Exhibit
10.1


 


CONVERTIBLE
NOTE PURCHASE AGREEMENT


 


This
Convertible Note Purchase Agreement (this “Agreement”) is dated as of December 7, 2022, by and among                                                              
(the “Purchaser”), and Data443 Risk Mitigation, Inc., a Nevada corporation (“Data443” or
the “Company”).


 


WHEREAS,
Data443 is desirous of borrowing up to the aggregate sum of Seven Hundred Fifty Thousand Dollars ($750,000.00) from one or more investors
(the “Investment Amount”);


 


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/or Rule 506 promulgated thereunder, Data443 desires to issue and sell to Purchaser, and
Purchaser desires to purchase from Company, securities of such Company as more fully described in this Agreement;


 


WHEREAS,
the Purchaser desires that the Company grant it a Warrant (the “Warrant”) for the purchase of a calculable number
of shares of common stock at a calculable price per share on terms and conditions that the Purchaser and the Company are willing to accept;


 


NOW,
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Company and the 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 Notes (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 4.6.


 


“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 set forth in Section 3.1(jj).


 


“Board
of Directors” means the board of directors of Data443.


 


“Business
Day” means, except any Saturday, any Sunday, any day that is a federal legal holiday in the United States or any day on which
banking institutions in the State of New York are authorized or required by law or other governmental action to close; provided,
however, that for clarification, banking institutions shall not be deemed to be authorized or required by law to close 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 banking institutions in the City of New York are generally are open for use by customers on
such day.


 




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“Buy-In
Price” shall have the meaning set forth in Section 3.1(d).


 


“Closing
Date(s)” means the Business Day(s) on which all of the Transaction Documents have been executed and delivered by the applicable
parties thereto in connection with a Closing, and all conditions precedent to (i) the Purchaser’s obligations to pay the Subscription
Amount as to such Closing and (ii) the Company’s obligations to deliver the Securities as to such Closing, in each case, have been
satisfied or waived.


 


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


 


“Closing
Statement” means the Closing Statement provided by Data443 to the Purchaser.


 


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


 


“Common
Stock” means the common stock of the Company, par value $0.001 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 Subsidiary 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 Pryor Cashman LLP.


 


“Disclosure
Schedules” shall have the meaning ascribed to such term in Section 3.1.


 


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


 


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


 


“Equity
Incentive Plan” means the Company’s existing equity incentive plan, as amended.


 


“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.


 




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“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 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, (c) 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,
(d) 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, and (e) Securities pursuant to the Transaction
Documents.


 


“Federal
Reserve” shall have the meaning set forth in Section 3.1(jj).


 


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


 


“GAAP”
means the United States generally accepted accounting principles applied on a consistent basis during the periods involved.


 


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


 


“Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable or for services
provided incurred in the ordinary course of business) and (y) the present value of any lease payments in excess of $50,000 due under
leases required to be capitalized in accordance with GAAP.


 


“Initial
Note” shall have the meaning ascribed to such term in Section 2.2.


 


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


 


“Investment
Amount” shall have the meaning ascribed to such term in the Recitals.


 


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


 


“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.


 


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


 




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“Note(s)”
means the Convertible Promissory Note(s) due, subject to the terms therein, on the earlier of (i) December 7, 2023 or (ii) the Uplisting
Date (as defined therein), issued by Data443 to Purchaser hereunder, in the form of Exhibit A attached hereto.


 


“Notice
Termination Time” shall have the meaning ascribed to such term in Section 4.7(c).


 


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


 


“OID”
shall have the meaning ascribed to such term in Section 2.2.


 


“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.7(a).


 


“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.


 


“Public
Information Failure” shall have the meaning ascribed to such term in Section 4.4(b).


 


“Principal
Amount” means, the amount set forth below the Purchaser’s signature block on the signature page hereto next to the heading
“Principal Amount,” in United States Dollars, which shall equal the Purchaser’s Subscription Amount as to the applicable
Closing.


 


“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.


 


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


 


“Required
Minimum” means, as of any date, a number equal to one times (1x) 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
Minimum Failure” shall have the meaning ascribed to such term in Section 4.11(a).


 


“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.


 


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


 


“Securities”
means the Notes and the Warrants.


 


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


 


“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.


