Exhibit
10.1


 


SECURITIES
PURCHASE AGREEMENT


 


This
SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of December 13, 2021, is by and among American Virtual
Cloud Technologies, Inc., a Delaware corporation with headquarters located at 1720 Peachtree Street, Suite 629, Atlanta, GA 30309 (the
“Company”), and the investor listed on the Schedule of Buyers attached hereto the “Buyer”).


 


RECITALS


 


A.  The
Company and the Buyer desire to enter into this transaction to purchase (i) Series D Warrants (as defined below) in reliance upon the
exemption from securities registration afforded by Section 4(a)(2) of the 1933 Act, and Rule 506(b) of Regulation D (“Regulation
D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”) under the Securities
Act of 1933, as amended (the “1933 Act”) and (ii) Preferred Shares (as defined below) and Common Shares (as defined
below) pursuant to a currently effective shelf registration statement on Form S-3, which has at least $25,000,000 of unallocated securities,
including Common Stock (as defined below) and warrants to purchase Common Stock registered thereunder (Registration Number 333-258136)
(the “Registration Statement”), which Registration Statement has been declared effective in accordance with the 1933
Act by the SEC.


 


B. The
Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, (i) such aggregate
number of shares of Common Stock as set forth opposite the Buyer’s name in column (3) on the Schedule of Buyers (which aggregate
amount shall be 7,840,000 shares of Common Stock and shall collectively be referred to herein as the “Common Shares”),
(ii) a warrant to initially acquire up to that aggregate number of additional shares of Common Stock set forth opposite the Buyer’s
name in column (4) on the Schedule of Buyers, substantially in the form attached hereto as Exhibit A-1 (the “Series
D Warrants” or the “Warrants”) (as exercised, collectively, the “Series D Warrant Shares”
or the “Warrant Shares”) and (iii) 12,456 shares of the Company’s newly-designated Series A convertible preferred
stock as set forth opposite the Buyer’s name in column (5) on the Schedule of Buyers, substantially in the form attached hereto
as Exhibit A-2 (the “Preferred Shares”).


 


C. At
the Closing, the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit
B (the “Registration Rights Agreement”), pursuant to which the Company has agreed to provide certain registration
rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933 Act and the rules
and regulations promulgated thereunder, and applicable state securities laws.


 


D. The
Series D Warrants and the Series D Warrant Shares are collectively referred to herein as the “PIPE Securities”. The
Common Shares (including all shares issuable upon conversion of the Preferred Shares) and the Preferred Shares are collectively referred
to herein as the “RD Securities”. The PIPE Securities and the RD Securities are collectively referred to herein as
the “Securities”.


 






     


     


    

 


AGREEMENT


 


NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and the Buyer hereby agree as follows:


 


		1.	PURCHASE
                                            AND SALE OF COMMON SHARES, PREFERRED SHARES AND WARRANTS.



 


(a)
Purchase of Common Shares, Preferred Shares and Warrants. Subject to the satisfaction (or waiver) of the conditions set forth
in Sections 6 and 7 below, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company on the Closing
Date (as defined below) (i) such aggregate number of Common Shares as is set forth opposite the Buyer’s name in column (3) on the
Schedule of Buyers, (ii) Series D Warrants to initially acquire up to that aggregate number of Series D Warrant Shares as is set forth
opposite the Buyer’s name in column (4) on the Schedule of Buyers and (iii) the number of Preferred Shares as is set forth opposite
the Buyer’s name in column (5) on the Schedule of Buyers.


 


(b)
Closing. The closing (the “Closing”) of the purchase of the Common Shares, Preferred Shares and the Warrants
by the Buyers shall occur electronically. The date and time of the Closing (the “Closing Date”) shall be 10:00 a.m.,
New York time, on the first (1st) Business Day (as defined below) on which the conditions to the Closing set forth in Sections 6 and
7 below are satisfied or waived (or such other date as is mutually agreed to by the Company and the Buyer). As used herein “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 generally are open for use by customers on such day.


 


(c)
Purchase Price. The aggregate purchase price for the Common Shares, Preferred Shares and the Warrants to be purchased by the Buyer
(the “Purchase Price”) shall be the amount set forth opposite the Buyer’s name in column (6) on the Schedule
of Buyers.


 


(d)
Form of Payment; Deliveries. On the Closing Date, (i) the Buyer shall pay its Purchase Price (less the amounts withheld pursuant
to Section 4(j)) to the Company for the Common Shares, Preferred Shares and the Warrants to be issued and sold to the Buyer at the
Closing, by wire transfer of immediately available funds in accordance with the Flow of Funds Letter (as defined below) and (ii) the
Company shall (A) cause Continental Stock Transfer & Trust Company (together with any subsequent transfer agent, the “Transfer
Agent”) through the Depository Trust Company (“DTC”) Fast Automated Securities Transfer Program, to credit
such aggregate number of Common Shares that the Buyer is purchasing as is set forth opposite the Buyer’s name in column (3) of
the Schedule of Buyers to the Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian
system, and (B) deliver to the Buyer (x) a Series D Warrant pursuant to which the Buyer shall have the right to initially acquire up
to that aggregate number of Series D Warrant Shares as is set forth opposite the Buyer’s name in column (4) on the Schedule of
Buyers and (y) the Buyer the number of Preferred Shares as is set forth opposite the Buyer’s name in column (5) on the Schedule
of Buyers, in each case, duly executed on behalf of the Company and registered in the name of the Buyer or its designee. Notwithstanding
the foregoing, with respect to any Exercise Notice (as defined in the Series D Warrants) delivered on or prior to 6:00 p.m. (New York
City time) on the Trading Day immediately preceding the Closing Date, which may be delivered at any time after the time of execution
of the this Agreement, the Company agrees to deliver the Warrant Shares subject to such notice(s) by 4:00 p.m. (New York City time) on
the Closing Date and the Closing Date shall be the Share Delivery Date (as defined in the Series D Warrants) for purposes hereunder.


 






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(e)
Sales During Pre-Settlement Period. Notwithstanding anything herein to the contrary, if at any time on or after the time of execution
of this Agreement by the Company and an applicable Buyer, through and including the time immediately prior to the Closing (the “Pre-Settlement
Period”), the Buyer sells (excluding “short sales” as defined in Rule 200 of Regulation SHO) to any Person all,
or any portion, of any Common Shares or shares of Common Stock issuable upon conversion of the Preferred Shares to be issued hereunder
to the Buyer at the Closing (collectively, the “Pre-Settlement Shares”), the Buyer shall, automatically hereunder
(without any additional required actions by the Buyer or the Company), be deemed to be unconditionally bound to purchase, and the Company
shall be deemed unconditionally bound to sell, such Pre-Settlement Shares to the Buyer at the Closing; provided, that the Company shall
not be required to deliver any Pre-Settlement Shares to the Buyer prior to the Company’s receipt of the purchase price of such Pre-Settlement
Shares hereunder; and provided further that the Company hereby acknowledges and agrees that the forgoing shall not constitute a representation
or covenant by the Buyer as to whether or not during the Pre-Settlement Period the Buyer shall sell any Pre-Settlement Shares to any
Person and that any such decision to sell any Pre-Settlement Shares by the Buyer shall be made, in the sole discretion of the Buyer,
at the time the Buyer elects to effect any such sale, if any.


 


		2.	BUYER’S
                                            REPRESENTATIONS AND WARRANTIES.



 


The
Buyer represents and warrants to the Company with respect to only itself that, as of the date hereof and as of the Closing Date:


 


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


 


(b)
No Public Sale or Distribution. The Buyer (i) is acquiring its Series D Warrants, and (ii) upon exercise of its Series D Warrants
(other than pursuant to a Cashless Exercise (as defined in the Series D Warrants)) will acquire the Series D Warrant Shares issuable
upon exercise thereof, in each case, for its own account and not with a view towards, or for resale in connection with, the public sale
or distribution thereof in violation of applicable securities laws, except pursuant to sales registered or exempted under the 1933 Act;
provided, however, by making the representations herein, the Buyer does not agree, or make any representation or warranty, to hold any
of the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance
with or pursuant to a registration statement or an exemption from registration under the 1933 Act. The Buyer does not presently have
any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities in violation of applicable
securities laws. For purposes of this Agreement, “Person” means an individual, a limited liability company, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any Governmental Entity or any department
or agency thereof.


 






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(c)
Accredited Investor or Other Qualified Status. The Buyer is a “qualified institutional investor” as defined in Rule
144A of the 1933 Act, an institutional accredited investor of a type listed in subsection (1), (2), (3), (7) or (8) of Rule 501(a) of
Regulation D, with a substantive, pre-existing relationship with the Company, or a “Qualified Investor” within the meaning
of Directive 2003/71/EC of the European Parliament and of the Council of November 4, 2003 (as amended to date, the “Prospectus
Directive,” including any implementing legislation in the United Kingdom), and/or a person who is (a) an investment professional
falling within articles 19(5) of the Financial Services and Markets Act 2000 (“FSMA”) (Financial Promotion) Order
2005, as amended (the “Order”); (b) a person falling within article 49(2)(a) to (d) “high net worth companies,
unincorporated associations etc.” of the Order; or (c) a person to whom an invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) in connection with the issue or sale of any securities may otherwise be lawfully communicated
or caused to be communicated. In the case of a Buyer situated in a member state of the European Economic Area (“EEA”),
the Buyer is a person to whom an offer of the Securities may be made without registration or delivery of a prospectus under an applicable
exception under the national legislation of the relevant member state of the EEA implementing the Prospectus Directive.


 


(d)
Reliance on Exemptions. The Buyer understands that the PIPE Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Buyer’s compliance with, the representations, warranties, agreements, acknowledgments and
understandings of the Buyer set forth herein in order to determine the availability of such exemptions and the eligibility of the Buyer
to acquire the Securities.


 


(e)
Information. The Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances and
operations of the Company and materials relating to the offer and sale of the Securities that have been requested by the Buyer and the
Buyer has had the opportunity to review the Company’s public filings with the SEC. The Buyer and its advisors, if any, have been
afforded the opportunity to ask questions of the Company in order that the Buyer can make an informed investment decision with respect
to the investment. Neither such inquiries nor any other due diligence investigations conducted by the Buyer or its advisors, if any,
or its representatives shall modify, amend or affect the Buyer’s right to rely on the Company’s representations and warranties
contained herein. The Buyer understands that its investment in the Securities involves a high degree of risk. The Buyer has sought such
accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect to its acquisition
of the Securities.


