Exhibit 10.1





 


AMENDMENT AND EXCHANGE AGREEMENT


 


          
THIS AMENDMENT AND EXCHANGE AGREEMENT (the “Agreement”) is dated as of March 23, 2020, by and between
ShiftPixy, Inc., a Wyoming corporation (the “Company”), and Alpha Capital Anstalt (the “Investor”).


 


          
WHEREAS:


 


A.       
Pursuant to that certain Securities Purchase Agreement dated as of March 11, 2019, by and among the Company and the investors party
thereto (the “Purchase Agreement”), the Investor and certain other investors (the “Other Investors”
and together with the Investor, the “Investors”) received, among other securities, Notes (the “Notes”)
and Warrants (the “Warrants”) to purchase shares of the Company’s Common Stock, par value $0.0001 per
share (the “Common Stock”) as set forth therein;


 


B.       The
Company and the Investor desire to enter into this Agreement, pursuant to which, among other things, at the Closing (as defined
below), the Company, the Investor and certain Other Investors shall amend and restate the Note (the “Amended Note”)
and exchange the Warrants held by each such Investor at the Closing for (i) an Exchange Note in the form of Exhibit A hereto
(the “Exchange Note”), (ii) 66,123 shares of Common Stock (the “Exchange Shares”) and (iii)
a Common Stock purchase warrant in the form annexed hereto as Exhibit B (the “Exchange Warrant”). Collectively,
the Exchange Note, Exchange Shares and Exchange Warrant are sometimes referred to herein as the “Exchange Securities”;
and


 


C.       The
exchange of the Warrants for the Exchange Securities are being made in reliance upon the exemption from registration provided by
Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”).


 


D.       Upper
case terms employed herein, unless otherwise defined, shall have the meanings attributed to them in the Purchase Agreement, Amended
Note, Exchange Note and Exchange Warrant, as applicable.


 


                 NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree
as follows:


 


		1.	EXCHANGE.



 


(a)       Exchange.
Subject to the satisfaction or waiver of the conditions with respect to the Closing set forth in Sections 4 and 5 below, at
the Closing, the Investor and the Company shall, pursuant to Section 3(a)(9) of the Securities Act, exchange the Warrants
for (i) the Exchange Note in the principal amount of $144,590.24, (ii) 66,123 Exchange Shares, and (iii) the Exchange Warrant initially
convertible into 130,360 Warrant Shares (as defined therein), (the “Exchange”). Upon consummation of the Exchange,
the Investor acknowledges and agrees that the Warrants are hereby terminated and extinguished in their entirety with no further
force and effect.


 


i.       Closing.
The issuance of the Shares (the “Closing”) shall occur remotely via the electronic exchange of documents and
signatures, or at such other place as the Parties may agree in writing. The date and time of the Closing shall be 10:00 a.m.,
New York time, on which the conditions to the Closing set forth in Sections 4 and 5 below are satisfied or waived (or such later
date as is mutually agreed to by the Company and Investor). The Closing, if at all, must occur not later than March 26, 2020.


 


ii.       Consideration.
At the Closing, the Exchange Securities shall be issued to the Investor in exchange for the Warrants without the payment of any
additional consideration.


 


iii.       Delivery.
In exchange for the Warrants, the Company shall, at the Closing, (i) deliver or cause to be delivered to the Investor the
original Exchange Note and the original Exchange Warrant and (ii) cause VStock Transfer, LLC (together with any subsequent
transfer agent, the “Transfer Agent”) through the Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program, to credit the Exchange Shares to the Investor’s or its designee’s balance account with
DTC through its Deposit/Withdrawal at Custodian system.


 






     


     


    

 


(b)       Other
Documents. The Company and the Investor shall execute and/or deliver such other documents and agreements as are reasonably
necessary to effectuate the Exchange.


 


		2.	REPRESENTATIONS AND WARRANTIES



 


(a)       Investor
Representations and Warranties. The Investor hereby represents and warrants to the Company as follows:


 


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


 


ii.       Understandings
or Arrangements. The Investor is acquiring the Exchange Securities hereunder as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Exchange Securities
and the Conversion Shares (as defined in the Exchange Note) and the Warrant Shares (as defined in the Warrant) (the Conversion
Shares and Warrant Shares are sometimes referred to herein as “Underlying Shares”) (this representation and
warranty not limiting the Investor’s right to sell the Exchange Securities and Underlying Shares pursuant to any effective
registration statement or otherwise in compliance with applicable federal and state securities laws). The Investor is acquiring
the Exchange Securities hereunder in the ordinary course of its business.


 


iii.       Reliance
on Exemptions. The Investor understands that the Exchange Securities and Underlying Shares are being offered and sold to in
reliance upon specific exemptions from the registration requirements of the Securities Act and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, covenants,
agreements, acknowledgments and understandings of the Investor contained in this Agreement in order to determine the availability
of such exemptions and the eligibility of the Investor to acquire the Exchange Securities and Underlying Shares.


