Exhibit 10.1


 


EXECUTION COPY


 


SECURITIES PURCHASE AGREEMENT


 


This SECURITIES PURCHASE
AGREEMENT (this “Agreement”), dated as of February 28, 2022, is by and among American Virtual Cloud Technologies,
Inc., a Delaware corporation with headquarters located at 1720 Peachtree Street, Suite 629, Atlanta, GA 30309 (the “Company”),
and each of the investors listed on the Schedule of Buyers attached hereto (individually, a “Buyer” and collectively,
the “Buyers”).


 


RECITALS


 


A. The
Company and each Buyer desire to enter into this transaction to purchase (i) the Preferred Shares (as defined below) and (ii) Warrants
(as defined below) pursuant to a currently effective shelf registration statement on Form S-3, which has at least $43,000,000 of unallocated
securities, including Common Stock (as defined below), Preferred Stock (as defined below) and warrants to purchase Common Stock registered
thereunder (Registration Number 333-258136) (the “Registration Statement”), which Registration Statement has been declared
effective in accordance with the Securities Act of 1933, as amended (the “1933 Act”), by the United States Securities
and Exchange Commission (the “SEC”).


 


B. The
Company has authorized a new series of convertible Preferred Stock of the Company designated as Series B Convertible Preferred Stock,
$0.0001 par value, the terms of which are set forth in the certificate of designation for such series of Preferred Stock (the “Certificate
of Designations”) in the form attached hereto as Exhibit A (together with any convertible preferred shares issued
in replacement thereof in accordance with the terms thereof, the “Series B Preferred Stock”), which Series B Preferred
Stock shall be convertible into shares of Common Stock (such shares of Common Stock issuable pursuant to the terms of the Certificate
of Designations, including, without limitation, upon conversion or otherwise, collectively, the “Conversion Shares”),
in accordance with the terms of the Certificate of Designations.


 


C. Each
Buyer wishes to purchase, and the Company wishes to sell, at the Initial Closing (as defined below), upon the terms and conditions stated
in this Agreement, (i) such aggregate number of Preferred Shares set forth opposite such Buyer’s name in column (3) on the Schedule
of Buyers (which aggregate amount for all Buyers shall be 16,125 Preferred Shares and shall collectively be referred to herein as the
“Initial Preferred Shares”) (as converted, collectively, the “Initial Conversion Shares”), (ii)
a warrant to initially acquire up to such aggregate number of shares of Common Stock set forth opposite such Buyer’s name in column
(5) on the Schedule of Buyers, in the form attached hereto as Exhibit B (the “Warrants”) (as exercised,
collectively, the “Warrant Shares”).


 


D. Subject to the terms and
conditions set forth in this Agreement, the Company may require each Buyer, and/or each Buyer, severally, may require the Company, to
participate in one or more Additional Closings (as defined below) for the purchase by such Buyer, and the sale by the Company, up to
such aggregate number of Preferred Shares set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers (which aggregate
amount for all Buyers shall be 5,375 Preferred Shares and shall collectively be referred to herein as the “Additional Preferred
Shares”, and together with the Initial Preferred Shares, the “Preferred Shares”) (as converted, collectively,
the “Additional Conversion Shares” and, collectively with the Initial Conversion Shares, the “Conversion
Shares”).


 


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


 






     


     


    

 


AGREEMENT


 


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


 


		1.	PURCHASE AND SALE OF PREFERRED SHARES AND WARRANTS.



 


(a)
Purchase of Preferred Shares and Warrants.


 


(i)
Initial Closing. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(a) and 7(a) below, the
Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, shall purchase from the Company on the Initial
Closing Date (as defined below), such aggregate number of Initial Preferred Shares as is set forth opposite such Buyer’s name in
column (3) on the Schedule of Buyers along with Warrants to acquire up to that aggregate number of Warrant Shares as is set forth opposite
such Buyer’s name in column (5) on the Schedule of Buyers (the “Initial Closing”).


 


(ii)
Additional Closings. Subject to the satisfaction (or waiver) of the conditions set forth in Section 6(b) and 7(b) below,
if the Company has delivered an Additional Mandatory Closing Notice (as defined below) to each of the Buyers or a Buyer has delivered
an Additional Closing Notice (as defined below) to the Company, the Company shall issue and sell to such Buyer, and such Buyer severally,
but not jointly, with any other Buyer, shall purchase from the Company, on the applicable Additional Closing Date (as defined below),
such aggregate number of Additional Preferred Shares as is set forth in such Additional Closing Notice, not in excess, in the aggregate
with all prior Additional Closings, of such aggregate number of Additional Preferred Shares as set forth opposite such Buyer’s name
in column (4) on the Schedule of Buyers (each, an “Additional Closing”).


 


(b)
Closing. The Initial Closing and each Additional Closing are each referred to in this Agreement as a “Closing”.
Each Closing of the purchase of the Preferred Shares and the Warrants by the Buyers shall occur at the offices of Kelley Drye & Warren
LLP, 3 World Trade Center, 175 Greenwich Street, New York, NY 10007.


 


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


 






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(ii)
 Additional Closings.


