
in addition to all other available remedies, to an injunction restraining any breach, without the necessity of showing economic
loss and without any bond or other security being required.


 


(n)
Enforcement Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced
by the Investor through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization,
receivership or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney
is retained to represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company
shall pay to the Investor, as incurred by the Investor, all reasonable costs and expenses including attorneys’ fees incurred
in connection therewith, in addition to all other amounts due hereunder. If this Agreement is placed by the Company in the hands
of an attorney for enforcement or is enforced by the Company through any legal proceeding, then the Investor shall pay to the
Company, as incurred by the Company, all reasonable costs and expenses, including attorneys’ fees incurred in connection
therewith, in addition to all other amounts due hereunder.


 


(o)
Waivers. No provision of this Agreement may be waived other than in a written instrument signed by the party against whom
enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.


 


(p)
Adjustments for Stock Splits. The parties acknowledge and agree that all share-related numbers contained in this Agreement
shall be adjusted to take into account any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split
or other similar transaction with respect to the Common Stock except as specifically stated herein.


 


*
* * * *


 




    	 	32	 



    	 



    

 


IN
WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be duly executed as of the Execution Date.


 


	THE
    COMPANY:	 
	 	 
	POLARITYTE,
    INC.	 
	 	 
	By:	/s/
    David Seaburg	 
	Name:	David
    Seaburg	 
	Title:	President	 


 


	INVESTOR:	 
	 	 
	KEYSTONE
    CAPITAL PARTNERS, LLC	 
	By:
    	RANZ Group, LLC, Manager	 
	 	 	 
	By:	/s/
    Fredric G. Zaino	 
	Name:	Fredric
    G. Zaino 	 
	Title:	Managing
    Member	 


 


[Signature
Page to Purchase Agreement]


 




    	 	33	 



    	 



    

 


SCHEDULES


 


Schedule
4(c) Capitalization

Schedule 4(p) Tax Status

Schedule 4(x) Agent Fees


 




    	 	34	 



    	 



    

 


EXHIBITS


 


	Exhibit
    A	Form
    of Officer’s Certificate
	Exhibit
    B	Form
    of Secretary’s Certificate
	Exhibit
    C	Information
    about Investor furnished to the Company


 




    	 	35	 



    	 



    

 


DISCLOSURE
SCHEDULES


 


Schedule
4(c) Capitalization


 


Common
stock, $0.001 par value per share, 250,000,000 shares authorized and 29,984,866 shares issued and outstanding.


 


Preferred
stock, $0.001 par value per share, 24,900,000 shares authorized, no shares issued and outstanding.


 


Series
A Junior Participating Preferred Stock, $0.001 par value per share, 100,000 shares authorized and no shares issued and outstanding.


 


Preferred share purchase
rights, one right for each outstanding share of common stock; each right entitles the holder to purchase one one-thousandth (subject
to adjustment) of one share of Series A Junior Participating Preferred Stock at an exercise price of $12.00 per one one-thousandth
of a share.


 


Options
to purchase a total of 4,711,016 shares of common stock at a weighted average exercise price of approximately $14.97.


 


Outstanding
unvested full value equity awards for 1,900,509 shares.


 


2,304,177
shares available for awards under the Company’s equity incentive plans.


 




    	 	36	 



    	 



    

 


Schedule
4(p) Tax Status


 


None


 




    	 	37	 



    	 



    

 


Schedule
4(x) Agent Fees


 


None


 




    	 	38	 



    	 



    

 


EXHIBIT
A


 


FORM
OF OFFICER’S CERTIFICATE


 


This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(d) of that certain
Purchase Agreement dated as of December 5, 2019 (“Purchase Agreement”), by and between POLARITYTE, INC.,
a Delaware corporation (the “Company”), and KEYSTONE CAPITAL PARTNERS, LLC (the “Investor”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.


