Exhibit
10.1


 


EXECUTION
VERSION


 


PURCHASE
AGREEMENT


 


THIS
PURCHASE AGREEMENT (the “Agreement”), dated as of December 22, 2022, is made by and between INDAPTUS THERAPEUTICS,
INC., a Delaware corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability
company (the “Investor”).


 


WHEREAS:


 


Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from
the Company, up to Twenty Million Dollars ($20,000,000) of the Company’s common stock, $0.01 par value per share (the “Common
Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”


 


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


 


1.
CERTAIN DEFINITIONS.


 


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


 


(a)
“Accelerated Purchase Date” means,
with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the Business Day immediately following the applicable
Purchase Date with respect to the corresponding Regular Purchase referred to in Section 2(b) hereof.


 


(b)
 “Accelerated Purchase Minimum Price Threshold”
means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, any minimum per share price threshold set
forth by the Company in the applicable Accelerated Purchase Notice.


 


(c)
“Accelerated Purchase Notice” means,
with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, an irrevocable written notice from the Company
to the Investor directing the Investor to purchase the applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price
on the Accelerated Purchase Date for such Accelerated Purchase in accordance with this Agreement, and specifying any Accelerated Purchase
Minimum Price Threshold determined by the Company.


 


(d)
“Accelerated Purchase Price” means,
with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the lower of ninety-seven percent (97%) of (i)
the VWAP for the period beginning at 9:30:01 a.m., Eastern time, on the applicable Accelerated Purchase Date, or such other time publicly
announced by the Principal Market as the official open (or commencement) of trading on the Principal Market on such applicable Accelerated
Purchase Date (the “Accelerated Purchase Commencement Time”), and ending at the earliest of (A) 4:00:00 p.m., Eastern
time, on such applicable Accelerated Purchase Date, or such other time publicly announced by the Principal Market as the official close
of trading on the Principal Market on such applicable Accelerated Purchase Date, (B) such time, from and after the Accelerated Purchase
Commencement Time for such Accelerated Purchase, that the total number (or volume) of shares of Common Stock traded on the Principal
Market has exceeded the applicable Accelerated Purchase Share Volume Maximum, and (C) such time, from and after the Accelerated Purchase
Commencement Time for such Accelerated Purchase, that the Sale Price has fallen below the applicable Accelerated Purchase Minimum Price
Threshold (such earliest of (i)(A), (i)(B) and (i)(C) above, the “Accelerated Purchase Termination Time”), and (ii)
the Closing Sale Price of the Common Stock on such applicable Accelerated Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).


 




    	 



     


    

 


(e)
“Accelerated Purchase Share Amount”
means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, the number of Purchase Shares directed by
the Company to be purchased by the Investor in an Accelerated Purchase Notice, which number of Purchase Shares shall not exceed the lesser
of (i) 300% of the number of Purchase Shares directed by the Company to be purchased by the Investor pursuant to the corresponding Regular
Purchase Notice for the corresponding Regular Purchase referred to in Section 2(b) hereof (subject to the Purchase Share limitations
contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Accelerated Purchase Share Percentage multiplied by (B)
the total number (or volume) of shares of Common Stock traded on the Principal Market during the period on the applicable Accelerated
Purchase Date beginning at the Accelerated Purchase Commencement Time for such Accelerated Purchase and ending at the Accelerated Purchase
Termination Time for such Accelerated Purchase.


 


(f)
“Accelerated Purchase Share Percentage”
means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, thirty percent (30%).


 


(g)
“Accelerated Purchase Share Volume Maximum”
means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof, a number of shares of Common Stock equal
to (i) the applicable Accelerated Purchase Share Amount properly directed by the Company to be purchased by the Investor in the applicable
Accelerated Purchase Notice for such Accelerated Purchase, divided by (ii) the Accelerated Purchase Share Percentage (to be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).


 


(h)
“Additional Accelerated Purchase Date”
means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, the Business Day (i) that is
the Accelerated Purchase Date with respect to the corresponding Accelerated Purchase referred to in Section 2(b) hereof and (ii)
on which the Investor receives, prior to 1:00 p.m., Eastern time, on such Business Day, a valid Additional Accelerated Purchase Notice
for such Additional Accelerated Purchase in accordance with this Agreement.


 


(i)
 “Additional Accelerated Purchase Minimum Price
Threshold” means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, any minimum
per share price threshold set forth by the Company in the applicable Additional Accelerated Purchase Notice.


 


(j)
“Additional Accelerated Purchase Notice”
means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, an irrevocable written notice
from the Company to the Investor directing the Investor to purchase the applicable Additional Accelerated Purchase Share Amount at the
Additional Accelerated Purchase Price for such Additional Accelerated Purchase in accordance with this Agreement, and specifying any
Additional Accelerated Purchase Minimum Price Threshold determined by the Company.


 


(k)
“Additional Accelerated Purchase Price”
means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, the lower of ninety-seven percent
(97%) of (i) the VWAP for the period on the applicable Additional Accelerated Purchase Date, beginning at the latest of (A) the applicable
Accelerated Purchase Termination Time with respect to the corresponding Accelerated Purchase referred to in Section 2(c) hereof
on such Additional Accelerated Purchase Date, (B) the applicable Additional Accelerated Purchase Termination Time with respect to the
most recently completed prior Additional Accelerated Purchase on such Additional Accelerated Purchase Date, as applicable, and (C) the
time at which all Purchase Shares subject to all prior Accelerated Purchases and Additional Accelerated Purchases (as applicable), including,
without limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated Purchase Date with
respect to which the applicable Additional Accelerated Purchase relates, have theretofore been received by the Investor as DWAC Shares
in accordance with this Agreement (such latest of (i)(A), (i)(B) and (i)(C) above, the “Additional Accelerated Purchase Commencement
Time”), and ending at the earliest of (X) 4:00 p.m., Eastern time, on such Additional Accelerated Purchase Date, or such other
time publicly announced by the Principal Market as the official close of trading on the Principal Market on such Additional Accelerated
Purchase Date, (Y) such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase,
that the total number (or volume) of shares of Common Stock traded on the Principal Market has exceeded the applicable Additional Accelerated
Purchase Share Volume Maximum, and (Z) such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional
Accelerated Purchase, that the Sale Price has fallen below the applicable Additional Accelerated Purchase Minimum Price Threshold (such
earliest of (i)(X), (i)(Y) and (i)(Z) above, the “Additional Accelerated Purchase Termination Time”), and (ii) the
Closing Sale Price of the Common Stock on such Additional Accelerated Purchase Date (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).


 




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(l)
“Additional Accelerated Purchase Share Amount”
means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, the number of Purchase Shares
directed by the Company to be purchased by the Investor on an Additional Accelerated Purchase Notice, which number of Purchase Shares
shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed by the Company to be purchased by the Investor pursuant
to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in Section 2(c) hereof (subject
to the Purchase Share limitations contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Additional Accelerated
Purchase Share Percentage multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Principal Market during
the period on the applicable Additional Accelerated Purchase Date beginning at the Additional Accelerated Purchase Commencement Time
for such Additional Accelerated Purchase and ending at the Additional Accelerated Purchase Termination Time for such Additional Accelerated
Purchase.


 


(m)
“Additional Accelerated Purchase Share Percentage”
means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, thirty percent (30%).


 


(n)
“Additional Accelerated Purchase Share Volume
Maximum” means, with respect to any Additional Accelerated Purchase made pursuant to Section 2(c) hereof, a number of
shares of Common Stock equal to (i) the applicable Additional Accelerated Purchase Share Amount properly directed by the Company to be
purchased by the Investor in the applicable Additional Accelerated Purchase Notice for such Additional Accelerated Purchase, divided
by (ii) the Additional Accelerated Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction).


 


(o)
“Additional Commitment
Shares” has the meaning set forth in Section 5(e).


 


(p)
“Additional Commitment Shares Number”
means $125,000 divided by the arithmetic average of the ten (10) Nasdaq Official Closing Prices for the Common Stock immediately preceding
the date that the Company has sold over $10,000,000 Purchase Shares to the Investor, provided that the Additional Commitment Shares Number
shall be no greater than 76,220.


 


(q)
“Alternate Adjusted
Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the maximum
number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated in accordance with this
Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such Regular Purchase, a Regular
Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, One Hundred Fifty Thousand Dollars $150,000.


 




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(r)
“Applicable Laws” means, with respect
to any Person, the common law and any federal, provincial, state, territorial, local, foreign, multinational or international laws, statutes,
codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees or settlement
agreements (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and
other determinations, directives, requirements or requests of, any governmental authority, in each case whether or not having the force
of law and, in each case, that are applicable to or binding upon such Person or any of its property or to which such Person or any of
its property is subject.


 


(s)
“Available Amount” means, initially,
Twenty Million Dollars ($20,000,000) in the aggregate, which amount shall be reduced by the Purchase Amount each time the Investor purchases
shares of Common Stock pursuant to Section 2 hereof.


 


(t)
“Bankruptcy Law” means Title 11,
U.S. Code, or any similar federal or state law for the relief of debtors.


 


(u)
“Business Day” means any day on which
the Principal Market is open for trading, including any day on which the Principal Market is open for trading for a period of time less
than the customary time.


 


(v)
“Bylaws” means the Company’s
Amended and Restated Bylaws.


