Exhibit 10.4


 


SECURITIES PURCHASE AGREEMENT


 


This Securities Purchase Agreement
(this “Agreement”) is dated as of December 16, 2021, among Cleantech Acquisition Corp., a Delaware corporation (including
its successors and assigns, the “Company”), Nauticus Robotics, Inc., a Texas corporation formerly known as Houston
Mechatronics, Inc. (including its successors and assigns, the “Target”) and each purchaser identified on the signature
pages hereto (each, including its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).


 


WHEREAS, concurrently herewith,
the Company has entered into that certain Agreement and Plan of Merger (as in effect as of the date hereof, the “Merger Agreement”),
with CleanTech Merger Sub, Inc., a Texas corporation wholly owned by the Company (“Merger Sub”), the Target and Nicolaus
Radford, solely in his capacity as the representative, agent and attorney-in-fact of the Target’s shareholders, pursuant to which,
prior to the Closing (as defined below), the Merger Sub shall merge with and into the Target and, at the Closing, Target, as the surviving
entity, shall be a wholly-owned subsidiary of the Company (the “Merger”).


 


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


 


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


 


ARTICLE I.


DEFINITIONS


 


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


 


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


 


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


 


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


 


“Board
of Directors” means the board of directors of the Company or the Target, as applicable.


 






     


     


    

 


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


 


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


 


“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount, (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived and (iii) all conditions to consummate the Merger pursuant
to the Merger Agreement have been satisfied or will be satisfied concurrently with the consummation of the transactions contemplated pursuant
to this Agreement.


 


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


 


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


 


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


 


“Company
Counsel” means Loeb & Loeb LLP.


 


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


 


“Concurrent
Financing” shall have the meaning ascribed to such term in the definition of Exempt Issuance.


 


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


 


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


 


“Debentures”
means the 5% Original Issue Discount Senior Secured Convertible Debentures due, subject to the terms therein, four (4) years from their
date of issuance, issued by the Company to the Purchasers hereunder, in the form of Exhibit A attached hereto.


 






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“Disclosure
Schedules” means, collectively, the Company Disclosure Schedules and the Target Disclosure Schedules.


 


“Disclosure
Time” means 9:00 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless otherwise instructed
as to an earlier time by the Placement Agent.


 


“EGS”
means Ellenoff Grossman & Schole LLP, with offices located at 1345 Avenue of the Americas, New York, New York 10105-0302.


 


“Effective
Date” means the earliest of the date that (a) the Registration Statement registering all Underlying Shares has been declared
effective by the Commission, (b) all of the Underlying Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144
without the requirement for the Company to be in compliance with the current public information required under Rule 144 and without volume
or manner-of-sale restrictions or (c) following the one year anniversary of the Closing Date provided that a holder of the Underlying
Shares is not an Affiliate of the Company.


 


“Escrow
Agent” means an escrow agent reasonably acceptable to the Company, the Target and a majority in interest of the Purchasers..


 


“Escrow
Agreement” means the escrow agreement entered into prior to the date hereof, by and among the Company, the Escrow Agent and
the Placement Agent pursuant to which the Purchasers shall deposit Subscription Amounts with the Escrow Agent to be applied to the transactions
contemplated hereunder.


 


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


 


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


 


“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant
to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority
of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities
upon the exercise or exchange of or conversion of any Securities issued hereunder, warrants to the Placement Agent in connection with
the transactions pursuant to this Agreement and any securities upon exercise of warrants to the Placement Agent and/or other securities
exercisable or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided
that such securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the
exercise price, exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or
to extend the term of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority
of the disinterested directors of the Company, provided that such securities are issued as “restricted securities” (as defined
in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection therewith
during the prohibition period in Section 4.13(a) herein, and provided that any such issuance shall only be to a Person (or to the equityholders
of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with
the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not
include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary
business is investing in securities, (d) securities issued pursuant to the Merger Agreement, provided that the effective price per share
of any such securities is not lowered, any such securities are not amended to increase the number of shares issuable thereunder and none
of the terms or conditions of any such securities are otherwise materially changed in any manner that adversely affects any of the Purchasers
and (e) concurrently with the Closing, as contemplated by the Merger Agreement, a private placement of Common Stock with strategic or
existing investors with gross proceeds to the Company of at least $25 million for an effective per share purchase price of Common Stock
of not less than $10 and provided no additional securities, resets or rights shall be granted to the purchasers in connection therewith
and have pro-rata registration rights (but not on better terms than the Registration Rights Agreement) with the shares underlying the
Debentures (“Concurrent Financing”).





 


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


 


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


 


“Intellectual
Property Security Agreements” shall have the meaning ascribed to such term in Section 2.2(a).


 


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


 






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


 


“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the Closing Date, by and among the Company and the directors, officers,
and 5% or more stockholders of the Company immediately following the consummation of the Merger, in the form of Exhibit D attached
hereto. Alternatively, if provided by such party pursuant to the Merger and the terms thereof are substantially similar to Exhibit
D, such lock-up agreement shall be sufficient for purposes of this Agreement and shall be deemed a Lock-Up Agreement hereunder.


 


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


 





 


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


 


“Participation
Maximum” shall have the meaning ascribed to such term in Section 4.12(a).


 


“Permitted
Indebtedness” means (a) the indebtedness evidenced by the Debentures, (b) the Indebtedness existing on the date hereof and set
forth on Schedule 4.22, (c) lease obligations (including capital leases) and purchase money indebtedness of up to $500,000,
in the aggregate, incurred in connection with the acquisition of capital assets and lease obligations with respect to newly acquired or
leased assets, (d) indebtedness that (i) is expressly subordinate to the Debentures pursuant to a written subordination agreement with
the Purchasers that is acceptable to each Purchaser in its sole and absolute discretion and (ii) matures at a date later than the 91st
day following the Maturity Date (as defined in the Debentures), (e) up to $75 million, in the aggregate, indebtedness that is senior,
pari-passu or junior to the Debentures (including unsecured indebtedness), provided that (i) any such indebtedness does not include any
equity or equity-linked component thereof and (ii) any pari-passu or junior indebtedness incurred pursuant to this clause (e) (other than
unsecured indebtedness) shall be subject to a written intercreditor agreement with the Purchasers that is acceptable to each Purchaser
in its sole discretion, and (f) additional unsecured indebtedness in an amount not to exceed $1,500,000.00 in the aggregate.


 


“Permitted
Lien” means the individual and collective reference to the following: (a) Liens for taxes, assessments and other governmental
charges or levies not yet delinquent by more than 30 days or Liens for taxes, assessments and other governmental charges or levies being
contested in good faith and by appropriate proceedings for which adequate reserves (in the good faith judgment of the management of the
Company) have been established in accordance with GAAP, (b) Liens imposed by law which were incurred in the ordinary course of the Company’s
business, such as carriers’, warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar
Liens arising in the ordinary course of the Company’s business which secure obligations which are not more than 30 days overdue,
and which (x) do not individually or in the aggregate materially detract from the value of such property or assets or materially impair
the use thereof in the operation of the business of the Company and its consolidated Subsidiaries or (y) are being contested in good faith
by appropriate proceedings, which proceedings have the effect of preventing for the foreseeable future the forfeiture or sale of the property
or asset subject to such Lien, (c) Liens incurred in connection with Permitted Indebtedness under clauses (a), (b), (d) and (e) thereunder,
(d) Liens incurred in connection with Permitted Indebtedness under clause (c) thereunder, provided that such Liens are not secured by
assets of the Company or its Subsidiaries other than the assets so acquired or leased, (e) other Liens incurred in the ordinary course
of business securing obligations not to exceed $500,000.00 in the aggregate and (f) other Liens incurred in the ordinary course of business
securing obligations not to exceed $500,000.00 in the aggregate.


 


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


 






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“Placement
Agent” means Coastal Equities, Inc. and Axxcess Capital.


 


“Pledge
and Security Agreement” means the Pledge and Security Agreement, dated as of the Closing Date, among the Company and the Purchasers,
in form and substance satisfactory to the Purchasers in their sole discretion.