 


iv.       Risk
of Loss. The Investor understands that its investment in the Exchange Securities and Underlying Shares hereunder involves
a significant degree of risk, including a risk of total loss of the Investor’s investment, and the Investor has full cognizance
of and understands all of the risk factors related to its acquisition of the Exchange Securities and Underlying Shares, including,
but not limited to, those risk factors included in all reports, schedules, forms, statements and other documents filed by the
Company under the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof, including the exhibits thereto
and documents incorporated by reference therein (the “SEC Reports”). The Investor understands that no representation
is being made as to the future value of the Shares.


 


v.       Investor Status. At the
time the Investor was offered the Exchange Securities and Underlying Shares hereunder, it was, and as of the date hereof it is
either: (i) an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act or
(ii) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act. The Investor is not required
to be registered as a broker-dealer under Section 15 of the Exchange Act.


 






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


 


vii.       Information.
The Investors and its advisors, if any, have been furnished with all materials relating to the business, finances and operations
of the Company and materials relating to the Exchange that have been requested by the Investor. The Investor and its advisors,
if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries nor any other due diligence
investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s
right to rely on the Company’s representations and warranties contained herein.  


 


viii.       No
Governmental Review. The Investor understands that no United States federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Exchange Securities or the fairness or suitability of the
investment in the Exchange Securities nor have such authorities passed upon or endorsed the merits of the offering of the Exchange
Securities.


 


ix.       Transfer
or Resale. The Investor understands that: (i) the Exchange Securities have not been and are not being registered under the
Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless subsequently
registered thereunder; (ii) any sale of the Exchange Securities made in reliance on Rule 144 may be made only in accordance with
the terms of Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively, “Rule
144”), and further, if Rule 144 is not applicable, any resale of the Exchange Securities under circumstances in which
the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities
Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC promulgated
thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Exchange Securities under
the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. Notwithstanding
the foregoing, the Exchange Securities may be pledged in connection with a bona fide margin account or other loan or financing
arrangement secured by the Exchange Securities and such pledge of Exchange Securities shall not be deemed to be a transfer, sale
or assignment of the Exchange Securities hereunder, and the Investor shall not be required to provide the Company with any notice
thereof or otherwise make any delivery to the Company pursuant to this Agreement.


 


x.       No
Conflicts. The execution, delivery and performance by the Investor of this Agreement and the consummation by the Investor of
the transactions contemplated hereby will not (i) result in a violation of the organizational documents of the Investor, or (ii)
conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to
which the Investor 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 the Investor, 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 the Investor to perform its obligations hereunder.


 


(b)       Company
Representations and Warranties. The Company represents and warrants to the Investor that, as of the date hereof and as of the
Closing:


 


i.       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, operations (including results thereof), assets, business, prospects or condition (financial or otherwise)
or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated hereby or any
other agreements or instruments to be entered into in connection herewith 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 Shift Human Capital Management Inc. (dba Shiftable HR), the Company has no Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity
or similar interest of such Person or (II) controls or operates all or any part of the business, operations or administration of
such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”


 






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ii.       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 Exchange Securities in accordance with the terms hereof and thereof.
The execution and delivery of this Agreement and the Transaction Documents by the Company, and the consummation by the Company
of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Amended Note, the Exchange
Note and the reservation for issuance and issuance of the Conversion Shares issuable upon conversion of the Amended Note and the
Exchange Note, as the case may be, and the issuance of the Exchange Warrant and the reservation for issuance and issuance of the
Warrant Shares issuable upon exercise of the Exchange Warrant), and the issuance of the Exchange Shares have been duly authorized
by the Company’s board of directors and (other than the filing with the U.S. Securities and Exchange Commission (the “SEC”)
of one or more registration statements in accordance with the requirements of the Registration Rights Agreement, a Form D with
the SEC and any other filings as may be required by any state securities agencies) no further filing, consent or authorization
is required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or the Principal Market
or any other trading market or other governing body. This Agreement has been, and the other Transaction Documents to which it is
a party will be prior to the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except
as rights to indemnification and to contribution may be limited by federal or state securities law. “Transaction Documents”
means, collectively, this Agreement, the Amended Note, the Exchange Note, the Exchange Warrant, the Exchange Shares, the Registration
Rights Agreement, and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection
with the transactions contemplated hereby and thereby, as may be amended from time to time.


 


iii.       Issuance
of Securities. The issuance of the Amended Note, Exchange Note, Underlying Shares, and Exchange Shares, and the Exchange Warrant
are duly authorized and upon issuance in accordance with the terms of the Transaction Documents shall be validly issued, fully
paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes,
rights of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”) with
respect to the issuance thereof.


 


iv.       No
Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Amended Note, the
Exchange Note, the Exchange Warrant, 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 Articles 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) except as set forth on Schedule (iv),
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, cancellation, repricing, adjustment, reset, modification
or amendment 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; with or without notice, lapse
of time or both.


 






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v.       Consents.
Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any filing
or registration with (other than the filing with the SEC of one or more registration statements in accordance with the requirements
of the Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by any state securities agencies),
any Governmental Entity (as defined below) or any regulatory or self-regulatory agency or any other Person in order for the Company
to execute, deliver or perform any of its obligations under or contemplated by the Transaction Documents, in each case, in accordance
with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the Company or any Subsidiary
is required to obtain pursuant to the preceding sentence have been or will be obtained or effected on or prior to the Closing,
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. For the avoidance of doubt, The Nasdaq Stock Market
shall not be considered a Governmental Entity for purposes of this definition.


