Exhibit
10.2


 


SECURITIES
PURCHASE AGREEMENT


 




    	 



    	 



    

 


EXHIBIT
LIST


 


		A.	Form
                                            of Legacy Holder Debenture
		B.	Form
                                            of New Holder Debenture
		C.	Form
                                            of Security Agreement
		D.	Form
                                            of Warrant
		E.	Form
                                            of Lock Up -Insiders
		F.	Purchaser
                                            Questionnaire
		G.	Term
                                            Sheet
		H.	Form
                                            of Purchaser Leak-Out
		I.	Form
                                            of Exchange Agreement
		J.	Warrant
                                            Amendment



 




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SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as of November 29, 2022, between Theralink Technologies,
Inc., a Nevada corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and collectively, the “Purchasers”), and Cavalry Fund
I Management LLC, a Delaware limited liability company, in its capacity as agent solely as described in Article VI hereto (the “Collateral
Agent”).


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended
(the “Securities Act”), and Rule 506 promulgated thereunder, the Company desires to issue and sell to each Purchaser,
and each Purchaser, severally and not jointly, desires to purchase from the Company, securities of the Company as more fully described
in this Agreement.


 


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


 


ARTICLE
I.





DEFINITIONS


 


1.1
Definitions. In addition to the terms defined elsewhere in this Agreement: (a) capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Debentures (as defined herein), and (b) the following terms have the meanings set
forth in this Section 1.1:


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.7.


 


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


 


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


 


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


 


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


 


“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial
banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”,
“non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the
direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial
banks in The City of New York are generally open for use by customers on such day.


 




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“Buy-In
Price” shall have the meaning ascribed to such term in Section 4.1(e).


 


“Closing”
means any closing of the purchase and sale of the Securities pursuant to Section 2.1.


 


“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived. Pursuant to the terms of this Agreement, there may
be one or more Closing Dates hereunder.


 


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


 


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


 


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


 


“Company
Counsel” means K&L Gates LLP, with offices located at 200 S. Biscayne Boulevard, Suite 3900 Miami, FL 33131.


 


“Conversion
Price” shall have the meaning ascribed to such term in the Debentures.


 


“Convertible
Securities” shall have the meaning ascribed to such term in Section 3.1(g).


 


“Debentures”
means each of (a) the 10% Original Issue Discount Senior Secured Convertible Debentures issued by the Company to Legacy Holders in exchange
for outstanding notes or preferred stock of the Company that were issued to such Legacy Holders prior to the date hereof, substantially
in the form of Exhibit A attached hereto (the “Legacy Holder Debentures”), and (b) the 10% Original Issue Discount
Senior Secured Convertible Debentures issued by the Company to Purchasers (the “New Holders”) without an exchange
of existing notes or preferred stock of the Company pursuant to the foregoing clause (a), substantially in the form of Exhibit B
attached hereto (the “New Holder Debentures”).


 


“Direct
Subsidiaries” means any direct subsidiaries of the Company that are formed after the date hereof, if applicable.


 


“Disclosure
Schedules” means the disclosure schedules of the Company delivered concurrently herewith.


 




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“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and
before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the
date hereof, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading
Day, no later than 9:01 a.m. (New York City time) on the date hereof.


 


“Disqualification
Event” shall have the meaning ascribed to such term in Section 3.1(qq).


 


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


 


“Escrow
Agent” means Signature Bank, with offices located at 261 Madison Avenue, New York, NY 10016.


 


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


 


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


 


“Exchange
Agreements” shall have the meaning ascribed to such term in Section 4.13.


 


“Exempt
Issuance” means the issuance of (a) shares of Common Stock, restricted stock units or options to employees, officers or directors
of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board
of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered
to the Company, (b) securities upon the exercise, exchange of or conversion of any Securities issued hereunder and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease
the exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations)
or to extend the term of such securities, (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, 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,
and provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its
subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Company and shall provide
to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which the Company is
issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities, (d)
restricted stock units, restricted stock and options to consultants of the Company provided, however, any such issuances to consultants
shall not exceed, in the aggregate, 90,000,000 shares of underlying Common Stock, provided that the foregoing number of shares
shall be adjusted proportionally to account for any (i) subdivision of the outstanding shares of Common Stock into a larger number of
shares or (ii) combination (including by way of a reverse stock split) of the outstanding shares of Common Stock into a smaller number
of shares, (e) Securities pursuant to the Transaction Documents, (f) Securities in a Qualified Offering, and (g) Securities pursuant
to an equity line of credit with a New Holder.


 




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“Exercise
Price” means (i) the Qualified Offering Price, or, if no Qualified Offering occurs before the Maturity Date, then the Exercise
Price will equal the lower of (i) $0.003 per share or (ii) 70% of the average of the VWAP of the Company’s Common Stock during
the ten (10) Trading Day period immediately prior to the Maturity Date (as may be adjusted pursuant to the terms of the Warrants).


 


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


 


“Federal
Reserve” shall have the meaning ascribed to such term in Section 3.1(oo).


 


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


 


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


 


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


 


“Insiders”
shall have the meaning ascribed to such term in Section 4.19.


 


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


 


“Issuer
Covered Person” shall have the meaning ascribed to such term in Section 3.1(qq).


 


“Legacy
Holders” shall mean the Persons that are exchanging outstanding notes or preferred stock of the Company that were issued to
such Persons prior to the date hereof, pursuant to the Exchange Agreements, dated as of the initial Closing Date, in exchange for Legacy
Holder Debentures.


 


“Legend
Removal Date” shall have the meaning ascribed to such term in Section 4.1(c).


 


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


 


“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors, officers and
major shareholders (3% or more), in the form of Exhibit E attached hereto.


 




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“Majority
in Interest” shall have the meaning assigned to such term in Section 5.5.


 


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


 


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


 


“Maximum
Amount” means an aggregate of $6,600,000 in principal amount of Debentures representing cash payments from Purchasers of $6,000,000
based on the 10% Original Issue Discount on the Debentures provided, however, that upon the written consent of the Company and the Placement
Agent, the Maximum Amount shall be adjusted upward to mean an aggregate of $8,000,000 in principal amount of Debentures representing
cash payments from Purchasers of $7,200,000 based on the 10% Original Issue Discount on the Debentures.


 


“Maximum
Rate” shall have the meaning ascribed to such term in Section 5.17.


 


“Minimum
Amount” means a minimum of $2,750,000 in principal amount of Debentures representing cash payments from Purchasers of $2,500,000
based on the 10% Original Issue Discount on the Debentures.


 


“Money
Laundering Laws” shall have the meaning ascribed to such term in Section 3.1(pp).


 


“Notice
Termination Time” shall have the meaning ascribed to such term in Section 4.21(c).


 


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


 


“Offering”
means the offering of Debentures and Warrants pursuant to this Agreement and the other Transaction Documents.


 


“Offering
Period” means the earlier of (i) the sale of the Maximum Amount, (ii) termination of the Offering as determined by the Company
and the Placement Agent or (iii) December 31, 2022 (“Initial Offering Period”), which date may be extended by the
Placement Agent and the Company in their joint discretion until January 31, 2023.


 


“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.21(a).


 


“Participation
Pro Rata Portion” shall have the meaning ascribed to such term in Section 4.21(e).


 


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


 


“Placement
Agent(s)” means Joseph Gunnar & Co. LLC.


 




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


 


“Principal
Amount” means, as to each Purchaser, the amounts set forth below such Purchaser’s signature block on the signature pages
hereto next to the heading “Principal Amount,” in United States Dollars, which shall equal such Purchaser’s Subscription
Amount multiplied by 1.10.


 


“Pro
Rata Portion” shall have the meaning ascribed to such term in Section 4.22.