 


“Pledged
Securities” means any and all certificates and other instruments representing or evidencing all of the capital stock and other
equity interests of the Subsidiaries.


 


“Pre-Notice”
shall have the meaning ascribed to such term in Section 4.12(b).


 


“Principal
Amount” means, as to each Purchaser, the amounts set forth below such Purchaser’s signature block on the signature pages
hereto next to the heading “Principal Amount,” in United States Dollars, which shall equal such Purchaser’s Subscription
Amount multiplied by 1.0204.


 


“Pro Rata
Portion” shall have the meaning ascribed to such term in Section 4.12(e).


 


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


 


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


 


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


 


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


 


“Registration
Rights Agreement” means the Registration Rights Agreement, dated as of the Closing Date, among the Company and the Purchasers,
in the form of Exhibit B attached hereto.


 


“Registration
Statement” means a registration statement meeting the requirements set forth in the Registration Rights Agreement and covering
the resale of the Underlying Shares by each Purchaser as provided for in the Registration Rights Agreement.


 


“Required
Minimum” means, as of any date, the maximum aggregate number of shares of Common Stock then issued or potentially issuable in
the future pursuant to the Transaction Documents, including any Underlying Shares issuable upon exercise in full of all Warrants or conversion
in full of all Debentures (including Underlying Shares issuable as payment of interest on the Debentures), ignoring any conversion or
exercise limits set forth therein, and assuming that the Conversion Price is at all times on and after the date of determination 50% of
the then Conversion Price on the Trading Day immediately prior to the date of determination.


 






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


 


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


 


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


 


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


 


“Security
Documents” shall mean the Pledge and Security Agreement, the Intellectual Property Security Agreements, the Subsidiary Guarantee,
the original Pledged Securities, along with medallion guaranteed executed blank stock powers to the Pledged Securities, and any other
documents and filings required thereunder in order to grant the Purchasers a first priority security interest in the assets of the Company
and the Subsidiaries as provided in the Pledge and Security Agreement or the Intellectual Property Security Agreements, as applicable,
including all UCC-1 filing receipts, each in form and substance satisfactory to the Purchasers.


 


“Shareholder
Approval” means such approval as may be required (i) to consummate the Merger and (ii) by the applicable rules and regulations
of the Nasdaq Stock Market (or any successor entity) from the shareholders of the Company with respect to the transactions contemplated
by the Transaction Documents, including the issuance of all of the Underlying Shares in excess of 19.99% of the issued and outstanding
Common Stock on the Closing Date.


 


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


 


“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Debentures and Warrants purchased hereunder as specified
below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,” in
United States dollars and in immediately available funds.


 


“Subsequent
Financing” shall have the meaning ascribed to such term in Section 4.12(a).


 


“Subsequent
Financing Notice” shall have the meaning ascribed to such term in Section 4.12(b).


 


“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof, including in connection with and following the date of the Merger.


 






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“Subsidiary
Guarantee” means the Subsidiary Guarantee, dated as of the Closing Date, by each Subsidiary in favor of the Purchasers, in form
and substance satisfactory to the Purchasers in their sole discretion.


 


“Target
Counsel” means Winston & Strawn LLP.


 


“Target
Disclosure Schedules” shall have the meaning set forth in Section 3.3.


 


“Target
Equity” shall mean the capital stock or equity of the Target, including any securities convertible, exchangeable or exercisable
into capital stock or equity of the Target.


 


“Target
Subsidiary” means any subsidiary of the Target and shall, where applicable, also include any direct or indirect subsidiary of
the Target formed or acquired after the date hereof.


 


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


 


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


 


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


 


“Transfer
Agent” means Continental Stock Transfer & Trust Company, the current transfer agent of the Company, and any successor transfer
agent of the Company.


 


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


 


“Variable
Rate Transaction” shall have the meaning ascribed to such term in Section 4.13(b).


 


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


 






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“Warrants”
means, collectively, the Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof,
which Warrants shall be exercisable immediately and have a term of exercise equal to 10 years, in the form of Exhibit C attached
hereto.


 


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


 


ARTICLE II.


PURCHASE AND SALE


 


2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein substantially concurrent with the consummation of the
Merger, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $40,000,000
in principal amount of the Debentures. Each Purchaser shall deliver to the Escrow Agent, via wire transfer immediately available funds
equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company
shall deliver to each Purchaser its respective Debenture and a Warrant, as determined pursuant to Section 2.2(a), and the Company and
each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of EGS or such other location as the parties shall
mutually agree.


 


2.2 Deliveries.


 


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


 


 (i) this Agreement duly executed by the Company;




 


(ii) one
or more legal opinions of Company Counsel and Target Counsel, in form and substance reasonably satisfactory to the Purchasers;


 


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


 


(iv) a
Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common Stock equal to 100% of such Purchaser’s
Principal Amount of Debentures issued on the Closing Date divided by the Conversion Price, with an exercise price equal to $20,
subject to adjustment therein;


 


(v) the
Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer of the
Company;


 


(vi) the
Pledge and Security Agreement, duly executed by the Company and each Subsidiary, along with all of the Security Documents, including without
limitation the Subsidiary Guarantee, duly executed by the parties thereto, the original Pledged Securities and corresponding stock powers;


 


(vii) evidence
of insurance and loss payee endorsements required under the Pledge and Security Agreement and certificates of insurance policies and/or
endorsements naming the Agent (as defined in the Pledge and Security Agreement) as additional insured or loss payee, or such other or
further documents required to grant Purchasers a collateral interest in such policies or the proceeds thereof, as applicable, in form
and substance reasonably satisfactory to the Purchasers;


 






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(viii) one
or more intellectual property security agreements, duly executed by the Company and each Subsidiary, in form and substance reasonably
satisfactory to the Purchasers (the “Intellectual Property Security Agreements”);


 


(ix) a
perfection certificate, duly executed by the Company, Target and each Subsidiary and Target Subsidiary as of the date of hereof, and a
bring-down perfection certificate, duly executed by the Company, the Target and each Subsidiary and Target Subsidiary as of the Closing
Date, each in form and substance reasonably satisfactory to the Purchasers;


 


(x) the
duly executed Lock-Up Agreements;


 


(xi) the
Registration Rights Agreement duly executed by the Company; and


 


(xii) such
other documents and instruments with respect to the transactions contemplated hereby as the Purchasers may reasonably request.


 


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


 


 (i) this Agreement duly executed by such Purchaser;




 


(ii) to
Escrow Agent, such Purchaser’s Subscription Amount by wire transfer to the account specified in the Escrow Agreement;


 


(iii) the
Pledge and Security Agreement duly executed by such Purchaser; and


 


(iv) the
Registration Rights Agreement duly executed by such Purchaser.


 


2.3 Closing
Conditions.


 


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


 


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


 


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


 


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


 


(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:


 


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


 


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


 


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


 


(iv) there
shall have been no Material Adverse Effect with respect to the Company, the Target or any subsidiary thereof since the date hereof;


 






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(v) no
amendment or modification of the Merger Agreement shall have occurred that would reasonably be expected to materially and adversely affect
the economic benefits that the Purchaser would reasonably expect to receive under the Transaction Documents;


 


(vi) all
conditions precedent to the Merger set forth in the Merger Agreement shall have been satisfied or waived (other than those conditions
which, by their nature, are to be satisfied at the Merger and without amendment, modification or waiver thereof);


 


(vii) concurrently
herewith the Company shall have consummated the Concurrent Financing;


 


(viii) Shareholder
Approval shall have been obtained and deemed effective;


 


(ix) neither
the Company, the Target nor any subsidiary thereof shall have issued, or agreed to issue, any equity, equity linked or debt financing
other than specifically referenced herein without the consent of the Purchasers;


 


(x) the
Company shall have hired, effective as of the date of the Merger and in consulation with the Lead Purchaser, a chief financial officer
with public company experience;


 


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


 


ARTICLE III.