 




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“Subscription
Amount” means, as to the Purchaser, the aggregate amount to be paid for the Notes 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.


 


“Subsequent
Financing” shall have the meaning ascribed to such term in Section 4.7(a).


 


“Subsequent
Financing Notice” shall have the meaning ascribed to such term in Section 4.7(b).


 


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


 


“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).


 


“Transfer
Agent” means Madison Stock Transfer, Inc., the current transfer agent of the Company, with a mailing address of 2500 Coney
Island Ave, Sub Level, Brooklyn, New York 11223, and any successor transfer agent of the Company.


 


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


 


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


 


“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 Business Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted
average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX 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”
means that certain Common Stock Purchase Warrant of the Company granted to the Purchaser, providing for the purchase by the Purchaser
of a certain number shares of Common Stock (the “Warrant Shares”), substantially in the form of which Warrant is attached
hereto as Exhibit B.


 




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ARTICLE
II.


PURCHASE
AND SALE


 


2.1 Purchase.
The Purchaser will purchase up to the Investment Amount (or such other amount as shall be mutually agreed by the parties hereto) of the
Note(s) at each Closing.


 


2.2 Closing.
At the initial Closing, the Company shall sell a Note for a purchase price of Five Hundred Thousand Dollars ($750,000.00) (the “Initial
Note”) and the Purchaser shall purchase such Initial Note to be paid at Closing, the initial principal amount of such Initial Note
being Four Hundred Thousand Dollars ($600,000.00). Purchaser shall have delivered funds to Data443, via wire transfer or certified check,
immediately available funds equal to the Investment Amount, minus Original Issue Discount (“OID”) of One Hundred Thousand
Dollars ($150,000.00).


 


2.3 Deliveries.
On the Closing Date (except as noted or amended by mutual agreement),


 


(a) Data443
shall deliver or cause to be delivered to the Purchaser the following:


 


(i) this
Agreement duly executed by Data443;


 


(ii) the
Note duly executed by Data443;


 


(iii) the
Warrant duly executed by Data443;


 


(iv) for
the initial Closing Date only, a certificate, dated as of such Closing Date, duly executed, and delivered by an officer of the Company,
certifying the resolutions of the Company’s Board of Directors and the manager or others performing similar functions with respect
to each Subsidiary, then in full force and effect authorizing, all aspects of the transaction and the execution, delivery and performance
by the Company of each Transaction Document to be executed to which the Company is a party, as applicable, and the transactions contemplated
hereby and thereby, and certifying that the Company is in good standing in the jurisdiction of its formation; and


 


(v) such
other documents, certificates, instruments, and other writings as Purchaser’s counsel may reasonably request.


 


(b) Purchaser
shall deliver or cause to be delivered to the Data443 the following:


 


(i) this
Agreement duly executed by Purchaser;


 


(ii) the
Purchaser’s Subscription Amount as to the Closing by wire transfer to an account specified by Data443; and


 


(iii) such
other documents, certificates, instruments, and other writings as Data443’s counsel may reasonably request.


 


2.4 Closing
Conditions.


 


(a) The
obligations of Data443 hereunder in connection with the Closing are subject to the following conditions being satisfied:


 


(i) the
accuracy in all material respects on the Closing Date of the representations and warranties of the Purchaser 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 the Purchaser required to be performed at or prior to the applicable Closing Date shall have
been performed; and


 


(iii) the
delivery by the Purchaser of the items set forth in Section 2.3(b) of this Agreement.


 


(b) The
obligations of the Purchaser hereunder in connection with the Closing are subject to the following conditions being satisfied:


 


(i) the
accuracy in all material respects on the Closing Date of the representations and warranties of Data443 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 Data443 required to be performed at or prior to the applicable Closing Date shall have been
performed;


 


(iii) the
delivery by Data443 of the items set forth in Section 2.3(a) of this Agreement;


 


(iv) there
shall have been no Material Adverse Effects with respect to the Company since the date hereof; and


 


(v) 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.


 


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 representation or otherwise made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules, the Company hereby makes the following representations and warranties to the Purchaser as of the
date hereof.