 


vi.       Acknowledgment
Regarding Investor’s Exchange of Exchange Securities. The Company acknowledges and agrees that the Investor is not (i)
an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate” (as defined in Rule 144) of the
Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the shares of
Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934 Act”)).
The Company further acknowledges that the Investor is not 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 the Investor or any of its representatives or agents in connection with the Transaction Documents
and the transactions contemplated hereby and thereby is merely incidental to such Investor’s purchase of the Exchange Securities.


 


vii.       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 require registration of the issuance of any of the Exchange Securities under the Securities Act, whether through integration
with prior offerings or otherwise, or cause this offering of the Exchange Securities to require approval of stockholders of the
Company for purposes of the Securities Act or under any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of any exchange or automated quotation system on which any of the securities of the Company are
listed or designated for quotation. None of the Company, its Subsidiaries, their affiliates nor any Person acting on their behalf
will take any action or steps that would require registration of the issuance of any of the Exchange Securities under the Securities
Act or cause the offering of any of the Exchange Securities to be integrated with other offerings of securities of the Company.


 


viii.       Dilutive
Effect. The Company further acknowledges that its obligation to issue the (i) Conversion Shares pursuant to the terms of the
Exchange Note in accordance with this Agreement and the Exchange Note, (ii) the Warrant Shares upon exercise of the Exchange Warrant
in accordance with this Agreement and the Exchange Warrant and (iii) the Exchange Shares in accordance with this Agreement is,
in each case, absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests
of other stockholders of the Company.


 






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ix.       SEC
Reports; Financial Statements. Except as set forth on Schedule (ix), during the two (2) years prior to the date hereof,
the Company has timely filed all SEC Reports. As of their respective dates, except as set forth on Schedule (ix), the SEC
Reports 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 Reports, and none of the SEC Reports, 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. The SEC Reports 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 the Investor which is not included in the SEC Reports 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 Reports (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.


 


x.       Absence
of Certain Changes. Except as set forth in the SEC Reports, since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, there has been no material adverse change and no material adverse development in the business,
assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the
Company or any of its Subsidiaries. Since the date of the Company’s most recent audited financial statements contained in
a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets, individually
or in the aggregate, outside of the ordinary course of business or (iii) made any capital expenditures, individually or in the
aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek
protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding
up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend
to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do
so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving
effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes
of this Section 2(b)(x), “Insolvent” means, (i) with respect to the Company and its Subsidiaries, on a consolidated
basis, (A) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount required
to pay the Company’s and its Subsidiaries’ total Indebtedness (as defined below), (B) the Company and its Subsidiaries
are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute
and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur debts that would be beyond
their ability to pay as such debts mature; and (ii) with respect to the Company and each Subsidiary, individually, (A) the present
fair saleable value of the Company’s or such Subsidiary’s (as the case may be) assets is less than the amount required
to pay its respective total Indebtedness, (B) the Company or such Subsidiary (as the case may be) is unable to pay its respective
debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured or (C)
the Company or such Subsidiary (as the case may be) intends to incur or believes that it will incur debts that would be beyond
its respective ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries has engaged in any business
or in any transaction, and is not about to engage in any business or in any transaction, for which the Company’s or such
Subsidiary’s remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged
as such business is now conducted and is proposed to be conducted.


 






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


 


xii.       Conduct
of Business; Regulatory Permits. Except as set forth in the SEC Reports, neither the Company nor any of its Subsidiaries is
in violation of any term of or in default under its Articles 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, Articles of Incorporation or certificate
of incorporation or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree
or order or any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company
nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations
which could not, individually or in the aggregate, have a Material Adverse Effect. 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. Except as set forth in the SEC Reports, 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 on the Company or
any of its Subsidiaries.


 


xiii.       Foreign
Corrupt Practices. None of the Company, any of its Subsidiaries or any director, officer, agent, employee, nor any other person
acting for or on behalf of the foregoing (individually and collectively, a “Company Affiliate”) have violated the U.S.
Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery or anti-corruption laws, nor has any
Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered, given, promised to give,
or authorized the giving of anything of value, to any officer, employee or any other person acting in an official capacity for
any Governmental Entity to any political party or official thereof or to any candidate for political office (individually and collectively,
a “Government Official”) or to any person under circumstances where such Company Affiliate knew or was aware of a high
probability that all or a portion of such money or thing of value would be offered, given or promised, directly or indirectly,
to any Government Official, for the purpose of:


 


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



 






    7 


     


    

 


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



 


xiv.       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.


 


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


 


xvi.       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) 750,000,000
shares of Common Stock, and (B) 50,000,000 shares of Preferred Stock, none of which are issued and outstanding. No shares of Common
Stock are held in the treasury of the Company.