 


(w)
“Charter” means the Company’s
Certificate of Incorporation, as amended.


 


(x)
“Closing Sale Price” means, for any
security as of any date, the last closing sale price for such security on the Principal Market as reported by the Principal Market.


 


(y)
“Commitment Shares” has the meaning
set forth in Section 5(e).


 


(z)
“Confidential Information” means
any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible
objects (including, without limitation, documents, prototypes, samples, plant and equipment), which is designated, either orally or in
writing, as “Confidential,” “Proprietary” or some similar designation. Information communicated orally shall
be considered Confidential Information if such information is confirmed in writing as being Confidential Information within ten (10)
Business Days after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by
third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available
in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available
after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already
in the possession of the receiving party without confidential restriction at the time of disclosure by the disclosing party as shown
by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party and is not known by the
receiving party to be a breach of such third party’s obligations of confidentiality; or (v) is independently developed by the receiving
party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent
evidence in the receiving party’s possession.


 


(aa)
“Custodian” means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.


 


(bb)
“DTC” means The Depository Trust
Company, or any successor performing substantially the same function for the Company.


 




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(cc)
“DWAC Shares” means shares of Common
Stock that are (i) issued in electronic form, (ii) freely tradable and transferable and without restriction on resale and (iii) timely
credited by the Company, once a DWAC notice is received, to the Investor’s or its designee’s specified Deposit/Withdrawal
at Custodian (DWAC) account with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar program hereafter adopted
by DTC performing substantially the same function.


 


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


 


(ee)
 “Fully Adjusted Regular Purchase Share Limit”
means, with respect to any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction from and after
the date of this Agreement, the Regular Purchase Share Limit (as defined in Section 2(a) hereof) in effect on the applicable date
of determination, after giving effect to the full proportionate adjustment thereto made pursuant to Section 2(a) hereof for or
in respect of such reorganization, recapitalization, non-cash dividend, stock split or other similar transaction.


 


(ff)
“Initial Commitment Shares” has the
meaning set forth in Section 5(e).


 


(gg)
“Material Adverse Effect” means any
material adverse effect on (i) the enforceability of any Transaction Document, (ii) the results of operations, operations, assets, business
or financial condition of the Company and its Subsidiaries, taken as a whole, other than any material adverse effect that resulted exclusively
from (A) any change in the United States or foreign economies or securities or financial markets in general that does not have a disproportionate
effect on the Company and its Subsidiaries, taken as a whole, (B) any change that generally affects the industry in which the Company
and its Subsidiaries operate that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (C)
any change arising in connection with earthquakes, a pandemic, hostilities, acts of war, sabotage or terrorism or military actions or
any escalation or material worsening of any such pandemic, hostilities, acts of war, sabotage or terrorism or military actions existing
as of the date hereof that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (D) any action
taken by the Investor, its affiliates or its or their successors and assigns with respect to the transactions contemplated by this Agreement,
(E) the effect of any change in applicable laws or accounting rules that does not have a disproportionate effect on the Company and its
Subsidiaries, taken as a whole, or (F) any change resulting from compliance with terms of this Agreement or the consummation of the transactions
contemplated by this Agreement, or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations
under any Transaction Document to be performed as of the date of determination.


 


(hh)
“Maturity Date” means the first day
of the month immediately following the thirty-six (36) month anniversary of the Commencement Date; provided that the Company may, upon
written notice delivered by the Company to the Investor not more than 60 and not fewer than 30 days prior to the thirty six (36) month
anniversary of the Commencement Date, extend the Maturity Date to the first day of the month immediately following the forty-eight (48)
month anniversary of the Commencement Date, provided that the conditions set forth in Section 8 hereof shall have been satisfied
as of the date of such notice, as certified by the Company in such notice.


 


(ii)
“PEA Period” means the period commencing
at 9:30 a.m., Eastern time, on the tenth (10th) Business Day immediately prior to the filing of any post-effective amendment
to the Registration Statement (as defined herein) or New Registration Statement (as such term is defined in the Registration Rights Agreement),
and ending at 9:30 a.m., Eastern time, on the Business Day immediately following, the effective date of any post-effective amendment
to the Registration Statement (as defined herein) or New Registration Statement (as such term is defined in the Registration Rights Agreement).


 




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(jj)
“Person” means an individual or entity
including but not limited to any limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.


 


(kk)
 “Principal Market” means The Nasdaq
Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s Common Stock
is at any time not listed on The Nasdaq Capital Market (or any nationally recognized successor thereto) but is listed or traded on The
Nasdaq Global Select Market, The Nasdaq Global Market, the New York Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin
Board, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing),
then the “Principal Market” shall mean such other market or exchange which then constitutes the principal trading market
for the Company’s Common Stock.


 


(ll)
“Purchase Amount” means, with respect
to any Regular Purchase, any Accelerated Purchase, or any Additional Accelerated Purchase made hereunder, as applicable, the portion
of the Available Amount to be purchased by the Investor pursuant to Section 2 hereof.


 


(mm)
“Purchase Date” means, with respect
to a Regular Purchase made pursuant to Section 2(a) hereof, the Business Day on which the Investor receives, after 4:00 p.m.,
Eastern time, but prior to 6:00 p.m., Eastern time, on such Business Day, a valid Regular Purchase Notice for such Regular Purchase in
accordance with this Agreement.


 


(nn)
“Purchase Price” means, with respect
to a Regular Purchase made pursuant to Section 2(a) hereof, the lower of: (i) the lowest Sale Price on the Purchase Date for such
Regular Purchase or (ii) the arithmetic average of the three (3) lowest Closing Sale Prices for the Common Stock during the ten (10)
consecutive Business Days ending on the Business Day immediately preceding such Purchase Date for such Regular Purchase (in each case,
to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that
occurs on or after the date of this Agreement).


 


(oo)
“Registration Rights Agreement” means
that certain Registration Rights Agreement, of even date herewith between the Company and the Investor.


 


(pp)
“Registration Statement” has the
meaning set forth in the Registration Rights Agreement.


 


(qq)
“Regular Purchase Notice” means,
with respect to a Regular Purchase pursuant to Section 2(a) hereof, an irrevocable written notice from the Company to the Investor
directing the Investor to buy a specified number of Purchase Shares (subject to the Purchase Share limitations contained in Section
2(a) hereof) at the applicable Purchase Price for such Regular Purchase in accordance with this Agreement.


 


(rr)
“Sale Price” means any trade price
for the shares of Common Stock on the Principal Market as reported by the Principal Market.


 


(ss)
“SEC” means the U.S. Securities and
Exchange Commission.


 


(tt)
“Securities” means, collectively,
the Purchase Shares and the Commitment Shares (as defined below).


 


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


 




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(vv)
“Subsidiary” means any Person the
Company wholly-owns or controls, or in which the Company, directly or indirectly, owns a majority of the voting stock or similar voting
interest, in each case that would be disclosable pursuant to Item 601(b)(21) of Regulation S-K promulgated under the Securities Act.


 


(ww)
 “Transaction Documents” means, collectively,
this Agreement and the schedules and exhibits hereto, the Registration Rights Agreement and the schedules and exhibits thereto.


 


(xx)
“Transfer Agent” means VStock Transfer,
LLC, or such other Person who is then serving as the transfer agent for the Company in respect of the Common Stock.


 


(yy)
“VWAP” means in respect of an Accelerated
Purchase Date and an Additional Accelerated Purchase Date, as applicable, the volume weighted average price of the Common Stock on the
Principal Market, as reported on the Principal Market.


 


2.
PURCHASE OF COMMON STOCK.


 


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


 


(a)
Commencement of Regular Sales of Common Stock.
Beginning one (1) Business Day following the satisfaction of the conditions set forth in Sections 7 and 8 hereof (the “Commencement”
and the date of satisfaction of such conditions the “Commencement Date”) and thereafter, the Company shall have the
right, but not the obligation, to direct the Investor, by its delivery to the Investor of a Regular Purchase Notice from time to time,
to purchase up to One Hundred Thousand (100,000) Purchase Shares, provided that the Closing Sale Price of the Common Stock on the applicable
Purchase Date is not below $0.50 and subject to adjustment as set forth below in this Section 2(a) (such maximum number of Purchase Shares,
as may be adjusted from time to time, the “Regular Purchase Share Limit”), at the Purchase Price on the Purchase Date (each
such purchase a “Regular Purchase”); provided, however, that the Regular Purchase Share Limit shall
be increased to: (i) up to One Hundred Fifty Thousand (150,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the
applicable Purchase Date is not below $3.00, and (ii) up to Two Hundred Thousand (200,000) Purchase Shares, if the Closing Sale Price
of the Common Stock on the applicable Purchase Date is not below $4.00 (all of which share and dollar amounts shall be appropriately
proportionately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction); provided
that if, after giving effect to the full proportionate adjustment to the Regular Purchase Share Limit therefor, the Fully Adjusted
Regular Purchase Share Limit then in effect would preclude the Company from delivering to the Investor a Regular Purchase Notice hereunder
for a Purchase Amount (calculated by multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular Purchase Share
Limit, by (Y) the Purchase Price per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase Date therefor)
equal to or greater than the Alternate Adjusted Regular Purchase Share Limit, the Regular Purchase Share Limit for such Regular Purchase
Notice shall not be fully adjusted to equal the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular Purchase
Share Limit for such Regular Purchase Notice shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share Limit
as of the applicable Purchase Date for such Regular Purchase Notice; and provided, further, however, that the Investor’s
committed obligation under any single Regular Purchase, other than any Regular Purchase with respect to which an Alternate Adjusted Regular
Purchase Share Limit shall apply, shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000), provided, however,
that the parties may agree to the sale and purchase of up to 400,000 Purchase Shares at any time at the regular Purchase Price. If the
Company delivers any Regular Purchase Notice for a Purchase Amount in excess of the limitations contained in the immediately preceding
sentence, such Regular Purchase Notice shall be void ab initio only with respect to the extent of the amount by which the number of Purchase
Shares set forth in such Regular Purchase Notice exceeds the number of Purchase Shares which the Company is permitted to include in such
Purchase Notice in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect
of such Regular Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the number of Purchase Shares
which the Company is permitted to include in such Regular Purchase Notice. The Company may deliver a Regular Purchase Notice to the Investor
multiple times on the same Business Day, provided the Company has not failed to deliver Purchase Shares for the most recent prior Regular
Purchase. Notwithstanding the foregoing, the Company shall not deliver any Regular Purchase Notices during the PEA Period.