 


(a) Subsidiaries.
Other than Data 443 Risk Mitigation, Inc., a North Carolina corporation (the “Subsidiary”), which is a wholly-owned subsidiary
of the Company, the Company represents and warrants that it has no subsidiaries. The Company directly owns all of the capital stock or
other equity interests of the Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital stock of
the Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase
securities.


 




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(b) Organization
and Qualification. Each of Data443 and the Subsidiary 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 the Subsidiary is in violation
or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter
documents. Each of the Company and the Subsidiary 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 Subsidiary taken
as a whole; or (iii) a material adverse effect on the Company’s or the Subsidiary’s 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. Data443 has the requisite 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 such Company and no further action is
required by such Company, its Board of Directors, stockholders, or members, as applicable, 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 such Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of such Company enforceable against that 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. Except as set forth on Schedule 3.1(d), the execution, delivery and performance of Data443 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 the Subsidiary’s
certificate or articles of incorporation, bylaws or other organizational or charter documents; (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 (except Liens
in favor of the Purchaser) upon any of the properties or assets of the Company or the 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 such Company or the Subsidiary is a party or by which any property or asset of the Company or the Subsidiary is bound or affected;
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 the Subsidiary is subject (including federal
and state securities laws and regulations), or by which any property or asset of the Company or the 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. Data443 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.


 


(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 non-assessable, 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.


 




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(g) Capitalization.
The capitalization of Data443 is as set forth on Schedule 3.1(g), which Schedule 3.1(g) shall also include (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. Data443 has not issued
any capital stock other than as listed on Schedule 3.1(g), other than pursuant to the exercise of employee stock options under
any applicable Equity Incentive Plan, the issuance of shares of Common Stock to employees 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 Closing. Other
than with regard to Exempt Issuances, 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 a result of the purchase and sale of the
Securities and securities issued to employees, officers or directors, or former employees, officers or directors and other service providers
or former service providers of each Company pursuant to such Equity Incentive Plan or otherwise, there are no outstanding options, warrants,
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 the Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or the Subsidiary is
or may become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will
not obligate any Company to issue shares of Common Stock or other securities to any Person (other than the Purchaser) and will not result
in a right of any holder of that Company’s securities to adjust the exercise, conversion, exchange or reset price under any of
such securities. There are no outstanding securities or instruments of the Company or the Subsidiary that contain any redemption or similar
provisions, and there are no contractors, commitments, understandings, or arrangements by which the Company or the Subsidiary is or may
become bound to redeem a security of the Company or the 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 non-assessable, 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 or other equity holder, as applicable, the Board of Directors or
others is required for the issuance and sale of the Securities. Other than as set forth on Schedule 3.1(g), 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.


 


(h) SEC
Reports; Financial Statements. 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. 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 the 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 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 the Subsidiary 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.


 




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(i) Material
Changes. (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; (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 for the issuance of the Securities contemplated by this Agreement, or the Exempt Issuances. 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 the Subsidiary or their respective business, properties, operations, assets, or financial condition that would be required
to be disclosed by the Company. The Company does not have pending before the Commission any request for confidential treatment of information.


 


(j) Litigation.
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 or the Subsidiary, or any of its 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, and neither
the Company, nor the 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 the Subsidiary under the Exchange Act or the Securities Act.


 


(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 the Subsidiary, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or the Subsidiary’s
employees is a member of a union that relates to such employee’s relationship with the Company or the Subsidiary, and neither the
Company nor the Subsidiary is a party to a collective bargaining agreement, and each of the Company and the Subsidiary believes that
its relationships with its employees are good. To the knowledge of the Company, no executive officer of the Company or the 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 the Subsidiary to any liability with
respect to any of the foregoing matters. Each of the Company and the Subsidiary is 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.


 




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(l) Compliance.
Except as set forth in Schedule 3.1(l), neither the Company nor the 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
the Subsidiary under), nor has the Company or the 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 and 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. Each of the Company and the Subsidiary (i) is 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) has received
all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) is 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. Each of the Company and the Subsidiary possesses all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses, as applicable, 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 the 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 the Company’s filing with the SEC or in Schedule 3.1(o), each of the Company and the Subsidiary
has good and marketable title in fee simple to all real property owned by it and good and marketable title in all personal property owned
by it that is material to the business of the Company and the Subsidiary, 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 Subsidiary 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 or the Subsidiary are held by them under valid, subsisting, and enforceable leases with
which the Company and the Subsidiary ares in compliance.