 


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


 


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


 


“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.10.


 


“Qualified
Offering” shall mean a registered offering of Common Stock (or units consisting of Common Stock and warrants to purchase Common
Stock) for aggregate gross proceeds to the Company of at least $5,000,000 resulting in the listing for trading of the Common Stock on
the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the New York Stock Exchange
(or any successors to any of the foregoing).


 


“Qualified
Offering Price” shall mean the price per share (or price per unit, if units are offered in the Qualified Offering) at which
the Qualified Offering is made. For the avoidance of doubt, if a unit includes more than one share of Common Stock, “Qualified
Offering Price” shall mean the unit price divided by the number of shares of Common Stock contained in a unit.


 


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


 


“Required
Minimum” means, as of the applicable date, a number equal to three times (3x) the greater of (i) the aggregate number of shares
of Common Stock then issued pursuant to the Transaction Documents and (ii) the maximum aggregate number potentially issuable in the future
pursuant to the Transaction Documents as of such date, including any Underlying Shares, ignoring any conversion or exercise limits set
forth therein.


 


“Required
Purchasers” shall have the meaning ascribed to such term in Section 6.2(b).


 


“Reserved
Shares” shall have the meaning ascribed to such term in Section 4.22.


 




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“Reserved
Shares Deficit” shall have the meaning ascribed to such term in Section 4.22.


 


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


 


“Rule
424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.


 


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


 


“Securities”
means the Debentures, the Warrants, the Warrant Shares and the Underlying Shares.


 


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


 


“Security
Agreement” means the Security Agreement, dated the date hereof, by and among the Company, any Direct Subsidiaries and the Purchasers,
in the form of Exhibit C attached hereto.


 


“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be
deemed to include locating and/or borrowing shares of Common Stock).


 


“Standard
Settlement Period” shall have the meaning ascribed to such term in Section 4.1(c).


 


“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for the Debentures and Warrants purchased hereunder as
specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds, which shall be at least $100,000 for each Purchaser unless otherwise agreed
to by the Company in its sole discretion.


 


“Subsequent
Financing” shall have the meaning ascribed to such term Section 4.21(a).


 


“Subsequent
Financing Notice” shall have the meaning ascribed to such term Section 4.21(b).


 


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


 




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“Termination
Date” means the date on which the Offering expires or is terminated.


 


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


 


“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, OTCQB or OTCQX (or any successors to any of the foregoing).


 


“Transaction
Documents” means this Agreement, the Debentures, the Warrants, the Security Agreement, the Lock-Up Agreement, all exhibits
and schedules thereto and hereto and any other documents or agreements executed in connection with the transactions contemplated hereunder.


 


“Transfer
Agent” means West Coast Stock Transfer, the current transfer agent of the Company, with a mailing address of 721 N. Vulcan
Ave., #205, Encinitas, CA 92024, and any successor transfer agent of the Company.


 


“Underlying
Shares” means the Warrant Shares and the shares of Common Stock issued and issuable pursuant to the terms of the Debenture,
in each case without respect to any limitation or restriction on the conversion of the Debentures or the exercise of the Warrants.


 


“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.12.


 


“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted for trading on a Trading
Market and if prices for the Common Stock are then reported on the Pink Open Market (or a similar organization or agency succeeding to
its functions of reporting prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the
fair market value of a share of Common Stock as determined by an independent appraiser selected in good faith by the Purchasers of a
majority in interest of the Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall
be paid by the Company.


 


“Warrant
Amendments” shall have the meaning ascribed to such term in Section 4.13.


 


“Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.


 




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“Warrants”
means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a)
hereof, in the form of Exhibit D attached hereto.


 


ARTICLE
II.


PURCHASE
AND SALE


 


2.1
Closing. On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the
execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly,
agree to purchase, Debentures and Warrants as set forth on each Purchaser’s signature page hereto. Each Purchaser shall have delivered
to the Escrow Agent pursuant to the instructions contained on Schedule 2.1, via wire transfer or a certified check, immediately
available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser.
Upon the Escrow Agent’s receipt of the Minimum Amount and the exchange of items set forth in Section 2.2, the Company and the Placement
Agent may give notice to the Escrow Agent to arrange an initial Closing. At any Closing hereunder, the Company shall deliver to each
Purchaser its respective Debenture and Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver
the other items set forth in Section 2.2 deliverable at the Closing. Following the initial Closing where at least the Minimum Amount
is sold, subsequent closings may be held up to the sale of the Maximum Amount. Upon satisfaction of the covenants and conditions set
forth in Sections 2.2 and 2.3, the Closing shall occur at such location as the parties shall mutually agree or upon the electronic exchange
of signatures and documents. Closings hereunder shall only be held during the Offering Period and in no event shall a Closing occur after
the Termination Date.





 


2.2
Deliveries.


 


(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each of the Placement Agent on behalf of each
Purchaser the following:


 


(i)
this Agreement duly executed by the Company;


 


(ii)
with respect to Legacy Holders, a Legacy Holder Debenture with a principal amount equal to such Legacy Holder’s Principal Amount,
registered in the name of such Legacy Holder (other than any Legacy Holder Debentures that are to be delivered pursuant to the Exchange
Agreements);


 


(iii)
with respect to New Holders, a New Holder Debenture with a principal amount equal to such New Holder’s Principal Amount, registered
in the name of such New Holder;


 


(iv)
a Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to the total principal
amount of the Debenture being issued divided by the average of the VWAP of the Company’s Common Stock during the ten (10) Trading
Day period immediately prior to the initial Closing Date (without regard for any beneficial ownership limitations) exercisable at the
Exercise Price (other than any Warrants that are to be delivered pursuant to the Exchange Agreements);


 




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(v)
the Security Agreement, duly executed by the parties thereto;


 


(vi)
the Lock-Up Agreements;


 


(vii)
a copy of a good standing certificate of the Company and any Direct Subsidiary, dated a date reasonably close to each Closing Date;


 


(viii)
for the initial Closing Date only, a certificate, dated as of the Closing Date, duly executed, and delivered by an officer of the Company,
certifying the resolutions of the Company’s Board of Directors then in full force and effect authorizing, to the extent relevant,
all aspects of the transaction and the execution, delivery and performance of each Transaction Document to be executed and the transactions
contemplated hereby and thereby;


 


(ix)
for the initial Closing Date only, duly executed copies of the Exchange Agreements and Warrant Amendments as set forth in Section 4.13
hereto;


 


(x)
such other approvals or documents as the Placement Agent and/or the Purchasers may request in form and substance reasonably satisfactory
to the Placement Agent and/or the Purchasers, as applicable.


 


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


 


(i)
this Agreement duly executed by such Purchaser;


 


(ii)
such Purchaser’s Subscription Amount as to the Closing by wire transfer to the Escrow Agent to the account specified in Schedule
2.1 hereto;


 


(iii)
Purchaser Questionnaire in the form of Exhibit F hereto; and


 


(iv)
the Security Agreement duly executed by such Purchaser.


 


2.3
Closing Conditions.


 


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


 


(i)
the accuracy in all material respects on (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) the Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific
date therein in which case they shall be accurate as of such date);


 




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


 


(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement; and


 


(iv)
in connection with the initial Closing only, the Company shall have received subscriptions for the Debentures equal to or exceeding the
Minimum Amount.


 


(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met
(it being understood that the Company may waive any of the conditions for any Closing hereafter):


 


(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse
Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless
as of a specific date therein in which case they shall be accurate as of such date);


 


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


 


(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;


 


(iv)
there shall have been no Material Adverse Effect since the date hereof;


 


(v)
Placement Agent shall have received a certificate of an officer of the Company, dated as of the date of such Closing, certifying, as
to the fulfillment of the conditions set forth in subparagraphs (i), (ii), (iii) and (iv) above; and


 


(vi)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.