REPRESENTATIONS AND WARRANTIES


 


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


 


(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company are set forth on Schedule 3.1(a). The Company owns, directly or indirectly,
all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding
shares of capital stock of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights
to subscribe for or purchase securities. If the Company has no subsidiaries, all other references to the Subsidiaries or any of them in
the Transaction Documents shall be disregarded.


 






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


 


(c) Authorization;
Enforcement.


 


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


 


(ii) With
respect to the Subsidiary Guarantee, each of the Subsidiaries has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by such agreement and otherwise to carry out its obligations thereunder. The execution and delivery of the
Subsidiary Guarantee and the consummation by the Company of the transactions contemplated thereby have been duly authorized by all necessary
action on the part of the Company, and no further action is required by the respective Subsidiary, its managers or its members in connection
therewith. The Subsidiary Guarantee has been (or upon delivery will have been) duly executed by the respective Subsidiaries and, when
delivered in accordance with the terms thereof, will constitute the valid and binding obligation of the respective Subsidiary enforceable
against such Subsidiary in accordance with its terms, except (A) as listed by general equitable principals and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally,
(B) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies and (C) insofar
as indemnification and contribution provisions may be limited by applicable law.


 






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


 


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


 


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


 


(g) Capitalization.
The capitalization of the Company as of the date hereof is as set forth on Schedule 3.1(g). The Company has not issued any capital
stock since its most recently filed periodic report under the Exchange Act, other than pursuant to the exercise of employee stock options
under the Company’s stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee
stock purchase plans and pursuant to the conversion and/or exercise of Common Stock Equivalents outstanding as of the date of the most
recently filed periodic report under the Exchange Act. No Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents. Except as a result of the purchase
and sale of the Securities and except as set forth on Schedule 3.1(g) attached hereto, there are no outstanding options, warrants,
scrip rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations convertible
into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any shares of Common Stock or the
capital stock of any Subsidiary, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or
may become bound to issue additional shares of Common Stock or Common Stock Equivalents or capital stock of any Subsidiary. The issuance
and sale of the Securities will not obligate the Company or any Subsidiary to issue shares of Common Stock or other securities to any
Person (other than the Purchasers). Except as set forth on Schedule 3.1(g) attached hereto, there are no outstanding securities
or instruments of the Company or any Subsidiary with any provision that adjusts the exercise, conversion, exchange or reset price of such
security or instrument upon an issuance of securities by the Company or any Subsidiary. Except as set forth on Scheduled 3.1(g)
attached hereto, there are no outstanding securities or instruments of the Company or any Subsidiary that contain any redemption or similar
provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may become
bound to redeem a security of the Company or such Subsidiary. The Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement. All of the outstanding shares of capital stock of the Company are duly
authorized, validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state securities laws, and
none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
No further approval or authorization of any stockholder, the Board of Directors or others is required for the issuance and sale of the
Securities. There are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s capital
stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders.


 






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


 


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


 


(j) Litigation.
Except as set forth on Schedule 3.1(j), there is no action, suit, inquiry, notice of violation, proceeding or investigation (collectively,
an “Action”) pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary
or any of their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign). None of such Actions set forth on Schedule 3.1(j), (i) adversely affects or challenges
the legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii) could, if there were an unfavorable
decision, have or reasonably be expected to result in a Company or Company Subsidiary Material Adverse Effect. Neither the Company nor
any Subsidiary, nor any director or officer thereof, is or has been the subject of any such Action involving a claim of violation of or
liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the
Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.


 


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


 






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(l) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Company nor any 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 without a significant increase in cost.


 


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


 


(n) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the Commission thereunder
that are effective as of the date hereof and as of the Closing Date.


 


(o) Certain
Fees. Except as set forth on Schedule 3.1(o), no brokerage or finder’s fees or commissions are or will be payable by
the Company or any Subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with respect
to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may
be due in connection with the transactions contemplated by the Transaction Documents.


 






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


 


(q) Registration
Rights. Except as set forth on Schedule 3.1(q) and other than each of the Purchasers, no Person has any right to cause the
Company or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiaries.


 


(r) Listing
and Maintenance Requirements. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market
on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance
requirements of such Trading Market. The Company is, and has no reason to believe that it will not in the foreseeable future continue
to be, in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer
through the Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to
the Depository Trust Company (or such other established clearing corporation) in connection with such electronic transfer.


 


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


 


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


 






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


 


(v) Tax Status.
 Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Company or Company
Subsidiary Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local
income and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject,
(ii) has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes
for periods subsequent to the periods to which such returns, reports or declarations apply. Except as set forth on Schedule 3.1(v),
there are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the
Company or of any Subsidiary know of no basis for any such claim.


 


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


 


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


 






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


 


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


 


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


 






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(bb) Cybersecurity. 
(i)(x) There has been no security breach or other compromise of or relating to any of the Company’s or any Subsidiary’s information
technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems and Data”)
and (y) the Company and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably
be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are
presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator
or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security of IT Systems
and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification, except as
would not, individually or in the aggregate, have a Company or Company Subsidiary Material Adverse Effect; (iii) the Company and
the Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential
information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the
Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.


 


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


 


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


 


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


 


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


 






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


 


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


 


(ii) No
Side Letters. Neither the Company, nor any Affiliates of the Company have entered into any side letter or similar agreement with any
Person in connection with the issuance or transfer of securities to such Person in connection with a direct or indirect investment in
the Company or Target, including but not limited to the transfer or assignment of “founder shares” to such Person.


 


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


 


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


 






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


 


(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants or converts any Debentures it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer”
as defined in Rule 144A(a) under the Securities Act.


 


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


 


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


 


(f) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition, results
of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity
to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary
to make an informed investment decision with respect to the investment.  Such Purchaser acknowledges and agrees that neither the
Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with respect to the
Securities nor is such information or advice necessary or desired.  Neither the Placement Agent nor any Affiliate has made or makes
any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public
information with respect to the Company which such Purchaser agrees need not be provided to it.  In connection with the issuance
of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or fiduciary
to such Purchaser.


 






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


 


3.3 Representations
and Warranties of the Target. Except as set forth in the Target’s disclosure schedules attached hereto (the “Target
Disclosure Schedules”), which Target Disclosure Schedules shall be deemed a part hereof and shall qualify any representation
or otherwise made herein to the extent of the disclosure contained in the corresponding section of the Target Disclosure Schedules, the
Target hereby makes the following representations and warranties to each Purchaser:


 


(a) Target
Subsidiaries. All of the direct and indirect Target Subsidiaries of the Target are set forth on Schedule 3.3(a). The Target
owns, directly or indirectly, all of the capital stock or other equity interests of each Target Subsidiary free and clear of any Liens,
and all of the issued and outstanding shares of capital stock of each Target Subsidiary are validly issued and are fully paid, non-assessable
and free of preemptive and similar rights to subscribe for or purchase securities. If the Target has no Target Subsidiaries, all other
references to the Target Subsidiaries or any of them in the Transaction Documents shall be disregarded.


 






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(b) Organization
and Qualification. The Target and each of the Target Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite power and authority to
own and use its properties and assets and to carry on its business as currently conducted. Neither the Target nor any Target Subsidiary
is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational
or charter documents. Each of the Target and the Target Subsidiaries is duly qualified to conduct business and is in good standing as
a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes
such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, could not have or reasonably
be expected to result in a Target or Target Subsidiary Material Adverse Effect on the Target or Target Subsidiaries and no Proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority
or qualification.


 


(c) Authorization;
Enforcement.


 


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


 


(ii) With
respect to the Subsidiary Guarantee, each of the Target Subsidiaries has the requisite corporate power and authority to enter into and
to consummate the transactions contemplated by such agreement and otherwise to carry out its obligations thereunder. The execution and
delivery of the Subsidiary Guarantee and the consummation by the Target of the transactions contemplated thereby have been duly authorized
by all necessary action on the part of the Target, and no further action is required by the respective Target Subsidiary, its managers
or its members in connection therewith. The Subsidiary Guarantee has been (or upon delivery will have been) duly executed by the respective
Target Subsidiaries and, when delivered in accordance with the terms thereof, will constitute the valid and binding obligation of the
respective Target Subsidiary enforceable against such Target Subsidiary in accordance with its terms, except (A) as listed by general
equitable principals and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally, (B) as limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (C) insofar as indemnification and contribution provisions may be limited by applicable law.