 






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


 


(g)
Transfer or Resale. The Buyer understands that except as provided in the Registration Rights Agreement: (i) the PIPE Securities
have not been and are not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned
or transferred unless (A) subsequently registered thereunder, (B) the Buyer shall have delivered to the Company (if requested by the
Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that such PIPE Securities to be sold, assigned
or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) the Buyer provides the Company
with reasonable assurance that such PIPE Securities can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated
under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of the PIPE Securities
made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any
resale of the PIPE Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to
be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the
rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to
register the PIPE Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption
thereunder. Notwithstanding the foregoing, the PIPE Securities may be pledged in connection with a bona fide margin account or other
loan or financing arrangement secured by the PIPE Securities and such pledge of PIPE Securities, in and of itself, without any transfer
of PIPE Securities upon enforcement of such pledge, shall not be deemed to be a transfer, sale or assignment of the PIPE Securities hereunder,
and no Buyer effecting a pledge of PIPE Securities shall be required to provide the Company with any notice thereof or otherwise make
any delivery to the Company pursuant to this Agreement or any other Transaction Document (as defined in Section 3(b)), including, without
limitation, this Section 2(g).


 


(h)
Validity; Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed and
delivered on behalf of the Buyer and shall constitute the legal, valid and binding obligations of the Buyer enforceable against the Buyer
in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or to applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies.


 


(i)
No Conflicts. The execution, delivery and performance by the Buyer of this Agreement and the Registration Rights Agreement and
the consummation by the Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational
documents of the Buyer, or (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would
become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture
or instrument to which the Buyer is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws) applicable to the Buyer, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which could not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of the Buyer to perform its obligations hereunder.


 






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(j)
Receipt of Prospectus Supplement. The Buyer acknowledges receipt of the Company’s Prospectus Supplement relating to the
offering of the RD Securities, which Prospectus Supplement is required to be delivered to the Buyer pursuant to Section 4(c) below. The
Buyer acknowledges that it has had an opportunity to review the Prospectus Supplement prior to committing to purchase any of the RD Securities.


 


(k)
No Additional Agreements. Such does not have any agreement or understanding with the Company with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents.


 


(l)
No Group. Other than affiliates of the Buyer who are also Buyers under this Agreement, the Buyer is not under common control with
or acting in concert with any other Buyer and is not part of a “group” for purposes of the 1934 Act.


 


(m)
 Residency. The Buyer is a resident of that jurisdiction specified below its address on the Schedule of Buyers.


 


(n)
Disclosure. The Buyer understands and confirms that the Company will rely on the foregoing representations in consummating the
transactions contemplated by this Agreement and the other Transaction Documents. The Buyer acknowledges and agrees that the Company does
not make and has not made any representations or warranties with respect to the transactions contemplated hereby other than those specifically
set forth in the Transaction Documents.


 


		3.	REPRESENTATIONS
                                            AND WARRANTIES OF THE COMPANY.



 


The
Company represents and warrants to the Buyer that, as of the date hereof and as of the Closing Date:


 


(a)
Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly existing
and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority to own their
properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each of the Company and each
of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership
of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to
be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). As used
in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets,
liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any Subsidiary,
individually or taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction Documents or any other
agreements or instruments to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or
any of its Subsidiaries to perform any of their respective obligations under any of the Transaction Documents (as defined below). Other
than the Persons (as defined below) set forth on Schedule 3(a) the Company has no Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (A) owns a majority of the outstanding capital stock or holds a majority
equity or similar interest of such Person or (B) controls or operates all or any part of the business, operations or administration of
such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary”.


 






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(b)
Authorization; Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations
under this Agreement and the other Transaction Documents and to issue the Securities in accordance with the terms hereof and thereof.
The execution and delivery of this Agreement and the other Transaction Documents by the Company and the consummation by the Company of
the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares, the issuance of the
Warrants and the reservation for issuance and issuance of the Warrant Shares issuable upon exercise of the Warrants and the issuance
of the Preferred Shares and the reservation for issuance and the issuance of the shares of Common Stock issuable upon conversion of the
Preferred Shares) have been duly authorized by the Company’s board of directors and (other than the filing with the SEC of (i)
one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement, (ii) a Form D, (iii) the
8-K Filing (as defined below), and (iv) a prospectus supplement in connection with the Closing as required by the Registration Statement
pursuant to Rule 424(b) under the 1933 Act (the “Prospectus Supplement”) supplementing the base prospectus forming
part of the Registration Statement (the “Prospectus”) and any other filings as may be required by any state securities
agencies (collectively, the “Required Approvals”)) and no further filing, consent or authorization is required by
the Company, its board of directors or its stockholders or other governing body. This Agreement has been, and the other Transaction Documents
to which it is a party will be prior to the Closing, duly executed and delivered by the Company, and each constitutes the legal, valid
and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to
indemnification and to contribution may be limited by federal or state securities law. “Transaction Documents” means,
collectively, this Agreement, the Warrants, the Registration Rights Agreement, the Irrevocable Transfer Agent Instructions (as defined
below) and each of the other agreements and certificates entered into or delivered by any of the parties hereto in connection with the
transactions contemplated hereby and thereby, as may be amended from time to time.


 


(c)
Issuance of Securities; Registration Statement. The issuance of the Common Shares, the Preferred Shares and the Warrants are duly
authorized and, upon issuance and payment in accordance with the terms of the Transaction Documents shall be validly issued, fully paid
and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights
of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”) with respect to the
issuance thereof. As of the Closing, the Company shall have reserved from its duly authorized capital stock not less than 200% of the
maximum number of shares of Common Stock issuable upon conversion of the Preferred Shares and exercise of the Warrants (without taking
into account any limitations on the conversion of the Preferred Shares set forth in the Certificate of Designation for the Preferred
Shares and the exercise of the Warrants set forth in the Warrants). Upon exercise in accordance with the Warrants, the Warrant Shares,
when issued, will be validly issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect
to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. Upon conversion in accordance
with the Preferred Shares, the shares of Common Stock issuable upon conversion of the Preferred Shares, when issued, will be validly
issued, fully paid and nonassessable and free from all preemptive or similar rights or Liens with respect to the issue thereof, with
the holders being entitled to all rights accorded to a holder of Common Stock. Subject to the accuracy of the representations and warranties
of the Buyers in this Agreement, the offer and issuance by the Company of the PIPE Securities is exempt from registration under the 1933
Act. The issuance by the Company of the RD Securities has been registered under the 1933 Act, the RD Securities are being issued pursuant
to the Registration Statement and all of the RD Securities are freely transferable and freely tradable by each of the Buyers without
restriction, whether by way of registration or some exemption therefrom. The Registration Statement is effective and available for the
issuance of the RD Securities thereunder and the Company has not received any notice that the SEC has issued or intends to issue a stop-order
with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration
Statement, either temporarily or permanently, or intends or has threatened in writing to do so. The “Plan of Distribution”
section under the Registration Statement (including the Prospectus Supplement) permits the issuance and sale of the RD Securities hereunder
and as contemplated by the other Transaction Documents. Upon receipt of the RD Securities, each of the Buyers will have acquire ownership
of the RD Securities free of any adverse claim. The Registration Statement and any prospectus included therein, including the Prospectus
and the Prospectus Supplement, complied in all material respects with the requirements of the 1933 Act, and the documents incorporated
by reference into the Registration Statement when filed, complied in all material respects with the requirements of the 1934 Act and,
in each case, with the rules and regulations of the SEC promulgated under the 1933 Act or the 1934 Act, as the case may be. At the time
the Registration Statement and any amendments thereto became effective the Registration Statement and any amendments thereto complied
and, upon the filing of the Prospectus Supplement after the date of this Agreement the Registration Statement will comply. in all material
respects with the requirements of the 1933 Act and did not and will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein not misleading. The Prospectus and any amendments
or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued and the Prospectus Supplement at
the Closing Date, complied and will comply, as the case may be, in all material respects with the requirements of the 1933 Act and did
not, and will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading. The Company meets all of the requirements of General
Instruction I.B.6 for the use of Form S-3 under the 1933 Act for the offering and sale of the RD Securities contemplated by this Agreement
and the other Transaction Documents, and the SEC has not notified the Company of any objection to the use of the form of the Registration
Statement pursuant to Rule 401(g)(1) under the 1933 Act. The Registration Statement meets the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act. The Company (i) has not distributed any offering material in connection with the offer or sale of any of the RD Securities
and (ii) until no Buyer holds any of the RD Securities, shall not distribute any offering material in connection with the offer or sale
of any of the RD Securities to, or by, any of the Buyers (if required), in each case, other than the Registration Statement, the Prospectus
or the Prospectus Supplement. In accordance with Rule 5110(b)(7)(C)(i) of the Financial Industry Regulatory Authority Manual, the offering
of the Securities has been registered with the SEC on Form S-3 under the 1933 Act pursuant to the standards for Form S-3 in effect prior
to October 21, 1992, and the RD Securities are being offered pursuant to Rule 415 promulgated under the 1933 Act.


 






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(d)
No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common Shares, the Warrants
and the Warrant Shares and the reservation for issuance of the Warrant Shares and the Preferred Shares and the shares of Common Stock
issuable upon conversion of the Preferred Shares and the reservation for issuance of those Common Shares) will not (i) result in a violation
of the Certificate of Incorporation (as defined below) (including, without limitation, any certificate of designation contained therein),
Bylaws (as defined below), certificate of formation, memorandum of association, articles of association, bylaws or other organizational
documents of the Company or any of its Subsidiaries, or any capital stock or other securities of the Company or any of its Subsidiaries,
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect
under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument
to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment
or decree (including, without limitation, foreign, federal and state securities laws and regulations and the rules and regulations of
the Nasdaq Capital Market (the “Principal Market”) and including all applicable foreign, federal and state laws, rules
and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected.


 


(e)
Consents. Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or make any
filing or registration with (other than the Required Approvals), any Governmental Entity (as defined below) or any regulatory or self-regulatory
agency or any other Person in order for it to execute, deliver or perform any of its respective obligations under or contemplated by
the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings
and registrations which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been or will be obtained
or effected on or prior to the Closing Date, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances
which might prevent the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings
contemplated by the Transaction Documents. The Company is not in violation of the requirements of the Principal Market and has no knowledge
of any facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in the foreseeable future. “Governmental
Entity” means any nation, state, county, city, town, village, district, or other political jurisdiction of any nature, federal,
state, local, municipal, foreign, or other government, governmental or quasi-governmental authority of any nature (including any governmental
agency, branch, department, official, or entity and any court or other tribunal), multi-national organization or body; or body exercising,
or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any
nature or instrumentality of any of the foregoing, including any entity or enterprise owned or controlled by a government or a public
international organization or any of the foregoing.


 






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(f)
Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that the Buyer is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby
and thereby and that no Buyer is (i) an officer or director of the Company or any of its Subsidiaries, (ii) an “affiliate”
(as defined in Rule 144) of the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more
than 10% of the shares of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the
“1934 Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the
Company or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction Documents
and the transactions contemplated hereby and thereby is merely incidental to the Buyer’s purchase of the Securities. The Company
further represents to the Buyer that the Company’s decision to enter into the Transaction Documents to which it is a party has
been based solely on the independent evaluation by the Company and its respective representatives.