 




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(b)
Accelerated Purchases. Subject to the terms and
conditions of this Agreement, from and after one (1) Business Day following the Commencement Date, in addition to purchases of Purchase
Shares as described in Section 2(a) above, the Company shall also have the right, but not the obligation, to direct the Investor,
by its delivery to the Investor of an Accelerated Purchase Notice from time to time in accordance with this Agreement, to purchase the
applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price on the Accelerated Purchase Date therefor in accordance
with this Agreement (each such purchase, an “Accelerated Purchase”). The Company may deliver an Accelerated Purchase
Notice to the Investor only on a Purchase Date on which the Company also properly submitted a Regular Purchase Notice providing for a
Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect on such Purchase Date in
accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the Regular Purchase Share
Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above on
such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a) above).
If the Company delivers any Accelerated Purchase Notice directing the Investor to purchase an amount of Purchase Shares that exceeds
the Accelerated Purchase Share Amount that the Company is then permitted to include in such Accelerated Purchase Notice, such Accelerated
Purchase Notice shall be void ab initio only with respect to the extent of the amount by which the number of Purchase Shares set
forth in such Accelerated Purchase Notice exceeds the Accelerated Purchase Share Amount that the Company is then permitted to include
in such Accelerated Purchase Notice (which shall be confirmed in an Accelerated Purchase Confirmation), and the Investor shall have no
obligation to purchase such excess Purchase Shares in respect of such Accelerated Purchase Notice; provided, however, that
the Investor shall remain obligated to purchase the Accelerated Purchase Share Amount which the Company is permitted to include in such
Accelerated Purchase Notice. Within one (1) Business Day after completion of each Accelerated Purchase Date for an Accelerated Purchase,
the Investor will provide to the Company a written confirmation of such Accelerated Purchase setting forth the applicable Accelerated
Purchase Share Amount and Accelerated Purchase Price for such Accelerated Purchase (each, an “Accelerated Purchase Confirmation”).
Notwithstanding the foregoing, the Company shall not deliver any Accelerated Purchase Notices during the PEA Period.


 


(c)
Additional Accelerated Purchases. Subject to
the terms and conditions of this Agreement, from and after one (1) Business Day following the Commencement Date, in addition to purchases
of Purchase Shares as described in Section 2(a) and Section 2(b) above, the Company shall also have the right, but not
the obligation, to direct the Investor, by its timely delivery to the Investor of an Additional Accelerated Purchase Notice on an Additional
Accelerated Purchase Date in accordance with this Agreement, to purchase the applicable Additional Accelerated Purchase Share Amount
at the applicable Additional Accelerated Purchase Price therefor in accordance with this Agreement (each such purchase, an “Additional
Accelerated Purchase”). The Company may deliver multiple Additional Accelerated Purchase Notices to the Investor on an Additional
Accelerated Purchase Date; provided, however, that the Company may deliver an Additional Accelerated Purchase Notice to
the Investor only (i) on a Business Day that is also the Accelerated Purchase Date for an Accelerated Purchase with respect to which
the Company properly submitted to the Investor an Accelerated Purchase Notice in accordance with this Agreement on the applicable Purchase
Date for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect in accordance
with this Agreement (including, without limitation, giving effect to any automatic increase to the Regular Purchase Share Limit as a
result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above on such Purchase
Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a) above), and (ii) if
all Purchase Shares subject to all prior Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases, including, without
limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated Purchase Date with respect
to which the applicable Additional Accelerated Purchase relates, in each case have theretofore been received by the Investor as DWAC
Shares in accordance with this Agreement. If the Company delivers any Additional Accelerated Purchase Notice directing the Investor to
purchase an amount of Purchase Shares that exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted
to include in such Additional Accelerated Purchase Notice, such Additional Accelerated Purchase Notice shall be void ab initio only
with respect to the extent of the amount by which the number of Purchase Shares set forth in such Additional Accelerated Purchase Notice
exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted to include in such Additional Accelerated
Purchase Notice (which shall be confirmed in an Additional Accelerated Purchase Confirmation), and the Investor shall have no obligation
to purchase such excess Purchase Shares in respect of such Additional Accelerated Purchase Notice; provided, however, that
the Investor shall remain obligated to purchase the Additional Accelerated Purchase Share Amount which the Company is permitted to include
in such Additional Accelerated Purchase Notice. Within one (1) Business Day after completion of each Additional Accelerated Purchase
Date, the Investor will provide to the Company a written confirmation of each Additional Accelerated Purchase on such Additional Accelerated
Purchase Date setting forth the applicable Additional Accelerated Purchase Share Amount and Additional Accelerated Purchase Price for
each such Additional Accelerated Purchase on such Additional Accelerated Purchase Date (each, an “Additional Accelerated Purchase
Confirmation”). Notwithstanding the foregoing, the Company shall not deliver any Additional Accelerated Purchase Notices during
the PEA Period.


 




    	-8-



     


    

 


(d)
Compliance with Principal Market Rules. Notwithstanding
anything in this Agreement to the contrary, and in addition to the limitations set forth in Section 2(e), the Company shall not
issue more than 1,650,893 shares (including the Commitment Shares) of Common Stock (the “Exchange Cap”) under this
Agreement, which equals 19.99% of the Company’s outstanding shares of Common Stock as of the date hereof, unless stockholder approval
is obtained to issue in excess of the Exchange Cap; provided, however, that the foregoing limitation shall not apply if
at any time the Exchange Cap is reached and at all times thereafter the average price paid for all shares of Common Stock issued under
this Agreement is equal to or greater than $1.64 (the “Minimum Price”), a price equal to the lower of (i) the Nasdaq
Official Closing Price immediately preceding the execution of this Agreement and (ii) the arithmetic average of the five (5) Nasdaq Official
Closing Prices for the Common Stock immediately preceding the execution of this Agreement, as calculated in accordance with the rules
of the Principal Market (in such circumstance, for purposes of the Principal Market, the transaction contemplated hereby would not be
“below market” and the Exchange Cap would not apply). Notwithstanding the foregoing, the Company shall not be required or
permitted to issue, and the Investor shall not be required to purchase, any shares of Common Stock under this Agreement if such issuance
would violate the rules or regulations of the Principal Market. The Company may, in its sole discretion, determine whether to obtain
stockholder approval to issue more than 19.99% of its outstanding shares of Common Stock hereunder if such issuance would require stockholder
approval under the rules or regulations of the Principal Market. The Exchange Cap shall be reduced, on a share-for-share basis, by the
number of shares of Common Stock issued or issuable that may be aggregated with the transactions contemplated by this Agreement under
applicable rules of the Principal Market.


 


(e)
Payment for Purchase Shares. For each Regular
Purchase, the Investor shall pay to the Company an amount equal to the Purchase Amount with respect to such Regular Purchase, as applicable,
as full payment for such Purchase Shares via wire transfer of immediately available funds on the same Business Day that the Investor
receives such Purchase Shares, if such Purchase Shares are received by the Investor before 1:00 p.m., Eastern time, or, if such Purchase
Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business Day. For each Accelerated Purchase and each Additional
Accelerated Purchase, the Investor shall pay to the Company an amount equal to the Purchase Amount with respect to such Accelerated Purchase
and Additional Accelerated Purchase, respectively, as full payment for such Purchase Shares via wire transfer of immediately available
funds on the second Business Day following the date that the Investor receives such Purchase Shares. If the Company or the Transfer Agent
shall fail for any reason or for no reason to electronically transfer any Purchase Shares as DWAC Shares with respect to any Regular
Purchase, Accelerated Purchase or Additional Accelerated Purchase (as applicable) within two (2) Business Days following the receipt
by the Company of the Purchase Price, Accelerated Purchase Price or Additional Accelerated Purchase Price, respectively, therefor in
compliance with this Section 2(e), and if on or after such Business Day the Investor purchases (in an open market transaction
or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of such Purchase Shares that the Investor anticipated
receiving from the Company in respect of such Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase (as applicable),
then the Company shall, within two (2) Business Days after the Investor’s request, either (i) pay cash to the Investor in an amount
equal to the Investor’s total purchase price (including customary brokerage commissions, if any) for the shares of Common Stock
so purchased (the “Cover Price”), at which point the Company’s obligation to deliver such Purchase Shares as
DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor such Purchase Shares as DWAC Shares and
pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total Purchase Amount paid by the Investor
pursuant to this Agreement for all of the Purchase Shares to be purchased by the Investor in connection with such purchases. The Company
shall not issue any fraction of a share of Common Stock upon any Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase.
If the issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share
of Common Stock up or down to the nearest whole share (with 0.5 rounded up). All payments made under this Agreement shall be made in
lawful money of the United States of America or wire transfer of immediately available funds to such account as the Company may from
time to time designate by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due
by the terms of this Agreement is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day
that is a Business Day.