 


(A) Additional
Closings at Buyer’s Election. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and
7(b) below, each Buyer, severally, shall have the right, exercisable by delivery by e-mail of a written notice to the Company (each,
an “Additional Optional Closing Notice”, and the date hereof, each an “Additional Optional Closing
Notice Date”) to purchase, and to require the Company to sell to such Buyer, at one or more Additional Closings, up to
such Additional Preferred Shares as set forth opposite its name in column (4) on the Schedule of Buyers (each, an
“Additional Optional Preferred Shares Amount”) at an Additional Closing. Each Additional Optional Closing Notice
shall specify (x) the proposed date and time of the Additional Closing (which, if unspecified in such Additional Optional Closing
Notice, shall be the second (2nd) Trading Day after such Additional Optional Closing Notice or such other date as is
mutually agreed to by the Company and each Buyer, each, an “Additional Optional Closing Date,”) and (y) the
applicable Additional Optional Preferred Shares Amount of the Additional Preferred Shares to be issued to such Buyer at such
Additional Closing. If a Buyer has not elected to effect an Additional Closing on or prior to the earlier to occur of (I) the first
calendar day after the eight month anniversary of the Closing Date that no Equity Conditions Failure (as defined in the Certificate
of Designations) exists or (II) April 1, 2023 (the “Additional Optional Closing Expiration Date”), such Buyer
shall have no further right to effect an Additional Closing hereunder.


 


(B) Additional
Closings at Company’s Election. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6(b) and
7(b) below, as long as no Equity Conditions Failure (as defined in the Certificate of Designations) then exists, the Company may
deliver one or more written notices, at any time after the Stockholder Approval Date (as defined below) (each, an
“Additional Mandatory Closing Notice”, and together with each Additional Optional Closing Notice, each an
“Additional Closing Notice”, and the date of such applicable Additional Mandatory Closing Notice, each, an “Additional
Mandatory Closing Notice Date”, and together with each Additional Optional Closing Notice Date, each an
“Additional Closing Notice Date”) to all, but not less than all, of the Buyers, executed by the chief executive
officer or chief financial officer of the Company, (I) validly certifying that the Company has obtained the Stockholder Approval and
no Equity Conditions Failure then exists, (II) confirming the aggregate number of Additional Preferred Shares to be purchased by
such Buyer (which together with the aggregate number of Additional Preferred Shares issued to such Buyer at prior Additional
Closings, shall not exceed such aggregate number of Additional Preferred Shares as set forth opposite its name in column (4) on the
Schedule of Buyers) and the proposed Additional Closing Date, (III) setting forth the proposed Additional Closing Date, which shall
be the second (2nd) Trading Day after such Additional Optional Closing Notice (or such other date as is mutually agreed
to by the Company and each Buyer, each, an “Additional Mandatory Closing Date,” and together with each other
Additional Mandatory Closing Date and Additional Optional Closing Date, each, an “Additional Closing Date”, and
together with the Initial Closing Date, each a “Closing Date”) and (IV) attaching the draft applicable additional
Prospectus Supplement (as defined below) with respect thereto. Each Additional Mandatory Closing Notice shall be irrevocable. For
the avoidance of doubt, the Buyers shall not be required to consummate any Additional Closing if on the Additional Closing Date an
Equity Conditions Failure exists or the Company has not obtained the Stockholder Approval. The Company’s right to require a
Buyer to purchase Additional Preferred Shares pursuant to an Additional Mandatory Closing Notice shall automatically expire on the
fifteenth (15th) Trading Day after the Stockholder Meeting Deadline (as defined below) (the “Additional
Mandatory Closing Expiration Date”).


 


(c)
Purchase Price. The aggregate purchase price for the Initial Preferred Shares and the Warrants to be purchased by each Buyer
(the “Initial Purchase Price”) shall be the amount set forth opposite such Buyer’s name in column (6) on the
Schedule of Buyers ($15,000,000 in the aggregate). The aggregate purchase price for the Additional Preferred Shares to be purchased by
each Buyer (the “Additional Purchase Price” and together with the Initial Purchase Price, each, a “Purchase
Price”) shall be approximately $930 for each Preferred Share to be issued at the applicable Additional Closing.


 


(d)
Form of Payment; Deliveries.


 


(i)
On the Initial Closing Date, (A) each Buyer shall pay its respective Initial Purchase Price (less, in the case of any Buyer, the
amounts withheld pursuant to Section 4(i)) to the Company for the Initial Preferred Shares and the Warrants to be issued and sold
to such Buyer at the Initial Closing, by wire transfer of immediately available funds in accordance with the Company’s written wire
instructions and (B) the Company shall deliver to each Buyer (x) such aggregate number of Initial Preferred Shares as is set forth
opposite such Buyer’s name in column (3) of the Schedule of Buyers, and (y) Warrant pursuant to which such Buyer shall have the
right to acquire up to such aggregate number of Warrant Shares as is set forth opposite such Buyer’s name in column (5) of the Schedule
of Buyers, in each case, duly executed on behalf of the Company and registered in the name of such Buyer or its designee.


 






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(ii) On the
applicable Additional Closing Date, (A) each Buyer participating in such Additional Closing shall pay its respective Additional
Purchase Price (less, in the case of any Buyer, the amounts withheld pursuant to Section 4(i)) to the Company for such
aggregate number of Additional Preferred Shares to be issued and sold to such Buyer at such Additional Closing, by wire transfer of
immediately available funds in accordance with the Company’s written wire instructions and (B) the Company shall deliver
to each such applicable Buyer an Additional Preferred Shares in the aggregate original principal amount as is set forth opposite
such Buyer’s name in column (4) of the Schedule of Buyers, duly executed on behalf of the Company and registered in the name
of such Buyer or its designee.