 


(g)
No General Solicitation; Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates, nor any
Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation
D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment of any placement agent’s
fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by any Buyer or its investment advisor)
relating to or arising out of the transactions contemplated hereby, including, without limitation, placement agent fees payable to Northland
Securities, Inc., as placement agent (the “Placement Agent”) in connection with the sale of the Securities. The fees
and expenses of the Placement Agent to be paid by the Company or any of its Subsidiaries are as set forth on Schedule 3(g) attached hereto.
The Company shall pay, and hold the Buyer harmless against, any liability, loss or expense (including, without limitation, attorney’s
fees and out-of-pocket expenses) arising in connection with any such claim. The Company acknowledges that it has engaged the Placement
Agent in connection with the sale of the Securities. Other than the Placement Agent, neither the Company nor any of its Subsidiaries
has engaged any placement agent or other agent in connection with the offer or sale of the Securities.


 


(h)
No Integrated Offering. Other than with respect to the RD Securities and as contemplated by the Registration Rights Agreement,
none of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their behalf has, directly or indirectly,
made any offers or sales of any security or solicited any offers to buy any security, under circumstances that would require registration
of the issuance of any of the Securities under the 1933 Act, whether through integration with prior offerings or otherwise, or cause
this offering of the Securities to require approval of stockholders of the Company for purposes of the 1933 Act or under any applicable
stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange or automated quotation
system on which any of the securities of the Company are listed or designated for quotation. None of the Company, its Subsidiaries, their
affiliates nor any Person acting on their behalf will take any action or steps that would require registration of the issuance of any
of the PIPE Securities under the 1933 Act or cause the offering of any of the PIPE Securities to be integrated with other offerings of
securities of the Company.


 






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(i)
Dilutive Effect. The Company understands and acknowledges that the number of Warrant Shares will increase in certain circumstances.
The Company further acknowledges that its obligation to issue the Warrant Shares upon exercise of the Warrants in accordance with this
Agreement and the Warrants is, absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership
interests of other stockholders of the Company.


 


(j) 
Application of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary action,
if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison pill
(including, without limitation, any distribution under a rights agreement), stockholder rights plan or other similar anti-takeover
provision under the Certificate of Incorporation, Bylaws or other organizational documents or the laws of the jurisdiction of its
incorporation or otherwise which is or could become applicable to any Buyer as a result of the transactions contemplated by this
Agreement, including, without limitation, the Company’s issuance of the Securities and any Buyer’s ownership of the
Securities. The Company and its board of directors have taken all necessary action, if any, in order to render inapplicable any
stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of shares of Common Stock or a
change in control of the Company or any of its Subsidiaries.


 


(k)
SEC Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has filed all reports, schedules,
forms, proxy statements, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements
of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits and appendices included therein and financial statements,
notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the (“SEC Documents”).
The Company has delivered or has made available to the Buyers or their respective representatives true, correct and complete copies of
each of the SEC Documents not available on the EDGAR system. As of their respective dates, or as of the respective dates of any amendments
thereto, as applicable, the SEC Documents complied in all material respects with the requirements of the 1934 Act and the rules and regulations
of the SEC promulgated thereunder applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the
SEC, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective
dates, the financial statements of the Company included in the SEC Documents complied in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial
statements have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied,
during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii) in the
case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) and fairly
present in all material respects the financial position of the Company as of the dates thereof and the results of its operations and
cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments which will
not be material, either individually or in the aggregate). The reserves, if any, established by the Company or the lack of reserves,
if applicable, are reasonable based upon facts and circumstances known by the Company on the date hereof and there are no loss contingencies
that are required to be accrued by the Statement of Financial Accounting Standard No. 5 of the Financial Accounting Standards Board which
are not provided for by the Company in its financial statements or otherwise. No other information provided by or on behalf of the Company
to any of the Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e)
of this Agreement or in the disclosure schedules to this Agreement) contains any untrue statement of a material fact or omits to state
any material fact necessary in order to make the statements therein not misleading, in the light of the circumstance under which they
are or were made. The Company is not currently contemplating to amend or restate any of the financial statements (including, without
limitation, any notes or any letter of the independent accountants of the Company with respect thereto) included in the SEC Documents
(the “Financial Statements”), nor is the Company currently aware of facts or circumstances which would require the
Company to amend or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance
with GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend
that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate any of
the Financial Statements.


 






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(l) 
Absence of Certain Changes. Except as disclosed in the SEC Documents, since the date of the Company’s most recent audited
financial statements contained in a Form 10-K, there has been no material adverse change and no material adverse development in the
business, assets, liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects
of the Company or any of its Subsidiaries. Since the date of the Company’s most recent audited financial statements contained
in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets,
individually or in the aggregate, outside of the ordinary course of business or (iii) made any capital expenditures, individually or
in the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to
seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or
winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors
intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to
do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof, and after giving
effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below). For purposes of
this Section 3(l), “Insolvent” means, (i) with respect to the Company and its Subsidiaries, on a consolidated
basis, (A) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less than the amount
required to pay the Company’s and its Subsidiaries’ total Indebtedness (as defined below), (B) the Company and its
Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur debts that would
be beyond their ability to pay as such debts mature; and (ii) with respect to the Company and each Subsidiary, individually, (A) the
present fair saleable value of the Company’s or such Subsidiary’s (as the case may be) assets is less than the amount
required to pay its respective total Indebtedness, (B) the Company or such Subsidiary (as the case may be) is unable to pay its
respective debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured
or (C) the Company or such Subsidiary (as the case may be) intends to incur or believes that it will incur debts that would be
beyond its respective ability to pay as such debts mature. After giving effect to the transactions contemplated hereby, neither the
Company nor any of its Subsidiaries has engaged in any business or in any transaction, and is not about to engage in any business or
in any transaction, for which the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital
with which to conduct the business in which it is engaged as such business is now conducted and is proposed to be
conducted.


 


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


 


(n)
Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of or in
default under its Certificate of Incorporation, any certificate of designation, preferences or rights of any other outstanding series
of preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of formation, memorandum
of association, articles of association, Certificate of Incorporation or certificate of incorporation or bylaws, respectively. Neither
the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation
applicable to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in
violation of any of the foregoing, except in all cases for possible violations which would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, the Company is not in violation of any
of the rules, regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably
lead to delisting or suspension of the Common Stock by the Principal Market in the foreseeable future. During the two years prior to
the date hereof, (i) the Common Stock has been listed or designated for quotation on the Principal Market, (ii) trading in the Common
Stock has not been suspended by the SEC or the Principal Market and (iii) the Company has received no communication, written or oral,
from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal Market. The Company
and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate regulatory authorities necessary
to conduct their respective businesses, except where the failure to possess such certificates, authorizations or permits would not have,
individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any such Subsidiary has received any notice
of proceedings relating to the revocation or modification of any such certificate, authorization or permit. There is no agreement, commitment,
judgment, injunction, order or decree binding upon the Company or any of its Subsidiaries or to which the Company or any of its Subsidiaries
is a party which has or would reasonably be expected to have the effect of prohibiting or materially impairing any business practice
of the Company or any of its Subsidiaries, any acquisition of property by the Company or any of its Subsidiaries or the conduct of business
by the Company or any of its Subsidiaries as currently conducted other than such effects, individually or in the aggregate, which have
not had and would not reasonably be expected to have a Material Adverse Effect.


 






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(o)
Foreign Corrupt Practices. Neither the Company, any of the Company’s Subsidiaries or, to the knowledge of the Company, any
director, officer, agent, employee, nor any other person acting for or on behalf of the foregoing (individually and collectively, a “Company
Affiliate”) have violated the U.S. Foreign Corrupt Practices Act (the “FCPA”) or any other applicable anti-bribery
or anti-corruption laws, nor has any Company Affiliate offered, paid, promised to pay, or authorized the payment of any money, or offered,
given, promised to give, or authorized the giving of anything of value, to any officer, employee or any other person acting in an official
capacity for any Governmental Entity to any political party or official thereof or to any candidate for political office (individually
and collectively, a “Government Official”) or to any person under circumstances where such Company Affiliate knew
or was aware of a high probability that all or a portion of such money or thing of value would be offered, given or promised, directly
or indirectly, to any Government Official, for the purpose of:


 


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


 


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


 


(p)
Sarbanes-Oxley Act. The Company and each Subsidiary is in compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002, as amended, and any and all applicable rules and regulations promulgated by the SEC thereunder.


 


(q)
Transactions With Affiliates. Except as disclosed in the SEC Reports, no current or, to the knowledge of the Company, former,
employee, partner, director, officer or stockholder (direct or indirect) of the Company or its Subsidiaries, or any associate, or, to
the knowledge of the Company, any affiliate of any thereof, or any relative with a relationship no more remote than first cousin of any
of the foregoing, is presently, or has ever been, (i) a party to any transaction with the Company or its Subsidiaries (including any
contract, agreement or other arrangement providing for the furnishing of services by, or rental of real or personal property from, or
otherwise requiring payments to, any such director, officer or stockholder or such associate or affiliate or relative Subsidiaries (other
than for ordinary course services as employees, officers or directors of the Company or any of its Subsidiaries)) or (ii) the direct
or indirect owner of an interest in any corporation, firm, association or business organization which is a competitor, supplier or customer
of the Company or its Subsidiaries (except for a passive investment (direct or indirect) in less than 5% of the common stock of a company
whose securities are traded on or quoted through an Eligible Market (as defined below)), nor does any such Person receive income from
any source other than the Company or its Subsidiaries which relates to the business of the Company or its Subsidiaries or should properly
accrue to the Company or its Subsidiaries. No director, executive officer, or 10% or greater stockholder of the Company or any of its
Subsidiaries or member of his or her immediate family is indebted to the Company or its Subsidiaries, as the case may be, nor is the
Company or any of its Subsidiaries indebted (or committed to make loans or extend or guarantee credit) to any of them, other than (i)
for payment of salary for services rendered, (ii) reimbursement for reasonable expenses incurred on behalf of the Company, and (iii)
for other standard employee benefits made generally available to all employees or executives (including stock option agreements outstanding
under any stock option plan approved by the Board of Directors of the Company).


 






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(r)
 Equity Capitalization.


 


		(i)	Definitions:



(A) “Common
Stock” means (x) the Company’s shares of common stock, $0.0001 par value per share, and (y) any capital stock into
which such common stock shall have been changed or any share capital resulting from a reclassification of such common stock.


 


(B) “Preferred
Stock” means (x) the Company’s blank check preferred stock, $0.0001 par value per share, the terms of which may be designated
by the board of directors of the Company in a certificate of designations and (y) any capital stock into which such preferred stock shall
have been changed or any share capital resulting from a reclassification of such preferred stock (other than a conversion of such preferred
stock into Common Stock in accordance with the terms of such certificate of designations).