 


(p) Intellectual
Property. Each of the Company and the Subsidiary has 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
as described on Schedule 3.1(p) as necessary or required for use in connection with their business as presently conducted and
which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). Neither
the Company nor the 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 the Subsidiary has received 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. Each of the Company and the Subsidiary has taken reasonable security measures
to protect the secrecy, confidentiality, and value of all of its 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 Subsidiary have directors and officers insurance coverage of $1,000,000. Neither the Company nor the Subsidiary has
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.


 


(r) Transactions
with Affiliates and Employees. Except as set forth in the SEC Reports and for the Exempt Issuances, none of the officers or directors
of the Company or the Subsidiary and, to the knowledge of the Company, none of the employees of the Company or the Subsidiary is presently
a party to any transaction with the Company or the 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 or stock award agreements under the Equity Incentive Plan.


 




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(s) Sarbanes-Oxley;
Internal Accounting Controls. Except as disclosed in the SEC Reports, each of the Company and the Subsidiary is 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, each of the Company and the Subsidiary maintains 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. Each of the Company and the Subsidiary has established disclosure controls and procedures (as defined
in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiary 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 Subsidiary 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 or the Subsidiary.


 


(t) Certain
Fees. Other than as set forth on Schedule 3.1(t), no brokerage or finder’s fees or commissions are or will be payable
by the Company or the Subsidiary 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 Purchaser 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 Purchaser’s 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 Purchaser as contemplated hereby.
The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Company’s 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.


 




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(w) Registration
Rights. Other than with regard to the Exempt Issuances, no Person has any right to cause any Company or the Subsidiary to affect
the registration under the Securities Act of any securities of the Company or the Subsidiary.


 


(x) Disclosure.
The Company understands and confirms that the Purchaser will rely on the representations herein in effecting transactions in securities
of the Company. All of the disclosures furnished by or on behalf of the Company to the Purchaser regarding the Company and the Subsidiary,
and their business and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, are true and correct
and do not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
made therein, in light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that the
Purchaser has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically
set forth in Section 3.2 hereof.


 


(y) No
Integrated Offering. Assuming the accuracy of the Purchaser’s 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 the Securities Act which would require the registration of any such
securities under the Securities Act.


 


(z) 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 Purchaser within
the meaning of Rule 501 under the Securities Act.


 


(aa) Indebtedness.
Schedule 3.1(aa) sets forth as of the date hereof, including as a result of the purchase and sale of the Securities, all outstanding
secured and unsecured Indebtedness of the Company and the Subsidiary, or for which the Company or the Subsidiary has commitments.


 


(bb) Foreign
Corrupt Practices. Neither the Company nor the Subsidiary has, to their knowledge, nor has any agent or other person acting on behalf
of the Company or the Subsidiary: (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 the 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.


 


(cc) Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(cc) of the Disclosure Schedules. To the knowledge and belief
of the Company, such accounting firm is registered with the Public Company Accounting Oversight Board.


 




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(dd) 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.


 


(ee) Acknowledgment
Regarding Purchaser’s Purchase of Securities. The Company acknowledges and agrees that the Purchaser 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 the Purchaser is not acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated 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 Purchaser’s purchase of the Securities. The Company further represents to the 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.


 


(ff) 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.


 


(gg) Stock
Option Plans. Each stock option granted by the Company under the Equity Incentive Plan was granted (i) in accordance with the terms
of the 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 Equity Incentive 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 their financial results or prospects.


 


(hh) Office
of Foreign Assets Control. Neither the Company nor the Subsidiary, and to the Company’s knowledge, no director, officer, agent,
employee or affiliate of the Company or the Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”).


 


(ii) 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 the Purchaser’s request.


 




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


 


(kk) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, each of the Company and the Subsidiary (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 know of no basis for any such claim.


 


(ll) Seniority.
Except as set forth in Schedule 3.1(ll), as of the Closing Date, no Indebtedness or other claim against the Company is senior
to the Notes 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).


 


(mm) Money
Laundering. The operations of the Company and the Subsidiary 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, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company
or the Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or the Subsidiary, threatened.