 


(e)
Sales During Pre-Settlement Period. Notwithstanding anything herein to the contrary, if at any time on or after the time
of execution of this Agreement by the Company and an applicable Buyer, through and including the time immediately prior to a Closing (the
“Pre-Settlement Period”), such Buyer sells (excluding “short sales” as defined in Rule 200 of Regulation
SHO) to any Person (as defined below) all, or any portion, of any Conversion Shares or Warrant Shares to be issued hereunder to such Buyer
at such Closing (collectively, the “Pre-Settlement Shares”), such Buyer shall, automatically hereunder (without any
additional required actions by such Buyer or the Company), be deemed to be unconditionally bound to purchase, and the Company shall be
deemed unconditionally bound to sell, such Pre-Settlement Shares to such Buyer at such Closing; provided, that the Company shall not be
required to deliver any Pre-Settlement Shares to such Buyer prior to the Company’s receipt of the purchase price of such Pre-Settlement
Shares hereunder; and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation
or covenant by such Buyer as to whether or not during the Pre-Settlement Period such Buyer shall sell any Pre-Settlement Shares to any
Person and that any such decision to sell any Pre-Settlement Shares by such Buyer shall be made, in the sole discretion of such Buyer,
at the time such Buyer elects to effect any such sale, if any. For purposes of this Agreement, “Person” means an individual,
a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity
and any Governmental Entity (as defined below) or any department or agency thereof.


 


(f) Existing Warrants
Waivers. Effective as of the Closing Date, each affiliate of Buyer that holds existing warrants of the Company
(“Existing Warrants”), shall, pursuant to a letter agreement to be entered into between such affiliate and the
Company, severally, and not jointly, (i) represent and warrant to the Company that it has not sold or otherwise transferred any
existing warrants of the Company to any other Person prior to the date hereof, (ii) waive, in part, any adjustment to the exercise
price of such Existing Warrants that arises solely from the issuances of the Securities pursuant to the Transaction Documents such
that the exercise price of the Existing Warrants shall (A) as of the date hereof adjust to $1.00 (as adjusted for stock splits,
stock dividends, stock combinations, recapitalizations and similar events) with a corresponding increase in the aggregate number of
shares of Common Stock exercisable thereunder in accordance with the terms thereof in effect as of the date hereof and (B) not
further adjust upon any future issuance of Securities (in accordance with the terms as in effect as of the Closing Date); provided,
that nothing in this Section 1(f) or such letter agreement shall amend, modify or waive any adjustment to the exercise of the
Existing Warrants arising pursuant to any other Subsequent Placement, and (iii) waive, in part, the definition of “Change of
Control” in the Existing Warrants such that only a Change of Control (as defined in the Warrants) shall be a “Change of
Control” (as defined in the Existing Warrants).


 






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		2.	BUYER’S REPRESENTATIONS AND WARRANTIES.



 


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


 


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


 


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


 


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


 


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


 


(e)
No Group. Other than affiliates of such Buyer who are also Buyers under this Agreement, such Buyer is not under common control
with or acting in concert with any other Buyer and is not part of a “group” for purposes of the 1934 Act.


 


(f)
Disclosure. Such Buyer understands and confirms that the Company will rely on the foregoing representations in consummating
the transactions contemplated by this Agreement and the other Transaction Documents. Such Buyer acknowledges and agrees that the Company
does not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in the Transaction Documents.


 






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		3.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY.



 


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


 


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


 


(b) Authorization;
Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this
Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof. The
execution and delivery of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Preferred Shares, the
reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Preferred Shares, the issuance of the
Warrants and the reservation for issuance and issuance of the Warrant Shares issuable upon exercise of the Warrants) have been duly
authorized by the Company’s board of directors and (other than the filing with the SEC of prospectus supplements for each
Closing as required by the Registration Statement pursuant to Rule 424(b) under the 1933 Act (each, a “Prospectus
Supplement”) supplementing the base prospectus forming part of the Registration Statement (the
“Prospectus”) and any other filings as may be required by any state securities agencies(collectively, the
“Required Approvals”)) and no further filing, consent or authorization is required by the Company, its board of
directors or its stockholders or other governing body. This Agreement has been, and the other Transaction Documents to which it is a
party will be prior to the Initial Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and
binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except as such
enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies
and except as rights to indemnification and to contribution may be limited by federal or state securities law. The Certificate of
Designations in the form attached hereto as Exhibit A, when filed with the Secretary of State of the State of Delaware
pursuant to the terms hereof, will be is in full force and effect, enforceable against the Company in accordance with its terms.
“Transaction Documents” means, collectively, this Agreement, the Certificate of Designations, the Preferred
Shares, the Warrants, the Voting Agreements, the Irrevocable Transfer Agent Instructions (as defined below) and each of the other
agreements and certificates entered into or delivered by any of the parties hereto in connection with the transactions contemplated
hereby and thereby, as may be amended from time to time.


 