 






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


 


(e) Filings,
Consents and Approvals. The Target is not required to obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Target of the Transaction Documents.


 


(f) Capitalization.
The capitalization of the Target as of the date hereof is as set forth on Schedule 3.3(f). Except as set forth on Schedule 3.3(f),
no Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions
contemplated by the Transaction Documents. There are no outstanding options, warrants, scrip rights to subscribe to, calls or commitments
of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or
giving any Person any right to subscribe for or acquire, any Parent Equity or the capital stock of any Target Subsidiary, or contracts,
commitments, understandings or arrangements by which the Target or any Target Subsidiary is or may become bound to issue additional Target
Equity or capital stock of any Target Subsidiary. There are no outstanding securities or instruments of the Target or any Target Subsidiary
with any provision that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities
by the Target or any Target Subsidiary. There are no outstanding securities or instruments of the Target or any Target Subsidiary that
contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Target
or any Target Subsidiary is or may become bound to redeem a security of the Target or such Target Subsidiary. The Target does not have
any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. All of the outstanding
shares of capital stock of the Target are duly authorized, validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar
rights to subscribe for or purchase securities. There are no stockholders agreements, voting agreements or other similar agreements with
respect to the Target’s capital stock to which the Target is a party or, to the knowledge of the Target, between or among any of
the Target’s stockholders.


 


(g) [RESERVED]


 






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(h) Litigation.
Except as set forth on Schedule 3.3(h), there is no Action pending or, to the knowledge of the Target, threatened against or affecting
the Target, any Target Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign). None of the Actions set forth on Schedule 3.3(h), (i)
adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents or (ii) could, if there were
an unfavorable decision, have or reasonably be expected to result in a Target or Target Subsidiary Material Adverse Effect. Neither the
Target nor any Target Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation
of or liability under federal or state securities laws or a claim of breach of fiduciary duty.


 


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


 


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


 


(k) Environmental
Laws. The Target and the Target Subsidiaries (i) are in compliance with all federal, state, local and foreign laws relating to
pollution or protection of human health or the environment (including ambient air, surface water, groundwater, land surface or subsurface
strata), including laws relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, or
toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the environment, or otherwise relating
to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well
as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments, licenses, notices or notice letters, orders,
permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental Laws”); (ii) have
received all permits licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses;
and (iii) are in compliance with all terms and conditions of any such permit, license or approval where in each clause (i), (ii) and (iii),
the failure to so comply could be reasonably expected to have, individually or in the aggregate, a Target or Target Subsidiary Material
Adverse Effect.


 






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


 


(m) Title
to Assets. The Target and the Target 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 Target and the Target Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Target and the Target Subsidiaries and (ii) Liens for the
payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment
of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Target and the Target
Subsidiaries are held by them under valid, subsisting and enforceable leases with which the Target and the Target Subsidiaries are in
compliance.


 


(n) Intellectual
Property. All patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions,
copyrights, licenses and other intellectual property rights and similar rights necessary or required for use in connection with their
respective businesses are set forth on Schedule 3.3(n) (collectively, the “Intellectual Property Rights”). The
Target and the Target Subsidiaries have, or have rights to use, all Intellectual Property Rights. None of, and neither the Target nor
any Target Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired, terminated
or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement. Neither
the Target nor any Target Subsidiary has received a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Target or Target
Subsidiary Material Adverse Effect. To the knowledge of the Target, all such Intellectual Property Rights are enforceable and there is
no existing infringement by another Person of any of the Intellectual Property Rights. The Target and the Target Subsidiaries have taken
reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual properties, except where failure
to do so could not, individually or in the aggregate, reasonably be expected to have a Target or Target Subsidiary Material Adverse Effect.


 


(o) Insurance.
The Target and the Target Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which the Target and the Target Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither the Target
nor any Target 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 without a significant
increase in cost.


 






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(p) Transactions
with Affiliates and Employees. Except as set forth on Schedule 3.3(p), none of the officers or directors of the Target or any
Target Subsidiary and, to the knowledge of the Target, none of the employees of the Target or any Target Subsidiary is presently a party
to any transaction with the Target or any Target Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from providing for the borrowing of money from or lending of money to, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Target, any entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other than for (i) payment
of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Target and (iii) other employee
benefits, including stock option agreements under any stock option plan of the Target.


 


(q) Internal
Accounting Controls. The Target and the Target Subsidiaries maintain a system of internal accounting controls sufficient to provide
reasonable assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences.


 


(r) Certain
Fees. Except as set forth on Schedule 3.3(r), no brokerage or finder’s fees or commissions are or will be payable by
the Target or any Target Subsidiaries to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank
or other Person with respect to the transactions contemplated by the Transaction Documents. The Purchasers shall have no obligation with
respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section
that may be due in connection with the transactions contemplated by the Transaction Documents.


 


(s) Disclosure.
No statement made by the Target in this Agreement, any other Transaction Document or the exhibits and schedules attached hereto or in
any certificate or schedule furnished or to be furnished by or on behalf of the Target to the Purchasers or any of their representatives
in connection with the transactions contemplated hereby contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not misleading. The due diligence materials previously provided
by or on behalf of the Target to each Purchaser (if any) (the “Due Diligence Materials”), have been prepared in a good
faith effort by the Target to describe the Target’s present and proposed products, and projected growth of the Target and do not
contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading,
except that with respect to assumptions, projections and expressions of opinion or predictions contained in the Due Diligence Materials,
the Target represents only that such assumptions, projections, expressions of opinion and predictions were made in good faith and that
the Target believes there is a reasonable basis therefor.


 






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(t) Solvency.
Based on the consolidated financial condition of the Target as of the Closing Date, after giving effect to the receipt by the Target of
the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Target’s assets exceeds the amount that
will be required to be paid on or in respect of the Target’s existing debts and other liabilities (including known contingent liabilities)
as they mature, (ii) the Target’s assets do not constitute unreasonably small capital to carry on its business as now conducted
and as proposed to be conducted including its capital needs taking into account the particular capital requirements of the business conducted
by the Target, consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the
Target, together with the proceeds the Target would receive, were it to liquidate all of its assets, after taking into account all anticipated
uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid.


 


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


 


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


 






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


 


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


 


(y) [RESERVED]


 


(z) Cybersecurity. 
(i)(x) There has been no security breach or other compromise of or relating to any of the Target’s or any Target Subsidiary’s
information technology and computer systems, networks, hardware, software, data (including the data of its respective customers, employees,
suppliers, vendors and any third party data maintained by or on behalf of it), equipment or technology (collectively, “IT Systems
and Data”) and (y) the Target and the Target Subsidiaries have not been notified of, and has no knowledge of any event or condition
that would reasonably be expected to result in, any security breach or other compromise to its IT Systems and Data; (ii) the Target and
the Target Subsidiaries are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation
or modification, except as would not, individually or in the aggregate, have a Target or Target Subsidiary Material Adverse Effect; (iii) the
Target and the Target Subsidiaries have implemented and maintained commercially reasonable safeguards to maintain and protect its material
confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Target
and the Target Subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and practices.


 


(aa) Office
of Foreign Assets Control. Neither the Target nor any Target Subsidiary nor, to the Target's knowledge, any director, officer, agent,
employee or affiliate of the Target or any Target Subsidiary is currently subject to any U.S. sanctions administered by OFAC.


 


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


 






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


 


(dd) No Side
Letters. Neither the Target nor any Target Affiliates have entered into any side letter or similar agreement with any Person in connection
with the issuance or transfer of securities to such Person in connection with a direct or indirect investment in the Company or the Target,
including but not limited to the transfer or assignment of “founder shares” to such Person.