 


(nn) Related
Party Transactions. All related party transactions have been consummated in accordance with all applicable laws and governing agreements,
including, without limitation, those laws applicable to the diversion of a corporate opportunity of each Company or any of Affiliate
of such Company or any Affiliate of any principal of that Company. In each instance, the particular related party transaction has been
approved by the Board of Directors of the Company, after full disclosure has been made to each board member of the pertinent facts of
the proposed transaction. Each such related party transaction has been consummated on terms and conditions that are equal or more favorable
to the Company than a transaction with an unaffiliated third party knowing all the facts and under no compulsion to consummate such transaction.


 




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(oo) No
Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506(b) 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 Purchaser a copy of any disclosures provided
thereunder.


 


(pp) Other
Covered Persons. 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.


 


(qq) Notice
of Disqualification Events. The Company will notify the Purchaser 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.


 


(rr) Shell
Status. The Company is not currently an issuer identified in Rule 144(i)(1) under the Securities Act, is subject to the reporting
requirements of section 13 or 15(d) of the Exchange Act; has filed all reports and other materials required to be filed by section 13
or 15(d) of the Exchange Act, as applicable, during the preceding twelve (12) months, other than Form 8-K reports; and has filed current
“Form 10 information” (as defined in the Securities Act) with the Commission reflecting its status as an entity that is no
longer an issuer identified in paragraph Rule 144(i)(1).


 


Purchaser
acknowledges and agrees that the representations contained in Section 3.1 shall not modify, amend or affect the Company’s rights
to indemnification or to rely on such Purchaser’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.


 




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3.2 Representations
and Warranties of Purchaser. 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):


 


(a) Organization;
Authority. 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 the
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 the Purchaser, and when delivered by the Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of the 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.


 


(b) Own
Account. 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 the 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 the 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 the 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 in compliance with applicable federal and state securities laws). Purchaser is acquiring
the Securities hereunder in the ordinary course of its business.


 


(c) Purchaser
Status. At the time Purchaser was offered the Securities, it was, and as of the date hereof it is 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. Purchaser, either alone or together with its representatives, has such knowledge, sophistication, and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Purchaser is able to 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. Purchaser is not purchasing the Securities as a result 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 any other general solicitation or general advertisement.


 




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(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, Purchaser has not directly or
indirectly, nor has any Person acting on behalf of or pursuant to any understanding with Purchaser, executed any purchases or sales,
including Short Sales, of the securities of the Company during the period commencing as of the time that 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 Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of Purchaser’s assets and
the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of
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 Purchaser’s representatives, including without limitation, its officers, directors, partners, legal and other
advisors, employees, agents and Affiliates, the 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 avoidance of doubt,
nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of
the availability of, or securing of, available shares to borrow in order to effect Short Sales or similar transactions in the future.


 


The
Company acknowledges and agrees that the representations contained in Section 3.2 shall not modify, amend or affect Purchaser’s
rights to indemnification or 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.


 


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 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. The Company shall bear the costs of each such opinion. 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.


 




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(b) The
Purchaser agrees 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 AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. 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 who agrees to be bound by the provisions of this Agreement 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 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
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 the Purchaser, counsel determined by the Purchaser, to issue a legal opinion to
the Transfer Agent or such Purchaser promptly if required by the Transfer Agent to effect the removal of the legend hereunder, or if
requested by any Purchaser, respectively subject to compliance with the holding period requirements of Rule 144 (for the avoidance of
doubt, the Company shall pay all costs associated with such opinions). If all or any portion of a Note 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) three (3) Business Days and (ii) the number of Business Days comprising the Standard Settlement Period (as defined
below) following the delivery by the 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 such 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 Business 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, 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.


 


(d) In
addition to such Purchaser’s other available remedies, the Company shall pay to the 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), $10 per Business
Day (increasing to $20 per Business Day five (5) Trading Days after such damages have begun to accrue) for each Business 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 the 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).


 




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(e) Each
Purchaser 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.