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(c) Issuance of
Securities; Registration Statement. The issuance of the Preferred Shares and the Warrants are duly authorized and, upon issuance
and payment in accordance with the terms of the Transaction Documents shall be validly issued, fully paid and non-assessable and
free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal,
encumbrances, security interests and other encumbrances (collectively “Liens”) with respect to the issuance
thereof. As of each Closing, the Company shall have reserved from its duly authorized capital stock not less than the sum of (i)
100% of the maximum number of shares of Common Stock (assuming for purposes hereof that (x) such Preferred Shares are convertible at
the Floor Price (as defined in the Certificate of Designations), (y) the prior consummation in full of all Additional Closings
hereunder and (z) any such conversion shall not take into account any limitations on the conversion of the Preferred Shares set
forth in the Certificate of Designations) and (ii) 200% of the maximum number of shares of Common Stock issuable upon exercise of
the Warrants (without taking into account any limitations on the exercise of the Warrants set forth in the Warrants). Upon issuance
or conversion in accordance with the Certificate of Designations or exercise in accordance with the Warrants (as the case may be),
the Conversion Shares and the Warrant Shares, respectively, when issued, will be validly issued, fully paid and nonassessable and
free from all preemptive or similar rights or Liens with respect to the issue thereof, with the holders being entitled to all rights
accorded to a holder of Common Stock. The issuance by the Company of the Securities has been registered under the 1933 Act, the
Securities are being issued pursuant to the Registration Statement and all of the Securities are freely transferable and freely
tradable by each of the Buyers without restriction, whether by way of registration or some exemption therefrom. The Registration
Statement is effective and available for the issuance of the Securities thereunder and the Company has not received any notice that
the SEC has issued or intends to issue a stop-order with respect to the Registration Statement or that the SEC otherwise has
suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has
threatened in writing to do so. The “Plan of Distribution” section under the Registration Statement (including the
Prospectus Supplements) permits the issuance and sale of the Securities hereunder and as contemplated by the other Transaction
Documents. Upon receipt of the Securities, each of the Buyers will have acquire ownership of the Securities free of any adverse
claim. The Registration Statement and any prospectus included therein, including the Prospectus and the Prospectus Supplements,
complied in all material respects with the requirements of the 1933 Act, and the documents incorporated by reference into the
Registration Statement when filed, complied in all material respects with the requirements of the 1934 Act and, in each case, with
the rules and regulations of the SEC promulgated under the 1933 Act or the 1934 Act, as the case may be. At the time the
Registration Statement and any amendments thereto became effective the Registration Statement and any amendments thereto complied
and, upon the filing of such applicable Prospectus Supplement after the date of this Agreement the Registration Statement will
comply in all material respects with the requirements of the 1933 Act and did not and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement
thereto was issued and the applicable Prospectus Supplement at each Closing Date, complied and will comply, as the case may be, in
all material respects with the requirements of the 1933 Act and did not, and will not, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which
they were made, not misleading. The Company meets all of the requirements for the use of Form S-3 under the 1933 Act for the
offering and sale of the Securities contemplated by this Agreement and the other Transaction Documents, and the SEC has not notified
the Company of any objection to the use of the form of the Registration Statement pursuant to Rule 401(g)(1) under the 1933 Act. The
Registration Statement meets the requirements set forth in Rule 415(a)(1)(x) under the 1933 Act. The Company (i) has not distributed
any offering material in connection with the offer or sale of any of the Securities and (ii) until no Buyer holds any of the
Securities, shall not distribute any offering material in connection with the offer or sale of any of the Securities to, or by, any
of the Buyers (if required), in each case, other than the Registration Statement, the Prospectus or the Prospectus Supplements In
accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority Manual, the offering of the Securities has been
registered with the SEC on Form S-3 under the 1933 Act pursuant to the standards for Form S-3 in effect prior to October 21, 1992,
and the Securities are being offered pursuant to Rule 415 promulgated under the 1933 Act.


 


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


 




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


 


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


 


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


 


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


 






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


 


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


 


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


 






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


 


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


 


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


 






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


 


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


 


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


 


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


 


(q)
Transactions With Affiliates. Except as disclosed in the SEC Documents, no current or, to the knowledge of the Company,
former, employee, partner, director, officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate,
or, to the knowledge of the Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin
of any of the foregoing, is presently, or has ever been, (i) a party to any transaction with the Company or its Subsidiaries (including
any contract, agreement or other arrangement providing for the furnishing of services by, or rental of real or personal property from,
or otherwise requiring payments to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries
(other than for ordinary course services as employees, officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct
or indirect owner of an interest in any corporation, firm, association or business organization which is a competitor, supplier or customer
of the Company or its Subsidiaries (except for a passive investment (direct or indirect) in less than 5% of the common stock of a company
whose securities are traded on or quoted through an Eligible Market (as defined below)), nor does any such Person receive income from
any source other than the Company or its Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly
accrue to the Company or its Subsidiaries. No director, executive officer, or 10% or greater stockholder of the Company or any of its
Subsidiaries or member of his or her immediate family is indebted to the Company or its Subsidiaries, as the case may be, nor is the Company
or any of its Subsidiaries indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i) for payment
of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii) for other standard
employee benefits made generally available to all employees or executives (including stock option agreements outstanding under any stock
option plan approved by the Board of Directors of the Company).


 


(r)
Equity Capitalization.


 


(i)
Definitions:


 


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


 


(B)
“Preferred Stock” means (x) the Company’s blank check preferred stock, $0.0001 par value per share, the
terms of which may be designated by the board of directors of the Company in a certificate of designations and (y) any capital stock
into which such preferred stock shall have been changed or any share capital resulting from a reclassification of such preferred
stock (other than a conversion of such preferred stock into Common Stock in accordance with the terms of such certificate of
designations).


 


(ii)
Authorized and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of
(A) 500,000,000 shares of Common Stock, of which 89,054,471 are issued and outstanding and 174,387,950 shares are reserved for issuance
pursuant to Convertible Securities (as defined below) (other than the Preferred Shares and the Warrants) exercisable or exchangeable for,
or convertible into, shares of Common Stock and (B) 5,000,000 shares of Preferred Stock, none of which are issued and outstanding. No
shares of Common Stock are held in the treasury of the Company. “Convertible Securities” means any capital stock or
other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly or indirectly convertible
into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital stock or other security
of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.


 






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


 


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


 






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


 


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


 






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


 


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


 


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


 






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(w)
Title.


 


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


 


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


 


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


 


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


 


(ii) No
Hazardous Materials:


 


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


 




    15


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 






    16


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


(kk)
[Reserved].