 


(ii)
Authorized and Outstanding Capital Stock. As of the date hereof, the authorized capital stock of the Company consists of (A) 500,000,000
shares of Common Stock, of which 71,354,106 are issued and outstanding and 47,111,763 shares are reserved for issuance pursuant to Convertible
Securities (as defined below) (other than the Common Shares, the Preferred Shares and the Warrants) exercisable or exchangeable for,
or convertible into, shares of Common Stock and (B) 5,000,000 shares of Preferred Stock, none of which are issued and outstanding (prior
to the issuance of the Preferred Shares). No shares of Common Stock are held in the treasury of the Company. “Convertible Securities”
means any capital stock or other security of the Company or any of its Subsidiaries that is at any time and under any circumstances directly
or indirectly convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any capital
stock or other security of the Company (including, without limitation, Common Stock) or any of its Subsidiaries.


 


(iii)
Valid Issuance; Available Shares; Affiliates. All of such outstanding shares are duly authorized and have been, or upon issuance
will be, validly issued and are fully paid and nonassessable. Schedule 3(r)(iii) sets forth the number of shares of Common Stock
that are (A) reserved for issuance pursuant to Convertible Securities (other than the Warrants) and (B) as of the date hereof, owned
by Persons who are “affiliates” (as defined in Rule 405 of the 1933 Act and calculated based on the assumption that only
officers, directors and holders of at least 10% of the Company’s issued and outstanding Common Stock are “affiliates”
without conceding that any such Persons are “affiliates” for purposes of federal securities laws) of the Company or any of
its Subsidiaries. To the Company’s knowledge, except as disclosed in the SEC Reports, no Person owns 10% or more of the Company’s
issued and outstanding shares of Common Stock (calculated based on the assumption that all Convertible Securities, whether or not presently
exercisable or convertible, have been fully exercised or converted (as the case may be) taking account of any limitations on
exercise or conversion (including “blockers”) contained therein without conceding that such identified Person is a 10% stockholder
for purposes of federal securities laws).


 






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(iv) 
Existing Securities; Obligations. Except as disclosed on Schedule 3(r)(iv): (A) none of the Company’s or any
Subsidiary’s shares, interests or capital stock is subject to preemptive rights or any other similar rights or Liens suffered
or permitted by the Company or any Subsidiary; (B) there are no outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable
for, any shares, interests or capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional shares, interests or capital
stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any shares,
interests or capital stock of the Company or any of its Subsidiaries; (C) there are no agreements or arrangements under which the
Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except pursuant
to the Registration Rights Agreement); (D) there are no outstanding securities or instruments of the Company or any of its
Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of
its Subsidiaries; (E) there are no securities or instruments containing anti-dilution or similar provisions that will be triggered
by the issuance of the Securities; and (F) neither the Company nor any Subsidiary has any stock appreciation rights or
“phantom stock” plans or agreements or any similar plan or agreement.


 


(v)
Organizational Documents. The Company has furnished or made available to the Buyers true, correct and complete copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”),
and the Company’s bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and the terms of all
Convertible Securities and the material rights of the holders thereof in respect thereto.


 


(s)
Indebtedness and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as set forth on Schedule 3(s), has
any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments evidencing
Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may become bound, (ii)
is a party to any contract, agreement or instrument, the violation of which, or default under which, by the other party(ies) to such
contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect, (iii) has any financing statements
securing obligations in any amounts filed in connection with the Company or any of its Subsidiaries (other than in connection with any
Indebtedness disclosed pursuant to clause (i) of this subsection (s), or any financing statements evidencing equipment financing liens);
(iv) is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except
where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party
to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s
officers, has or is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities
or obligations required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred
in the ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate,
do not or could not have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness” of any Person
means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred
purchase price of property or services (including, without limitation, “capital leases” in accordance with GAAP) (other than
trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations
with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures
or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses,
(E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either
case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations
under any leasing or similar arrangement which, in connection with GAAP, consistently applied for the periods covered thereby, is classified
as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien upon or in any property or assets (including accounts and
contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for
the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (A) through (G) above; and (y) “Contingent Obligation” means, as to any Person, any direct
or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation
of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide
assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.


 






    14


     


    

 


(t)
Litigation. There is no action, suit, arbitration, proceeding, inquiry or investigation before or by the Principal Market, any
court, public board, other Governmental Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’
officers or directors, whether of a civil or criminal nature or otherwise, in their capacities as such, which is outside of the ordinary
course of business or individually or in the aggregate material to the Company or any of its Subsidiaries. No director, officer or employee
of the Company or any of its subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation
of litigation. Without limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending or
contemplated, any investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director or officer
of the Company or any of its Subsidiaries. The SEC has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the 1933 Act or the 1934 Act, including, without limitation, the Registration Statement. After reasonable
inquiry of its employees, the Company is not aware of any fact which might result in or form the basis for any such action, suit, arbitration,
investigation, inquiry or other proceeding. Neither the Company nor any of its Subsidiaries is subject to any order, writ, judgment,
injunction, decree, determination or award of any Governmental Entity.


 


(u)
Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the
Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought
or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not have a Material Adverse Effect.


 


(v)
Employee Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs
any member of a union. The Company and its Subsidiaries believe that their relations with their employees are good. No executive officer
(as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company or any of its Subsidiaries has notified
the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate such
officer’s employment with the Company or any such Subsidiary. No current (or former) executive officer or other key employee of
the Company or any of its Subsidiaries is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement, non-competition agreement, or any other contract or agreement or any restrictive covenant,
and the continued employment of each such executive officer or other key employee (as the case may be) does not subject the Company or
any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance
with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices and benefits, terms
and conditions of employment and wages and hours, except where failure to be in compliance would not, either individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect.


 


(w)
Title.


 


(i)
Real Property. Each of the Company and its Subsidiaries holds good title to all real property, leases in real property, facilities
or other interests in real property owned or held by the Company or any of its Subsidiaries (the “Real Property”)
owned by the Company or any of its Subsidiaries (as applicable). The Real Property is free and clear of all Liens and is not subject
to any rights of way, building use restrictions, exceptions, variances, reservations, or limitations of any nature except for (a) Liens
for current taxes not yet due and (b) zoning laws and other land use restrictions that do not impair the present or anticipated use of
the property subject thereto. Any Real Property held under lease by the Company or any of its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company or any of its Subsidiaries.


 






    15


     


    

 


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


 


(x)
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks,
trade names, service marks, service mark registrations, service names, original works of authorship, patents, patent rights, copyrights,
inventions, licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications
and registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses as now
conducted and presently proposed to be conducted. Except as set forth in Schedule 3(w)(ii)(ii), none of the Company’s Intellectual
Property Rights have expired or terminated or have been abandoned or are expected to expire or terminate or are expected to be abandoned,
within three years from the date of this Agreement. The Company does not have any knowledge of any infringement by the Company or its
Subsidiaries of Intellectual Property Rights of others. There is no claim, action or proceeding being made or brought, or to the knowledge
of the Company or any of its Subsidiaries, being threatened, against the Company or any of its Subsidiaries regarding its Intellectual
Property Rights. Neither the Company nor any of its Subsidiaries is aware of any facts or circumstances which might give rise to any
of the foregoing infringements or claims, actions or proceedings. The Company and its Subsidiaries have taken reasonable security measures
to protect the secrecy, confidentiality and value of all of their Intellectual Property Rights.


 


(y)
Environmental Laws. (i) The Company and its Subsidiaries (A) are in compliance with any and all Environmental Laws (as defined
below), (B) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (C) are in compliance with all terms and conditions of any such permit, license or approval where, in each
of the foregoing clauses (A), (B) and (C), the failure to so comply could be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect. The term “Environmental Laws” means all federal, state, local or foreign laws relating to pollution
or protection of human health or the environment (including, without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata), including, without limitation, laws relating to emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”) into the
environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials, as well as all authorizations, codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices
or notice letters, orders, permits, plans or regulations issued, entered, promulgated or approved thereunder.


 






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(ii) No
Hazardous Materials:


 


(A) have
been disposed of or otherwise released from any Real Property of the Company or any of its Subsidiaries in violation of any Environmental
Laws; or


 


(B) are
present on, over, beneath, in or upon any Real Property or any portion thereof in quantities that would constitute a violation of any
Environmental Laws. No prior use by the Company or any of its Subsidiaries of any Real Property has occurred that violates any Environmental
Laws, which violation would have a material adverse effect on the business of the Company or any of its Subsidiaries.


 


(iii) Neither
the Company nor any of its Subsidiaries knows of any other person who or entity which has stored, treated, recycled, disposed of or otherwise
located on any Real Property any Hazardous Materials, including, without limitation, such substances as asbestos and polychlorinated
biphenyls.


 


(iv) None
of the Real Properties are on any federal or state “Superfund” list or Liability Information System (“CERCLIS”)
list or any state environmental agency list of sites under consideration for CERCLIS, nor subject to any environmental related Liens.


 


(z)
Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations imposed
by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the Company or such
Subsidiary.


 


(aa)
Tax Status. The Company and each of its Subsidiaries (i) has timely made or filed (allowing for all lawful extensions) all foreign,
federal and state income and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)
has timely paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There
are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company
and its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify as a passive foreign
investment company, as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”).
The net operating loss carryforwards (“NOLs”) for United States federal income tax purposes of the consolidated group
of which the Company is the common parent, if any, shall not be adversely effected by the transactions contemplated hereby. The transactions
contemplated hereby do not constitute an “ownership change” within the meaning of Section 382 of the Code, thereby preserving
the Company’s ability to utilize such NOLs.


 






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


 


(cc)
Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any of its
Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in its 1934 Act
filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.


 


(dd)
Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment
company,” an affiliate of an “investment company,” a company controlled by an “investment company” or an
“affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company”
as such terms are defined in the Investment Company Act of 1940, as amended.