 




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ARTICLE
III.


REPRESENTATIONS
AND WARRANTIES


 


3.1
Representations and Warranties of the Company. Except as set forth in the Disclosure Schedules, which Disclosure Schedules shall
be deemed a part hereof and shall qualify any representations or warranties (or covenants, as applicable) or otherwise made herein to
the extent of the disclosures contained in the corresponding section of the Disclosure Schedules, the Company hereby makes the following
representations and warranties to each Purchaser:


 


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


 


(b)
Organization and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power
and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company nor any
Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or
other organizational or charter documents, except as disclosed on Schedule 3.1(b). Each of the Company and the Subsidiaries is
duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified
or in good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the
legality, validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets,
business, prospects or condition (financial or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material
adverse effect on the Company’s or any Direct Subsidiaries’ ability to perform in any material respect on a timely basis
its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse Effect”) and no Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.


 


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


 




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(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to
which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that
with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties or
assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected except as disclosed on Schedule 3.1(d), or (iii)
subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the Company or a Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except
in the case of each of clauses (ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.


 


(e)
Filings, Consents and Approvals. Except as disclosed on Schedule 3.1(e), the Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local
or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction
Documents, other than: (i) the filings required pursuant to Section 4.6 of this Agreement, (ii) the notice and/or application(s) to each
applicable Trading Market for the issuance and sale of the Securities and the listing of the Underlying Shares for trading thereon in
the time and manner required thereby and (iii) the filing of Form D with the Commission and such filings as are required to be made under
applicable state securities laws (collectively, the “Required Approvals”).


 


(f)
Issuance of the Securities. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company
other than restrictions on transfer provided for in the Transaction Documents. The Underlying Shares, when issued in accordance with
the terms of the Transaction Documents, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by
the Company other than restrictions on transfer provided for in the Transaction Documents. On the date of this Agreement, the Company
has reserved from its duly authorized capital stock a number of shares of Common Stock for issuance of the Underlying Shares equal to
or greater than the Required Minimum on the date hereof.


 




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(g)
Capitalization. The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g), which includes
(i) the number and type of all securities of the Company issued and outstanding, including without limitation the number shares of Common
Stock and other classes capital stock of the Company issued and outstanding, the number and type of all securities of the Company convertible
or exercisable into, or exchangeable or redeemable for, shares of Common Stock, and for any such securities, the number of shares of
Common Stock into which such securities are currently convertible, exercisable, exchangeable or redeemable, as applicable and (ii) the
number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. The Company has
not issued any capital stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise
of employee stock options under the Company’s stock option plans, the issuance of shares of Common Stock to employees or consultants
pursuant to the Company’s employee stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents
outstanding as of the date of the most recently filed periodic report under the Exchange Act. No Person has any right of first refusal,
preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents,
except as disclosed on Schedule 3.1(g)(i), and to the extent any Person is listed in Schedule 3.1(g)(i), such Schedule
3.1(g)(i) includes a description of the security or other instrument or agreement pursuant to which such person holds such a right.
Except as a result of the purchase and sale of the Securities and Schedule 3.1(g)(ii), there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary (collectively
“Convertible Securities”), which Schedule 3.1(g)(ii) includes for any such Convertible Securities, the number
and type of such Convertible Securities issued and outstanding, and the number of shares of Common Stock or Common Stock Equivalents
into or for which such Convertible Securities are currently convertible, exercisable or exchangeable, as applicable, the conversion price
or exercise price of such Convertible Securities, as applicable, the maturity or exercise period of such Convertible Securities, as applicable,
and the current holder of such Convertible Securities. Except as set forth on Schedule 3.1(g)(iii), the issuance and sale of the
Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any Person (other than
the Purchasers). Except as disclosed on Schedule 3.1(g)(iv), there are no outstanding securities or instruments of the Company
or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon
an issuance of securities by the Company or any Subsidiary. Except as a result of the purchase and sale of the Securities and as disclosed
in Schedule 3.1(g)(v), there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption
or similar provisions, and there are no contracts, commitments, understandings, or arrangements by which the Company or any Subsidiary
is or may become bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights
or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of
the Company are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state
securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities. No further approval or authorization of any stockholder, the Board of Directors or others is required for
the issuance and sale of the Securities, except for shareholder approval to increase the number of authorized shares of Common Stock.
There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital stock
to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 




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(h)
SEC Reports; Financial Statements. Except as set forth on Schedule 3.1(h), the Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the Company under the Securities Act and the Exchange Act, including pursuant
to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter period as the Company was required by
law or regulation to file such material) (the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. Except as set forth on Schedule
3.1(h), as of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act
and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. Except as set forth on Schedule 3.1(h), the financial statements of the Company included
in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission
with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States
generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except
as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments.


 





(i)
Material Changes; Undisclosed Events, Liabilities or Developments. Except as disclosed on Schedule 3.1(i) since the date
of the latest unaudited financial statements included within the SEC Reports, except as set forth in the SEC Reports, (i) there has been
no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the
Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the
ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial
statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting,
(iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company equity compensation plans. The Company does not have pending
before the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by
this Agreement or as set forth in the SEC Reports, no event, liability, fact, circumstance, occurrence or development has occurred or
exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects,
properties, operations, assets or financial condition, that would be required to be disclosed by the Company under applicable securities
laws at the time this representation is made or deemed made that has not been publicly disclosed at least one (1) Trading Day prior to
the date that this representation is made.


 


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


 






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


 





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


 


(m)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating
to pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including 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 (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and
(iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Material Adverse Effect.


 


(n)
Regulatory Permits. Except as disclosed on Schedule 3.1(n), the Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure to possess such permits could not reasonably be expected
to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received
any notice of proceedings relating to the revocation or modification of any Material Permit.


 




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(o)
Title to Assets. Except as set forth on Schedule 3.1(o), the Company and the Subsidiaries have good and marketable title
in fee simple to all real property owned by them and good and marketable title in all personal property owned by them that is material
to the business of the Company and the Subsidiaries, in each case free and clear of all Liens, except for (i) Liens as do not materially
affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company
and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor
in accordance with GAAP and, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held
under lease by the Company and the Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Company
and the Subsidiaries are in compliance.


 


(p)
Intellectual Property. Except as set forth on Schedule 3.1(p), the Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective
businesses as described in the SEC Reports and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any
of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned,
within two (2) years from the date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest
audited financial statements included within the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual
Property Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material
Adverse Effect. To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement
by another Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality, and value of all of their intellectual properties, except where failure to do so could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


(q)
Insurance. The Company and the Subsidiaries have insurance coverage from insurers of recognized financial responsibility against
such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance coverage of $2,000,000. Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew such insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business without a significant increase in cost.


 




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


 


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


 




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(t)
Certain Fees. Except with respect to the fees and expenses payable to the Placement Agent as described in Section 5.2 hereto,
or in Schedule 3.1(t), no brokerage or finder’s fees or commissions or other remuneration are or will be payable by the
Company or any Subsidiaries directly or indirectly to any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no
obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.


 


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


 


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


 


(w)
Registration Rights. Except as disclosed on Schedule 3.1(w), no Person has any right to cause the Company or any Subsidiary
to effect the registration under the Securities Act of any securities of the Company or any Subsidiaries.


 


(x)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and
the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating terminating
such registration. Except as disclosed on Schedule 3.1(x) the Company has not, in the 12 months preceding the date hereof, received
notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance
with the listing or maintenance requirements of such Trading Market. The Company is and has no reason to believe that it will not in
the foreseeable future continue to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently
eligible for electronic transfer through the Depository Trust Company or another established clearing corporation and the Company is
current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such
electronic transfer.