 




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(f)
Beneficial Ownership Limitation. Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not issue or sell, and the Investor shall not purchase or acquire,
any shares of Common Stock under this Agreement which, when aggregated with all other shares of Common Stock then beneficially owned
by the Investor and its affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder),
would result in the beneficial ownership by the Investor and its affiliates of more than 9.99% of the then issued and outstanding shares
of Common Stock (the “Beneficial Ownership Limitation”). Upon the written or oral request of the Investor, the Company
shall promptly (but not later than one Business Day) confirm orally or in writing to the Investor the number of shares of Common Stock
then outstanding. The Investor and the Company shall each cooperate in good faith in the determinations required hereby and the application
hereof. The Investor’s written certification to the Company of the applicability of the Beneficial Ownership Limitation, and the
resulting effect thereof hereunder at any time, shall be conclusive with respect to the applicability thereof and such result absent
manifest error.


 


3.
INVESTOR’S REPRESENTATIONS AND WARRANTIES.


 


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


 


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


 


(b)
Investment Purpose. The Investor is acquiring
the Securities as principal for its own account for investment only and not with a view to or for distributing or reselling such Securities
or any part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing
any of such Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement
or understandings with any other Persons to distribute or regarding the distribution of such Securities in violation of the Securities
Act or any applicable state securities law (this representation and warranty not limiting the Investor’s right to sell the Securities
at any time pursuant to the Registration Statement described herein or otherwise in compliance with applicable federal and state securities
laws). The Investor is acquiring the Securities hereunder in the ordinary course of its business.


 


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


 


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


 


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


 


(f)
Transfer or Sale. The Investor understands that
(i) the Securities may not be offered for sale, sold, assigned or transferred unless (A) registered pursuant to the Securities Act (pursuant
to the Registration Statement or otherwise) or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; and (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms
of Rule 144.


 


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


 




    	-10-



     


    

 


(h)
Residency. The Investor’s principal place
of business is located in of the State of Illinois.


 


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


 


4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.


 


The
Company represents and warrants to the Investor that, as of the date hereof and as of the Commencement Date:


 


(a)
Organization and Qualification. The Company and
each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or organization, with the requisite corporate power and authority to own and use its properties
and assets and to carry on its business as currently conducted. Neither the Company nor any of its Subsidiaries is in violation or default
of any of the provisions of its respective certificate or articles of formation or incorporation, bylaws or other organizational or charter
documents except as would not be expected to result in a Material Adverse Effect. Each of the Company and its Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary, 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, except where the failure
to be so qualified or in good standing or such proceeding, as the case may be, would not reasonably be expected to result in a Material
Adverse Effect. The Company has no subsidiaries, except for the subsidiaries set forth on Exhibit 21.1 to the Company’s Annual
Report on Form 10-K for the year ended December 31, 2021.


 


(b)
Authorization; Enforcement; Validity. (i) The
Company has the requisite corporate power and authority to enter into and perform its obligations under this Agreement and each of the
other Transaction Documents, and to issue the Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery
of the Transaction Documents by the Company and the consummation by it of the transactions contemplated hereby and thereby, including
without limitation, the issuance of the Commitment Shares (as defined below in Section 5(e)), the reservation for issuance and
the issuance of the Purchase Shares issuable under this Agreement, have been duly authorized by the Company’s board of directors,
or a validly authorized committee thereof (collectively, the “Board of Directors”), and no further consent or authorization
is required by the Company, its Board of Directors or any committee thereof, or its stockholders (save to the extent provided in this
Agreement), (iii) this Agreement has been, and each other Transaction Document shall be on the Commencement Date, duly executed and delivered
by the Company and (iv) this Agreement constitutes, and each other Transaction Document upon its execution on behalf of the Company,
shall constitute, the valid and binding obligations of the Company enforceable against the Company in accordance with their terms, except
as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium,
liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’ rights and remedies. The Board of
Directors of the Company has approved the resolutions (the “Signing Resolutions”) substantially in the form as set
forth as Exhibit B attached hereto to authorize this Agreement and the transactions contemplated hereby. The Signing Resolutions
are valid, in full force and effect and have not been modified or supplemented in any respect. The Company has delivered to the Investor
a true and correct copy of a unanimous written consent adopting the Signing Resolutions executed by all of the members of the Board of
Directors of the Company. Except as set forth in this Agreement, no other approvals or consents of the Board of Directors, any other
authorized committee thereof, and/or stockholders is necessary under applicable laws and the Company’s Charter and/or Bylaws to
authorize the execution and delivery of this Agreement or any of the transactions contemplated hereby, including, but not limited to,
the issuance of the Commitment Shares and the issuance of the Purchase Shares.


 




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(c)
Capitalization. As of the date hereof, the authorized
capital stock of the Company consists of 200,000,000 shares of $0.01 par value Common Stock and 5,000,000 shares of $0.01 par value preferred
stock. Except as disclosed in the SEC Documents (as defined below), (i) no shares of the Company’s capital stock are subject to
preemptive rights or any other similar rights or any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding
debt securities, (iii) there are no outstanding options, warrants, scrip, rights to subscribe to, calls or commitments of any character
whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries,
or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue
additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the
Company or any of its Subsidiaries, (iv) there are no agreements or arrangements under which the Company or any of its Subsidiaries is
obligated to register the sale of any of their securities under the Securities Act (except the Registration Rights Agreement and those
registration rights for which a registration statement has been filed), (v) there are no outstanding securities or instruments of the
Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of
its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by
the issuance of the Securities as described in this Agreement and (vii) the Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement. The Company has furnished to the Investor true and correct copies
of the Charter and the Bylaws, each as in effect on the date hereof, and copies of any documents containing the material rights of holders
of securities convertible or exercisable for Common Stock, to the extent not filed as an exhibit to the Company’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2021 or other Exchange Act reports.


 


(d)
Issuance of Securities. Upon issuance and payment
therefor in accordance with the terms and conditions of this Agreement, the Purchase Shares shall be validly issued, fully paid and nonassessable
and free from all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights with respect to the issue thereof,
with the holders being entitled to all rights accorded to a holder of Common Stock. 3,781,330 shares of Common Stock have been duly authorized
and reserved for issuance upon purchase under this Agreement as Purchase Shares. 142,450 shares of Common Stock have been duly authorized
and reserved for issuance as Initial Commitment Shares, and 76,220 shares of Common Stock have been duly authorized and reserved for
issuance as Additional Commitment Shares in accordance with this Agreement (subject, in each case, to equitable adjustment for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction). Upon issuance in accordance with the terms and conditions
of this Agreement, each of the Purchase Shares and the Commitment Shares shall be validly issued, fully paid and nonassessable and free
from all taxes, Liens, charges, restrictions, rights of first refusal and preemptive rights with respect to the issue thereof, with the
holders being entitled to all rights accorded to a holder of Common Stock. Upon receipt of the Purchase Shares and the Commitment Shares,
the Investor will have good and marketable title to such Securities and such Securities will be immediately freely tradeable on the Principal
Market by any holder who is not an “affiliate” of the Company under the Securities Act.


 




    	-12-



     


    

 


(e)
No Conflicts. The execution, delivery and performance
of the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby (including,
without limitation, the reservation for issuance and issuance of the Purchase Shares and the Commitment Shares) will not (i) result in
a violation of the Charter, any certificate of designations, preferences and rights of any outstanding series of preferred stock of the
Company or the Bylaws or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become
a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which the Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order,
judgment or decree (including federal and state securities laws and regulations and the rules and regulations of the Principal Market
applicable to the Company or any of its Subsidiaries) or by which any property or asset of the Company or any of its Subsidiaries is
bound or affected, except in the case of conflicts, defaults, terminations, amendments, accelerations, cancellations and violations under
clause (ii), which would not reasonably be expected to result in a Material Adverse Effect. Neither the Company nor its Subsidiaries
is in violation of any term of or in default under its Charter, any certificate of designation, preferences and rights of any outstanding
series of preferred stock of the Company or Bylaws or their organizational charter or bylaws, respectively. Neither the Company nor any
of its Subsidiaries is in violation of any term of or is in default under any material contract, agreement, mortgage, indebtedness, indenture,
instrument, judgment, decree or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible
conflicts, defaults, terminations or amendments that would not reasonably be expected to have a Material Adverse Effect. The business
of the Company and its Subsidiaries is not being conducted, and shall not be conducted, in violation of any law, ordinance or regulation
of any governmental entity, except for possible violations, the sanctions for which either individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required under
the Securities Act or applicable state securities laws and the rules and regulations of the Principal Market, the Company is not required
to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency or any regulatory
or self-regulatory agency in order for it to execute, deliver or perform any of its obligations under or contemplated by the Transaction
Documents in accordance with the terms hereof or thereof. Except as set forth elsewhere in this Agreement, (i) all consents, authorizations,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence on or prior to the date
hereof or on or prior to the Commencement Date shall have been obtained or effected on or prior to the date hereof and on or prior to
the Commencement Date, respectively, and (ii) all consents, authorizations, orders, filings and registrations which the Company is required
to obtain pursuant to the preceding sentence with respect to the Commencement shall be obtained or effected on or prior to the Commencement
Date.