 




    17


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    18


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


(uu) Cybersecurity.
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform in all
material respects as required in connection with the operation of the business of the Company and its subsidiaries as currently conducted,
free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants that would reasonably
be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries have implemented and
maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards to maintain
and protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems
and data, including “Personal Data,” used in connection with their businesses. “Personal Data” means (i)
a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax identification
number, driver’s license number, passport number, credit card number, bank information, or customer or account number; (ii) any
information which would qualify as “personally identifying information” under the Federal Trade Commission Act, as amended;
(iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”) (EU
2016/679); (iv) any information which would qualify as “protected health information” under the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
and (v) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person or such, nor any incidents under internal review or investigations relating to the same except in each
case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The
Company and its Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification except in each case, where such would not, either individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.


 






    19


     


    

 


(vv)
Compliance with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in compliance with
all applicable state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and
its Subsidiaries have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently
are in compliance with, the GDPR (EU 2016/679) (collectively, the “Privacy Laws”) except in each case, where such would
not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance with
the Privacy Laws, the Company and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure
compliance in all material respects with their policies and procedures relating to data privacy and security and the collection, storage,
use, disclosure, handling, and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries have at
all times made all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such
disclosures made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws
and regulatory rules or requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has
received notice of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws,
and has no knowledge of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting
or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is
a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.


 


(ww) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents or
counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information
concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and
the other Transaction Documents. The Company understands and confirms that each of the Buyers will rely on the foregoing
representations in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company
and its Subsidiaries, their businesses and the transactions contemplated hereby, including the schedules to this Agreement,
furnished by or on behalf of the Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. All of the written information furnished after the date hereof by or on
behalf of the Company or any of its Subsidiaries to each Buyer pursuant to or in connection with this Agreement and the other
Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date on which such information
is so provided and will not contain any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements made therein, in the light of the circumstances under which they were made, not misleading. No event or
circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business,
properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under
applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which
has not been so publicly disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations or
warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.


 






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		4.	COVENANTS.



 


(a)
Best Efforts. Each Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to
be satisfied by it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants
hereunder and conditions to be satisfied by it as provided in Section 3 of this Agreement.


 


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


 


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


 


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


 






    21


     


    

 


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


 


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


 






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


 


(f)  Reporting
Status. Until the earliest of (i) the date on which the Buyers shall have sold all of the Securities, (ii) such date on which
the Company is acquired, is liquidated or completes a going private transaction in a transaction where the Common Stock is no longer
outstanding and (iii) the later of (A) the fifth (5th) anniversary of the Initial Closing Date and (B) the date no
Warrants remain outstanding (the “Reporting Period”), the Company shall use reasonable best efforts to timely
file all reports required to be filed with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an
issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer
require or otherwise permit such termination.


 


(g) Use of
Proceeds. The Company will use the proceeds from the sale of the Securities as described in the applicable Prospectus
Supplement, but not, directly or indirectly, for (i) except as set forth on Schedule 4(d), the satisfaction of any indebtedness of
the Company or any of its Subsidiaries, (ii) the redemption or repurchase of any securities of the Company or any of its
Subsidiaries, or (iii) the settlement of any outstanding litigation.


 


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


 






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


 


(j) Fees. The
Company shall reimburse the lead Buyer a non-accountable fee of $100,000 for all costs and expenses incurred by it or its affiliates
in connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction
Documents (including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Kelley
Drye & Warren, LLP, counsel to the lead Buyer, any other reasonable fees and expenses in connection with the structuring,
documentation, negotiation and closing of the transactions contemplated by the Transaction Documents and due diligence and
regulatory filings in connection therewith) (the “Transaction Expenses”) and shall be withheld by the lead Buyer
from its Purchase Price at each Closing, less $25,000 previously paid by the Company to Kelley Drye & Warren LLP; provided, that
the Company shall promptly reimburse Kelley Drye & Warren, LLP on demand for all Transaction Expenses not so reimbursed through
such withholding at a Closing. In addition to the Transaction Expenses, the Company shall be responsible for the payment of any
placement agent’s fees, financial advisory fees, transfer agent fees, Depository Trust Company (“DTC”) fees
or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising out of the transactions
contemplated hereby (including, without limitation, any fees or commissions payable to the Placement Agent, who is the
Company’s sole placement agent in connection with the transactions contemplated by this Agreement). The Company shall pay, and
hold each Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees
and out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth in the
Transaction Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the
Buyers.


 






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(k)
Pledge of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and
agrees that the Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement
that is secured by the Securities. The pledge of Securities, in and of itself, without any transfer of Securities upon enforcement of
such pledge, shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Investor effecting a pledge
of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant
to this Agreement or any other Transaction Document. The Company hereby agrees to execute and deliver such documentation as a pledgee
of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by a Buyer.


 


(l)
Disclosure of Transactions and Other Material Information.