 


(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 (xvi) sets forth the number of shares of Common Stock
that are (A) reserved for issuance pursuant to Convertible Securities (as defined below) (other than the Amended Note, the Exchange
Note and the Exchange Warrant) and (B) that are, as of the date hereof, owned by Persons who are “affiliates” (as defined
in Rule 405 of the Securities 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. Except as set
forth on Schedule (xvi), to the Company’s knowledge, no Person owns 10% or more of the Company’s issued and
outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities (as defined below), whether
or not presently exercisable or convertible, have been fully exercised or converted (as the case may be) taking account
of any limitations on exercise or conversion (including “blockers”) contained therein without conceding that such identified
Person is a 10% stockholder for purposes of federal securities laws).


 






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(iv)       Existing
Securities; Obligations. Except as disclosed in the SEC Reports: (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 Securities Act (except pursuant
to the Registration Rights 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 Exchange Securities that have not been waived; and (F) neither the Company nor any Subsidiary has any stock appreciation
rights or “phantom stock” plans or agreements or any similar plan or agreement.


 


(v)       Organizational
Documents. The Company has furnished to the Investor true, correct and complete copies of the Company’s Articles of Incorporation,
as amended and as in effect on the date hereof (the “Articles 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.


 





xvii.       Indebtedness
and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed on Schedule (xvii), has
any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing
Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound,
(ii) is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies)
to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing
statements securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries; (iv) is in violation
of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations
and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract,
agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers,
has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations
required to be disclosed in the SEC Reports which are not so disclosed in the SEC Reports, 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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xviii.       Litigation.
There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public
board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, except as set forth in
the SEC Reports or in Schedule (xviii). 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 Securities Act or the 1934 Act. After reasonable inquiry of its employees, the Company is not aware of any fact which
might result in or form the basis for any such action, suit, arbitration, investigation, inquiry or other proceeding. Neither the
Company nor any of its Subsidiaries is subject to any order, writ, judgment, injunction, decree, determination or award of any
Governmental Entity.


 


xix.       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.


 


xx.       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 Securities Act) or other key employee of the Company or any of its Subsidiaries
has notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise
terminate such officer’s employment with the Company or any such Subsidiary. No executive officer or other key employee
of the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement
or any restrictive covenant, and the continued employment of each such executive officer or other key employee (as the case may
be) does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The
Company and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting labor,
employment and employment practices and benefits, terms and conditions of employment and wages and hours, except where failure
to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.


xxi.       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.


 






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


 


xxii.       Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade names,
service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights, inventions,
licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and
registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses as
now conducted and presently proposed to be conducted. Each of patents owned by the Company or any of its Subsidiaries is listed
on Schedule 3(xxii). Except as set forth in Schedule 3(xxii), 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.


 


xxiii.       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



 


		(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.



 






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(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 Property 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.


 


xxiv.       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.


 


xxv.       Tax
Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income and all
other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid all taxes
and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns, reports
and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the
Company and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify as
a passive foreign investment company, as defined in Section 1297 of the 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.


 


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


 


xxvii.       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.


 






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xxviii.       Investment
Company Status. The Company is not, and upon consummation of the sale of the Exchange 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.


 


xxix.       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 Exchange Securities,
or (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Exchange Securities.


 


xxx.       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 Exchange Securities are held by the Investor, 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 the Investor’s request.


 


xxxi.       [Reserved].


 


xxxii.       Transfer
Taxes. At the Closing, 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 Exchange Securities to be sold to the Investor 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.


 


xxxiii.       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.


 


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


 


xxxv.       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.


 


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


 


xxxvii.       Management.
Except as set forth in the SEC Reports, during the past five year period, no current or former officer or director or any of its
Subsidiaries has been the subject of:


 






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(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.


 


xxxvii.       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.


 


xxxix.       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.


 






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xl.       No
Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule
405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”
and, together, “Issuer Covered Persons”) is subject to any of the “Bad Actor” disqualifications described
in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification
Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable care to determine whether any Issuer Covered Person
is subject to a Disqualification Event. The Company has complied, to the extent applicable, with its disclosure obligations under
Rule 506(e), and has furnished to the Investor a copy of any disclosures provided thereunder.


 


xli.       Other
Covered Persons. The Company is not aware of any Person (other than the Placement Agent) that has been or will be paid (directly
or indirectly) remuneration for solicitation of the Investor in connection with the sale of the Exchange Securities.


 


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


 


xliii.       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.


 


xliv.       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.


 


xlv.       Ranking
of Exchange Note. No Indebtedness of the Company, at the Closing, will be senior to the Exchange Note in right of payment,
whether with respect to payment or redemptions, interest, damages, upon liquidation or dissolution or otherwise.


 


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


 






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xlvii.       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, in each case, is or could become applicable to any Investor as a result of the transactions contemplated by
this Agreement, including, without limitation, the Company’s issuance of the Exchange Securities and any Investor’s
ownership of the Exchange Securities.