 


4.3 Piggyback
Registration Rights. If at any time following the date hereof, there is not an effective registration statement registering for resale
the Underlying Shares, including for the avoidance of doubt, any shares of Common Stock issuable upon exercise of the Warrant following
the Uplisting Date (as defined in the Note), and the Company shall determine to prepare and file with the Commission a registration statement
relating to an offering for its own account or the account of others under the Securities Act of any of its equity securities, other
than on Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity securities to
be issued solely in connection with any acquisition of any entity or business or equity securities issuable in connection with stock
option or other employee benefit plans, then the Company shall send to the Purchaser written notice of such determination and, if within
five calendar days after receipt of such notice, the Purchaser shall so request in writing, the Company shall include in such registration
statement all or any part of such Common Stock the Purchaser requests to be registered, subject to (i) customary underwriter cutbacks
applicable to all holders of registration rights, (ii) the applicable terms of such registration rights, and (iii) Purchaser timely providing
the information reasonably requested by it for inclusion in the registration statement. For the avoidance of doubt, until such time as
the Purchaser is eligible to sell all of its Common Stock issuable upon conversion of the Note pursuant to Rule 144, the Common Stock
will be included in any underwritten public offering of equity securities initiated by the Company, subject to limitation based on the
discretion of the underwriter of such offering. The Company will pay all registration costs and related expenses of each registration
statement filed in accordance herewith, and the Holder will pay the underwriting discount and allowance of such offering applicable to
the sale of any Common Stock.


 


4.4 Furnishing
of Information; Public Information.


 


(a) Until
the time that the Purchaser does not own 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.


 




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(b)  At any time during the period commencing from the six (6) month anniversary of the date hereof,
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 the Purchaser’s other available remedies,
the Company shall pay to the 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
the 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) the date such Public Information Failure is cured, provided that such liquidated
damages shall not exceed in the aggregate to forty-five percent (45.0%) of the Purchaser’s aggregate Subscription Amount. The payments
to which a Purchaser shall be entitled pursuant to this Section 4.4(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.


 


4.5 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.


 


4.6 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 Notes set forth the totality of the procedures required of the Purchasers to exercise the Warrants or convert the Notes. 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 Notes. No additional legal opinion, other information or instructions shall be required of the Purchasers
to exercise their Warrants or convert their Notes. The Company shall honor exercises of the Warrants and conversions of the Notes and
shall deliver Underlying Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents


 




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4.7 Participation
in Future Financing.


 


(a) From
the date hereof until the date that is the twelve (12) month anniversary of the Uplisting Date, upon any, direct or indirect, offer,
sale, grant of any option to purchase, or disposition of (or announcement any offer, sale, grant of any option to purchase, or disposition
of) any of its or its Subsidiaries’ equity, debt or equity equivalent securities, including without limitation any Indebtedness,
preferred stock or other instrument or security that is, at any time during its life and under any circumstances, convertible into or
exchangeable or exercisable for shares of Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement
being referred to as a “Subsequent Financing”), the Purchaser shall have the right to participate in up to an amount
of the Subsequent Financing equal to 75% of the Subsequent Financing (the “Participation Maximum”) 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 Business Day immediately prior to the Business
Day of the expected announcement of the Subsequent Financing (or, if the Business Day of the expected announcement of the Subsequent
Financing is the first Business 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 Business Day immediately prior to such holiday or weekend and 2:00 pm (New York City time) on the day immediately
prior to the Business Day of the expected announcement of the Subsequent Financing), the Company shall deliver to the Purchaser 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) The
Purchaser must provide written notice to the Company by 6:30 am (New York City time) on the Business Day following the date on which
the Subsequent Financing Notice is delivered to the Purchaser (the “Notice Termination Time”) that the Purchaser is
willing to participate in the Subsequent Financing, the amount of the Purchaser’s participation, and representing and warranting
that the 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 the Purchaser as of such Notice Termination Time, the 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, notification by the Purchaser of its 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.


 


(e) If,
by the Notice Termination Time, the Company receives a response to a Subsequent Financing Notice from the Purchaser seeking to purchase
more than the aggregate amount of the Participation Maximum, the Purchaser shall have the right to purchase the Participation Maximum.


 


(f) The
Company must provide the Purchaser with a second Subsequent Financing Notice, and the Purchaser will again have the right of participation
set forth above in this Section 4.7, 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 three (3) Business Days after the date of delivery of
the initial Subsequent Financing Notice.