 


The
undersigned, ___________, ______________ of the Company, hereby certifies, on behalf of the Company and not in his individual
capacity, as follows:


 


1.
I am the _____________ of the Company and make the statements contained in this Certificate;


 


2.
The representations and warranties of the Company contained in the Purchase Agreement are true and correct in all material respects
(except to the extent that any of such representations and warranties are qualified as to materiality in the Purchase Agreement,
in which case, such representations and warranties are true and correct in all material respects as so qualified) as of the date
of the Purchase Agreement and as of the Commencement Date as though made at that time (except for representations and warranties
that speak as of a specific date, in which case such representations and warranties are true and correct in all material respects
as of such date);


 


3.
The Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date,
to the extent not otherwise waived.


 


4.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy
Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate
involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as
they become due.


 


IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of _______ 2019.


 


	 	 	 
	 	Name:	 
	 	Title:	 


 


The
undersigned as Secretary of POLARITYTE, INC., a Delaware corporation, hereby certifies that ___________ is the duly elected,
appointed, qualified and acting ________ of _________ and that the signature appearing above is a genuine signature.


 


	 	 
	 	Secretary


 




    	 	39	 



    	 



    

 


EXHIBIT
B


 


FORM
OF SECRETARY’S CERTIFICATE


 


This
Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(j) of that certain Purchase
Agreement dated as of December 5, 2019 (the “Purchase Agreement”), by and between POLARITYTE, INC., a Delaware
corporation (the “Company”) and KEYSTONE CAPITAL PARTNERS, LLC. Terms used herein and not otherwise
defined shall have the meanings ascribed to them in the Purchase Agreement.


 


The
undersigned, ____________, Secretary of the Company, hereby certifies, on behalf of the Company and not in his individual capacity,
as follows:


 


1.
I am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.


 


2.
Attached hereto as Exhibit A are true, correct and complete copies of the Company’s Certificate of Incorporation
and Bylaws, each as amended through the date hereof, and no action has been taken by the Company, its directors, officers or stockholders,
in contemplation of the filing of any further amendment relating to or affecting such documents.


 


3.
Attached hereto as Exhibit B are true, correct and complete copies of the resolutions either duly adopted by the Board
of Directors of the Company (a) at a meeting on _________ 2019, at which a quorum was present and acting throughout, or (b) by
an action by unanimous written consent executed by all directors in accordance with the General Corporation Law of the State of
Delaware. Such resolutions have not been amended, modified or rescinded and remain in full force and effect, and such resolutions
are the only resolutions adopted by the Company’s Board of Directors, or any committee thereof, or the stockholders of the
Company relating to or affecting (i) the entering into and performance of the Purchase Agreement, or the issuance, offering and
sale of the Purchase Shares and (ii) and the performance by the Company of its obligations under the Transaction Documents as
contemplated therein.


 


4.
As of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit C hereto.


 


IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of _________ 2019.


 





	 	 	 
	 	Secretary	 





 


The
undersigned as Secretary of POLARITYTE, INC., a Delaware corporation, hereby certifies that ___________ is the duly elected,
appointed, qualified and acting ________ of _________ and that the signature appearing above is a genuine signature.


 





	 	 	 
	 	Secretary	 


 




    	 	40	 



    	 



    

 


EXHIBIT
C


 


Information
about the Investor furnished to the Company by the Investor

expressly for use in connection with prospectus


 


Information
with respect to Keystone Capital Partners, LLC


 


Immediately
prior to the date of the Purchase Agreement, Keystone Capital Partners, LLC (“Keystone Capital”) beneficially owned
no shares of Common Stock. Fredric G. Zaino, the Managing Member of RANZ Group, LLC (“RANZ”), the manager of Keystone
Capital, is deemed to be the beneficial owner of all of the Common Stock owned by Keystone Capital. Mr. Zaino, through RANZ, has
sole voting and investment power over the shares being offered under the prospectus supplement filed with the SEC in connection
with the transactions contemplated under the Purchase Agreement. Keystone Capital is not a licensed broker-dealer or an affiliate
of a licensed broker-dealer.


 






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