 


xlviii.       Acknowledgement
Regarding Investor’s 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, the Investor has
not been asked by the Company or any of its Subsidiaries to agree, nor has the Investor 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 Exchange Securities for any specified term; (ii) any Investor, and counterparties in “derivative” transactions
to which any such Investor is a party, directly or indirectly, presently may have a “short” position in the Common
Stock which was established prior to such Investor’s knowledge of the transactions contemplated by the Transaction Documents;
(iii) each Investor shall not be deemed to have any affiliation with or control over any arm’s length counterparty in any
 “derivative” transaction; and (iv) each Investor may rely on the Company’s obligation to timely deliver shares
of Common Stock upon conversion, exercise or exchange, as applicable, of the Exchange 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 Investors 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 Exchange
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 Exchange 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 Amended Note, the Exchange Note, the Warrants or any other Transaction
Document or any of the documents executed in connection herewith or therewith.


 


		3.	COVENANTS.



 


(a)       Best
Efforts. The Investor shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 4 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 5 of this Agreement.


 


(b)       Form
D and Blue Sky. The Company shall file a Form D with respect to the Exchange Securities as required under Regulation D and
to provide a copy thereof to the Investor promptly after such filing. The Company shall, on or before the Closing, take such action
as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify the Exchange Securities
for sale to the Investor at the Closing pursuant to this Agreement under applicable securities or “Blue Sky” laws of
the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any such action
so taken to the Investor on or prior to the Closing. 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 Exchange 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 Exchange Securities to the Investor.


 






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(c)       Reporting
Status. Until the date on which the Investor shall have sold all of the shares of Common Stock issuable in connection with
this Agreement (the “Reporting Period”), the Company shall timely file all reports required to be filed with
the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the
1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.
The Company shall take all actions necessary to maintain its eligibility to register the Registrable Securities for resale by the
Investor on Form S-3.


 


(d)       Holding
Period. For the purposes of Rule 144, the Company acknowledges that the holding period of the Exchange Securities may
be tacked onto the holding period of the Warrants, and the Company agrees not to take a position contrary to this Section 3(d).
The Company further agrees that the Rule 144 holding period for the issuance and resale of the Exchange Shares have been satisfied
and that the Exchange Shares will be issued without any restrictive legend or transfer restrictions.


 


(e)       Financial
Information. The Company agrees to send the following to each Investor (as defined in the Registration Rights Agreement) 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 Securities Act, (ii) unless the following are either filed
with the SEC through EDGAR or are otherwise widely disseminated via a recognized news release service (such as PR Newswire), on
the same day as the release thereof, facsimile copies of all press releases issued by the Company or any of its Subsidiaries and
(iii) unless the following are filed with the SEC through EDGAR, copies of any notices and other information made available or
given to the stockholders of the Company generally, contemporaneously with the making available or giving thereof to the stockholders.


 


(f)       Listing.
By no later than fifteen days following the Closing, the Company shall promptly secure the listing or designation for quotation
(as the case may be) of all of the Exchange Shares and Underlying Shares 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 shares of Common Stock
issuable pursuant to this Agreement 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 Capital Market, the Nasdaq
Global Market or the Nasdaq Global Select Market (each, an “Eligible Market”). Neither the Company nor any of
its Subsidiaries shall take any action which could be reasonably expected to result in the delisting or suspension of the Common
Stock on an Eligible Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this
Section 3(f).


 


(g)       [Reserved].


 


(h)       Pledge
of Exchange Securities. Notwithstanding anything to the contrary contained in this Agreement,
the Company acknowledges and agrees that the Exchange Securities may be pledged by the Investor in connection with a bona fide
margin agreement or other loan or financing arrangement that is secured by the Exchange Securities. The pledge of the Exchange
Securities shall not be deemed to be a transfer, sale or assignment of the Exchange Securities hereunder, and the Investor shall
not 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 Exchange Securities to such pledgee by the Investor.


 


(i)       Disclosure
of Transactions and Other Material Information. 


 


(i)       Disclosure
of Transaction. The Company may, 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 Investors 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 (and all schedules to this Agreement), the form of Amendment Agreement, the form of Notes, the form of the Warrants and
the form of the Registration Rights Agreement) (including all attachments, the “8-K Filing”). From and after
the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided to any of
the Investors by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in
connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the filing of the 8-K Filing,
the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written
or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or
agents, on the one hand, and any of the Investors 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 the Investor 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 the Investor (which
may be granted or withheld in the Investor’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
the Investor), in addition to any other remedy provided herein or in the Transaction Documents, the Investor shall have the right
to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such 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. The Investor shall not 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 the Investor without the Investor’s consent,
the Company hereby covenants and agrees that the Investor 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 the Investor 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 the Investor, to make the Press Release and any
press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and
contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i)
the Investor 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 Investor (which may be granted or withheld in the Investor’s sole discretion),
the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of the Investor 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 the Investor shall not have (unless
expressly agreed to by the Investor after the date hereof in a written definitive and binding agreement executed by the Company
and the Investor), 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.


 


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


 






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


 


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


 


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


 


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


 


(j)       [Reserved].