 


(i) Disclosure
of Transaction. The Company shall, on or before 9:30 a.m., New York time, on the date of this Agreement, issue a press
release (the “Press Release”) reasonably acceptable to the Buyers disclosing all the material terms of the
transactions contemplated by the Transaction Documents. On or before 9:30 a.m., New York time, on the date of this Agreement, the
Company shall file a Current Report on Form 8-K describing all the material terms of the transactions contemplated by the
Transaction Documents in the form required by the 1934 Act and attaching all the material Transaction Documents (including, without
limitation, this Agreement, the form of Certificate of Designations, the form of Voting Agreement and the form of the Warrants)
(including all attachments, the “Initial 8-K Filing”). From and after the filing of the Initial 8-K Filing, the
Company shall have disclosed all material, non-public information (if any) provided to any of the Buyers by the Company or any of
its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon the filing of the Initial 8-K Filing, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral,
between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the
one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate. From and after the filing of the
Initial 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided to any of the Buyers by
the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the
transactions contemplated by the Transaction Documents. The Company shall, on or before 9:30 a.m., New York time, on the first (1st)
Business Day after the Company receives an Additional Closing Notice, either issue a press release (the “Press
Release”) or file a Current Report on Form 8-K (the “Additional 8-K Filing”, and together with the
Initial 8-K Filing, the “8-K Filings”), in each case reasonably acceptable to such Buyer participation in such
Additional Closing, disclosing that “an institutional investor” has elected to deliver an Additional Closing Notice to
the Company or the Company has elected to effect an Additional Closing, as applicable. From and after the filing of the Press
Release or Additional 8-K Filing, solely to the extent such Additional Closing Notice constitutes material non-public information
(as specified by the Company in such applicable Additional Mandatory Closing Notice or in its acknowledgement to such applicable
Additional Optional Closing Notice), the Company shall have disclosed all material, non-public information (if any) provided to any
of the Buyers by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in
connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the Additional
8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether
written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees
or agents, on the one hand, and any of the Buyers or any of their affiliates, on the other hand, shall terminate.


 






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


 






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(m)
Additional Issuance of Securities. So long as any Buyer beneficially owns any Preferred Shares, the Company will not, without
the prior written consent of the Required Holders (as defined below), issue any Preferred Shares (in each case, other than to the Buyers
as contemplated hereby) and the Company shall not issue any other securities that would cause a breach or default under the Certificate
of Designations. The Company agrees that for the period commencing on the date hereof and ending on the date immediately following the
90th calendar day after the Initial Closing Date (the “Restricted Period”), neither the Company nor any
of its Subsidiaries shall directly or indirectly, without the prior written consent of the Required Holders (as defined below):


 


(i)
file a registration statement under the 1933 Act relating to securities that are not the Underlying Securities (other than a registration
statement on Form S-8 or such supplements or amendments to registration statements that are outstanding and have been declared effective
by the SEC as of the date hereof (solely to the extent necessary to keep such registration statements effective and available and not
with respect to any Subsequent Placement));


 


(ii)
amend or modify (whether by an amendment, waiver, exchange of securities, or otherwise) any of the Company’s warrants to
purchase Common Stock that are outstanding as of the date hereof; or


 


(iii) issue,
offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any
option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including,
without limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act)), any
Convertible Securities, any preferred stock or any purchase rights (any such issuance, offer, sale, grant, disposition or
announcement (whether occurring during the applicable Restricted Period or at any time thereafter) is referred to as a
“Subsequent Placement”). Notwithstanding the foregoing, this Section 4(m) shall not apply in respect of the
issuance of (A) shares of Common Stock or standard options to purchase Common Stock to directors, officers or employees of the
Company in their capacity as such pursuant to an Approved Stock Plan (as defined below), provided that (x) all such issuances
(taking into account the shares of Common Stock issuable upon exercise of such options) after the date hereof pursuant to this
clause (A) do not, in the aggregate, exceed more than 5% of the Common Stock issued and outstanding immediately prior to the date
hereof and (y) the exercise price of any such options is not lowered, none of such options are amended to increase the number of
shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially changed in any manner
that adversely affects any of the Buyers; (B) shares of Common Stock issued upon the conversion or exercise of Convertible
Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by
clause (A) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case
may be) of any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the
case may be) provisions of such Convertible Security that were in effect on the date immediately prior to the date of this
Agreement, the conversion, exercise or issuance price of any such Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) is not lowered, none of such
Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are
covered by clause (A) above) are amended to increase the number of shares issuable thereunder and none of the terms or conditions of
any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that
are covered by clause (A) above) are otherwise materially changed in any manner that adversely affects any of the Buyers; (C) the
Conversion Shares, (D) the Warrant Shares (each of the foregoing in clauses (C) through (D), collectively the “Excluded
Securities”) or (E) after the 60th calendar day anniversary of the Initial Closing Date, any Subsequent
Placement solely consisting of Common Stock at a purchase price of at least $1.25 per share (as adjusted for stock splits, stock
dividends, stock combinations, recapitalizations and similar events). “Approved Stock Plan” means any employee
benefit plan which has been approved by the board of directors of the Company prior to or subsequent to the date hereof pursuant to
which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee, officer or director for
services provided to the Company in their capacity as such.


 






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


 


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


 


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


 


(q)
[Intentionally Omitted]


 


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


 






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


 


(t)
Restriction on Redemption and Cash Dividends. So long as any Preferred Shares are outstanding, the Company shall not, directly
or indirectly, redeem (other than redemptions from employees or directors of the Company in connection with equity grants under the Company’s
equity plans in effect from time to time), or declare or pay any cash dividend or distribution on, any securities of the Company without
the prior express written consent of the Required Holders (as defined below) (other than as required by the Certificate of Designations).


 


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


 


(v)
Stock Splits. Until the first anniversary of the Initial Closing, the Company shall not effect any stock combination, reverse
stock split or other similar transaction (or make any public announcement or disclosure with respect to any of the foregoing) without
the prior written consent of the Required Holders (not to be unreasonably withheld if necessary to prevent the delisting of the Common
Stock from the Principal Market).