 




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(g) The
Company and the Purchaser agree that, if the Purchaser elects to participate in the Subsequent Financing, the transaction documents related
to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude the
Purchaser from participating in a Subsequent Financing, including, but not limited to, provisions whereby the Purchaser shall be required
to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment to or termination
of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written consent of the Purchaser.
In addition, the Company and the Purchaser agree that, in connection with a Subsequent Financing, the transaction documents related to
the Subsequent Financing shall include a requirement for the Company to issue a widely disseminated press release by 9:30 am (New York
City time) on the Business Day of execution of the transaction documents in such Subsequent Financing (or, if the date of execution is
not a Business Day, on the immediately following Business Day) that discloses the material terms of the transactions contemplated by
the transaction documents in such Subsequent Financing.


 


(h) Notwithstanding
anything to the contrary in this Section 4.7 and unless otherwise agreed to by the Purchaser, the Company shall either confirm in writing
to the Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention
to issue the securities in the Subsequent Financing, in either case in such a manner such that the Purchaser will not be in possession
of any material, non-public information, by 9:30 am (New York City time) on the second (2nd) Business Day following date of delivery
of the Subsequent Financing Notice. If by 9:30 am (New York City time) on such second (2nd) Business Day, no public disclosure regarding
a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has
been received by the Purchaser, such transaction shall be deemed to have been abandoned and the Purchaser shall not be deemed to be in
possession of any material, non-public information with respect to the Company or any of its Subsidiaries.


 


(i) Notwithstanding
the foregoing, this Section 4.7 shall not apply in respect of an Exempt Issuance.


 


4.8 Stockholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, or the 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 Purchaser.


 


4.9 Use
of Proceeds. The Company shall use the net proceeds hereunder as working capital.


 




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4.10 Indemnification
of Purchaser. Subject to the provisions of this Section 4.10, the Company, will indemnify and hold 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 the 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 each 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 based upon a 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
constitutes fraud, gross negligence, willful misconduct or malfeasance). 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 such 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 Companies shall
be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will 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 course of 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.


 




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4.11 Reservation
and Listing of Securities.


 


(a) The
Company shall at all times 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.
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 (a “Required Minimum Failure”), then, in addition to the Purchaser’s other available remedies,
the Company shall pay to the Purchaser, in cash, as partial liquidated damages and not as a penalty, 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 Required Minimum Failure and on every
thirtieth (30th) day (pro rated for periods totaling less than thirty days) thereafter until the date such Required Minimum
Failure is cured; provided that such liquidated damages shall not exceed in the aggregate to twenty-five percent (25.0%) of such Purchaser’s
aggregate Subscription Amount. The payments to which the Purchaser shall be entitled pursuant to this Section 4.11(a) are referred to
herein as “Required Minimum Failure Payments.” Required Minimum Failure Payments shall be paid on the earlier of (i)
the last day of the calendar month during which such Required Minimum Failure Payments are incurred and (ii) the third (3rd)
Business Day after the event or failure giving rise to the Required Minimum Failure is cured. In the event the Company fails to make
Required Minimum Failure Payments in a timely manner, such Required Minimum 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 Required Minimum 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.


 


(b) Upon
the occurrence of a Required Minimum Failure, the Company’s 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 75th day after the first date
on which such Required Minimum Reservation Failure occurred.


 


(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 at least equal to the Required Minimum on
the date of such application, (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 Purchaser evidence of such listing or quotation and (iv)
maintain the listing or quotation of such Common Stock on any date at least equal to the Required Minimum on such date on such Trading
Market or another Trading Market. 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 the 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 Section 4.12(c) below.


 




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(b) From
the date hereof until such time as the Purchaser does not hold any of the Notes, the Company shall be prohibited, unless agreed to by
Purchaser, from effecting or entering into an agreement to effect any issuance by the Company 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 for the avoidance of doubt, “Variable Rate Transaction” shall not include any issuance
of any Securities hereunder or under any Transaction Documents and/or any issuance of securities upon the exercise, exchange of or conversion
of any Securities issued hereunder or under any Transaction Document. The 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 Qualified Public Offering (as defined in the Note) or an Exempt Issuance,
except that no Variable Rate Transaction shall be an Exempt Issuance.