 


(k)       Additional
Issuance of Securities. So long as the Investor beneficially owns the Exchange Note or the Exchange
Warrant, the Company will not, without the prior written consent of the Required Holders, issue any securities that would cause
a breach or default under the Exchange Note or the Exchange Warrant. The Company agrees that for the period commencing on the date
hereof and ending on the 21st Trading Day after the 8-K Filing is made (the “Restricted Period”),
neither the Company nor any of its Subsidiaries shall directly or indirectly 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 Securities Act), any Convertible Securities (as defined below), any
preferred stock or any purchase rights (any such issuance, offer, sale, grant or disposition (whether occurring during the Restricted
Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding the foregoing,
this Section 3(k) shall not apply in respect of the issuance of (i) shares of Common Stock or standard options to purchase Common
Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan (as defined
below), provided that (1) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such options)
after the date hereof pursuant to this clause (i) do not, in the aggregate, exceed more than 5% of the Common Stock issued and
outstanding immediately prior to the date hereof and (2) the exercise price of any such options is not lowered, none of such options
are changed, amended, modified or waived to increase the number of shares issuable thereunder and none of the terms or conditions
of any such options are otherwise materially changed, amended, modified or waived in any manner that adversely affects the Investor;
(ii) 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 (i) 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 (i) 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 (i) above) are changed, amended, modified or waived
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 (i) above)
are otherwise materially changed, amended, modified or waived in any manner that adversely affects the Investor; (iii) the Conversion
Shares, (iv) the Warrant Shares; (v) Convertible Securities, including any shares of Common Stock issued upon the conversion or
exercise of Convertible Securities, issued in connection with a Subsequent Placement, in which the proceeds thereof, in whole or
in part, redeems and pays in full the Exchange Note then outstanding in accordance therewith (including, without limitation, all
outstanding payment obligations hereunder and thereunder); and (vi) Convertible Securities issued or issuable to CVI Investments,
Inc. or its affiliates in connection with a restructuring of CVI’s outstanding investment in the Company, and further provided
that such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights
that require or permit the filing of any registration statement in connection therewith until 90 days after the date hereof (each
of the foregoing in clauses (i) through (vi), collectively the “Excluded Securities”). “Approved Stock
Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any
employee, officer or director for services provided to the Company in their capacity as such. “Convertible Securities”
means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances
directly or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire,
any capital stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.


 






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(l)       Reservation
of Shares. So long as either the Exchange Note or the Exchange Warrant remains outstanding, the
Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance, no less than
200% of (i) the maximum number of shares of Common Stock issuable upon conversion of all the Exchange Note then outstanding (assuming
for purposes hereof that (x) the Exchange Note is convertible at the Conversion Price then in effect and (y) any such conversion
shall not take into account any limitations on the conversion of the Exchange Note set forth in the Exchange Note), and (ii) the
maximum number of Warrant Shares issuable upon exercise of the Exchange Warrant then outstanding (without regard to any limitations
on the exercise of the Exchange Warrant 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 3(l) be reduced other than proportionally
in connection with any conversion, exercise and/or redemption, as applicable of Exchange Note and the Exchange Warrant. 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.


 


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


 


(n)       Other
Notes; Variable Securities. So long as the Exchange Note remains 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 Investor 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.


 


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


 


(p)       Restriction
on Redemption and Cash Dividends. So long as the Exchange Note is outstanding, the Company shall
not, directly or indirectly, redeem, or declare or pay any cash dividend or distribution on, any securities of the Company without
the prior express written consent of the Investors.


 


(q)       Corporate
Existence. So long as the Investor beneficially owns either the Exchange Note or the Exchange
Warrant, the Company shall not be party to any Fundamental Transaction (as defined in the Exchange Note) unless the Company is
in compliance with the applicable provisions governing Fundamental Transactions set forth in the Exchange Note and the Exchange
Warrant.


 


(r)       [Reserved].


 


(s)       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 Exchange Note) included in the Exchange Note set forth the totality of the procedures
required of the Investors in order to exercise the Warrants or convert the Exchange Note. No legal opinion, other information or
instructions shall be required of the Investor to exercise the Exchange Warrant or convert the Exchange Note. The Company shall
honor exercises of the Exchange Warrant and conversions of the Exchange Note and shall deliver the Conversion Shares and Warrant
Shares in accordance with the terms, conditions and time periods set forth in the Exchange Note and the Exchange Warrant.


 


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


 






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(u)       General
Solicitation(a). None of the Company, any of its affiliates (as defined in Rule 501(b)
under the Securities Act) or any person acting on behalf of the Company or such affiliate will solicit any offer to buy or offer
or sell the Exchange Securities by means of any form of general solicitation or general advertising within the meaning of Regulation D,
including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium
or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation
or general advertising.


 


(v)       Integration(b).
None of the Company, any of its affiliates (as defined in Rule 501(b) under the Securities Act), or any person acting on behalf
of the Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which will be integrated with the sale of the Exchange Securities in a manner which
would require the registration of the Exchange Securities under the Securities Act or require stockholder approval under the rules
and regulations of the Principal Market and the Company will take all action that is appropriate or necessary to assure that its
offerings of other securities will not be integrated for purposes of the Securities Act or the rules and regulations of the Principal
Market, with the issuance of Exchange Securities contemplated hereby.


 


(w)       Notice
of Disqualification Events(a). The Company will notify the Investor in writing, prior
to the Closing of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the
passage of time, become a Disqualification Event relating to any Issuer Covered Person.