 


(ee) Books
and Records. The books of account, ledgers, order books, records and documents of the Target and its Target Subsidiaries accurately
and completely reflect all information relating to the respective businesses of the Target and its Target Subsidiaries, the nature, acquisition,
maintenance, location and collection of each of their respective assets, and the nature of all transactions giving rise to material obligations
or accounts receivable of the Target or its Target Subsidiaries, as the case may be, except where the failure to so reflect such information
would not have a Target or Target Subsidiary Material Adverse Effect. The minute books of the Target and its Target Subsidiaries contain
accurate records of all meetings and accurately reflect all other actions taken by the shareholders, boards of directors and all committees
of the boards of directors, and other governing Persons of the Target and its Target Subsidiaries, respectively.


 


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


 


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


 


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


 


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


 


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



 






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



 


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



 


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


 


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


 


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


 


(gg) Material
Liabilities; Financial Information; Forecasts. Except as set forth on Schedule 3.3(gg), the Target and the Target Subsidiaries
have no liabilities or obligations, absolute or contingent (individually or in the aggregate), except obligations under contracts made
in the ordinary course of business that as of the date of this Agreement would not be required to be reflected in financial statements
prepared in accordance with GAAP, consistently applied for the periods covered thereby. The historical financial information of the Target
delivered to the Purchasers on or prior to the date hereof, and attached hereto as Schedule 3.3(gg) (collectively, the “Target
Financial Statements”), fairly present in all material respects the financial position of the Target and the Target Subsidiaries,
on a consolidated basis, at the respective dates thereof, subject to adjustments which are not expected to have a Target or Target Subsidiary
Material Adverse Effect on the Target and the Target Subsidiaries, taken as a whole. The forecasts and projections previously delivered
to the Purchasers by the Target and attached hereto as Schedule 3.3(gg) have been prepared in good faith and on the basis of assumptions
that are fair and reasonable in light of current and reasonably foreseeable circumstances. No other information provided by or on behalf
of the Target to any of the Purchasers contains any untrue statement of a material fact or omits to state any material fact necessary
in order to make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Target
is not currently contemplating to amend or restate any of the Target Financial Statements, nor is the Target currently aware of facts
or circumstances which would require the Target to amend or restate any of the Target Financial Statements, in each case, in order for
any of the Financials Statements to be in compliance with GAAP. The Target has not been informed by its independent accountants that they
recommend that the Target amend or restate any of the Target Financial Statements or that there is any need for the Target to amend or
restate any of the Target Financial Statements.


 






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(hh) Absence
of Certain Changes. Since the date of the last audited Target Financial Statements, there has been no Target or Target Subsidiary
Material Adverse Effect on the Target and the Target Subsidiaries, taken as a whole. Specifically, except as set forth on Schedule
3.3(hh), since the date of the last audited Target Financial Statements, neither the Target nor the Target Subsidiaries have:


 


(i) declared,
set aside or paid any dividend or other distribution with respect to any shares of capital stock of the Target or any of the Target Subsidiaries
or any direct or indirect redemption, purchase or other acquisition of any such shares;


 


(ii) sold,
assigned, pledged, encumbered, transferred or other disposed of any tangible asset of the Target or any of the Target Subsidiaries (other
than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or sold, assigned,
pledged, encumbered, transferred or other disposed of any Target Intellectual Property Rights (other than licensing of products of the
Target or the Target Subsidiaries in the ordinary course of business and on a non-exclusive basis);


 


(iii) entered
into any licensing or other agreement with regard to the acquisition or disposition of any Target Intellectual Property Rights other than
licenses in the ordinary course of business consistent with past practice or any amendment or consent with respect to any licensing agreement
filed or required to be filed with respect to any Governmental Entity;


 


(iv) incurred
capital expenditures, individually or in the aggregate, in excess of $100,000;


 


(v) incurred
any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) individually or in
the aggregate, in excess of $100,000, other than obligations under customer contracts, current obligations and liabilities, in each case
incurred in the ordinary course of business and consistent with past practice;


 


(vi) incurred
or been notified of any Lien on any property of the Target or any of the Target Subsidiaries except for Liens in existence on the date
of this Agreement that are described on Schedule 3.3(hh);


 


(vii) made
any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Target or
any of the Target Subsidiaries, except in the ordinary course of business and consistent with past practice;


 






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(viii) effected
or agreed to effect any split, combination or reclassification of any equity securities;


 


(ix) incurred
any material loss, destruction or damage to any property of the Target or any Target Subsidiary, whether or not insured;


 


(x) paid
or have received notice of any obligation to pay any acceleration or prepayment of any indebtedness for borrowed money or the refunding
of any such indebtedness;


 


(xi) waived
any valuable right, whether by contract or otherwise;


 


(xii) except
as disclosed in Schedule 3.3(hh), made or agreed to make any loan or extension of credit to any officer or employee of the Target;


 


(xiii) made
any change in the independent public accountants of the Target or the Target Subsidiaries or any material change in the accounting methods
or accounting practices followed by the Target or the Target Subsidiaries, as applicable, or any material change in depreciation or amortization
policies or rates;


 


(xiv) any
resignation or termination of any officer, key employee or group of employees of the Target or any of the Target Subsidiaries;


 


(xv) made
any change in any compensation arrangement or agreement with any employee, officer, director or shareholder that would result in the aggregate
compensation to such Person in such year to exceed $200,000;


 


(xvi) made
any material increase in the compensation of employees of the Target or the Target Subsidiaries (including any increase pursuant to any
written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or any increase in
any such compensation or bonus payable to any officer, shareholder, director, consultant or agent of the Target or any of the Target Subsidiaries
having an annual salary or remuneration in excess of $200,000, except as may be provided in projections contained in Schedule 3.3(hh));


 


(xvii) made
or been notified of any revaluation of any of their respective assets, including, without limitation, writing down the value of capitalized
inventory or writing off notes or accounts receivable or any sale of assets other than in the ordinary course of business;


 


(xviii) made
any acquisition or disposition of any material assets (or any contract or arrangement therefor), or effected (or agreed to effect) any
other material transaction by the Target or any Target Subsidiary otherwise than for fair value in the ordinary course of business;


 


(xix) written-down
the value of any asset of the Target or the Target Subsidiaries or written-off as uncollectible of any accounts or notes receivable or
any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;


 


(xx) cancelled
any debts or claims or any material amendment, termination or waiver of any rights of the Target or the Target Subsidiaries; or


 






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(xxi) entered
into any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (i) through (xx).


 


(ii) Neither
the Target nor any of the Target Subsidiaries has taken any steps to seek protection pursuant to any law or statute relating to bankruptcy,
insolvency, reorganization, receivership, liquidation or winding up, nor does the Target or any Target Subsidiary have any knowledge or
reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge
of any fact which would reasonably lead a creditor to do so. The Target and the Target Subsidiaries, individually and on a consolidated
basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will not
be Target Insolvent (as defined below). For purposes of this Section 3.3(ii), “Target Insolvent” means, (i) with respect
to the Target and the Target Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Target’s and the
Target Subsidiaries’ assets is less than the amount required to pay the Target’s and the Target Subsidiaries’ total
indebtedness, (B) the Target and the Target Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured or (C) the Target and the Target Subsidiaries intend to incur or believe that
they will incur debts that would be beyond their ability to pay as such debts mature; and (ii) with respect to the Target and each Target
Subsidiary, individually, (A) the present fair saleable value of the Target’s or such Target Subsidiary’s (as the case may
be) assets is less than the amount required to pay its respective total indebtedness, (B) the Target or such Target Subsidiary (as the
case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured or (C) the Target or such Target Subsidiary (as the case may be) intends to incur or believes that it will
incur debts that would be beyond its respective ability to pay as such debts mature. Neither the Target nor any of the Target Subsidiaries
has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which the Target’s
or such Target Subsidiary’s remaining assets constitute unreasonably small capital with which to conduct the business in which it
is engaged as such business is now conducted and is proposed to be conducted.