 


4.13 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


 


4.14 Qualified
Public Offering; Resale Registration. The Company agrees to use its commercially reasonable efforts to consummate a Qualified Public
Offering on or before the one hundred eightieth (180th) day from the date hereof. 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. Notwithstanding the foregoing, in the event the Qualified Offering is not consummated
on or before the one hundred eightieth (180th) day from the date hereof, (1) the Company shall file a separate registration statement
with the Commission covering the resale of the Underlying Shares (a “Separate Registration Statement”), and shall use its
commercially reasonable efforts to cause such Separate Registration Statement to become effective on or before the two hundred tenth
(210th) day from the date hereof; provided, for the avoidance of doubt that the number of Underlying Shares covered by such
Separate Registration Statement shall reflect any increase in the number of Underlying Shares issuable under the Notes and Warrants resulting
from the application of the second sentence of this Section 4.13(a) and the provisions of the Notes and Warrants. The Company shall qualify
or register the Underlying Shares in such states as are reasonably requested by the Purchaser; 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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ARTICLE
V.


MISCELLANEOUS


 


5.1 [Reserved.]


 


5.2 Fees
and Expenses. The Company shall deliver to the Purchaser, prior to the Closing, a completed and executed copy of the Closing Statement,
attached hereto as Annex A. 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; provided that, at the Closing the Company shall
pay the Purchaser $15,000 for due diligence fees. The Company shall pay all stamp taxes and other taxes and duties levied in connection
with the delivery of any Securities to the Purchaser.


 


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.


 


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: (i) the date 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 12:00
noon (New York City time) on a Business Day; (ii) the next Business Day after the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile number set forth on the signature pages attached hereto on a day that is not a Business Day
or later than 12:00 noon (New York City time) on any Business Day; (iii) the second (2nd) Business Day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service; or (iv) 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.


 


5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented, or amended except in a written instrument signed by
the Company and a majority-in-interest of the Principal Amount of Notes outstanding as of the date of such waiver, modification, supplement,
or amendment. 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.


 




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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 assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser (other
than by merger). The 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 “Purchaser.”


 


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.


 


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 Clark County. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in Clark County, 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 suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court,
that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an action, suit,
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, suit or proceeding shall be reimbursed by the other 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 Closings 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.


 




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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.


 


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 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.


 


5.14 Replacement
of Securities. If any certificate or instrument evidencing any of the 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, Purchaser and
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 Company makes a payment or payments to Purchaser pursuant to any Transaction Document or 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 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, 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 claim, action or proceeding that may be brought by 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 subsequent to 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 in excess of 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 the 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 the Purchaser’s election.


 


5.18 [Reserved.]


 


5.19 Liquidated
Damages. 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.


 


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.


 


(Signature
Pages Follow)


 



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IN WITNESS WHEREOF, the Company has caused this Convertible Note Purchase Agreement to be duly executed by its authorized signatories
as of the date first indicated above.


 


	DATA443 RISK MITIGATION, INC.	 
	 	 
	By:	 	 
	Name:	 	 
	Title:	              	 


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 






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[PURCHASER
SIGNATURE PAGES TO


CONVERTIBLE
NOTE PURCHASE AGREEMENT]


 


IN
WITNESS WHEREOF, the undersigned have caused this Convertible Note 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:  _________________________________


 


E-mail
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):


 


_________________________________________________________


 


_________________________________________________________


 


Closing
Principal Amount: $____________________________________ 


 


Closing
Subscription Amount (Inclusive of the $__________________________  Note Subscription Amount):


 


$______________________________ 


 


EIN
Number: __________________________________ 


 




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Annex
A


 


CLOSING
STATEMENT


 


Pursuant
to the attached Purchase Agreement, dated as of the date hereto, the Purchaser shall purchase Notes from ______________ (the “Company”).
All funds will be wired into an account maintained by the Company. All funds will be disbursed in accordance with this Closing Statement.


 


Disbursement
Date: December __, 2022


 


	I. PURCHASE
    PRICE

     
	 
	Gross
    Proceeds to be Received 	____________
	 	 
	 	 
	WIRE
INSTRUCTIONS:
	 


 


Duly
executed this __ day of December, 2022:


 


__________________on
behalf of


	By:
    	 	 
	Name:	 	 
	Title:	 	 


 




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