 


(x)       Maximum
Percentage. The Company and Investor acknowledge and agree that the Maximum Percentage and any similar beneficial ownership
limitation applicable to the Investor with respect to any securities of the Company held by the Investor or issuable to the Investor
pursuant to this Agreement, including but not limited to the Exchange Securities, Amended Note and Warrants shall be increased
to 9.99% as of the effective date of this Agreement.


 


(y)       Transfer
Restrictions. The Exchange Securities may only be disposed of in compliance with state and federal securities laws. In connection
with any transfer of the Exchange Note, Conversion Shares or the Exchange Warrants other than pursuant to an effective registration
statement or Rule 144, to the Company or to an Affiliate of an Investor, the Company may require the transferor thereof to provide
to the Company, an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance
of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration
of such transferred securities under the Securities Act. As a condition of such transfer, any such transferee shall agree in writing
to be bound by the terms of this Agreement and shall have the rights and obligations of the Investor under this Agreement and
the other Transaction Documents. Any and all opinions required by the Transfer Agent, the Company or anyone else in connection
with transfers of Exchange Shares, Underlying Shares or shares issuable in connection with the Amended Note shall be at the Company’s
reasonable expense.


 


(z)       Legend.
The Investors agree to the imprinting, so long as is required by this Section 3, of a legend on any of the Securities in the
following form:


 


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


 






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(aa)       Legend Removal.
Certificates evidencing the Underlying Shares shall not contain any legend (“Unlegended Shares”) (including
the legend set forth in Section 3.1(z) hereof): (i) while a registration statement covering the resale of such security is effective
under the Securities Act, (ii) following any sale of such Underlying Shares pursuant to Rule 144, (iii) if such Underlying Shares
are eligible for sale under Rule 144, without the requirement for the Company to be in compliance with the current public information
required under Rule 144 as to such Underlying Shares and without volume or manner-of-sale restrictions or (iv) if such legend is
not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued
by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after
the effective date of a registration statement registering the Underlying Shares and Exchange Shares, or any part thereof, if required
by the Transfer Agent to effect the removal of the legend hereunder. If all or any Exchange Notes are converted or any portion
of an Exchange Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Underlying
Shares, or if such Underlying Shares may be sold under Rule 144 or if such legend is not otherwise required under applicable requirements
of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Underlying
Shares shall be issued free of all legends. The Company agrees that following such time as such legend is no longer required under
this Section 3.1(aa), it will, no later than two (2) Trading Days following the delivery by an Investor to the Company or the Transfer
Agent of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend (such second (2nd ) Trading
Day, the “Legend Removal Date”), deliver or cause to be delivered to such Investor a certificate representing such
shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions
to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 3. Certificates for Underlying Shares
subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Investor by crediting the account of the
Investor’s prime broker with the Depository Trust Company System as directed by such Investor.


 


(bb)       No Objection.
The Company will not object to the sale of any of the Exchange Securities by the Investor pursuant to an available exemption from,
or in a transaction not subject to, the registration requirements of the Securities Act.


 


		4.	CONDITIONS TO COMPANY’S OBLIGATIONS HEREUNDER.



 


The obligations of the Company to the Investor
hereunder are subject to the satisfaction 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 the Investor with prior written notice
thereof:


 


(a)       The
Investor shall have duly executed this Agreement and delivered the same to the Company.


 


(b)       The
representations and warranties of the Investor shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date
which shall be true and correct as of such specified date), and the Investor 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 the Investor at or prior to the Closing Date.


 


		5.	CONDITIONS TO INVESTOR’S OBLIGATIONS HEREUNDER.



 


The obligations of the Investor hereunder
are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor’s
sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice
thereof:


 


(a)       The
Company shall have duly executed and delivered this Agreement to the Investor.


 


(b)       At
the Closing, the Company shall have electronically delivered to the Investor (or its designee) through DTC the Exchange Shares.


 






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(c)       At
the Closing, the Company shall have delivered the original Amended Note, Exchange Note and Exchange Warrant.


 


(d)       The
Company shall have delivered to the Investor a certificate signed by the Chief Executive Officer of the Company with the authorizing
resolutions.


 


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


 


(f)       No
statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by this Agreement.


 


		6.	TERMINATION.



 


In the event that the
Closing does not occur on or before May 31, 2020 due to the Company’s or the Investor’s failure to satisfy the
conditions set forth in Sections 4 and 5 hereof (and the nonbreaching party’s failure to waive such unsatisfied conditions(s)),
the nonbreaching party shall have the option to terminate this Agreement with respect to such breaching party at the close of business
on such date without liability of any party to any other party. Upon such termination, the terms hereof shall be null and void.