 


(ee)
Acknowledgement Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that (i) following
the public disclosure of the transactions contemplated by the Transaction Documents, in accordance with the terms thereof, none of the
Buyers have been asked by the Company or any of its Subsidiaries to agree, nor has any Buyer agreed with the Company or any of its Subsidiaries,
to desist from effecting any transactions in or with respect to (including, without limitation, purchasing or selling, long and/or short)
any securities of the Company, or “derivative” securities based on securities issued by the Company or to hold any of the
Securities for any specified term; (ii) any Buyer, and counterparties in “derivative” transactions to which any the Buyer
is a party, directly or indirectly, presently may have a “short” position in the Common Stock which was established prior
to the Buyer’s knowledge of the transactions contemplated by the Transaction Documents; (iii) the Buyer shall not be deemed to
have any affiliation with or control over any arm’s length counterparty in any “derivative” transaction; and (iv) the
Buyer may rely on the Company’s obligation to timely deliver shares of Common Stock upon exercise or exchange, as applicable, of
the Securities as and when required pursuant to the Transaction Documents for purposes of effecting trading in the Common Stock of the
Company. The Company further understands and acknowledges that following the public disclosure of the transactions contemplated by the
Transaction Documents pursuant to the 8-K Filing (as defined below) one or more Buyers may engage in hedging and/or trading activities
(including, without limitation, the location and/or reservation of borrowable shares of Common Stock) at various times during the period
that the Securities are outstanding, including, without limitation, during the periods that the value and/or number of the Warrant Shares
deliverable with respect to the Securities are being determined and such hedging and/or trading activities (including, without limitation,
the location and/or reservation of borrowable shares of Common Stock), if any, can reduce the value of the existing stockholders’
equity interest in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges
that such aforementioned hedging and/or trading activities do not constitute a breach of this Agreement, the Warrants or any other Transaction
Document or any of the documents executed in connection herewith or therewith.


 






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(ff)
Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person acting
on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation
of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of the Securities, (ii)
sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other than the Placement Agent),
(iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities of the Company or
any of its Subsidiaries or (iv) paid or agreed to pay any Person for research services with respect to any securities of the Company
or any of its Subsidiaries.


 


(gg)
U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any
of the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning of Section
897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.


 


(hh)
Registration Eligibility. The Company is eligible to register the issuance of the RD Securities by the Company using Form S-3
promulgated under the 1933 Act. The Company is eligible to register the Registrable Securities (as defined in the Registration Rights
Agreement) for resale by the Buyers using Form S-3 promulgated under the 1933 Act.


 


(ii)
Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required
to be paid in connection with the issuance, sale and transfer of the Securities to be sold to the Buyer hereunder will be, or will have
been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 






    19


     


    

 


(jj)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of
a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.


 


(kk)
[Reserved].


 


(ll)
Illegal or Unauthorized Payments; Political Contributions. Neither the Company nor any of its Subsidiaries nor, to the best of
the Company’s knowledge (after reasonable inquiry of its officers and directors), any of the officers, directors, employees, agents
or other representatives of the Company or any of its Subsidiaries or any other business entity or enterprise with which the Company
or any Subsidiary is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution
or gift of money, property, or services, whether or not in contravention of applicable law, (i) as a kickback or bribe to any Person
or (ii) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal
political contributions not involving the direct or indirect use of funds of the Company or any of its Subsidiaries.


 


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


 


(nn)
Management. Except as set forth in Schedule 3(nn) hereto, during the past five year period, no current or former officer
or director or, to the knowledge of the Company, no current ten percent (10%) or greater stockholder of the Company or any of its 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);


 






    20


     


    

 


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


 


(1)
Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by the United States Commodity Futures Trading Commission or an associated person of
any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director
or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct
or practice in connection with such activity;


 


(2)
Engaging in any particular type of business practice; or


 


(3)
Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of
securities laws or commodities laws;


 


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


 


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


 


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


 


(oo)
Stock Option Plans. Each stock option granted by the Company was granted (i) in accordance with the terms of the applicable stock
option plan of the Company and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such
stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option
plan has been backdated. The Company has not knowingly granted, and there is no and has been no policy or practice of the Company to
knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or other public
announcement of material information regarding the Company or its Subsidiaries or their financial results or prospects.


 


(pp)
No Disagreements with Accountants and Lawyers. There are no material disagreements of any kind presently existing, or reasonably
anticipated by the Company to arise, between the Company and the accountants and lawyers formerly or presently employed by the Company
and the Company is current with respect to any fees owed to its accountants and lawyers which could affect the Company’s ability
to perform any of its obligations under any of the Transaction Documents. In addition, on or prior to the date hereof, the Company had
discussions with its accountants about its financial statements previously filed with the SEC. Based on those discussions, the Company
has no reason to believe that it will need to restate any such financial statements or any part thereof.


 






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(qq)
No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under the 1933
Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated issuer, any director,
executive officer, other officer of the Company participating in the offering contemplated hereby, or, to the knowledge of the Company,
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 1933 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 1933 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 Buyers a copy of any disclosures provided thereunder.


 


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


 


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


 


(tt)
Public Utility Holding Act None of the Company nor any of its Subsidiaries is a “holding company,” or an “affiliate”
of a “holding company,” as such terms are defined in the Public Utility Holding Act of 2005.


 


(uu)
Federal Power Act. None of the Company nor any of its Subsidiaries is subject to regulation as a “public utility”
under the Federal Power Act, as amended.


 


(vv)
Registration Rights. No holder of securities of the Company has rights to the registration of any securities of the Company because
of the filing of the Registration Statement or the issuance of the Securities hereunder that could expose the Company to material liability
or any Buyer to any liability or that could impair the Company’s ability to consummate the issuance and sale of the Securities
in the manner, and at the times, contemplated hereby, which rights have not been waived by the holder thereof as of the date hereof.


 


(ww)
Cybersecurity. The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate
and perform in all material respects as required in connection with the operation of the business of the Company and its subsidiaries
as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants
that would reasonably be expected to have a Material Adverse Effect on the Company’s business. The Company and its Subsidiaries
have implemented and maintained commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including “Personal Data,” used in connection with their businesses. “Personal Data”
means (i) a natural person’s name, street address, telephone number, e-mail address, photograph, social security number or tax
identification number, driver’s license number, passport number, credit card number, bank information, or customer or account number;
(ii) any information which would qualify as “personally identifying information” under the Federal Trade Commission Act,
as amended; (iii) “personal data” as defined by the European Union General Data Protection Regulation (“GDPR”)
(EU 2016/679); (iv) any information which would qualify as “protected health information” under the Health Insurance Portability
and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
and (v) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person or such, nor any incidents under internal review or investigations relating to the same except in each
case, where such would not, either individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. The
Company and its 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 Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access,
misappropriation or modification except in each case, where such would not, either individually or in the aggregate, reasonably be expected
to result in a Material Adverse Effect.


 






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(xx)
Compliance with Data Privacy Laws. The Company and its Subsidiaries are, and at all prior times were, in compliance with all applicable
state and federal data privacy and security laws and regulations, including without limitation HIPAA, and the Company and its Subsidiaries
have taken commercially reasonable actions to prepare to comply with, and since May 25, 2018, have been and currently are in compliance
with, the GDPR (EU 2016/679) (collectively, the “Privacy Laws”) except in each case, where such would not, either
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. To ensure compliance with the Privacy
Laws, the Company and its Subsidiaries have in place, comply with, and take appropriate steps reasonably designed to ensure compliance
in all material respects with their policies and procedures relating to data privacy and security and the collection, storage, use, disclosure,
handling, and analysis of Personal Data (the “Policies”). The Company and its Subsidiaries have at all times made
all disclosures to users or customers required by applicable laws and regulatory rules or requirements, and none of such disclosures
made or contained in any Policy have, to the knowledge of the Company, been inaccurate or in violation of any applicable laws and regulatory
rules or requirements in any material respect. The Company further certifies that neither it nor any Subsidiary: (i) has received notice
of any actual or potential liability under or relating to, or actual or potential violation of, any of the Privacy Laws, and has no knowledge
of any event or condition that would reasonably be expected to result in any such notice; (ii) is currently conducting or paying for,
in whole or in part, any investigation, remediation, or other corrective action pursuant to any Privacy Law; or (iii) is a party to any
order, decree, or agreement that imposes any obligation or liability under any Privacy Law.


 


(yy) Disclosure.
The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers or their agents or counsel
with any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company
or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement and the other Transaction Documents.
The Company understands and confirms that each of the Buyers will rely on the foregoing representations in effecting transactions in securities
of the Company. All disclosure provided to the Buyers regarding the Company and its Subsidiaries, their businesses and the transactions
contemplated hereby, including the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries is
true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order to
make the statements made therein, in the light of the circumstances under which they were made, not misleading. All of the written information
furnished after the date hereof by or on behalf of the Company or any of its Subsidiaries to the Buyer pursuant to or in connection with
this Agreement and the other Transaction Documents, taken as a whole, will be true and correct in all material respects as of the date
on which such information is so provided and will not contain any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.
No event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their business,
properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which, under applicable
law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company but which has not been
so publicly disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations or warranties with respect
to the transactions contemplated hereby other than those specifically set forth in Section 2.


 


		4.	COVENANTS.



 


(a) Best
Efforts. The Buyer shall use its best efforts to timely satisfy each of the covenants hereunder and conditions to be satisfied by
it as provided in Section 6 of this Agreement. The Company shall use its best efforts to timely satisfy each of the covenants hereunder
and conditions to be satisfied by it as provided in Section 7 of this Agreement.


 


(b) Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses.


 


(i) Amendments
to the Registration Statement; Prospectus Supplements; Free Writing Prospectuses. Except as provided in this Agreement and other than
periodic reports required to be filed pursuant to the 1934 Act, the Company shall not file with the SEC any amendment to the Registration
Statement that relates to the Buyer, this Agreement, the Warrants or the transactions contemplated hereby or thereby or file with the
SEC any Prospectus Supplement that relates to the Buyer, this Agreement, the Warrants or the transactions contemplated hereby or thereby
with respect to which (a) the Buyer shall not previously have been advised, (b) the Company shall not have given due consideration to
any comments thereon received from the Buyer or its counsel, or (c) the Buyer shall reasonably object after being so advised, unless the
Company reasonably has determined that it is necessary to amend the Registration Statement or make any supplement to the Prospectus to
comply with the 1933 Act or any other applicable law or regulation, in which case the Company shall promptly (but in no event later than
24 hours) so inform the Buyer, the Buyer shall be provided with a reasonable opportunity to review and comment upon any disclosure relating
to the Buyer and the Company shall expeditiously furnish to the Buyer an electronic copy thereof. In addition, for so long as, in the
reasonable opinion of counsel for the Buyer, the Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933
Act) is required to be delivered in connection with any acquisition or sale of RD Securities by the Buyer, the Company shall not file
any Prospectus Supplement with respect to the RD Securities without delivering or making available a copy of such Prospectus Supplement,
together with the Prospectus, to the Buyer promptly.


 






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(ii) The
Company has not made, and agrees that it will not make, an offer relating to the RD Securities that would constitute an “issuer
free writing prospectus” as defined in Rule 433 promulgated under the 1933 Act (an “Issuer Free Writing Prospectus”)
or that would otherwise constitute a “free writing prospectus” as defined in Rule 405 promulgated under the 1933 Act (a “Free
Writing Prospectus”) required to be filed by the Company or the Buyer with the SEC or retained by the Company or the Buyer under
Rule 433 under the 1933 Act. The Buyer has not made, and agrees that it will not make, an offer relating to the RD Securities that would
constitute a Free Writing Prospectus required to be filed by the Company with the SEC or retained by the Company under Rule 433 under
the 1933 Act. Any such Issuer Free Writing Prospectus or other Free Writing Prospectus consented to by the Buyer or the Company is referred
to in this Agreement as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has treated and will treat,
as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and (y) it has complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 under the 1933 Act applicable to any Permitted Free Writing Prospectus,
including in respect of timely filing with the SEC, legending and record keeping.