 


(f)
SEC Documents; 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 twelve months 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, together with the Registration Statement, being collectively referred to herein
as the “SEC Documents”) on a timely basis or has received a valid extension of such time of filing and has filed any
such SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable. None of the SEC Documents, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the
Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods presented,
subject, in the case of unaudited financial statements, to normal, immaterial, year-end audit adjustments. Except as publicly available
through the SEC’s Electronic Data Gathering, Analysis, and Retrieval system (EDGAR), the Company has received no notices or correspondence
from the SEC for the one year preceding the date hereof other than SEC comment letters relating to the Company’s filings under
the Exchange Act and the Securities Act. There are no SEC comments that have not been resolved to the satisfaction of the SEC staff.
To the Company’s knowledge, the SEC has not commenced any enforcement proceedings against the Company or any of its Subsidiaries.


 




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(g)
Absence of Certain Changes. Except as disclosed
in the SEC Documents filed prior to the date hereof, since September 30, 2022, there has been no material adverse change in the business,
properties, operations, financial condition or results of operations of the Company or its Subsidiaries. The Company has not taken any
steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company or any
of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy or insolvency
proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.


 


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


 


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


 


(j)
No Aggregated Offering. Neither the Company,
nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities to be integrated
or aggregated with prior offerings by the Company in a manner that would require stockholder approval pursuant to the rules of the Principal
Market on which any of the securities of the Company are listed or designated. The issuance and sale of the Commitment Shares hereunder
does not, and subject to the terms of this Agreement, the issuance and sale of the additional Purchase Shares will not, contravene the
rules and regulations of the Principal Market.


 




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


 


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


 


(m)
Title. Except as set forth in the SEC Documents
filed prior to the date hereof, the Company and its Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and its
Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects (“Liens”) and,
except for Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its Subsidiaries and Liens for the payment of federal, state or other taxes, the payment
of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and its Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are in compliance with such
exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company
and its Subsidiaries, taken as a whole, except for such interference which would not reasonably be expected to have a Material Adverse
Effect.


 


(n)
Insurance. The Company and each of its Subsidiaries
are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of the
Company believes to be prudent and customary in the businesses in which the Company and its Subsidiaries are engaged (including in respect
of directors and officers liability insurance). Neither the Company nor any such Subsidiary has been refused any insurance coverage sought
or applied for and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business
or operations of the Company and its Subsidiaries, taken as a whole.


 




    	-15-



     


    

 


(o)
Regulatory Permits. Except as disclosed in the
SEC Documents filed prior to the date hereof, the Company and its Subsidiaries possess all material certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses as
currently conducted, except where the failure to possess such certificates, authorizations or permits would not reasonably be expected
to have a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any written notice of proceedings relating
to the revocation or modification of any such material certificate, authorization or permit.


 


(p)
Compliance with Laws. The Company is not in violation
of any Applicable Law, except as would not reasonably be expected to have a Material Adverse Effect.


 


(q)
Tax Status. The Company and each of its Subsidiaries
has made or filed all federal, state, local or foreign income and all other material tax returns, reports and declarations required by
any jurisdiction to which it is subject or otherwise filed timely extensions (unless and only to the extent that the Company and each
of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes) and
has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith and has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply, and except as
would not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, there are no unpaid taxes in any
material amount claimed to be due by the taxing authority of any jurisdiction.


 


(r)
Transactions With Affiliates. Except as disclosed
in the SEC Documents filed prior to the date hereof, none of the Company’s stockholders covered
by Item 403(a) of Regulation S-K, officers or directors or any family member or affiliate of any of the foregoing, has either directly
or indirectly an interest in, or is a party to, any transaction that would be required to be disclosed as a related party transaction
pursuant to Item 404 of Regulation S-K promulgated under the Securities Act.


 


(s)
Application of Takeover Protections. The Company
and its board of directors have taken or will take prior to the Commencement Date all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Charter or the laws of the state of its incorporation which is or could become applicable to the Investor
as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s issuance of the Securities
and the Investor’s ownership of the Securities.


 


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


 




    	-16-



     


    

 


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


 




    	-17-



     


    

 


(v)
DTC Eligibility. The Company, through the Transfer
Agent, currently participates in the DTC Fast Automated Securities Transfer (FAST) Program and the Common Stock can be transferred electronically
to third parties via the DTC Fast Automated Securities Transfer (FAST) Program. The Common Stock is not subject to any DTC “chill,”
freeze or similar restriction with respect to any DTC services, including the clearing of shares of Common Stock through DTC.


 


(w)
Sarbanes-Oxley. The Company is in material compliance
with all provisions of the Sarbanes-Oxley Act of 2002, as amended, which are applicable to it as of the date hereof.


 


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


 


(y)
Investment Company. The Company is not required
to be registered as, and immediately after receipt of any payment for the Purchase Shares will not be required to be registered as, an
“investment company” within the meaning of the Investment Company Act of 1940, as amended.


 


(z)
Listing and Maintenance Requirements. The Common
Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to its knowledge
is likely to have the effect of, terminating the registration of the Common Stock pursuant to the Exchange Act nor has the Company received
any notification that the SEC is currently contemplating terminating such registration. The Company has filed with The Nasdaq Stock Market
a Notification Form: Listing of Additional Shares for the listing of the Securities. The Company has taken no action designed to, or
likely to have the effect of, delisting the Common Stock from the Principal Market, nor has the Company received any notice from any
Person to the effect that the Company is not in compliance with the listing or maintenance requirements of the Principal Market. The
Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements.


 


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


 


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


 


(cc)
Shell Company Status. The Company has never been
an issuer identified in Rule 144(i)(1) under the Securities Act.


 


(dd)
No Disqualification Events. None of the Company,
any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company participating in the offering
contemplated hereby, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the
basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with the Company in
any capacity at the time of sale (each, an “Issuer Covered Person”) 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) under the Securities Act. The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a Disqualification Event.


 




    	-18-



     


    

 


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


 


5.
COVENANTS.


 


(a)
Filing of Current Report and Registration Statement.
The Company agrees that it shall, within the time required under the Exchange Act, file with the SEC a report on Form 8-K relating to
the transactions contemplated by, and describing the material terms and conditions of, the Transaction Documents (the “Current
Report”). The Company shall also file with the SEC, as soon as practicable, and in any event within twenty (20) Business Days
of the date of this Agreement, a Registration Statement on Form S-1 covering the resale of the Purchase Shares and all of the Commitment
Shares in accordance with the terms of the Registration Rights Agreement. The Company shall permit the Investor to review and comment
upon the final pre-filing draft version of each of the Current Report and the Registration Statement at least two (2) Business Days prior
to their respective filing with the SEC and, with respect to information regarding the Investor or the transaction contemplated hereby,
the Company shall not file the Current Report or the Registration Statement with the SEC in a form to which the Investor reasonably objects.
The Investor shall use its reasonable best efforts to comment upon the final pre-filing draft version of the Current Report and the Registration
Statement within one (1) Business Day from the date the Investor receives it from the Company.


 


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


 


(c)
Listing/DTC. The Company shall use commercially
reasonable efforts to maintain, so long as any shares of Common Stock shall be so listed, such listing of all Purchase Shares and Commitment
Shares from time to time issuable hereunder. The Company shall use commercially reasonable efforts to maintain the listing of the Common
Stock on the Principal Market and shall use commercially reasonable efforts to comply in all respects with the Company’s reporting,
filing and other obligations under the Exchange Act, or rules and regulations of the Principal Market. The Company shall not take any
action that would reasonably be expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company
shall promptly, and in no event later than the following Business Day, provide to the Investor copies of any notices it receives from
any Person regarding the continued eligibility of the Common Stock for listing on the Principal Market; provided, however, that the Company
shall not be required to provide the Investor copies of any such notice that the Company reasonably believes constitutes material non-public
information that the Company would not be required to contemporaneously publicly disclose in any report or statement filed with the SEC
under the Exchange Act or the Securities Act. The Company shall pay all fees and expenses in connection with satisfying its obligations
under this Section 5(c). The Company shall take all commercially reasonable action necessary to ensure that its Common Stock can
be transferred electronically as DWAC Shares.


 


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


 


(e)
Issuance of Commitment Shares. In consideration
for the Investor’s execution and delivery of this Agreement, the Company shall cause the Transfer Agent to (i) issue on the date
of this Agreement 142,450 shares of Common Stock (the “Initial Commitment Shares”) directly to the Investor in accordance
with Section 6 hereto and the Irrevocable Transfer Agent Instructions and (ii) issue a number of shares of Common Stock equal
to the Additional Commitment Shares Number, on the date the Company has sold over $10,000,000 Purchase Shares to the Investor, (to be
appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction) (the “Additional Commitment Shares” and, together with the Initial Commitment Shares, the “Commitment
Shares”) directly to the Investor in accordance with Section 6 hereto. For the avoidance of doubt, all of the Initial
Commitment Shares shall be fully earned as of the date of this Agreement, whether or not the Commencement shall occur or any Purchase
Shares are purchased by the Investor under this Agreement and irrespective of any termination of this Agreement.