 


The Target acknowledges and
agrees that the representations contained in this Section 3.3 shall not modify, amend or affect such Purchaser’s right to rely on
the Target’s representations and warranties contained in this Agreement or any representations and warranties contained in any other
Transaction Documents or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby.


 


ARTICLE IV.


OTHER AGREEMENTS OF THE PARTIES


 


4.1 Transfer
Restrictions.


 


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


 






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


 


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


 


The Company acknowledges
and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined
in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured
Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal
opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall
be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities.


 


(c) Certificates
evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration
statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, (ii) following
any sale of such Underlying Shares pursuant to Rule 144 (assuming cashless exercise of the Warrants), (iii) if such Underlying Shares
are eligible for sale under Rule 144 (assuming cashless exercise of the Warrants), without the requirement for the Company to be in compliance
with the current public information required under Rule 144 as to such Underlying Shares and without volume or manner-of-sale restrictions
or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements
issued by the staff of the). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent or the Purchaser promptly
after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder, or if requested by a Purchaser,
respectively. If all or any portion of a Debenture is converted or Warrant is exercised at a time when there is an effective registration
statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144 without the requirement
for the Company to be in compliance with the current public information required under Rule 144 (assuming cashless exercise of the Warrants)
as to such Underlying Shares and without volume or manner-of-sale restrictions or if such legend is not otherwise required under applicable
requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then
such Underlying Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such
legend is no longer required under this Section 4.1(c), it will, no later than the earlier of (i) two (2) Trading Days and (ii) the number
of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company or the
Transfer Agent of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend (such date, the “Legend
Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from
all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that
enlarge the restrictions on transfer set forth in this Section 4. Certificates for Underlying Shares subject to legend removal hereunder
shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s prime broker with the Depository
Trust Company System as directed by such Purchaser. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend.


 






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(d) In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day
(increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to
be delivered) to a Purchaser by the Legend Removal Date a certificate representing the Securities so delivered to the Company by such
Purchaser that is free from all restrictive and other legends and (b) if after the Legend Removal Date such Purchaser purchases (in an
open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion
of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of
shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, an amount equal
to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket expenses, if any)
for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any) (the “Buy-In
Price”) over the product of (A) such number of Underlying Shares that the Company was required to deliver to such Purchaser
by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading Day during the period commencing
on the date of the delivery by such Purchaser to the Company of the applicable Underlying Shares (as the case may be) and ending on the
date of such delivery and payment under this clause (ii).


 


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


 


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


 






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4.3 Furnishing
of Information; Public Information.


 


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


 


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


 


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


 






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


 


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


 






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


 


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


 


4.9 Use
of Proceeds. Except as set forth on Schedule 4.9 attached hereto, the Company shall use the net proceeds from the sale of the
Securities hereunder for working capital purposes and shall not use such proceeds: (a) for the satisfaction of any portion of the Company’s
debt (other than payment of trade payables in the ordinary course of the Company’s business and prior practices), (b) for the redemption
of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation or (d) in violation of FCPA or OFAC
regulations.


 


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


 






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4.11 Reservation
and Listing of Securities; Shareholder Approval.


 


(a) The
Company shall maintain a reserve of the Required Minimum from its duly authorized shares of Common Stock for issuance pursuant to the
Transaction Documents in such amount as may then be required to fulfill its obligations in full under the Transaction Documents.


 


(b) If,
on any date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum
on such date, then the Board of Directors shall use commercially reasonable efforts to amend the Company’s certificate or articles
of incorporation to increase the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time,
as soon as possible and in any event not later than the 75th day after such date.


 


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


 


(d) The
Company shall hold a meeting of shareholders at the earliest practical date after the date hereof for the purpose of obtaining Shareholder
Approval, with the recommendation of the Company’s Board of Directors that such proposal be approved, and the Company shall solicit
proxies from its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and
all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company shall use its reasonable best efforts
to obtain such Shareholder Approval.


 


4.12 Participation
in Future Financing.


 


(a) From
the date hereof until the date that is the five (5) year anniversary of the Closing Date, upon any issuance by the Company or any of its
Subsidiaries of Common Stock or Common Stock Equivalents for cash consideration, indebtedness or a combination of units thereof (a “Subsequent
Financing”), each Purchaser shall have the right to participate in up to an amount of the Subsequent Financing equal to 5% of
the Subsequent Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the
Subsequent Financing.


 


(b) At
least five (5) Trading Days prior to the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice
of its intention to effect a Subsequent Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it wants
to review the details of such financing (such additional notice, a “Subsequent Financing Notice”). Upon the request
of a Purchaser, and only upon a request by such Purchaser, for a Subsequent Financing Notice, the Company shall promptly, but no later
than one (1) Trading Day after such request, deliver a Subsequent Financing Notice to such Purchaser. The Subsequent Financing Notice
shall describe in reasonable detail the proposed terms of such Subsequent Financing, the amount of proceeds intended to be raised thereunder
and the Person or Persons through or with whom such Subsequent Financing is proposed to be effected and shall include a term sheet or
similar document relating thereto as an attachment.


 






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(c) Any
Purchaser desiring to participate in such Subsequent Financing must provide written notice to the Company by not later than 5:30 p.m.
(New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice that such Purchaser
is willing to participate in the Subsequent Financing, the amount of such Purchaser’s participation, and representing and warranting
that such Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Subsequent Financing Notice.
If the Company receives no such notice from a Purchaser as of such fifth (5th) Trading Day, such Purchaser shall be deemed
to have notified the Company that it does not elect to participate.


 


(d) If
by 5:30 p.m. (New York City time) on the fifth (5th ) Trading Day after all of the Purchasers have received the Pre-Notice,
notifications by the Purchasers of their willingness to participate in the Subsequent Financing (or to cause their designees to participate)
is, in the aggregate, less than the total amount of the Subsequent Financing, then the Company may effect the remaining portion of such
Subsequent Financing on the terms and with the Persons set forth in the Subsequent Financing Notice.


 


(e) If
by 5:30 p.m. (New York City time) on the fifth (5th) Trading Day after all of the Purchasers have received the Pre-Notice,
the Company receives responses to a Subsequent Financing Notice from Purchasers seeking to purchase more than the aggregate amount of
the Participation Maximum, each such Purchaser shall have the right to purchase its Pro Rata Portion (as defined below) of the Participation
Maximum.  “Pro Rata Portion” means the ratio of (x) the Subscription Amount of Securities purchased on the Closing
Date by a Purchaser participating under this Section 4.12 and (y) the sum of the aggregate Subscription Amounts of Securities purchased
on the Closing Date by all Purchasers participating under this Section 4.12.


 


(f) The
Company must provide the Purchasers with a second Subsequent Financing Notice, and the Purchasers will again have the right of participation
set forth above in this Section 4.12, if the Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated
for any reason on the terms set forth in such Subsequent Financing Notice within thirty (30) Trading Days after the date of the initial
Subsequent Financing Notice.


 


(g) The
Company and each Purchaser agree that if any Purchaser elects to participate in the Subsequent Financing, the transaction documents related
to the Subsequent Financing shall not include any term or provision that, directly or indirectly, will, or is intended to, exclude one
or more of the Purchasers from participating in a Subsequent Financing, including, but not limited to, provisions whereby such Purchaser
shall be required to agree to any restrictions on trading as to any securities of the Company or be required to consent to any amendment
to or termination of, or grant any waiver, release or the like under or in connection with, this Agreement, without the prior written
consent of such Purchaser.


 






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(h) Notwithstanding
anything to the contrary in this Section 4.12 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing
to such Purchaser that the transaction with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention
to issue the securities in the Subsequent Financing, in either case in such a manner such that such Purchaser will not be in possession
of any material, non-public information, by the tenth (10th) Business Day following delivery of the Subsequent Financing Notice. If by
such tenth (10th) Business Day, no public disclosure regarding a transaction with respect to the Subsequent Financing has been made, and
no notice regarding the abandonment of such transaction has been received by such Purchaser, such transaction shall be deemed to have
been abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public information with respect to the
Company or any of its Subsidiaries.