 


(c) Prospectus
Delivery. Immediately prior to execution of this Agreement, the Company shall have delivered to the Buyer, and as soon as practicable
after execution of this Agreement the Company shall file, Prospectus Supplements with respect to the RD Securities to be issued on the
Closing Date, as required under, and in conformity with, the 1933 Act, including Rule 424(b) thereunder. The Company shall provide the
Buyer a reasonable opportunity to comment on a draft of each Prospectus Supplement and any Issuer Free Writing Prospectus, shall give
due consideration to all such comments and, subject to the provisions of Section 4(b) hereof, shall deliver or make available to the Buyer,
without charge, an electronic copy of each form of Prospectus Supplement, together with the Prospectus, and any Permitted Free Writing
Prospectus on the Closing Date. The Company consents to the use of the Prospectus (and of any Prospectus Supplements thereto) in accordance
with the provisions of the 1933 Act and with the securities or “blue sky” laws of the jurisdictions in which the RD Securities
may be sold by the Buyer, in connection with the offering and sale of the RD Securities and for such period of time thereafter as the
Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the 1933 Act) is required by the 1933 Act to be delivered
in connection with sales of the RD Securities. If during such period of time any event shall occur that in the judgment of the Company
and its counsel is required to be set forth in the Registration Statement or the Prospectus or any Permitted Free Writing Prospectus or
should be set forth therein in order to make the statements made therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading, or if it is necessary to amend the Registration Statement or supplement or amend the Prospectus
or any Permitted Free Writing Prospectus to comply with the 1933 Act or any other applicable law or regulation, the Company shall forthwith
prepare and, subject to Section 4(b) above, file with the SEC an appropriate amendment to the Registration Statement or Prospectus Supplement
to the Prospectus (or supplement to the Permitted Free Writing Prospectus) and shall expeditiously furnish or make available to the Buyer
an electronic copy thereof.


 






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(d) Stop
Orders. The Company shall advise the Buyer promptly (but in no event later than 24 hours) and shall confirm such oral or written advice
in writing: (i) of the Company’s receipt of notice of any request by the SEC for amendment of or a supplement to the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus or for any additional information; (ii) of the Company’s receipt
of notice of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or prohibiting or suspending
the use of the Prospectus or any Prospectus Supplement, or of the suspension of qualification of the RD Securities for offering or sale
in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose; (iii) of the Company becoming aware
of the happening of any event, which makes any statement of a material fact made in the Registration Statement, the Prospectus or any
Permitted Free Writing Prospectus untrue or which requires the making of any additions to or changes to the statements then made in the
Registration Statement, the Prospectus or any Permitted Free Writing Prospectus in order to state a material fact required by the 1933
Act to be stated therein or necessary in order to make the statements then made therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, or of the necessity to amend the Registration Statement or supplement the Prospectus
or any Permitted Free Writing Prospectus to comply with the 1933 Act or any other law or (iv) if at any time following the date hereof
the Registration Statement is not effective or is not otherwise available for the issuance of the RD Securities or any Prospectus contained
therein is not available for use for any other reason. Thereafter, the Company shall promptly notify such holders when the Registration
Statement, the Prospectus, any Permitted Free Writing Prospectus and/or any amendment or supplement thereto, as applicable, is effective
and available for the issuance of the RD Securities. If at any time the SEC shall issue any stop order suspending the effectiveness of
the Registration Statement or prohibiting or suspending the use of the Prospectus or any Prospectus Supplement, the Company shall use
best efforts to obtain the withdrawal of such order at the earliest possible time.


 


(e) Blue
Sky. The Company shall file a Form D with respect to the PIPE Securities as required under Regulation D and to provide a copy thereof
to the Buyer promptly after such filing. The Company shall, on or before the Closing Date, 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 Buyers at the Closing pursuant
to this Agreement under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an exemption
from such qualification), and shall provide evidence of any such action so taken to the Buyers on or prior to the Closing Date. Without
limiting any other obligation of the Company under this Agreement, the Company shall timely make all filings and reports relating to the
offer and sale of the Securities required under all applicable securities laws (including, without limitation, all applicable federal
securities laws and all applicable “Blue Sky” laws), and the Company shall comply with all applicable foreign, federal, state
and local laws, statutes, rules, regulations and the like relating to the offering and sale of the Securities to the Buyers.


 






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(f) Reporting
Status. Until the earliest of (i) the date on which the Buyers shall have sold all of the Securities, (ii) such date on which the
Company is acquired, is liquidated or completes a going private transaction in a transaction where the Common Stock is no longer outstanding
and (iii) the later of (A) the fifth (5th) anniversary of the Closing Date and (B) the date no Warrants remain outstanding
(the “Reporting Period”), the Company shall use reasonable best efforts to timely file all reports required to be filed
with the SEC pursuant to the 1934 Act, and the Company shall not terminate its status as an issuer required to file reports under the
1934 Act even if the 1934 Act or the rules and regulations thereunder would no longer require or otherwise permit such termination.


 


(g) Use
of Proceeds. The Company will use the proceeds from the sale of the Securities as described in the Prospectus Supplement, but not,
directly or indirectly, for (i) except as set forth on Schedule 4(g), the satisfaction of any indebtedness of the Company or any of its
Subsidiaries, (ii) the redemption or repurchase of any securities of the Company or any of its Subsidiaries, or (iii) the settlement of
any outstanding litigation.


 


(h) Financial
Information. The Company agrees to send the following to each holder of Warrants (each, an “Investor”) during the
Reporting Period (i) unless the following are filed with the SEC through EDGAR and are available to the public through the EDGAR system,
within one (1) Business Day after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports on
Form 10-Q, any interim reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash
flow statements for any period other than annual, any Current Reports on Form 8-K and any registration statements (other than on Form
S-8) or amendments filed pursuant to the 1933 Act, (ii) unless the following are either filed with the SEC through EDGAR or are otherwise
widely disseminated via a recognized news release service (such as PR Newswire), on the same day as the release thereof, e-mail copies
of all press releases issued by the Company or any of its Subsidiaries and (iii) unless the following are filed with the SEC through EDGAR,
copies of any notices and other information made available or given to the stockholders of the Company generally, contemporaneously with
the making available or giving thereof to the stockholders.


 


(i) Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Underlying Securities (as
defined below) upon each national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed
or designated for quotation (as the case may be) (subject to official notice of issuance) and shall maintain such listing or designation
for quotation (as the case may be) of all Underlying Securities from time to time issuable under the terms of the Transaction Documents
on such national securities exchange or automated quotation system. The Company shall maintain the Common Stock’s listing or authorization
for quotation (as the case may be) on the Principal Market, The New York Stock Exchange, the NYSE American, the Nasdaq Global Market or
the Nasdaq Global Select Market (each, an “Eligible Market”). Neither the Company nor any of its Subsidiaries shall
take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on an Eligible Market.
The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(i). “Underlying
Securities” means the (i) the Common Shares, (ii) the Warrant Shares, (iii) the shares of Common Stock issuable upon conversion
of the Preferred Shares and (iv) any capital stock of the Company issued or issuable with respect to the Common Shares, the Preferred
Shares, any shares of Common Stock issuable upon conversion of the Preferred Shares, the Warrant Shares, or the Warrants, respectively,
including, without limitation, (1) as a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise
and (2) shares of capital stock of the Company into which the shares of Common Stock are converted or exchanged and shares of capital
stock of a Successor Entity (as defined in the Warrants) into which the shares of Common Stock are converted or exchanged, in each case,
without regard to any limitations on exercise of the Warrants and Certificate of Designation for the Preferred Shares.


 






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(j) Fees.
The Company shall reimburse the Buyer a non-accountable fee of $50,000 for all costs and expenses incurred by it or its affiliates in
connection with the structuring, documentation, negotiation and closing of the transactions contemplated by the Transaction Documents
(including, without limitation, as applicable, all reasonable legal fees of outside counsel and disbursements of Jolie Kahn, Esq., counsel
to the Buyer, any other reasonable fees and expenses in connection with the structuring, documentation, negotiation and closing of the
transactions contemplated by the Transaction Documents and due diligence and regulatory filings in connection therewith) (the “Transaction
Expenses”) and shall be withheld by the Buyer from its Purchase Price at the Closing; provided, that the Company shall promptly
reimburse Jolie Kahn, Esq. on demand for all Transaction Expenses not so reimbursed through such withholding at the Closing. In addition
to the Transaction Expenses, the Company shall be responsible for the payment of any placement agent’s fees, financial advisory
fees, transfer agent fees, DTC fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to or arising
out of the transactions contemplated hereby (including, without limitation, any fees or commissions payable to the Placement Agent, who
is the Company’s sole placement agent in connection with the transactions contemplated by this Agreement). The Company shall pay,
and hold the Buyer harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and
out-of-pocket expenses) arising in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction
Documents, each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Buyers.


 


(k) Pledge
of Securities. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that the
Securities may be pledged by an Investor in connection with a bona fide margin agreement or other loan or financing arrangement that is
secured by the Securities. The pledge of Securities, in and of itself, without any transfer of PIPE Securities upon enforcement of such
pledge, shall not be deemed to be a transfer, sale or assignment of the Securities hereunder, and no Investor effecting a pledge of Securities
shall be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement
or any other Transaction Document, including, without limitation, Section 2(g) hereof; provided that an Investor and its pledgee shall
be required to comply with the provisions of Section 2(g) hereof in order to effect a sale, transfer or assignment of PIPE Securities
to such pledgee. The Company hereby agrees to execute and deliver such documentation as a pledgee of the Securities may reasonably request
in connection with a pledge of the Securities to such pledgee by a Buyer.


 


(l) Disclosure
of Transactions and Other Material Information.


 


(i) Disclosure
of Transaction. On or before 9:30 a.m., New York time, on the date of this Agreement, the Company shall file a Current Report on Form
8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by the 1934 Act
and attaching all the material Transaction Documents (including, without limitation, this Agreement, the form of the Warrants, and the
form of the Registration Rights Agreement) (including all attachments, the “8-K Filing”). From and after the filing
of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided to any of the Buyers by the
Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with the transactions
contemplated by the Transaction Documents. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees
that any and all confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its
Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and any of the Buyers or
any of their affiliates, on the other hand, shall terminate.