 




    	-19-



     


    

 


(f)
Due Diligence; Non-Public Information. During
the term of this Agreement, the Investor shall have the right, from time to time as the Investor may reasonably deem appropriate, and
upon reasonable advance notice to the Company, to perform reasonable due diligence on the Company during normal business hours. The Company
and its officers and employees shall provide material information and reasonably cooperate with the Investor in connection with any reasonable
request by the Investor related to the Investor’s due diligence of the Company. Each party hereto agrees not to disclose any Confidential
Information of the other party to any third party and shall not use the Confidential Information for any purpose other than in connection
with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges that the Confidential Information shall
remain the property of the disclosing party and agrees that it shall take all reasonable measures to protect the secrecy of any Confidential
Information disclosed by the other party. The receiving party may disclose Confidential Information to the extent such information is
required to be disclosed by law, regulation or order of a court of competent jurisdiction or regulatory authority, provided that the
receiving party shall promptly notify the disclosing party when such requirement to disclose arises, and shall cooperate with the disclosing
party so as to enable the disclosing party to: (i) seek an appropriate protective order; and (ii) make any applicable claim of confidentiality
in respect of such Confidential Information; and provided, further, that the receiving party shall disclose Confidential Information
only to the extent required by the protective order or other similar order, if such an order is obtained, and, if no such order is obtained,
the receiving party shall disclose only the minimum amount of such Confidential Information required to be disclosed in order to comply
with the applicable law, regulation or order. In addition, any such Confidential Information disclosed pursuant to this section shall
continue to be deemed Confidential Information. Notwithstanding anything in this Agreement to the contrary, (x) the Company shall not
be obligated to provide the Investor with any information that constitutes or may reasonably be considered to constitute material, non-public
information pursuant to a request for information hereunder, and (y) the Company and the Investor agree that (A) neither the Company
nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any information that constitutes or
may reasonably be considered to constitute material, non-public information, unless a simultaneous public announcement thereof is made
by the Company in the manner contemplated by Regulation FD, and (B) in the event the Company believes that a notice or communication
to the Investor or any of its affiliates, attorneys, agents or representatives pursuant to this Agreement or any other Transaction Document
contains any material, nonpublic information, the Company shall so indicate to the Investor prior to delivery of such notice or communication,
and such indication shall provide the Investor the means to refuse to receive such notice or communication; and in the absence of any
such indication, the Investor and its affiliates, agents and representatives shall be allowed to presume that all matters relating to
such notice or communication do not constitute material, non-public information. In the event of any breach of the foregoing covenants
by the Company or any Person acting on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition
to any other remedy provided herein or in the other Transaction Documents, if the Investor is holding any Securities at the time of the
disclosure of such material non-public information, the Investor shall have the right to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such material, non-public information without the prior approval by the Company; provided
the Investor shall have first provided notice to the Company that it believes it has received information that constitutes material,
non-public information; and the Company shall have at least two Business Days from such notice to either publicly disclose such material,
non-public information or to demonstrate to the Investor that such information does not constitute material, non-public information,
and (assuming the Investor and Investor’s counsel disagree in their reasonable good faith judgment with the Company’s determination)
prior to any such disclosure by the Investor; and the Company shall have failed to publicly disclose such material, non-public information.
The Investor shall not have any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees,
stockholders or agents, for any such disclosure in accordance with this Section 5(f). The Company understands and confirms that
the Investor shall be relying on the foregoing covenants in effecting transactions in securities of the Company. The Company hereby acknowledges
and agrees that, notwithstanding the provisions of this Section 5(f), if there is a breach or violation of any representation,
covenant, provision or agreement of the Company set forth in this Section 5(f) or Section 5(a) resulting in the Investor
obtaining or otherwise possessing material nonpublic information, neither the Investor nor any of the Investor’s affiliates, attorneys,
agents or representatives shall have any duty of trust or confidence (including any obligation under any confidentiality or non-disclosure
agreement entered into by the Investor with the Company) with respect to, or obligation not to trade in any securities while aware of,
such material nonpublic information.


 




    	-20-



     


    

 


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


 


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


 


(i)
Use of Proceeds. The Company will use the net
proceeds from the offering for any corporate purpose at the sole discretion of the Company.


 


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


 


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


 


(l)
Limitation on Variable Rate Transactions. From
and after the date of this Agreement until the Maturity Date, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company or any of its Subsidiaries of Common Stock involving a Variable Rate Transaction other than with
the Investor. “Variable Rate Transaction” includes, without limitation, an “equity line of credit” or
any similar transaction whereby an investor is irrevocably bound to purchase securities over a period of time from the Company at a price
based on the market price of the Company’s Common Stock at the time of each such purchase; provided, however, that this Section
5(l) shall not be deemed to prohibit the issuance and sale of Common Stock pursuant to an “at-the-market offering” by the
Company exclusively through a registered broker-dealer acting as agent of the Company pursuant to a written agreement between the Company
and such registered broker-dealer.


 




    	-21-



     


    

 


6.
TRANSFER AGENT INSTRUCTIONS.


 


(a)
Initial Commitment Shares. On the date of this Agreement, the Company shall issue to the Transfer Agent (and any subsequent transfer
agent) irrevocable instructions, in the form agreed to prior to the date hereof (the “Irrevocable Transfer Agent Instructions”),
to issue the Initial Commitment Shares in accordance with the terms of this Agreement. The book-entry statement(s) representing the Initial
Commitment Shares shall bear the following restrictive legend (the “Restrictive Legend”) and no other legend whatsoever:


 


THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.


 


The
Company warrants to the Investor that, while the Agreement is effective, no instruction other than the Irrevocable Transfer Agent Instructions
referred to in this Section 6 will be given by the Company to the Transfer Agent with respect to the Initial Commitment Shares,
and the Initial Commitment Shares shall otherwise be freely transferable on the books and records of the Company.


 


The
Company agrees that, following the effective date of the initial Registration Statement, it will, no later than two (2) Business Days
following the delivery by the Investor to the Company or the Transfer Agent of a certificate representing any Initial Commitment Shares
issued with the Restrictive Legend (or, in the case of Initial Commitment Shares represented by book entries, delivery by the Investor
to the Company or the Company’s transfer agent of a legend removal request) cause the Initial Commitment Shares to be delivered
to the Investor’s or its designee’s specified Deposit/Withdrawal at Custodian (DWAC) account with DTC under its Fast Automated
Securities Transfer (FAST) Program as DWAC Shares.


 


(b)
Additional Commitment Shares. On the first date the Company has sold over $10,000,000 Purchase Shares to the Investor, the Company
shall issue to the Transfer Agent (and any subsequent transfer agent) irrevocable instructions, in substantially the form agreed to prior
to the date hereof, to issue the Additional Commitment Shares in accordance with the terms of this Agreement (the “Irrevocable
Additional Transfer Agent Instructions”). All Additional Commitment Shares to be issued to or for the benefit of the Investor
pursuant to this Agreement shall be issued as DWAC Shares. The Company warrants to the Investor that, while the Agreement is effective,
no instruction other than the Irrevocable Additional Transfer Agent Instructions referred to in this Section 6 will be given by the Company
to the Transfer Agent with respect to the Additional Commitment Shares, and the Additional Commitment Shares shall otherwise be freely
transferable on the books and records of the Company.


 




    	-22-



     


    

 


(c)
Purchase Shares. Within two (2) Business Days from the date on which the Registration Statement is declared effective by the SEC,
the Company shall issue to the Transfer Agent, and any subsequent transfer agent, (i) irrevocable instructions in the form agreed to
prior to the date hereof (the “Commencement Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness
of the Registration Statement in a form acceptable to the Transfer Agent (the “Notice of Effectiveness of Registration Statement”),
in each case to issue the Purchase Shares in accordance with the terms of this Agreement and the Registration Rights Agreement. All Purchase
Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant to this Agreement shall be issued only
as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement is effective, no instruction other than
as contemplated by the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement
will be given by the Company to the Transfer Agent with respect to the Purchase Shares from and after Commencement, and no instruction
or other communication to the Transfer Agent with respect to the issuance of the Purchase Shares shall be made without the approval of
the Investor. The Company shall provide confirmation of receipt by the Transfer Agent of all instructions pursuant to the Commencement
Irrevocable Transfer Agent Instructions with respect to Purchase Shares within one (1) Business Day of delivery of any Purchase Notice.
The Purchase Shares covered by the Registration Statement shall otherwise be freely transferable on the books and records of the Company.


 


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


 


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


 


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


 


(b)
The representations and warranties of the Investor shall
be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified
as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification)
as of the date hereof and as of the Commencement Date as though made at that time; and


 


(c)
The Registration Statement covering the resale of all
of the Commitment Shares and the Purchase Shares shall have been declared effective under the Securities Act by the SEC and no stop order
with respect to the Registration Statement shall be pending or threatened by the SEC.