 


		7.	RELEASE



 


(a)       Investor
on behalf of itself and its past, present and future heirs, subsidiaries, affiliates or other entities, executors, administrators,
successors and assigns, shareholders, directors, officers, partners, employees, agents, attorneys, members, controlling persons,
advisors, representatives or other entities controlled by them (hereinafter, collectively referred to as the “Investor
Releasors”), and in consideration of the transactions contemplated by this Agreement, and other good and valuable consideration
received from the Company, receipt whereof is hereby acknowledged, releases and discharges the Company and the Company’s
past, present and future heirs, subsidiaries, affiliates or other entities, executors, administrators, successor and assigns, shareholders,
directors, officers, partners, employees, agents, attorneys, members, controlling persons, advisors, representatives or other entities
controlled by them (collectively, hereinafter referred to as the “Company Releasees”) from any and all actions,
causes of and action, suits, debts, dues, sums of money, accounts, reckonings, bonds, trespasses, damages, judgments, extents,
executions, agreements, claims and demands whatsoever, in law, admiralty, or equity, which against the Company Releasees the Investor
Releasors ever had, now have or hereafter can, shall or may have, from the beginning of the world to, and including, immediately
prior to the Closing, arising out of, based on, resulting from, with respect to or by reason of that certain litigation between
the Investor and the Company, and claims which may have been asserted in such litigation, and including, without limitation any
claims for legal fees related thereto.


 


(b)       The
Company on behalf of itself and its past, present and future heirs, subsidiaries, affiliates or other entities, executors, administrators,
successors and assigns, shareholders, directors, officers, partners, employees, agents, attorneys, members, controlling persons,
advisors, representatives or other entities controlled by them (hereinafter, collectively referred to as the “Company
Releasors”), and in consideration of the transactions contemplated by this Agreement, and other good and valuable consideration
received from the Company, receipt whereof is hereby acknowledged, releases and discharges the Investor and the Investor’s
past, present and future heirs, subsidiaries, affiliates or other entities, executors, administrators, successor and assigns, shareholders,
directors, officers, partners, employees, agents, attorneys, members, controlling persons, advisors, representatives or other entities
controlled by them (collectively, hereinafter referred to as the “Investor Releasees”) from any and all actions,
causes of and action, suits, debts, dues, sums of money, accounts, reckonings, bonds, trespasses, damages, judgments, extents,
executions, agreements, claims and demands whatsoever, in law, admiralty, or equity, which against the Investor Releasees the Company
Releasors ever had, now have or hereafter can, shall or may have, from the beginning of the world to, and including, immediately
prior to the Closing, arising out of, based on, resulting from, with respect to or by reason of that certain litigation between
the Investor and the Company, including claims which may have been asserted as counterclaims in such litigation, and including,
without limitation any claims for legal fees related thereto.


 






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(c)       This
Section 7 shall not apply to the Transaction Documents, nor to the release of any rights to indemnification related to potential
or actual third party claims. In the event a Closing does not occur, then this Section 7 shall be of no force and effect and void
ab initio.


 


		8.	MISCELLANEOUS.



 


(a)       No
Commissions. Neither the Company nor the Investor has paid or given, or will pay or give, to any person, any commission or
other remuneration, directly or indirectly, in connection with the transactions contemplated by this Agreement.


 


(b)       Security
Interest. Investor is authorized to take actions necessary with respect to the security interest granted to the Investor in
order to memorialize the transactions described in this Agreement and protect such security interest.


 


(c)       Notice.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return
receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted
via electronic mail, in each case addressed as set forth below or to such other address as such party shall have specified most
recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective
(a) upon hand delivery at the address or number designated below (if delivered on a business day during normal business hours where
such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during
normal business hours where such notice is to be received), (b) on the second business day following the date of mailing by express
courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur
or (c) on the date sent by e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of
the recipient, and on the next Business Day if sent after normal business hours of the recipient. The addresses for such communications
shall be: (i) if to the Company, to: ShiftPixy, Inc., 1 Venture, Suite 150, Irvine, CA 92618, Attn: Scott Absher, Chief Executive
Officer, E-mail: scott.absher@shiftpixy.com, with a copy by electronic mail only to (which shall not constitute notice): Daniel
Bagliebter, Esq., 666 Third Avenue, New York, New York 10017, E-mail: dabagliebter@mintz.com, and (ii) if to the Holder, to: the
addresses indicated on the signature pages hereto.


 


(d)       Register;
Transfer Agent Instructions; Legend. The Company and Investor hereby make and incorporate herein by this reference the covenants
made and undertaken in Article 5 of the Purchase Agreement, mutatis mutandum, with respect to the Exchange Securities and Underlying
Shares.


 


(e)       Incorporation
by Reference. Article 9 of the Purchase Agreement is incorporated herein by this reference and made a part hereof with respect
to this Agreement.


 


[The remainder of the page is intentionally
left blank]


 






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


 


	 	COMPANY: SHIFTPIXY, INC.
	 	 
	 	
        By:  
	
         

	 	 	Name:  	Scott Absher
	 	 	Title:  	Chief Executive Officer 





 




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


 


	 	INVESTOR: ALPHA CAPITAL ANSTALT
	 	 
	 	
        By:  
	 
	 	 	Name:  	 
	 	 	Title:  	 
	 	 	 	 
	 	
        Address for Notice:

	 	 
	 	 
	 	
        E-mail Address for Notice:

	 	 
	 	 	 	 
	 	Facsimile Number for Notice:
	 	 


 








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