 


(i) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance.


 


4.13 Subsequent
Equity Sales.


 


(a) From
the date hereof until 180 days after the Effective Date, neither the Company nor any Subsidiary shall (i) issue, enter into any agreement
to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents or (ii) file any registration
statement or any amendment or supplement thereto, in each case other than as contemplated pursuant to the Registration Rights Agreement.


 


(b) From
the date hereof until the earlier of (i) the 4 year anniversary of the Effective Date and (ii) such time as no Purchaser holds any of
the Warrants, the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any
of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.
“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the right to receive, additional shares of Common Stock either
(A) at a conversion price, exercise price or exchange rate or other price that is based upon, and/or varies with, the trading prices of
or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such debt or equity security
or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for
the Common Stock or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line of
credit or at-the-market facility, whereby the Company may issue securities at a future determined price; provided that the Company shall
be able to entire into an at-the-market facility with a registered broker-dealer following the 2nd anniversary of the Effective
Date. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude any such issuance, which remedy shall
be in addition to any right to collect damages.


 


(c) Notwithstanding
the foregoing, this Section 4.13 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall be an
Exempt Issuance.


 






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


 


4.15 Certain
Transactions and Confidentiality; Short Sale Restriction. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales,
including Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and
ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.6.  Additionally, until the earlier of (a) the date that the Debentures and Warrants are no longer outstanding
and (b) the first year anniversary of the Closing Date, each Purchaser, severally and not jointly with the other Purchasers, covenant
that it shall not engage in any Short Sales of the Common Stock at a sales price of less than the then Exercise Price of the Warrants,
subject to adjustment therein. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as
the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included
in the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary,
the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will
not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described in Section 4.6, (ii) no Purchaser shall be restricted
or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.6 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the
Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section 4.6. .


 


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


 






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4.17 Books
and Records. Prior to the Closing, the Target will keep proper books of record and account, in which full and correct entries shall
be made of all financial transactions and the asset and business of the Target and Target Subsidiaries in accordance with GAAP.


 


4.18
Financial Statements and Inspection.


 


(a) Pror
to the Closing Date, the Target shall deliver to each Purchaser upon written notice to the Target any or all of the following:


 


(i) as
soon as practicable following the end of each fiscal quarter (other than the fourth fiscal quarter of each fiscal year), but in no event
later than fifteen (15) days after the end of such fiscal quarter, the Target’s consolidated unaudited balance sheet, income statement,
a statement of shareholder’s equity and a statement of cash flows for such quarter, such quarter-end financial reports to be in
reasonable detail, prepared in accordance with GAAP (except that such financial statements may (A) be subject to normal year-end audit
adjustments and (B) not contain all notes thereto that may be required in accordance with GAAP);


 


(ii) as
soon as practicable following the end of each fiscal year, but in no event later than ninety (90) days following the end of such fiscal
year, the Target’s audited consolidated balance sheet, income statement, a statement of shareholder’s equity and a statement
of cash flows for such year and, if applicable, the immediately preceding fiscal year, such year-end financial reports to be in reasonable
detail, prepared in accordance with GAAP, and audited by independent public accountants of nationally recognized standing selected by
the Target and reasonably acceptable to the Purchasers;


 


(iii) as
soon as practicable, all material communications with shareholders or the financial community, including press releases, but in no event
later than three (3) days after the date of each such communication;


 


(iv) as
soon as practicable, (x) all material reports prepared for the Target by outside consultants, and (y) all reports prepared for the Target
by outside legal counsel and auditors, but in no event later than three (3) days after receipt thereof by the Target, provided that the
Target shall have no obligation to deliver to any Investor any report prepared by outside legal counsel to the extent such report is privileged
communication and is subject to the attorney/client privilege, in the reasonable opinion of such legal counsel;


 


(v) as
soon as practicable (but in no event later than two (2) Business Days after any such communication), all material communications with
and from United States federal or state or foreign regulatory agencies or other governmental or quasi-governmental authorities of any
kind unless such delivery is precluded by applicable law, regulation, order, agreement or otherwise;


 






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(vi) as
soon as practicable, notice of any material events, including any pending or threatened litigation and/or events that is reasonably likely
to materially delay the advancement of the business objectives of the Target or any of its Subsidiaries, but in no event later than five
(5) Business Days after the occurrence thereof; and


 


(vii) notice
of any Target or Target Subsidiary Material Adverse Effect on the Target or a Target Subsidiary as soon as practicable after upon the
occurrence thereof, but in no event later than five (5) Business Days thereafter.


 


(b) Prior
to the Closing, the Target shall notify the Purchasers in writing of (i) any default under any of the Target’s agreements governing
its indebtedness and (ii) the receipt by the Target of any default notices in connection therewith, in each case promptly and in no event
later than five (5) Business Days after the occurrence of any such default or the receipt of any such default notice.


 


(c) Prior
to the Closing, the Target shall permit each Purchaser to visit and inspect the Target’s properties, to examine its books of account,
records, contracts and agreements and to discuss the Target’s affairs, finances and accounts with its Chief Executive Officer or
Chief Financial Officer, all at such times as may be reasonably requested by the Investor.


 


Notwithstanding anything herein to the contrary,
the covenants set forth in this Section 4.18 shall terminate as to Purchasers and be of no further force or effect upon the Closing Date.


 


4.19 Target Covenants.
Until the Closing Date, in addition to, but not in substation of, each covenant of the Company and/or any of its Subsidiaries hereunder,
the Target hereby covenants to each Purchaser such covenants set forth in this Section 4 as if such covenants were covenants of the Target
and/or any of its Target Subsidiaries, as applicable, mutatis mutandis (including, without limitation, with any securities of
the Company and/or any of its Subsidiaries, as applicable, referred to therein deemed to be securities of the Target and/or any of its
Target Subsidiaries, as applicable). For the avoidance of doubt, this Section 4.19 shall not relieve the Company or any of its Subsidiaries
of any of its obligations pursuant to this Section 4 with respect to itself, its Subsidiaries or any of their securities, as applicable.


 






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4.20 Trust
Account Waiver. Each Purchaser, severally and not jointly with the other Purchasers, hereby represents and warrants that they have
reviewed the final prospectus of the Company, dated as of July 16, 2021 and filed with the Commission (File No. 333-July 16, 2021) (“SPAC
Prospectus”) and understands that the Company has established a trust account (the “Trust Account”) containing
the proceeds of its initial public offering (the “IPO”) and the overallotment shares acquired by its underwriters and
from certain private placements occurring simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit
of the Company’s public stockholders (including overallotment shares acquired by the Company’s underwriters, the “Public
Stockholders”), and that, except as otherwise described in the SPAC Prospectus, the Company may disburse monies from the Trust
Account only: (a) to the Public Stockholders in the event they elect to redeem their Company shares in connection with the consummation
of the Company’s initial business combination (as such term is used in the SPAC Prospectus) (the “Business Combination”)
or in connection with an extension of its deadline to consummate a Business Combination, (b) to the Public Stockholders if the Company
fails to consummate a Business Combination within 24 months after the closing of the IPO and is subject to further extension by amendment
to the Company’s organizational documents, (c) with respect to any interest earned on the amounts held in the Trust Account, amounts
necessary to pay for any taxes and up to $100,000 in dissolution expenses, or (d) to the Company after or concurrently with the consummation
of a Business Combination. For and in consideration of the Company entering into this Agreement, and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, such Purchaser hereby agrees that notwithstanding anything to the contrary
contained in this Agreement, such Purchaser does not now and shall not at any time hereafter have, and waives any and all right, title
and interest, or any claims of any kind it has or may have in the future as a result of, or arising out of, this Agreement, the transactions
contemplated hereby or the Shares, in or to any monies held in the Trust Account (or any distributions therefrom directly or indirectly
to Public Stockholders (“Public Distributions”)), and agrees not to seek recourse or make or bring any action, suit,
claim or other proceeding against the Trust Account or Public Distributions as a result of, or arising out of, this Agreement, the transactions
contemplated hereby or the Shares, regardless of whether such claim arises based on contract, tort, equity or any other theory of legal
liability. To the extent such Purchaser commences any action or proceeding based upon, in connection with, as a result of or arising out
of, this Agreement, the transactions contemplated hereby or the sale of the Securities, which proceeding seeks, in whole or in part, monetary
relief against the Company or its Representatives, such Purchaser hereby acknowledges and agrees that such Purchaser’s sole remedy
shall be against funds held outside of the Trust Account (other than Public Distributions) and that such claim shall not permit such Purchaser
(or any person claiming on its behalf or in lieu of any of it) to have any claim against the Trust Account (including any distributions
therefrom) or any amounts contained therein. Notwithstanding anything else in this Section 4.20 to the contrary, nothing herein shall
be deemed to limit such Purchaser’s right, title, interest or claim to the Trust Account by virtue of such Purchaser’s record
or beneficial ownership of Common Stock acquired by any means other than pursuant to this Agreement, including but not limited to any
redemption right with respect to any such securities of the Company. For purposes of this Agreement, “Representatives”
with respect to any person shall mean such person’s affiliates and its and its affiliate’s respective directors, officers,
employees, consultants, advisors, agents and other representatives.