 


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


 




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(z)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents
and except as set forth on Schedule 3.1(z), the Company confirms that neither it nor any other Person acting on its behalf has
provided any of the Purchasers or their agents or counsel with any information that it believes constitutes or might constitute material,
non-public information. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting
transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding
the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including the Transaction Documents
and disclosure schedules to this Agreement, is true and correct and does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they
were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement
taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which they were made and when made, not
misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to
the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.


 


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


 


(bb)
Solvency; Indebtedness. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect
to the receipt by the Company of the proceeds from the sale of the Minimum Amount of Securities hereunder, the Company will have sufficient
cash to operate its business as currently operated for a period of three months from the initial Closing Date. Except as set forth on
Schedule 3.1(bb), the Company has no knowledge of any facts or circumstances which lead it to believe that it will file for reorganization
or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the Closing Date. Schedule 3.1(bb)
sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which
the Company or any Subsidiary has commitments. For the purposes of this Agreement, “Indebtedness” means (x) any liabilities
for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business),
(y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others, whether or not the same are or
should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary course of business; and (z) the present value of any lease
payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP. Except as disclosed on Schedule
3.1(bb), neither the Company nor any Subsidiary is in default with respect to any Indebtedness.


 




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


 


(dd)
No General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchasers and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.


 


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


 


(ff)
Accountants. The Company’s accounting firm is set forth in the SEC Reports. Such accounting firm is a registered public
accounting firm as required by the Exchange Act.


 


(gg)
Seniority. As of the Closing Date, except as provided in Schedule 3.1(gg), no Indebtedness or other claim against the Company
is senior to the Debentures in right of payment, whether with respect to interest or upon liquidation or dissolution, or otherwise, other
than indebtedness secured by purchase money security interests (which is senior only as to underlying assets covered thereby) and capital
lease obligations (which is senior only as to the property covered thereby).


 




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


 


(ii)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers
is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.


 


(jj)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement
or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(g) and 4.15 hereof), it is understood and acknowledged by
the Company that: (i) none of the Purchasers has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing
or selling, long and/or short, securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities for any specified term, (ii) past or future open
market or other transactions by any Purchaser, specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions, may negatively impact the market price
of the Company’s publicly-traded securities, (iii) any Purchaser, and counter-parties
in “derivative” transactions to which any
such Purchaser is a party, directly or indirectly, may presently have a “short”
position in the Common Stock and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s
length counter-party in any “derivative”
transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage in hedging activities at various
times during the period that the Securities are outstanding, including, without limitation, during the periods that the value of the
Underlying Shares deliverable with respect to Securities are being determined, and (z) such hedging activities (if any) could reduce
the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging activities are being
conducted. The Company acknowledges that such hedging activities do not constitute a breach of any of the Transaction Documents.


 


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


 




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(ll)
Equity Incentive Plans. Each stock option granted by the Company under the Company’s equity incentive plans was granted
(i) in accordance with the terms of the Company’s equity incentive plan 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 Company policy or practice 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.


 


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


 


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


 


(oo)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent 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.


 


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


 




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(qq)
No Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506 under the
Securities Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of
the Company participating in the offering hereunder, 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
Purchasers a copy of any disclosures provided thereunder.


 


(rr)
Other Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person)
that has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any
Securities.


 


(ss)
Notice of Disqualification Events. The Company will notify the Purchasers in writing, prior to the Closing Date 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.


 


(tt)
Shell Status. The Company is not a “shell” issuer and that if it previously has been a “shell” issuer
that at least 12 months have passed since the Company has reported form 10 type information indicating it is no longer a “shell”
issuer. Further, in addition to all other existing rights and obligations as set forth in the Debentures and the Warrants, the Company
will instruct its counsel, at the Company’s expense, to either (i) issue a Rule 144 opinion to allow for salability of the Conversion
Shares under the Debentures and the Warrant Shares under the Warrants (provided Purchaser shall provide, upon request, customary certifications
for such counsel to rely upon to issue its opinion) or (ii) accept such opinion from Holder’s counsel.


 


3.2
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and
warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case
they shall be accurate as of such date):


 


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


 




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


 


(c)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each
date on which it exercises any Warrants or converts any Debentures it will be either an “accredited investor” as defined
in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act.


 


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


 


(e)
General Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Securities because of any advertisement,
article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.


 




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(f)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed
necessary of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the
Securities and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment, including the
Company’s Annual Report on Form 10-K for the year ended September 30, 2021 as filed with the Commission on January 13, 2022, and
the Term Sheet attached as Exhibit G to this Agreement, and (iii) the opportunity to obtain such additional information that the
Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with
respect to the investment.


 


(g)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has
not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any
purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser
first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material
terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition
of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities
of the Company for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions in
the future.


 


The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document, or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained
herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing shares to effect
Short Sales or similar transactions in the future.


 




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ARTICLE
IV.


OTHER
AGREEMENTS OF THE PARTIES


 


4.1
Transfer Restrictions.


 


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


 


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


 


[NEITHER]
THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [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, 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. 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.


 


The
Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered
broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an “accredited investor”
as defined in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer
pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company
and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no
notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities,
including, if the Securities have been registered for resale pursuant to a registration statement, the preparation and filing of any
required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately
amend the list of selling stockholders thereunder.


 




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(c)
Certificates (which, for all purposes in this Agreement, may be book-entry security entitlements representing shares of Common Stock)
evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) 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 (assuming cashless exercise of the Warrants), or (iii) 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,
at its expense, cause its counsel, or at the option of a Purchaser, counsel determined by such Purchaser, to issue a legal opinion to
the Transfer Agent or the Purchaser promptly if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested
by a Purchaser, respectively subject to compliance with the Securities Act and/or Rule 144 (for the avoidance of doubt, the Company shall
pay all costs associated with such opinions). If all or any portion of a Debenture is converted or 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 at such time as such legend is no longer required under this Section 4.1(c), it will, no later than the earlier of (i) two
(2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery
by a Purchaser to the Company or the Transfer Agent of a certificate representing Underlying Shares, as applicable, issued with a restrictive
legend (such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser 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 4. Certificates for Underlying Shares subject
to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s
prime broker with the Depository Trust Company System as directed by such Purchaser. As used herein, “Standard Settlement Period”
means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect
to the Common Stock as in effect on the date of delivery of a certificate representing Underlying Shares, as applicable, issued with
a restrictive legend. In addition to such Purchaser’s other available remedies, the Company shall pay to Purchaser, in cash, (i)
as partial liquidated damages and not as a penalty, 2% of the total of the value of the Underlying Shares for which the removal of the
legend is sought (based on the VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) for each full
month that said opinion is not delivered after the Legend Removal Date until such certificate is delivered without a legend.


 




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(d)
In addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $5 per Trading Day
(increasing to $15 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to
be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such
Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion
of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of
shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, an amount equal
to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any)
for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In
Price”) over the product of (A) such number of Underlying Shares that the Company was required to deliver to such Purchaser
by the Legend Removal Date multiplied by (B) the average of the closing sale prices of the Common Stock on any Trading Day during the
period commencing on the date of the delivery by such Purchaser to the Company of the applicable Underlying Shares (as the case may be)
and ending on the date of such delivery and payment under this clause (ii).


 


(e)
Each Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Securities
pursuant to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or
an exemption therefrom, and that if Securities are sold pursuant to a registration statement, they will be sold in compliance with the
plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities
as set forth in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.


 


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


 




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4.3
Furnishing of Information; Public Information.