 




    	-23-



     


    

 


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


 


The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction or, where legally permissible,
the waiver of each of the following conditions on or prior to the Commencement Date and, once such conditions have been initially satisfied,
there shall not be any ongoing obligation to satisfy such conditions after the Commencement has occurred (except in the case of an extension
of the Maturity Date to the date that is the first day of the month immediately following the forty-eight (48) month anniversary of the
Commencement Date, in which case the Company shall be obligated to satisfy the conditions on the date of its delivery of the notice of
such extension):


 


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


 


(b)
The Company shall have issued or caused to be issued
to the Investor a number of shares of Common Stock equal to the number of Initial Commitment Shares, and, in the case of an extension
by the Company of the Maturity Date, the Company shall have issued or caused to be issued to the Investor a number of shares of Common
Stock equal to the Additional Commitment Shares Number as DWAC Shares, in each case subject to and in accordance with Section 6;


 


(c)
The Common Stock shall be listed on the Principal Market,
trading in the Common Stock shall not have been suspended by the SEC or the Principal Market within the last 365 days, and the Company
shall have filed with The Nasdaq Stock Market a Notification Form: Listing of Additional Shares for the listing of the Securities, and
Nasdaq shall have raised no objection to the consummation of the transactions contemplated by this Agreement;


 


(d)
The Investor shall have received the opinion and negative
assurances letter of the Company’s legal counsel dated as of the Commencement Date (and, in the case of an Extension of the Maturity
Date, the date of the Company’s written notice to the Investor of such extension) substantially in the forms agreed prior to the
date of this Agreement by the Company’s legal counsel and the Investor’s legal counsel;


 


(e)
The representations and warranties of the Company shall
be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified
as to materiality in Section 4 above, in which case, such representations and warranties shall be true and correct without further
qualification) as of the date hereof, as of the Commencement Date and, in the case of an Extension of the Maturity Date, the date of
the Company’s written notice to the Investor of such extension as though made at that time (except for representations and warranties
that speak as of a specific date, which shall be true and correct in all material respects as of such date) and the Company shall have
performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date (and, in the case of an Extension
of the Maturity Date, the date of the Company’s written notice to the Investor of such extension). The Investor shall have received
a certificate, executed by the CEO, President or CFO of the Company, dated as of the Commencement Date (and, in the case of an Extension
of the Maturity Date, the date of the Company’s written notice to the Investor of such extension), to the foregoing effect in the
form attached hereto as Exhibit A;


 


(f)
The Board of Directors of the Company shall have adopted
Signing Resolutions, which shall be in full force and effect without any amendment or supplement thereto as of the Commencement Date
(and, in the case of an Extension of the Maturity Date, the date of the Company’s written notice to the Investor of such extension);


 


(g)
As of the Commencement Date (and, in the case of an
Extension of the Maturity Date, the date of the Company’s written notice to the Investor of such extension), the Company shall
have reserved out of its authorized and unissued Common Stock, (i) solely for the purpose of effecting purchases of Purchase Shares hereunder,
3,781,330 shares of Common Stock and (ii) solely for the purpose of effecting the issuance of Additional Commitment Shares hereunder,
76,220 shares of Common Stock;


 




    	-24-



     


    

 


(h)
The Commencement Irrevocable Transfer Agent Instructions
and the Notice of Effectiveness of Registration Statement, each shall have been delivered to and acknowledged in writing by the Company
and the Transfer Agent (or any successor transfer agent);


 


(i)
The Company shall have delivered to the Investor a certificate
of good standing of the Company in the State of Delaware issued by the Secretary of State of the State of Delaware and a certificate
or its equivalent evidencing the good standing of the Company as a foreign corporation in any other jurisdiction where the Company is
duly qualified to conduct business, in each case, as of a date within ten (10) Business Days of the Commencement Date (and, in the case
of an Extension of the Maturity Date, the date of the Company’s written notice to the Investor of such extension);


 


(j)
The Company shall have delivered to the Investor a certified
copy of the Charter as certified by the Secretary of State of the State of Delaware within ten (10) Business Days of the Commencement
Date (and, in the case of an Extension of the Maturity Date, the date of the Company’s written notice to the Investor of such extension);


 


(k)
The Company shall have delivered to the Investor a secretary’s
certificate executed by the Secretary of the Company, dated as of the Commencement Date (and, in the case of an Extension of the Maturity
Date, the date of the Company’s written notice to the Investor of such extension), in the form attached hereto as Exhibit
C;


 


(l)
The Registration Statement
covering the resale of the Commitment Shares and Purchase Shares shall have been declared effective under the Securities Act by the SEC
and no stop order with respect to the Registration Statement shall be pending or threatened by the SEC. The Company shall have prepared
and filed with the SEC, not later than one (1) Business Day after the effective date of the Registration Statement, a final and complete
prospectus (the preliminary form of which shall be included in the Registration
Statement) and shall have delivered to the Investor a true and complete copy thereof. Such prospectus shall be current and available
for the resale by the Investor of all of the Securities covered thereby. The Current Report shall have been filed with the SEC, as required
pursuant to Section 5(a). All reports, schedules, registrations, forms, statements, information and other documents required to have
been filed by the Company with the SEC at or prior to the Commencement Date (and, in the case of an Extension of the Maturity Date, the
date of the Company’s written notice to the Investor of such extension) pursuant to the reporting requirements of the Exchange
Act shall have been filed with the SEC within the applicable time periods prescribed for such filings under the Exchange Act;


 


(m)
No Event of Default (as defined below) shall have occurred,
and no event which, after notice and/or lapse of time, would reasonably be expected to become an Event of Default shall have occurred;


 


(n)
The Exchange Cap shall not have been reached (to the
extent the Exchange Cap is applicable pursuant to Section 2(d) hereof);


 


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


 




    	-25-



     


    

 


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


 


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


 


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


 


9.
INDEMNIFICATION.


 


In
consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Purchase Shares hereunder
and in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Investor and all of its affiliates, equityholders, members, managers, officers, directors and employees and any
of the foregoing Person’s agents or other representatives (including, without limitation, those retained in connection with the
transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all actions,
causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and reasonable expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable
and documented attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee
as a result of, or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company
in the Transaction Documents or any other certificate, instrument or document executed by the Company contemplated hereby or thereby,
(b) any breach of any covenant, agreement or obligation of the Company contained in the Transaction Documents or any other certificate,
instrument or document executed by the Company contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made
against such Indemnitee and arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction Documents
or any other certificate, instrument or document contemplated hereby or thereby, other than, in the case of clause (c) with respect to
Indemnified Liabilities which directly and primarily result from the fraud, gross negligence or willful misconduct of an Indemnitee.
The indemnity in this Section 9 shall not apply to amounts paid in settlement of any claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. To the extent that
the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. Payment under this indemnification
shall be made within thirty (30) days from the date the Investor makes written request for it. A certificate containing reasonable detail
as to the amount of such indemnification submitted to the Company by the Investor shall be conclusive evidence, absent manifest error,
of the amount due from the Company to the Investor, provided that the Indemnitee shall undertake to repay any amounts paid to it hereunder
if it is ultimately determined, by a final and non-appealable order of a court of competent jurisdiction, that the Indemnitee is not
entitled to be indemnified against such Indemnified Liabilities by the Company pursuant to this Agreement. If any action shall be brought
against any Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Indemnitee shall promptly notify
the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Indemnitee. Any Indemnitee shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee, except to the extent that (i)
the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period
of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel,
a material conflict on any material issue between the position of the Company and the position of such Indemnitee, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel (plus local counsel). The
Company shall not, without the consent of the Indemnitee, consent to the entry of any judgment or enter into any settlement or other
compromise which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnitee of a release
from all liability in respect to such claim or litigation or which includes any admission as to fault, culpability or failure to act
on the part of such Indemnitee.


 




    	-26-



     


    

 


10.
EVENTS OF DEFAULT.


 


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


 


(a)
the effectiveness of a Registration Statement registering
the sale or resale of the Securities lapses for any reason (including, without limitation, the issuance of a stop order or similar order)
or such registration statement (or the prospectus forming a part thereof) is unavailable to the Investor for sale or resale of any or
all of the Securities to be issued to the Investor under the Transaction Documents that are required to be included therein, and such
lapse or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business
Days in any 365-day period, but excluding a lapse or unavailability where (i) the Company terminates a Registration Statement after the
Investor has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company supersedes one Registration
Statement with another Registration Statement, including (without limitation) by terminating a prior Registration Statement when it is
effectively replaced with a new Registration Statement covering Securities (provided in the case of this clause (ii) that all of the
Securities covered by the superseded (or terminated) Registration Statement that have not theretofore been resold are included in the
superseding (or new) Registration Statement);


 


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


 


(c)
the delisting of the Common Stock from The NASDAQ Capital
Market provided, however, that the Common Stock is not immediately thereafter trading on The NASDAQ Global Select Market, The NASDAQ
Global Market, the New York Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin Board, or the OTCQB or the OTCQX operated
by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing);


 


(d)
the failure for any reason by the Transfer Agent to
issue (i) the Additional Commitment Shares to the Investor within two (2) Business Days after the date on which the Investor is entitled
to receive such Additional Commitment Shares pursuant to Section 5(e) hereof and (ii) the Purchase Shares to the Investor within two
(2) Business Days after the applicable Purchase Date, Accelerated Purchase Date or Additional Accelerated Purchase Date (as applicable)
on which the Investor is entitled to receive such Purchase Shares;


 




    	-27-



     


    

 


(e)
the Company breaches any representation, warranty, covenant
or other term or condition under this Agreement, any other Transaction Document or any other certificate, instrument or document executed
by the Company contemplated hereby or thereby, if such breach would reasonably be expected to have a Material Adverse Effect and except,
in the case of a breach of a covenant which is reasonably curable, only if such breach continues for a period of at least five (5) Business
Days;


 


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


 


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


 


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


 


(i)
if at any time the Company is not eligible to transfer
its Common Stock electronically as DWAC Shares or if the Company fails to maintain the service of its Transfer Agent (or a successor
Transfer Agent) with respect to the issuance of Purchase Shares under this Agreement, including but not limited to, maintaining the effectiveness
of the Commencement Irrevocable Transfer Instructions, payment of all fees owed to the Transfer Agent and satisfaction of all conditions
required by the Transfer Agent to issue Purchase Shares pursuant to the Commencement Irrevocable Transfer Agent Instructions.