 


4.21 Due
Diligence Review. Each of the Company and the Target shall provide such information and assistance as the Lead Purchaser may request,
(ii) granting such access to the Company, the Target and their respective representatives as may be reasonably necessary for their due
diligence, and (iii) participating in a reasonable number of meetings and due diligence sessions in order to facilitate the due diligence
efforts of the Lead Purchaser.


 


4.22 No
Indebtedness or Liens. From the date hereof until the Debentures are issued and outstanding, unless the Purchasers with at least 51%
of the Subscription Amounts hereunder shall have otherwise given prior written consent, the Company and the Target shall not, and shall
not permit any of the Subsidiaries or Target Subsidiaries to, directly or indirectly:


 


a) other
than Permitted Indebtedness, enter into, create, incur, assume, guarantee or suffer to exist any indebtedness for borrowed money of any
kind, including, but not limited to, a guarantee, on or with respect to any of its property or assets now owned or hereafter acquired
or any interest therein or any income or profits therefrom; or


 






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b) other
than Permitted Liens, enter into, create, incur, assume or suffer to exist any Liens of any kind, on or with respect to any of its property
or assets now owned or hereafter acquired or any interest therein or any income or profits therefrom.


 


Any Purchaser shall be entitled
to obtain injunctive relief against the Company to preclude any such incurrence, which remedy shall be in addition to any right to collect
damages.


 


4.23 Non-Circumvention
Agreement. Neither the Company nor the Target shall, in any manner circumvent or attempt to circumvent the transactions contemplated
hereunder and shall not enter into direct or indirect offers, negotiations or transactions with a third-party in lieu of the transactions
hereunder.


 


4.24 Existing
Interests; Review of S-4. Each of the Company and the Target hereby acknowledge and agree that the Purchasers, and their respective
affiliates may have, and will continue to have after the date hereof, existing pecuniary interests in each of the Company and the Target.
The Company, the Target and the Purchasers shall diligently cooperate with respect to the public disclosure of such interests, including
providing the Purchasers of advanced notice and review of any filings, including the registration statement on Form S-4, to be filed in
connection with the Merger.


 


ARTICLE V.


MISCELLANEOUS


 


5.1 Termination. This
Agreement shall terminate and be void and of no further force and effect, and all rights and obligations of the parties hereunder
shall terminate without any further liability on the part of any party in respect thereof, upon the earlier to occur of: (a) the
mutual written agreement of each of the parties hereto to terminate this Agreement; (b) such date and time as the Merger Agreement
is terminated in accordance with its terms; or (c) written notice by either party to the other party to terminate this Agreement if
the transactions contemplated by this Agreement are not consummated on or prior to November 30, 2022; provided that (i) nothing herein will relieve any
party from liability for any willful breach hereof prior to the time of termination, and each party will be entitled to any remedies
at law or in equity to recover losses, liabilities or damages arising from such breach. The Company shall notify the Purchaser of
the termination of the Merger Agreement promptly after the termination of such agreement and (ii) the provisions of Article V
of this Agreement will survive any termination of this Agreement and continue indefinitely. In the event that this Agreement is
terminated pursuant to this Section 5.1, the Company shall pay to the Purchasers, in cash, their Pro-Rata Portion of $250,000 within
5 Business Days of termination by wire transfer of immediately payable funds per the written instructions of each Purchaser.


 






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5.2 Fees
and Expenses. At the Closing, the Company has agreed to reimburse the ATW Special Situations I LLC (“Lead Purchaser”)
for its reasonable, documented legal fees and expenses, $35,000 of which has been paid prior to the Closing. Accordingly, in lieu of the
foregoing payments, the aggregate amount that the Lead Purchaser is to pay for the Securities at the Closing shall be reduced by the Lead
Purchaser in lieu thereof. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the
negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including,
without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any conversion or
exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities
to the Purchasers.


 


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


 


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


 


5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company, the Target and Purchasers which purchased at least 50.1% in interest of the Debentures based
on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company, the Target and each Purchaser) or, in the case of
a waiver, by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or
waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted
Purchaser (or group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the
rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior
written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding upon
each Purchaser and holder of Securities and the Company and the Target.


 






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


 


5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
Neither the Company nor the Target may assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser. Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchasers.”


 


5.8 No
Third Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties of the Company
in Section 3.1, the representations and warranties of the Purchasers in Section 3.2 and the representations and warranties of the Target
in Section 3.3. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted assigns
and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth in Section
4.10 and this Section 5.8.


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


(Signature Pages Follow)


 




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









 


	CLEANTECH ACQUISITION CORP.	 	Address for Notice:
	 	 	 	 	 
	By:	/s/ Eli Spiro	 	Email:
	 	Name:	Eli Spiro	 	Fax:
	 	Title:	Chief Executive Officer	 	 
	 	 	 	 	 
	With a copy to (which shall not constitute notice):	 	 


 


Loeb & Loeb LLP


345 Park Avenue


New York, NY 10154


Attn: Mitchell S. Nussbaum and


Giovanni Caruso


Fax: (212) 407-4000


 


	NaUTICUS ROBOTICS, INC.	 	Address for Notice:
	 	 	 	 	 
	By:	/s/ Nicholaus Radford	 	Email:
	 	Name:	Nicholaus Radford	 	Fax:
	 	Title:	Chief Executive Officer	 	 
	 	 	 	 	 
	With a copy to (which shall not constitute notice):	 	 


 


Michael J. Blankenship


Winston & Strawn LLP


800 Capitol Street, Suite 2400


Houston, TX 77002


Email: mblankenship@winston.com


Fax: 713-651-2700


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE PAGE FOR PURCHASER FOLLOWS]


 




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[PURCHASER
SIGNATURE PAGES TO CLTH SECURITIES PURCHASE AGREEMENT]


 


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


 


Name of Purchaser: ATW Special Situations
I LLC


 


Signature of Authorized Signatory of Purchaser:
/s/ Kerry Propper


 


Name of Authorized Signatory: Kerry Propper


 


Title of Authorized Signatory: Authorized
Signer


 


Email Address of Authorized Signatory: kpropper@atwpartners.com


 


Address for Notice to Purchaser:


 


17 State Street, Suite 2100


New York, NY 10004


 


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


 


Subscription Amount: $ 32,300,000


 


Principal Amount (1.0204 x Subscription Amount): $ 34,000,000


 


Warrant Shares: 2,720,000 Beneficial Ownership Blocker
☒4.99% or ☐ 9.99%


 


EIN Number: 87-3971656





 


[SIGNATURE PAGES CONTINUE]


 


 


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