 


(a)
Until the time that no Purchaser owns Securities, the Company covenants to maintain the registration of the Common Stock under Section
12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions in respect thereof and file within the applicable grace period)
all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject
to the reporting requirements of the Exchange Act.


 


(b)
At any time during the period commencing from the six (6) month anniversary of the date hereof and ending at such time that all of the
Securities may be sold without the requirement for the Company to be in compliance with Rule 144(c)(1) and otherwise without restriction
or limitation pursuant to Rule 144, if the Company (i) shall fail for any reason to satisfy the current public information requirement
under Rule 144(c) or (ii) has ever been an issuer described in Rule 144 (i)(1)(i) or becomes an issuer in the future, and the Company
shall fail to satisfy any condition set forth in Rule 144(i)(2) (a “Public Information Failure”) then, in addition
to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and
not as a penalty, by reason of any such delay in or reduction of its ability to sell the Securities, an amount in cash equal to two percent
(2.0%) of the aggregate Subscription Amount of such Purchaser’s Securities on the day of a Public Information Failure and on every
thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the earlier of (a) the date such
Public Information Failure is cured and (b) such time that such public information is no longer required for the Purchasers to transfer
the Underlying Shares pursuant to Rule 144, provided that such liquidated damages shall not exceed in the aggregate to twelve percent
(12.0%) of such Purchaser’s aggregate Subscription Amount. The payments to which a Purchaser shall be entitled pursuant to this
Section 4.3(b) are referred to herein as “Public Information Failure Payments.” Public Information Failure Payments
shall be paid on the earlier of (i) the last day of the calendar month during which such Public Information Failure Payments are incurred
and (ii) the third (3rd) Business Day after the event or failure giving rise to the Public Information Failure Payments is
cured. In the event the Company fails to make Public Information Failure Payments in a timely manner, such Public Information Failure
Payments shall bear interest at the rate of 1.5% per month (prorated for partial months) until paid in full. Nothing herein shall limit
such Purchaser’s right to pursue actual damages for the Public Information Failure, and such Purchaser shall have the right to
pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive
relief.


 


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


 




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4.5
Conversion and Exercise Procedures. Each of the form of Notice of Exercise included in the Warrants and the form of Notice of
Conversion included in the Debentures set forth the totality of the procedures required of the Purchasers to exercise the Warrants or
convert the Debentures. Without limiting the preceding sentences, no ink-original Notice of Exercise or Notice of Conversion shall be
required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise or Notice of Conversion
form be required to exercise the Warrants or convert the Debentures. No additional legal opinion, other information or instructions shall
be required of the Purchasers to exercise their Warrants or convert their Debentures. The Company shall honor exercises of the Warrants
and conversions of the Debentures and shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth
in the Transaction Documents.


 


4.6
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material
terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the material Transaction Documents
as exhibits thereto, with the Commission within the time required by the Exchange Act. From and after the issuance of such press release,
the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any
of the Purchasers 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 issuance of such press release,
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, agents, employees or Affiliates on the one
hand, and any of the Purchasers or any of their Affiliates on the other hand, shall terminate. The Company and each Purchaser shall consult
with each other in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor
any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent of the Company,
with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with respect to any press release
of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case
the disclosing party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing
with the Commission or any regulatory agency or Trading Market, without the prior written consent of such Purchaser, except (a) as required
by federal securities law in connection with the filing of final Transaction Documents with the Commission and (b) to the extent such
disclosure is required by law or Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice
of such disclosure permitted under this clause (b).


 


4.7
Shareholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person,
that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by
the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.


 




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4.8
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to Section 4.6, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company reasonably believes
constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt of such information
and agreed with the Company to keep such information confidential. The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company delivers any
material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that
such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers,
directors, agents, employees or Affiliates, or a duty to the Company, any of its Subsidiaries or any of their respective officers, directors,
agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall
remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the
Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company.


 


4.9
Use of Proceeds. Except as set forth on Schedule 4.9 attached hereto, the Company shall use the net proceeds from the sale
of the Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of
the Company’s debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices),
(b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation, (d) in
violation of FCPA or OFAC regulations or (e) to lend, give credit or make advances to any officers, directors, employees or affiliates
of the Company; provided that the Company may pay up to $300,000 in compensation that is due primarily to certain key members of the
Company’s research and development team, as set forth on Schedule 4.9.


 




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4.10
Indemnification of Purchasers. Subject to the provisions of this Section 4.10, the Company will indemnify and hold each Purchaser
and its directors, officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or
incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties in any capacity, or
any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect
to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material breach of such
Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings
such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws
or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or willful misconduct).
If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such
Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with
counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense
of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized by the Company in writing,
(ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel or (iii) in such action there
is, in the reasonable opinion of counsel, a material conflict on any material issue between the position of the Company and the position
of such Purchaser Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such
separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party
effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (z) to the extent,
but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations,
warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification
required by this Section 4.10 shall be made by periodic payments of the amount thereof during the investigation or defense, as and when
bills are received or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar
right of any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.


 


4.11
Reservation and Listing of Securities.


 


(a)
Subject to the last two sentences of Section 3.1(f) and Section 4.11(b), the Company shall maintain a reserve of the Required Minimum
from its duly authorized shares of Common Stock for issuance pursuant to the Transaction Documents in such amounts as may then be required
to fulfill its obligations in full under the Transaction Documents.


 


(b)
If, on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum
on such date, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles
of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time,
as soon as possible and in any event not later than the 90th day after such date; provided, for the avoidance of doubt, that this Section
4.11(b) shall not act as a waiver of the Company’s obligation to reserve the number of shares on or before the date that is 45
days following the initial Closing required under the last sentence of Section 3.1(f).


 




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(c)
The Company shall, if applicable: (i) in the time and manner required by the principal Trading Market, prepare and file with such Trading
Market an additional shares listing application covering a number of shares of Common Stock equal to or greater than the Required Minimum,
(ii) take all steps necessary to cause such shares of Common Stock to be approved for listing or quotation on such Trading Market as
soon as possible thereafter, (iii) provide to the Purchasers evidence of such listing or quotation and (iv) maintain the listing or quotation
of a number of shares of such Common Stock on such Trading Market or another Trading Market on any date equal to or greater than the
Required Minimum. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through the Depository Trust
Company or another established clearing corporation, including, without limitation, by timely payment of fees to the Depository Trust
Company or such other established clearing corporation in connection with such electronic transfer.


 


4.12
Subsequent Equity Sales.


 


(a)
From the date hereof until 180 days after the Closing Date, neither the Company nor any Subsidiary shall issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents, except as set forth
in subsection 4.12(c) below.


 


(b)
From the date hereof until the fourth anniversary of the Closing Date, the Company shall be prohibited from effecting or entering into
an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which
the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include
the right to receive, additional shares of Common Stock either (A) at a conversion price, exercise price 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 debt or equity 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 debt or equity security 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 or (ii) enters into, or effects a transaction
under, any agreement, including, but not limited to, an equity line of credit, whereby the Company may issue securities at a future determined
price; provided however, a Variable Rate Transaction shall not mean (x) an equity line of credit with a New Holder nor (y) an at-the-market
public offering by the Company. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect damages.


 


(c)
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of a Qualified Offering or an Exempt Issuance, except that
no Variable Rate Transaction shall be an Exempt Issuance.