 


(w)
Conversion and Exercise Procedures. Each of the form of Exercise Notice (as defined in the Warrants) included in the Warrants
and the form of Conversion Notice (as defined in the Certificate of Designations) included in the Certificate of Designations forth the
totality of the procedures required of the Buyers in order to exercise the Warrants, convert the Preferred Shares. No legal opinion or
other information or instructions shall be required of the Buyers to exercise their Warrants or convert their Preferred Shares. The Company
shall honor exercises of the Warrants and conversions of the Preferred Shares and shall deliver the Conversion Shares and Warrant Shares
in accordance with the terms, conditions and time periods set forth in the Certificate of Designations and the Warrants, respectively.
Without limiting the preceding sentences, no ink-original Conversion Notice or Exercise Notice shall be required, nor shall any medallion
guarantee (or other type of guarantee or notarization) of any Conversion Notice or Exercise Notice form be required in order to convert
the Preferred Shares or exercise the Warrants.


 


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


 






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(y)
 Stockholder Approval. The Company shall either (x) if the Company shall have obtained the prior written consent of the requisite
stockholders (the “Stockholder Consent”) to obtain the Stockholder Approval (as defined below), inform the stockholders
of the Company of the receipt of the Stockholder Consent by preparing and filing with the SEC, as promptly as practicable after the date
hereof, but prior to the ninetieth (90th) calendar day after the Initial Closing Date, an information statement with respect thereto or
(y) provide each stockholder entitled to vote at a special meeting of stockholders of the Company (the “Stockholder Meeting”),
which shall be promptly called and held not later than the ninetieth (90th) calendar day after the Initial Closing (the “Stockholder
Meeting Deadline”), a proxy statement, in each case, in a form reasonably acceptable to the Buyers and Kelley Drye & Warren
LLP, at the expense of the Company, with the Company obligated to reimburse the expenses of Kelley Drye & Warren LLP incurred in connection
therewith in an amount not exceed $5,000. The proxy statement, if any, shall solicit each of the Company’s stockholder’s affirmative
vote at the Stockholder Meeting for approval of resolutions (“Stockholder Resolutions”) providing for the approval
of the issuance of all of the Securities in compliance with the rules and regulations of the Principal Market (without regard to any limitations
on conversion or exercise set forth in the Certificate of Designations or the Warrants, respectively) (such affirmative approval being
referred to herein as the “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder
Approval Date”), and the Company shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions
and to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall
be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable
best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional
Stockholder Meeting to be held on or prior to the 150th calendar day after the Initial Closing Date. If, despite the Company’s
reasonable best efforts the Stockholder Approval is not obtained after such subsequent stockholder meetings, the Company shall cause an
additional Stockholder Meeting to be held semi-annually thereafter until such Stockholder Approval is obtained.


 


(b) No Waiver of Voting
Agreement. The Company shall not amend, waive, modify or fail to use best efforts to enforce any provision of the Voting Agreement.
For the avoidance of doubt, no Buyer shall be a third party beneficiary of any Voting Agreement.


 


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


 


		5.	REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.



 


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


 






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


 


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


 


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


 


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



 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 




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



 


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


 


(i)
The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents and the Company shall have duly
executed and delivered to such Buyer (x) such aggregate number of Initial Preferred Shares set forth across from such Buyer’s name
in column (3) of the Schedule of Buyers and (y) Warrants (initially for such aggregate number of Warrant Shares as is set forth across
from such Buyer’s name in column (5) of the Schedule of Buyers) being purchased by such Buyer at the Initial Closing pursuant to
this Agreement.


 


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


 


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


 


(iv)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company issued by
the Secretary of State of Delaware as of a date within ten (10) days of the Initial Closing Date.


 


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


 


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


 


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


 




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


 


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


 


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


 


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


 


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


 


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


 


(xiv)
The Company shall have filed with the Principal Market to list the Conversion Shares and the Warrant Shares.


 


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


 


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


 






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


 


(xviii)
The Company shall have delivered to such Buyer a payoff letter, in form and substance satisfactory to such Buyer, duly executed
and delivered by Monroe Capital Management Advisors, LLC (the “Existing Lender”) with respect to that certain Credit
Agreement, dated December 2, 2021, to which the Company and the Existing Lender are parties.


 


(xix)
Such Buyer shall have received a written notice duly executed by the Chief Executive Officer or Chief Financial Officer of the
Company specifying the adjusted exercise price and quantity of the Existing Warrants as a result of the transactions contemplated hereby
and Section 1(f) above.


 


(xx)
The Company shall have duly executed and delivered to such Buyer the voting agreement in the form of Exhibit C hereof
(the “Voting Agreement”), by and between the Company and the stockholders listed on Schedule 7(a)(xx) attached hereto
(the “Stockholders”) and the Stockholders shall have duly executed and delivered to such Buyer the Voting Agreement.


 


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


 


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


 


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


 




    35


     


    


 


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


 


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


 


(iv)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company issued by
the Secretary of State of Delaware as of a date within ten (10) days of the Additional Closing Date.


 


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


 


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


 


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


 


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


 


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


 




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


 


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


 


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


 


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


 


(xiv)
The Company shall have filed with the Principal Market to list the Conversion Shares and the Warrant Shares.


 


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


 


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


 


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


 




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(xviii)  
Such Buyer shall have received a written notice duly executed by the Chief Executive Officer or Chief Financial Officer of the
Company specifying whether an Equity Conditions Failure then exits (and, if applicable, providing reasonably detail with respect
thereto) and whether the Company has obtained the Stockholder Approval.