 






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(ii) Limitations
on Disclosure. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company or any of its
Subsidiaries from and after the date hereof without the express prior written consent of the Buyer (which may be granted or withheld in
the Buyer’s sole discretion). In the event of a breach of any of the foregoing covenants, including, without limitation, Section 4(q)
of this Agreement, or any of the covenants or agreements contained in any other Transaction Document, by the Company, any of its Subsidiaries,
or any of its or their respective officers, directors, employees and agents (as determined in the reasonable good faith judgment of the
Buyer), in addition to any other remedy provided herein or in the Transaction Documents, the Buyer shall have the right to make a public
disclosure, in the form of a press release, public advertisement or otherwise, of such breach or such material, non-public information,
as applicable, without the prior approval by the Company, any of its Subsidiaries, or any of its or their respective officers, directors,
employees or agents. No Buyer shall have any liability to the Company, any of its Subsidiaries, or any of its or their respective officers,
directors, employees, affiliates, stockholders or agents, for any such disclosure. To the extent that the Company delivers any material,
non-public information to a Buyer without the Buyer’s consent, the Company hereby covenants and agrees that the Buyer shall not
have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Subject
to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any other public statements with
respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of any Buyer,
to make any press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing
and contemporaneously therewith and (ii) as is required by applicable law and regulations (provided that in the case of clause (i) the
Buyer shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without
the prior written consent of the applicable Buyer (which may be granted or withheld in the Buyer’s sole discretion), except as may
be required by applicable law, the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name
of the Buyer in any filing, announcement, release or otherwise. Notwithstanding anything contained in this Agreement to the contrary and
without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that no Buyer shall have
(unless expressly agreed to by a particular Buyer after the date hereof in a written definitive and binding agreement executed by the
Company and such particular Buyer (it being understood and agreed that no Buyer may bind any other Buyer with respect thereto)), any duty
of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company
or any of its Subsidiaries.


 


(m) Additional
Registration Statements. Until the Applicable Date (as defined below) and at any time thereafter while any Registration Statement
is not effective or the prospectus contained therein is not available for use or any Current Public Information Failure (as defined in
the Registration Rights Agreement) exists, the Company shall not file a registration statement or an offering statement under the 1933
Act relating to securities that are not the Underlying Securities (other than (i) a registration statement on Form S-8, (ii) the registration
statement required to be filed by the Company pursuant to the terms of the Registration Rights Agreement, dated as of December 2, 2021,
among the Company, Monroe Capital Income Plus Corporation and the other parties thereto, or (iii) such supplements or amendments to registration
statements that are outstanding and have been declared effective by the SEC as of the date hereof (solely to the extent necessary to keep
such registration statements effective and available and not with respect to any Subsequent Placement)). “Applicable Date”
means the earlier of (x) the first date on which the resale by the Buyers of all the Underlying Securities required to be filed on the
initial Registration Statement (as defined in the Registration Rights Agreement) pursuant to the Registration Rights Agreement is declared
effective by the SEC (and each prospectus contained therein is available for use on such date) or (y) the first date on which all of the
Underlying Securities are eligible to be resold by the Buyers pursuant to Rule 144 (or, if a Current Public Information Failure has occurred
and is continuing, such later date after which the Company has cured such Current Public Information Failure).


 






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(n) Additional
Issuance of Securities. The Company agrees that for (x) the period commencing on the date hereof and ending on the date immediately
following the 60th calendar day after the Closing Date and (y) each 60 calendar day period commencing on, and including, each
Forced Exercise Date (as defined in the Series D Warrant) and each delivery of the Forced Exercise Deliveries (as defined in the Series
D Warrant) (each, a “Restricted Period”), neither the Company nor any of its Subsidiaries shall directly or indirectly
issue, offer, sell, grant any option or right to purchase, or otherwise dispose of (or announce any issuance, offer, sale, grant of any
option or right to purchase or other disposition of) any equity security or any equity-linked or related security (including, without
limitation, any “equity security” (as that term is defined under Rule 405 promulgated under the 1933 Act), any Convertible
Securities, any preferred stock or any purchase rights) (any such issuance, offer, sale, grant, disposition or announcement (whether occurring
during the applicable Restricted Period or at any time thereafter) is referred to as a “Subsequent Placement”). Notwithstanding
the foregoing, this Section 4(l)(iii) shall not apply in respect of the issuance of (A) shares of Common Stock or standard options to
purchase Common Stock to directors, officers or employees of the Company in their capacity as such pursuant to an Approved Stock Plan
(as defined below), provided that (x) all such issuances (taking into account the shares of Common Stock issuable upon exercise of such
options) after the date hereof pursuant to this clause (A) do not, in the aggregate, exceed more than 5% of the Common Stock issued and
outstanding immediately prior to the date hereof and (y) the exercise price of any such options is not lowered, none of such options are
amended to increase the number of shares issuable thereunder and none of the terms or conditions of any such options are otherwise materially
changed in any manner that adversely affects any of the Buyers; (B) shares of Common Stock issued upon the conversion or exercise of Convertible
Securities (other than standard options to purchase Common Stock issued pursuant to an Approved Stock Plan that are covered by clause
(A) above) issued prior to the date hereof, provided that the conversion, exercise or other method of issuance (as the case may be) of
any such Convertible Security is made solely pursuant to the conversion, exercise or other method of issuance (as the case may be) provisions
of such Convertible Security that were in effect on the date immediately prior to the date of this Agreement, the conversion, exercise
or issuance price of any such Convertible Securities (other than standard options to purchase Common Stock issued pursuant to an Approved
Stock Plan that are covered by clause (A) above) is not lowered, none of such Convertible Securities (other than standard options to purchase
Common Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are amended to increase the number of shares
issuable thereunder and none of the terms or conditions of any such Convertible Securities (other than standard options to purchase Common
Stock issued pursuant to an Approved Stock Plan that are covered by clause (A) above) are otherwise materially changed in any manner that
adversely affects any of the Buyers; (C) the Common Shares; (D) the Warrant Shares; (E) the Preferred Shares (and any shares of Common
Stock upon conversion of Preferred Shares); (F) shares of Common Stock or Convertible 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 any Restricted Period 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 current business of the Company at such time 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. (each of the foregoing in clauses
(A) through (F), collectively the “Excluded Securities”); and (G) after the thirtieth calendar day of any Restricted
Period, a Subsequent Placement consisting of only shares of Common Stock at a cash purchase price greater than or equal to $2.75 per share
of Common Stock (as adjusted for stock splits, stock dividends, stock combinations, recapitalizations and similar events). “Approved
Stock Plan” means any employee benefit plan which has been approved by the board of directors of the Company prior to or subsequent
to the date hereof pursuant to which shares of Common Stock and standard options to purchase Common Stock may be issued to any employee,
officer or director for services provided to the Company in their capacity as such.


 


(o) Reservation
of Shares. So long as any of the Warrants remain outstanding, the Company shall take all action necessary to at all times have authorized,
and reserved for the purpose of issuance, no less than 200% of the maximum number of Warrant Shares issuable upon exercise of all the
Warrants then outstanding (without regard to any limitations on the exercise of the Warrants set forth therein) (collectively, the “Required
Reserve Amount”); provided that at no time shall the number of shares of Common Stock reserved pursuant to this Section 4(o)
be reduced other than proportionally in connection with any exercise and/or redemption, as applicable of Warrants. If at any time the
number of shares of Common Stock authorized and reserved for issuance is not sufficient to meet the Required Reserve Amount, the Company
will promptly take all corporate action necessary to authorize and reserve a sufficient number of shares, including, without limitation,
calling a special meeting of stockholders to authorize additional shares to meet the Company’s obligations pursuant to the Transaction
Documents, in the case of an insufficient number of authorized shares, obtain stockholder approval of an increase in such authorized number
of shares, and voting the management shares of the Company in favor of an increase in the authorized shares of the Company to ensure that
the number of authorized shares is sufficient to meet the Required Reserve Amount.


 






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


 


(q) Variable
Securities. So long as any Warrants remain outstanding, the Company and each Subsidiary shall be prohibited from effecting or entering
into an agreement to effect any Subsequent Placement involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company or any Subsidiary (i) issues or sells any Convertible Securities either (A) at a conversion,
exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or quotations for the shares of Common
Stock at any time after the initial issuance of such Convertible Securities, or (B) with a conversion, exercise or exchange price that
is subject to being reset at some future date after the initial issuance of such Convertible Securities or upon the occurrence of specified
or contingent events directly or indirectly related to the business of the Company or the market for the Common Stock, other than pursuant
to a customary “weighted average” anti-dilution provision or (ii) enters into any agreement (including, without limitation,
an equity line of credit or an “at-the-market” offering) whereby the Company or any Subsidiary may sell securities at a future
determined price (other than standard and customary “preemptive” or “participation” rights). The Buyer shall be
entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in
addition to any right to collect damages.


 


(r) Participation
Right. At any time after the date hereof until the eighteen month anniversary of the Closing Date, neither the Company nor any of
its Subsidiaries shall, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied with this
Section 4(r). The Company acknowledges and agrees that the right set forth in this Section 4(r) is a right granted by the Company,
separately, to the Buyer.


 


(i) At
least five (5) Trading Days (or one (1) Trading Day with respect to any SEC registered offering of securities of the Company) prior to
any proposed or intended Subsequent Placement, the Company shall deliver to the Buyer a written notice (each such notice, a “Pre-Notice”),
which Pre-Notice shall not contain any information (including, without limitation, material, non-public information) other than: (A) if
the proposed Offer Notice (as defined below) constitutes or contains material, non-public information, a statement asking whether the
Investor is willing to accept material non-public information or (B) if the proposed Offer Notice does not constitute or contain material,
non-public information, (x) a statement that the Company proposes or intends to effect a Subsequent Placement, (y) a statement that the
statement in clause (x) above does not constitute material, non-public information and (z) a statement informing the Buyer that it is
entitled to receive an Offer Notice (as defined below) with respect to such Subsequent Placement upon its written request. Upon the written
request of a Buyer within three (3) Trading Days after the Company’s delivery to the Buyer of such Pre-Notice, and only upon a written
request by the Buyer, the Company shall promptly, but no later than one (1) Trading Day after such request, deliver to the Buyer an irrevocable
written notice (the “Offer Notice”) of any proposed or intended issuance or sale or exchange (the “Offer”)
of the securities being offered (the “Offered Securities”) in a Subsequent Placement, which Offer Notice shall (A)
identify and describe the Offered Securities, (B) describe the price and other terms upon which they are to be issued, sold or exchanged,
and the number or amount of the Offered Securities to be issued, sold or exchanged, (C) identify the Persons (if known) to which or with
which the Offered Securities are to be offered, issued, sold or exchanged and (D) offer to issue and sell to or exchange with the Buyer
in accordance with the terms of the Offer 35% of the Offered Securities, provided that the number of Offered Securities which the Buyer
shall have the right to subscribe for under this Section 4(q) shall be (x) based on the Buyer’s pro rata portion of the aggregate
number of Common Shares purchased hereunder by all Buyers (the “Basic Amount”), and (y) with respect to the Buyer that
elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of other Buyers
as the Buyer shall indicate it will purchase or acquire should the other Buyers subscribe for less than their Basic Amounts (the “Undersubscription
Amount”), which process shall be repeated until the Buyer shall have an opportunity to subscribe for any remaining Undersubscription
Amount.