 




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4.13
Exchange Agreements with Holders of Certain Indebtedness and Preferred Stock and Warrant Amendments. As a condition to the consummation
of the initial Closing, the Company shall have obtained executed exchange agreements, in substantially the form of Exhibit I attached
hereto (the “Exchange Agreements”), pursuant to which the Company’s existing convertible note holders and holders
of the Company’s preferred stock formally agree to the conversion of such loans and Company preferred stock, along with the termination
of all most-favored-nation provisions, anti-dilution provisions, and certain other rights that had been provided by the Company in such
convertible notes and the certificates of designations of such preferred stock. Additionally, the Company shall have obtained warrant
amendments, in substantially the form of Exhibit J attached hereto (the “Warrant Amendments”) pursuant to which
the Company’s existing warrant holders agree to the amendment of the exercise price in such warrants to $0.003 per share and waiver
of all anti-dilution provisions and certain other rights that had been provided by the Company prior to the date hereof in such warrants.


 


4.14
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid
to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to such Transaction Documents. Further, the Company shall not make any payment of principal or
interest on the Debentures in amounts which are disproportionate to the respective principal amounts outstanding on the Debentures at
any applicable time. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by the Company
and negotiated separately by each Purchaser and is intended for the Company to treat the Purchasers as a class and shall not in any way
be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or otherwise.


 


4.15
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as
described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included
in the SEC Reports. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company
expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage
in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as described in Section 4.6, (ii) no Purchaser shall be restricted or prohibited
from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time
that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.6 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the Company to
the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.6. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.


 




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


 


4.17
Capital Changes. Except in connection with the Qualified Offering and any uplisting to Nasdaq, until the eighteen (18) month anniversary
of the Closing Date, the Company shall not undertake a reverse or forward stock split or reclassification of the Common Stock without
the prior written consent of the Purchasers holding a majority in principal amount outstanding of the Debentures.


 


4.18
Purchaser Leak-Out. In connection with the closing of a Qualified Offering, each of the Purchasers covenants and agrees to enter
into a leak-out agreement, with respect to the Company’s securities, in a form annexed hereto as Exhibit H, that provides
that for a period beginning on the closing date of a Qualified Offering and ending on the three (3) month anniversary of such closing
date, such Purchasers shall not sell into the market pursuant to Rule 144 or pursuant to a then effective registration statement any
of the Securities in an amount that exceeds the leak-out percentage set forth therein; provided that the applicable restricted period
shall be six (6) months with respect to Purchasers that elect to receive New Preferred Stock pursuant to Section 4(e) of the Debentures.


 


4.19
Insider Lock-Up. In connection with the closing of a Qualified Offering, the Company shall insure that each of its officers, directors
and major shareholder (3% or more) (“Insiders”) enters into the Lock-Up Agreement, providing that for a period beginning
on the closing date of a Qualified Offering and ending on the six (6) month anniversary of such closing date, such Insiders shall not
sell into the market pursuant to Rule 144 or pursuant to a then effective registration statement any of the Securities.


 


4.20
Resale Registration. The Company agrees to use its commercially reasonable efforts to cause the filing of a registration statement
with the Commission covering the resale of the Underlying Shares at the same time as the Qualified Offering and shall use its commercially
reasonable efforts to cause such registration statement to become effective at the time of the Qualified Offering. The Company shall
qualify or register the Underlying Shares in such states as are reasonably requested by the Purchasers; provided, however, that in no
event shall the Company be required to register the Underlying Shares in a state in which such registration would cause the Company to
be obligated to register or license to do business in such state or submit to general service of process in such state. The Company shall
cause any registration statement filed pursuant to this section to remain effective for a period of at least twelve (12) consecutive
months after the date that the registration becomes effective. The Company shall bear all fees and expenses attendant to the foregoing
registration, other than any and all underwriting discounts, selling commissions, applicable to the sale of the Underlying Shares.


 




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4.21
Participation in Future Financings.


 


(a)
From the date hereof until the date following the closing of a Qualified Offering, upon any issuance by the Company of Common Stock or
Common Stock Equivalents for consideration, including a Qualified Offering (a “Subsequent Financing”), each Purchaser
shall have the right to participate in the Subsequent Financing in an amount equal to (i) with respect to the Legacy Holders, 30% of
the amount of the outstanding notes or preferred stock of the Company that were exchanged by each such Legacy Holder, or (ii) with respect
to each New Holder, 30% of the amount invested into the New Holder Debentures held by each such New Holder (collectively, the “Participation
Maximum”), in each case, on the same terms, conditions and price provided for in the Subsequent Financing.


 


(b)
Between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the Trading Day immediately prior to the
Trading Day of the expected announcement of the Subsequent Financing (or, if the Trading Day of the expected announcement of the Subsequent
Financing is the first Trading Day following a holiday or a weekend (including a holiday weekend), between the time period of 4:00 pm
(New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately
prior to the Trading Day of the expected announcement of the Subsequent Financing), the Company shall deliver to each Purchaser a written
notice of the Company’s intention to effect a Subsequent Financing (a “Subsequent Financing Notice”), which
notice shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised
thereunder and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term
sheet and transaction documents relating thereto as an attachment.


 


(c)
Any Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by 6:30 am (New York City
time) on the Trading Day following the date on which the Subsequent Financing Notice is delivered to such Purchaser (the “Notice
Termination Time”) that such Purchaser is willing to participate in the Subsequent Financing, the amount of such Purchaser’s
participation, and representing and warranting that such Purchaser has such funds ready, willing, and available for investment on the
terms set forth in the Subsequent Financing Notice. If the Company receives no such notice from a Purchaser as of such Notice Termination
Time, such Purchaser shall be deemed to have notified the Company that it does not elect to participate in such Subsequent Financing.


 


(d)
If, by the Notice Termination Time, notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or
to cause their designees to participate) is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company
may effect the remaining portion of such Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing
Notice.


 




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(e)
If, by the Notice Termination Time, the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase
more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase its Participation Pro
Rata Portion (as defined below) of the Participation Maximum. As used in this Section 4.21, “Participation Pro Rata Portion”
means, as to any Purchaser participating under this Section 4.21, the ratio of (x) the Subscription Amount of Securities purchased
on the Closing Date by a Purchaser participating under this Section 4.21 and (y) the sum of the aggregate Subscription Amounts
of Securities purchased on the Closing Date by all Purchasers participating under this Section 4.21.


 


(f)
The Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation
set forth above in this Section 4.21, if the definitive agreement related to the initial Subsequent Financing Notice is not entered
into for any reason on the terms set forth in such Subsequent Financing Notice within 2 Trading Days after the date of delivery of the
initial Subsequent Financing Notice.


 


(g)
Notwithstanding the foregoing, this Section 4.21 shall not apply in respect of an Exempt Issuance or a Qualified Offering.


 


4.22
Most Favored Nation. Purchaser, whether or not participating in a particular Subsequent Financing, shall have the right, exercisable
at any time prior to the Notice Termination Time for such Subsequent Financing, to accept the securities and terms of such Subsequent
Financing in lieu of the Securities and the terms of this Agreement (“MFN Right”), subject to the terms and conditions
set forth herein. If the Company receives such notice from Purchaser of the exercise of its MFN Right on or prior to the Notice Termination
Time for such Subsequent Financing, then: (i) effective upon the closing of such Subsequent Financing, the terms of the Securities (and,
if and to the extent relevant, the underlying securities) then held by Purchaser and this Agreement (collectively, “Present
Terms”) shall automatically be amended by (x) substituting the form, mix and Present Terms of such securities (and, if and
to the extent relevant, the underlying securities) with those of the securities issued in the Subsequent Financing (and, if and to the
extent relevant, the underlying securities) (the “Subsequent Financing Terms”) and (y) incorporating by reference,
mutatis mutandis, the Subsequent Financing Terms in lieu of the Present Terms; and (ii) thereafter, upon the reasonable request of the
Company or Purchaser, the parties shall reasonably cooperate with each other in order to further or better evidence or effect such substitution(s)
and amendment(s), and to otherwise carry out the intent and purposes of this Section, including the physical exchange of securities.
Notwithstanding anything contained herein to the contrary, the MFN Right shall also apply to an Exempt Issuance.