 


In
addition to any other rights and remedies under applicable law and this Agreement, so long as (i) an Event of Default has occurred and
is continuing, or if any event that, after notice and/or lapse of time, would reasonably be expected to become an Event of Default, has
occurred and is continuing or (ii) if at any time after the Commencement Date, the Exchange Cap is reached (to the extent the Exchange
Cap is applicable pursuant to Section 2(d) hereof), the Company shall not deliver to the Investor any Regular Purchase Notice, Accelerated
Purchase Notice or Additional Accelerated Purchase Notice.


 


11.
TERMINATION


 


This
Agreement may be terminated only as follows:


 


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


 


(b)
In the event that the Commencement shall not have occurred
on or before March 15, 2023, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect
to the Commencement, then this Agreement may be terminated by any party at the close of business on March 15, 2023 or thereafter, in
each case without liability of such party to the other party (except as set forth below); provided, however, that the right to terminate
this Agreement under this Section 11(b) shall not be available to any party if such party is then in breach of any covenant or
agreement contained in this Agreement or any representation or warranty of such party contained in this Agreement fails to be true and
correct such that the conditions set forth in Section 7(b) or Section 8(e), as applicable, could not then be satisfied.


 




    	-28-



     


    

 


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


 


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


 


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


 


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


 


12.
MISCELLANEOUS.


 


(a)
Governing Law; Jurisdiction; Jury Trial. The
corporate laws of the State of Delaware shall govern all issues concerning the relative rights of the Company and its stockholders. All
other questions concerning the construction, validity, enforcement and interpretation of this Agreement and the other Transaction Documents
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of and venue in the U.S. District
Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in
the City and County of New York, for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection
herewith or therewith, or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not
to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT
TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY.


 




    	-29-



     


    

 


(b)
Counterparts. This Agreement may be executed
in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts
have been signed by each party and delivered to the other party. Signatures transmitted by Adobe Sign, DocuSign, RightSignature, electronic
mail, or other digital or electronic means will be treated as original signatures for all purposes hereunder, each of which shall be
of the same legal effect, validity, and enforceability as a manually executed signature.


 


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


 


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


 


(e)
Entire Agreement. Except as to the Company’s
obligation in respect of fees and expenses due and payable in connection with the negotiation and entry into the Transaction Documents,
which are set forth in the Term Sheet dated November 17, 2022, the Transaction Documents supersede all other prior oral or written agreements
between the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the subject matter thereof, and
this Agreement, the other Transaction Documents and the instruments referenced herein contain the entire understanding of the parties
with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor
the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. The Company acknowledges and agrees
that it has not relied on, in any manner whatsoever, any representations or statements, written or oral, other than as expressly set
forth in the Transaction Documents. The Investor acknowledges and agrees that it has not relied on, in any manner whatsoever, any representations
or statements, written or oral, other than as expressly set forth in the Transaction Documents.


 


(f)
Notices. Any notices, consents or other communications
required or permitted to be given under the terms of this Agreement must be in writing and will be deemed to have been delivered: (i)
upon receipt when delivered personally; (ii) upon receipt when sent by facsimile or email (provided confirmation of transmission is mechanically
or electronically generated and kept on file by the sending party); or (iii) one (1) Business Day after deposit with a nationally recognized
overnight delivery service, in each case properly addressed to the party to receive the same. The addresses for such communications shall
be:


 


If
to the Company:


 


Indaptus
Therapeutics, Inc.


3
Columbus Circle


15th
Floor


New
York, New York 10019


E-mail:
nir@indaptusrx.com


Attention:
Nir Sassi


 




    	-30-



     


    

 


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


 


Greenberg
Traurig LLP


One
Vanderbilt Avenue


New
York, NY 10017


Telephone:
212-801-9337


Email:
gary.emmanuel@gtlaw.com


Attention:
Gary Emmanuel, Esq.


 


If
to the Investor:


 


Lincoln
Park Capital Fund, LLC


440
North Wells, Suite 410


Chicago,
IL 60654


	 	Telephone:	312-822-9300
	 	Facsimile:	312-822-9301
	 	E-mail:	jscheinfeld@lpcfunds.com/jcope@lpcfunds.com
	 	Attention:	Josh
    Scheinfeld/Jonathan Cope


 


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


 


Katten
Muchin Rosenman LLP


525
W. Monroe St.


Chicago,
IL 60661


	 	Telephone:	(312)
    902-5493
	 	E-mail:
    	mark.wood@katten.com
	 	Attention:	Mark
    D. Wood, Esq.


 


If
to the Transfer Agent:


 


VStock
Transfer, LLC


18
Lafayette Pl.


Woodmere,
NY 11598.


	 	Telephone:	212-828-8436
	 	Facsimile:	646-536-3179
	 	Email:	info@vstocktransfer.com


 


or
at such other address, email address and/or facsimile number and/or to the attention of such other Person as the recipient party has
specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written confirmation
of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically generated by
the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or email address, as
applicable, or (C) provided by a nationally recognized overnight delivery service, shall be rebuttable evidence of personal service,
receipt by facsimile or email or deposit with a nationally recognized overnight delivery service in accordance with clause (i), (ii)
or (iii) above, respectively.


 




    	-31-



     


    

 


(g)
Successors and Assigns. This Agreement shall
be binding upon and inure to the benefit of the parties and their respective successors and assigns. The Company shall not assign this
Agreement or any rights or obligations hereunder without the prior written consent of the Investor, including by merger or consolidation.
The Investor may not assign its rights or obligations under this Agreement.


 


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


 


(i)
Publicity. The Company shall afford the Investor
and its counsel with the opportunity to review and comment upon, shall consult with the Investor and its counsel on the form and substance
of, and shall give due consideration to all such comments from the Investor or its counsel on, any press release, any Current Report
on Form 8-K, or any other public disclosure by or on behalf of the Company relating to the Investor, its purchases hereunder or any aspect
to the Transaction Documents or the transactions contemplated thereby, not less than 24 hours prior to the issuance, filing or public
disclosure thereof. The Investor must be provided with a final version of any such press release, Current Report or other public disclosure
at least 24 hours prior to any release, filing or use by the Company thereof.


 


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


 


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


 


(l)
No Strict Construction; Rules of Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party. For the purposes of this Agreement, except to the extent that the context otherwise
requires: (i) when a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise indicated; (ii) headings for this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation of this Agreement; (iii) whenever the words “include,”
“includes” or “including” (or similar terms) are used in this Agreement, they are deemed to be followed by the
words “without limitation”; (iv) the words “hereof,” “herein” and “hereunder” and words
of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;
(v) the definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;; (vi) references
to a Person are also to its permitted successors and assigns; and (vii) the use of “or” is not intended to be exclusive unless
expressly indicated otherwise.


 




    	-32-



     


    

 


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


 


(n)
Enforcement Costs. If: (i) this Agreement is
placed by the Investor in the hands of an attorney for enforcement or is enforced by the Investor through any legal proceeding; (ii)
an attorney is retained to represent the Investor in any bankruptcy, reorganization, receivership or other proceedings affecting creditors’
rights and involving a claim under this Agreement; or (iii) subject to Section 9, an attorney is retained to represent the Investor
in any other proceedings whatsoever in connection with this Agreement, then the Company shall pay to the Investor, as incurred by the
Investor, all reasonable costs and expenses including attorneys’ fees incurred in connection therewith, in addition to all other
amounts due hereunder.


 


(o)
Amendment and Waiver; Failure or Indulgence Not Waiver.
No provision of this Agreement (i) may be amended other than by a written instrument signed by both parties hereto and (ii) may be waived
other than in a written instrument signed by the party against whom enforcement of such waiver is sought. No failure or delay in the
exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege.


 


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* * * *


 




    	-33-



     


    

 


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


 


	 	THE
    COMPANY:
	 	 
	 	INDAPTUS
    THERAPEUTICS, INC. 
	 	 	 
	 	By:
    	/s/
    Nir Sassi            
	 	Name:
    	Nir
    Sassi
	 	Title:
    	CFO


 


	 	THE
    INVESTOR:
	 	 
	 	LINCOLN
    PARK CAPITAL FUND, LLC 
	 	BY:
    LINCOLN PARK CAPITAL, LLC
	 	BY:
    ROCKLEDGE CAPITAL CORPORATION
	 	 	 
	 	By:
    	/s/
    Josh Scheinfeld
	 	Name:
    	Josh
    Scheinfeld
	 	Title:
    	President


 




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