 


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


 


		8.	TERMINATION.



 


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


 


		9.	MISCELLANEOUS.



 


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


 






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


 


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


 


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


 






    39


     


    

 


(e) Entire Agreement;
Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto and the
instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company, its
Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any Buyer with
respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement, the other
Transaction Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein
contain the entire understanding of the parties solely with respect to the matters covered herein and therein; provided, however,
nothing contained in this Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any
agreements any Buyer has entered into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries
prior to the date hereof with respect to any prior investment made by such Buyer in the Company or (ii) waive, alter, modify or
amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any Buyer or any
other Person, in any agreement entered into prior to the date hereof between or among the Company and/or any of its Subsidiaries and
any Buyer, or any instruments any Buyer received from the Company and/or any of its Subsidiaries prior to the date hereof, and all
such agreements and instruments shall continue in full force and effect. Except as specifically set forth herein or therein, neither
the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such matters. For
clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement may be amended other than by an
instrument in writing signed by the Company and the Required Holders (as defined below), and any amendment to any provision of this
Agreement made in conformity with the provisions of this Section 9(e) shall be binding on all Buyers and holders of Securities,
as applicable, provided that no such amendment shall be effective to the extent that it (A) applies to less than all of the holders
of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without such Buyer’s prior written
consent (which may be granted or withheld in such Buyer’s sole discretion). No waiver shall be effective unless it is in
writing and signed by an authorized representative of the waiving party, provided that the Required Holders may waive any provision
of this Agreement, and any waiver of any provision of this Agreement made in conformity with the provisions of this
Section 9(e) shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be
effective to the extent that it (1) applies to less than all of the holders of the Securities then outstanding (unless a party gives
a waiver as to itself only) or (2) imposes any obligation or liability on any Buyer without such Buyer’s prior written consent
(which may be granted or withheld in such Buyer’s sole discretion). No consideration (other than reimbursement of legal fees)
shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration also is offered to all of the parties to the Transaction Documents, all holders of Preferred
Shares or all holders of the Warrants (as the case may be). From the date hereof and while any Preferred Shares or Warrants are
outstanding, the Company shall not be permitted to receive any consideration from a Buyer or a holder of Preferred Shares or
Warrants that is not otherwise contemplated by the Transaction Documents in order to, directly or indirectly, induce the Company or
any Subsidiary (i) to treat such Buyer or holder of Preferred Shares or Warrants in a manner that is more favorable than to other
similarly situated Buyers or holders of Preferred Shares or Warrants, as applicable, or (ii) to treat any Buyer(s) or holder(s) of
Preferred Shares or Warrants in a manner that is less favorable than the Buyer or holder of Preferred Shares or Warrants that is
paying such consideration; provided, however, that the determination of whether a Buyer has been treated more or less favorably than
another Buyer shall disregard any securities of the Company purchased or sold by any Buyer. The Company has not, directly or
indirectly, made any agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the
Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that,
except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any
financing to the Company, any Subsidiary or otherwise. As a material inducement for each Buyer to enter into this Agreement, the
Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted by a Buyer, any of
its advisors or any of its representatives shall affect such Buyer’s right to rely on, or shall modify or qualify in any
manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other
Transaction Document and (y) unless a provision of this Agreement or any other Transaction Document is expressly preceded by the
phrase “except as disclosed in the SEC Documents,” nothing contained in any of the SEC Documents shall affect such
Buyer’s right to rely on, or shall modify or qualify in any manner or be an exception to any of, the Company’s
representations and warranties contained in this Agreement or any other Transaction Document. “Required Holders”
means (I) prior to the Initial Closing Date, Buyers entitled to purchase, in the aggregate, at least a majority of the number of
Preferred Shares at the Initial Closing and (II) on or after the Initial Closing Date, holders of, in the aggregate, at least a
majority of the Underlying Securities as of such time (excluding any Underlying Securities held by the Company or any of its
Subsidiaries as of such time or any Underlying Securities sold to a Person without the assignment of the rights under this Agreement
with respect thereto).


 






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


 


If to the Company:


 


American Virtual Cloud Technologies, Inc.

1720 Peachtree Street, Suite 629

Atlanta, GA 30309

Telephone: (404) 769-3236

Attention: Chief Financial Officer

E-Mail: tking@avctechnologies.com


 


With a copy (for informational purposes only) to:


 


Greenberg Traurig, LLP

1750 Tysons Blvd., Suite 1000

McLean, VA 22102

Telephone: (703) 749-1300

Attention: Jason Simon, Esq.

E-Mail: simonj@gtlaw.com


 


If to the Transfer Agent:


 


Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, NY 10004-1561

Telephone: (212) 845-3285

Attention: Richard Viscovich

E-Mail: rviscovich@continentalstock.com


 


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


 


with a copy (for informational purposes only) to:


 


Kelley Drye & Warren LLP

3 World Trade Center

175 Greenwich Street

New York, NY 10007

Telephone: (212) 808-7540

Attention: Michael A. Adelstein, Esq.

E-mail: madelstein@kelleydrye.com


 


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


 






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


 


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


 


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


 


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


 


(k)
Indemnification.


 


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


 






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


 


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


 


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


 






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


 


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


 


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


 


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


 






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(p)
Judgment Currency.


 


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


 


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


 


(2)
the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date
as of which such conversion is made pursuant to this Section 9(p)(i)(1) being hereinafter referred to as the “Judgment Conversion
Date”).


 


(ii)
If in the case of any proceeding in the court of any jurisdiction referred to in Section 9(p)(i)(1) above, there is a change
in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable
party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the
Exchange Rate prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount
of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.


 


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


 


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


 


[signature pages follow]


 




    45


     


    


 


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


 


	 	COMPANY:
	 	 
	 	AMERICAN VIRTUAL CLOUD 

TECHNOLOGIES, INC.
	 	 	 	 
	 	By:	/s/ Thomas King
	 	 	Name:	Thomas King
	 		Title: 	Chief Financial Officer