 




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4.23
Purchasers’ Exercise/Conversion Limitation upon Reserved Shares Deficit. Notwithstanding anything to the contrary set forth
herein or in any Transaction Document, if at any time, the number of shares of Common Stock reserved for issuance by the Company in order
to fulfill its obligations under the Transaction Documents (the “Reserved Shares”) is less than the aggregate number
of shares then issuable upon the exercise and conversion in full of all then outstanding Debentures and Warrants (a “Reserved
Shares Deficit”), the Company and each Purchaser agrees that each Purchaser shall not be entitled to exercise or convert Debentures
or Warrants for a number of shares of Common Stock greater than such Purchaser’s Pro Rata Portion of the Reserved Shares until
such time as the number of Reserved Shares is equal to or greater than the aggregate number of shares then issuable upon the exercise
and conversion in full of all then outstanding Debentures and Warrants. As used in in this Section 4.23, “Pro Rata Portion”
means, as to any Purchaser, the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by such Purchaser and
(y) the sum of the aggregate Subscription Amounts of Securities purchased on the Closing Date by all Purchasers. Within 1 day of the
occurrence of a Reserved Shares Deficit, the Company shall provide notice to each Purchaser of the number of Reserved Shares and the
Reserved Shares Deficit, and within 1 day of the cure of any Reserved Shares Deficit, the Company shall provide notice to each Purchaser
of such cure.


 


ARTICLE
V.


MISCELLANEOUS


 


5.1
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without
any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the
initial Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof, provided,
however, that no such termination will affect the right of any party to sue for any breach by any other party (or parties).


 


5.2
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants, and other experts, if any, and all other expenses incurred by such party incident to
the negotiation, preparation, execution, delivery, and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers. In
addition, Joseph Gunnar & Co. LLC is acting as placement agent for this private offering pursuant to a placement agency agreement
with the Company and will receive 10% cash and 10% warrant compensation on amounts closed on pursuant to this Agreement, as well as an
expense reimbursement from the Company, of up to $25,000 for reimbursement of its expenses in connection with the Transaction, and up
to $50,000 for its documented legal fees.


 


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


 




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5.4
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in
writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is
delivered via facsimile at the facsimile number or email attachment at the email address as set forth on the signature pages attached
hereto at or prior to 5:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such
notice or communication is delivered via facsimile at the facsimile number or email attachment as set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd)
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice
with the Commission pursuant to a Current Report on Form 8-K.


 


5.5
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument
signed, in the case of an amendment, by the Company and Purchasers which purchased at least 50.0% plus $1.00, of the New Holder Debentures
based on the initial Subscription Amounts hereunder or (the “Majority in Interest”), in the case of a waiver, by the
party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or group of Purchasers)
shall also be required. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall be deemed
to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition, or requirement
hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right.
Any proposed amendment or waiver that disproportionately, materially, and adversely affects the rights and obligations of any Purchaser
relative to the comparable rights and obligations of the other Purchasers shall require the prior written consent of such adversely affected
Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon each Purchaser and holder of Securities and
the Company.


 


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


 


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


 


5.8
No Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise
set forth in Section 4.10. Notwithstanding the foregoing, each of the Placement Agent shall be deemed a third-party beneficiary of the
representations and warranties of the Company as contained in Section 3.1 of this Agreement and shall have the right to enforce such
provisions directly to the extent it may deem such enforcement necessary or advisable to protect its rights.


 




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5.9
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of
the transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, shareholders, partners, members, employees, or agents) shall be commenced exclusively in the state and
federal courts sitting in the State of Nevada. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the State of Nevada for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the jurisdiction of any
such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party hereby irrevocably
waives personal service of process and consents to process being served in any such Action or Proceeding by mailing a copy thereof via
registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to
it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall
commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the
Company under Section 4.10, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing party for its
reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution of such Action
or Proceeding.


 


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


 


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


 


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


 




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5.13
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions
of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission
of a conversion of a Debenture or exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock
subject to any such rescinded conversion or exercise notice concurrently with the return to such Purchaser of the aggregate exercise
price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such
Purchaser’s Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).


 


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


 


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


 


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


 




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5.17
Usury. To the extent it may lawfully do so, the Company hereby agrees not to insist upon or plead or in any manner whatsoever
claim, and will resist any and all efforts to be compelled to take the benefit or advantage of, usury laws wherever enacted, now or at
any time hereafter in force, in connection with any Action or Proceeding that may be brought by any Purchaser in order to enforce any
right or remedy under any Transaction Document. Notwithstanding any provision to the contrary contained in any Transaction Document,
it is expressly agreed and provided that the total liability of the Company under the Transaction Documents for payments in the nature
of interest shall not exceed the maximum lawful rate authorized under applicable law (the “Maximum Rate”), and, without
limiting the foregoing, in no event shall any rate of interest or default interest, or both of them, when aggregated with any other sums
in the nature of interest that the Company may be obligated to pay under the Transaction Documents exceed such Maximum Rate. It is agreed
that if the maximum contract rate of interest allowed by law and applicable to the Transaction Documents is increased or decreased by
statute or any official governmental action after the date hereof, the new maximum contract rate of interest allowed by law will be the
Maximum Rate applicable to the Transaction Documents from the effective date thereof forward, unless such application is precluded by
applicable law. If under any circumstances whatsoever, interest more than the Maximum Rate is paid by the Company to any Purchaser with
respect to indebtedness evidenced by the Transaction Documents, such excess shall be applied by such Purchaser to the unpaid principal
balance of any such indebtedness or be refunded to the Company, the manner of handling such excess to be at such Purchaser’s election.


 


5.18
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document
are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance
or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other
Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as
a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way
acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of
this Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any Proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. The Company has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by any of the Purchasers. It is expressly understood
and agreed that each provision contained in this Agreement and in each other Transaction Document is between the Company and a Purchaser,
solely, and not between the Company and the Purchasers collectively and not between and among the Purchasers.


 


5.19
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction
Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts
have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.


 


5.20
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken, or such right may be exercised, on the next succeeding
Business Day.


 




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5.21
Construction. The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise
the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against
the drafting party shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each
and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date of this Agreement.


 


5.22
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. 


 


ARTICLE
VI.


COLLATERAL
AGENT


 


6.1
Appointment and Authority. Each Purchaser hereby irrevocably appoints the Collateral Agent to act on its behalf as the collateral
agent for the benefit of the Purchasers and under the Transaction Documents and authorizes the Collateral Agent to execute any Transaction
Documents in its capacity as the Collateral Agent and to take any such other actions on its behalf and to exercise such powers as are
delegated to the Collateral Agent by the terms hereof or thereof for purposes of acquiring, holding and enforcing any and all liens on
Collateral (as defined in the Security Agreement) granted by the Company and its Subsidiaries to secure the obligations under the Debentures,
together with such actions and powers as are reasonably incidental thereto. The provisions of this Article VI are solely for the benefit
of the Collateral Agent and the Purchasers. Neither the Company, its Subsidiaries nor its Affiliates shall have rights as a third party
beneficiary of any of the provisions of this Article VI. The use of the term “agent” or any similar or equivalent term in
connection with the appointment of the Collateral Agent hereunder is not intended to imply any fiduciary or other duties arising under
legal principles governing agency relationships, and such appointment and all rights and duties of the Collateral Agent hereunder shall
be ministerial in nature. For the avoidance of doubt, the provisions of this Article VI are meant to be read together with the rights
of the Collateral Agent set forth in Annex B of the Security Agreement; provided that this Article VI shall control in the event of any
contradiction.


 


6.2
Exculpatory Provisions. The Collateral Agent shall not have any duties or obligations except those expressly set forth herein
and in the Transaction Documents, which shall be ministerial and administrative in nature. Without limiting the generality of the foregoing,
the Collateral Agent:


 


(a)
shall not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default
(as defined in the Debentures) has occurred and is continuing;


 




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(b)
shall not have any duty to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby or by the Transaction Documents that Collateral Agent is required to exercise
as directed in writing by the Majority in Interest of the Debentures (the “Required Purchasers”); provided that, the
Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Collateral
Agent to liability or that is contrary to Transaction Document or applicable law; and


 


(c)
shall not, except as expressly set forth herein and in the Transaction Documents, have any duty to disclose,
and shall not be liable for the failure to disclose, any information relating to the Company, its Subsidiaries or any of their Affiliates
that is communicated to or obtained by the Person serving as the Collateral Agent or any of its affiliates in any capacity.


 


The
Collateral Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Purchasers,
or (ii) in the absence of its own gross negligence or willful misconduct as determined by a final and non-appealable judgment of a court
of competent jurisdiction.


 


The
Collateral Agent shall not be deemed to have knowledge of any Event of Default unless and until notice describing such Event of Default
is given to the Collateral Agent in writing by the Company or a Purchaser. The Collateral Agent may (but shall not be obligated to) take
any such action, or refrain from taking such any action, with respect to any such Event of Default as it shall deem advisable in the
best interest of the Purchasers.


 


The
Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (A) any statement, warranty or representation
made in or in connection with this Agreement or any Transaction Document, (B) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith, (C) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the occurrence of any Event of Default, (D) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Transaction Document or any other agreement, instrument or document or the
creation, perfection or priority of any lien purported to be created by the Security Agreement, or (E) the value or the sufficiency of
any Collateral.


 


6.3
Reliance by Collateral Agent. The Collateral Agent shall be entitled to rely upon, and shall not incur any liability for relying
upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including, but not limited to, any
electronic message, internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed,
sent or otherwise authenticated by the proper person. The Collateral Agent also may rely upon any statement made to it orally or by telephone
and believed by it to have been made by the proper person, and shall not incur any liability for relying thereon. The Collateral Agent
may consult with legal counsel (who may be counsel for any Purchaser), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.


 




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6.4
Delegation of Duties. The Collateral Agent may perform any and all of its duties and exercise its rights and powers hereunder
or under any Transaction Document by or through any one or more sub-agents appointed by the Collateral Agent. The Collateral Agent and
any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective affiliates.
The exculpatory provisions of this Section shall apply to any such sub-agent and to the affiliates of the Collateral Agent and any such
sub-agent, and shall apply to their respective activities in connection with the transactions contemplated herein. The Collateral Agent
shall have no responsibility for the conduct or negligence of any sub-agent appointed by it hereunder, except to the extent that the
Collateral Agent acted with gross negligence or willful misconduct in the appointment of such sub-agent.


 


6.5
Resignation of Collateral Agent.


 


(a)
The Collateral Agent may at any time give written notice of its resignation to the Purchasers and the Company. Upon receipt of any such
notice of resignation, the Required Purchasers shall have the right to appoint a successor Collateral Agent. If no such successor shall
have been so appointed by the Required Purchasers and shall have accepted such appointment within thirty (30) days after the retiring
Collateral Agent gives notice of its resignation, or by such earlier date as agreed by the Required Purchasers (the “Collateral
Agent Resignation Date”), then the retiring Collateral Agent may, but shall not be obligated to, on behalf of the Purchasers,
appoint a successor Collateral Agent. Regardless of whether a qualifying Person has accepted such appointment, such resignation shall
nonetheless become effective in accordance with such notice on the Collateral Agent Resignation Date.


 


(b)
With effect from the Collateral Agent Resignation Date, (1) the retiring Collateral Agent shall be discharged from its duties and obligations
hereunder and under the Transaction Documents (except that in the case of any Collateral held by the Collateral Agent on behalf of the
Purchasers under any of Transaction Documents, the retiring Collateral Agent shall continue to hold such collateral security until such
time as a successor Collateral Agent is appointed) and (2) except for any indemnity payments owing to the retiring or removed Collateral
Agent, all payments, communications and determinations provided to be made by, to or through the Collateral Agent shall instead be made
by or to each Purchaser directly, until such time, if any, as the Required Purchasers appoint a successor Collateral Agent as provided
for above in this Section. Upon the acceptance of a successor’s appointment as Collateral Agent hereunder, such successor shall
succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Collateral Agent (except with respect
to indemnity payments owed to the retiring or removed Collateral Agent), and the retiring or removed Collateral Agent shall be discharged
from all of its duties and obligations hereunder or under the other Transaction Documents. The fees payable by the Company to a successor
Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor.
After the retiring or removed Collateral Agent’s resignation or removal hereunder and under the other Transaction Documents, the
provisions of this Article VI shall continue in effect for the benefit of such retiring Collateral Agent, its sub-agents and their respective
affiliates in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Collateral Agent was acting
as Collateral Agent hereunder.


 


(Signature
Pages Follow)


 




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


 


	THERALINK
    TECHNOLOGIES, INC.	 	Address
    for Notice:
	 	 	 	 
	 	 	 	Theralink
    Technologies, Inc.
	By:	                      	 	15000
    W. 6th Ave., #400
	Name:	Mick
    Ruxin, M.D.	 	Golden,
    CO 80401
	Title:	Chief
    Executive Officer	 	Attn.:
    Mick Ruxin, M.D., CEO


 


	With
    a copy to (which shall not constitute notice):	 	Email:
    
	 	 	 
	K&L
    Gates LLP	 	mick.ruxin@theralink.com
	Southeast
    Financial Center	 	 
	200
    S. Biscayne Boulevard, Suite 3900	 	 
	Miami,
    FL 33131	 	 
	Attn:
    Erin Fogarty 	 	 
	Email:
    Erin.Fogarty@klgates.com 	 	 


 




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	COLLATERAL
    AGENT (solely for purposes of Article VI hereto):	 	Address
    for Notice:
	 	 	 	 
	 	 	 	Cavalry
    Fund I Management LLC
	CAVALRY
    FUND I MANAGEMENT LLC	 	82
    East Allendale Road, Suite 5B
	 	 	 	Saddle
    River, NJ 07458
	 	 	 	Attn.:
    Thomas Walsh
	By:	 	 	 
	Name:
    	Thomas
    Walsh	 	Email:
	Title:
    	Managing
    Member	 	thomas@cavalryfund.com
	 	 	 	 
	With a copy to (which shall not constitute notice):	 	 
	 	 	 	 
	Cavalry Fund I Management LLC	 	 
	82 East Allendale Road, Suite 5B	 	 
	Saddle River, NJ 07458	 	 
	Attn.: Thomas Walsh	 	 


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 


[Securities
Purchase Agreement]


 




    	50



    	 



    

 


[PURCHASER
SIGNATURE PAGES TO 


sECURITIES
PURCHASE AGREEMENT]


 


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


 


Name
of Purchaser: ________________________________________________________


 


Signature
of Authorized Signatory of Purchaser: __________________________________


 


Name
of Authorized Signatory: ____________________________________________________


 


Title
of Authorized Signatory: _____________________________________________________


 


Email
Address of Authorized Signatory: _____________________________________________


 


Facsimile
Number of Authorized Signatory: __________________________________________


 


Address
for Notice to Purchaser:


 


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


 


Subscription
Amount: $_____________


 


Principal
Amount (1.10 x Subscription Amount): $_____________


 


Warrant
Shares:__________________


 


EIN/SSN:
_______________________


 


[SIGNATURE
PAGES CONTINUE]


 




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