 






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(ii) To
accept an Offer, in whole or in part, the Buyer must deliver a written notice to the Company prior to the end of the fifth (5th)
Business Day (or one (1) Business Day with respect to any SEC registered offering of securities of the Company) after the Buyer’s
receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the Buyer’s Basic Amount that
the Buyer elects to purchase and, if the Buyer shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any,
that the Buyer elects to purchase (in either case, the “Notice of Acceptance”). If the Basic Amounts subscribed for
by all Buyers are less than the total of all of the Basic Amounts, then the Buyer who has set forth an Undersubscription Amount in its
Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has
subscribed for; provided, however, if the Undersubscription Amounts subscribed for exceed the difference between the total of all the
Basic Amounts and the Basic Amounts subscribed for (the “Available Undersubscription Amount”), the Buyer who has subscribed
for any Undersubscription Amount shall be entitled to purchase only that portion of the Available Undersubscription Amount as the Basic
Amount of the Buyer bears to the total Basic Amounts of all Buyers that have subscribed for Undersubscription Amounts, subject to rounding
by the Company to the extent it deems reasonably necessary. Notwithstanding the foregoing, if the Company desires to modify or amend the
terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to the Buyer a new Offer Notice
and the Offer Period shall expire on the fifth (5th) Business Day (or the first (1st) Business Day with respect
to any SEC registered offering of securities of the Company) after the Buyer’s receipt of such new Offer Notice.


 


(iii) The
Company shall have five (5) Business Days (or one (1) Business Day with respect to any SEC registered offering of securities of the Company)
from the expiration of the Offer Period above (A) to offer, issue, sell or exchange all or any part of such Offered Securities as to which
a Notice of Acceptance has not been given by a Buyer (the “Refused Securities”) pursuant to a definitive agreement(s)
(the “Subsequent Placement Agreement”), but only to the offerees described in the Offer Notice (if so described therein)
and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the
acquiring Person or Persons or less favorable to the Company than those set forth in the Offer Notice and (B) to publicly announce (x)
the execution of such Subsequent Placement Agreement, and (y) either (I) the consummation of the transactions contemplated by such Subsequent
Placement Agreement or (II) the termination of such Subsequent Placement Agreement, which shall be filed with the SEC on a Current Report
on Form 8-K with such Subsequent Placement Agreement and any documents contemplated therein filed as exhibits thereto.


 


(iv) In
the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms specified
in Section 4(q)(iii) above), then the Buyer may, at its sole option and in its sole discretion, withdraw its Notice of Acceptance
or reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than
the number or amount of the Offered Securities that the Buyer elected to purchase pursuant to Section 4(q)(ii) above multiplied by
a fraction, (A) the numerator of which shall be the number or amount of Offered Securities the Company actually proposes to issue, sell
or exchange (including Offered Securities to be issued or sold to Buyers pursuant to this Section 4(q) prior to such reduction) and
(B) the denominator of which shall be the original amount of the Offered Securities. In the event that any Buyer so elects to reduce the
number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not issue, sell or exchange more than the
reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Buyers in accordance
with Section 4(q) above.


 


(v) Upon
the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Buyer shall acquire from the Company,
and the Company shall issue to the Buyer, the number or amount of Offered Securities specified in its Notice of Acceptance, as reduced
pursuant to Section 4(q)(iii) above if the Buyer has so elected, upon the terms and conditions specified in the Offer. The purchase
by the Buyer of any Offered Securities is subject in all cases to the preparation, execution and delivery by the Company and the Buyer
of a separate purchase agreement relating to such Offered Securities reasonably satisfactory in form and substance to the Buyer and its
counsel.


 






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(vi) Any
Offered Securities not acquired by a Buyer or other Persons in accordance with this Section 4(q) may not be issued, sold or exchanged
until they are again offered to the Buyer under the procedures specified in this Agreement.


 


(vii) The
Company and the Buyer agree that if any Buyer elects to participate in the Offer, (x) neither the Subsequent Placement Agreement with
respect to such Offer nor any other transaction documents related thereto (collectively, the “Subsequent Placement Documents”)
shall include any term or provision whereby the Buyer 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, any agreement previously entered into with the Company or any instrument received from the Company, and (y) any registration rights
set forth in such Subsequent Placement Documents shall be similar in all material respects to the registration rights contained in the
Registration Rights Agreement.


 


(viii) Notwithstanding
anything to the contrary in this Section 4(q) and unless otherwise agreed to by the Buyer, the Company shall either confirm in writing
to the Buyer that the transaction with respect to the Subsequent Placement has been abandoned or shall publicly disclose its intention
to issue the Offered Securities, in either case, in such a manner such that the Buyer will not be in possession of any material, non-public
information, by the fifth (5th) Business Day (or the first (1st) Business Day with respect to any SEC registered
offering of securities of the Company) following delivery of the Offer Notice. If by such fifth (5th) Business Day (or the
first (1st) Business Day with respect to any SEC registered offering of securities of the Company), no public disclosure regarding
a transaction with respect to the Offered Securities has been made, and no notice regarding the abandonment of such transaction has been
received by the Buyer, such transaction shall be deemed to have been abandoned and the Buyer shall not be in possession of any material,
non-public information with respect to the Company or any of its Subsidiaries. Should the Company decide to pursue such transaction with
respect to the Offered Securities, the Company shall provide the Buyer with another Offer Notice and the Buyer will again have the right
of participation set forth in this Section 4(r). The Company shall not be permitted to deliver more than one such Offer Notice to the
Buyer in any sixty (60) day period, except as expressly contemplated by the last sentence of Section 4(q)(ii).


 


(ix) The
restrictions contained in this Section 4(q) shall not apply in connection with the issuance of any Excluded Securities. The Company shall
not circumvent the provisions of this Section 4(q) by providing terms or conditions to one Buyer that are not provided to all.


 


(s) Dilutive
Issuances. For so long as any Warrants remain outstanding, the Company shall not, in any manner, enter into or affect any Dilutive
Issuance (as defined in the Warrants) if the effect of such Dilutive Issuance is to cause the Company to be required to issue upon exercise
of any Warrant any shares of Common Stock in excess of that number of shares of Common Stock which the Company may issue upon exercise
of the Warrants without breaching the Company’s obligations under the rules or regulations of the Principal Market.


 


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


 






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(u) Restriction
on Redemption and Cash Dividends. So long as any Warrants are outstanding, the Company shall not, directly or indirectly, redeem (other
than redemptions from employees or directors of the Company in connection with equity grants under the Company’s equity plans in
effect from time to time), or declare or pay any cash dividend or distribution on, any securities of the Company without the prior express
written consent of the Required Holders (as defined below).


 


(v) Corporate
Existence. So long as any Buyer beneficially owns any Warrants, the Company shall not be party to any Fundamental Transaction (as
defined in the Warrants) unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth
in the Warrants.


 


(w) Stock
Splits. Until the first anniversary of the Closing, the Company shall not effect any stock combination, reverse stock split or other
similar transaction (or make any public announcement or disclosure with respect to any of the foregoing) without the prior written consent
of the Required Holders (as defined below) (not to be unreasonably withheld if necessary to prevent the delisting of the Common Stock
from the Principal Market).


 


(x) Exercise
Procedures. The form of Exercise Notice (as defined in the Warrants) included in the Warrants sets forth the totality of the procedures
required of the Buyers in order to exercise the Warrants. No legal opinion or other information or instructions shall be required of the
Buyers to exercise their Warrants. The Company shall honor exercises of the Warrants and shall deliver the Warrant Shares in accordance
with the terms, conditions and time periods set forth in the Warrants. Without limiting the preceding sentences, no ink-original Exercise
Notice shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Exercise Notice form be
required in order to exercise the Warrants.


 


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


 


(z) General
Solicitation. None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any person acting on behalf
of the Company or such affiliate will solicit any offer to buy or offer or sell the PIPE Securities by means of any form of general solicitation
or general advertising within the meaning of Regulation D, including: (i) any advertisement, article, notice or other communication published
in any newspaper, magazine or similar medium or broadcast over television or radio; and (ii) any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising.


 


(aa) Integration.
None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person acting on behalf of the Company
or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
the 1933 Act) which will be integrated with the sale of the Securities in a manner which would require the registration of the PIPE Securities
under the 1933 Act or require stockholder approval under the rules and regulations of the Principal Market and the Company will take all
action that is appropriate or necessary to assure that its offerings of other securities will not be integrated for purposes of the 1933
Act or the rules and regulations of the Principal Market, with the issuance of PIPE Securities contemplated hereby.


 






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


 


(cc) Stockholder Approval.
The Company shall provide each stockholder entitled to vote at a special or annual meeting of stockholders of the Company (the “Stockholder
Meeting”), which shall be promptly called and held not later than March 31, 2022 (the “Stockholder Meeting Deadline”),
a proxy statement, in each case, in a form reasonably acceptable to the Holder and Jolie Kahn, Esq., at the expense of the Company, with
the Company obligated to reimburse the expenses of Jolie Kahn, Esq. incurred in connection therewith in an amount not to exceed $5,000.
The proxy statement shall solicit each of the Company’s stockholder’s affirmative vote at the Stockholder Meeting for approval
of resolutions (“Stockholder Resolutions”) providing for the approval of the issuance of all of the Securities and
all of the securities issued pursuant to that certain Securities Purchase Agreement, dated as of November 2, 2021, between the Company
and the Holder, as amended (the “Prior SPA”), in compliance with the rules and regulations of the Principal Market
(without regard to any limitations on exercise set forth in the Warrants or the Preferred Shares) (such affirmative approval being referred
to herein as the “Stockholder Approval”, and the date such Stockholder Approval is obtained, the “Stockholder
Approval Date”), and the Company shall use its reasonable best efforts to solicit its stockholders’ approval of such resolutions
and to cause the Board of Directors of the Company to recommend to the stockholders that they approve such resolutions. The Company shall
be obligated to seek to obtain the Stockholder Approval by the Stockholder Meeting Deadline. If, despite the Company’s reasonable
best efforts the Stockholder Approval is not obtained on or prior to the Stockholder Meeting Deadline, the Company shall cause an additional
Stockholder Meeting to be held on or prior to June 30, 2022. If, despite the Company’s reasonable best efforts the Stockholder Approval
is not obtained after such subsequent stockholder meetings, the Company shall cause an additional Stockholder Meeting to be held semi-annually
thereafter until such Stockholder Approval is obtained. In addition to the foregoing, the Company hereby confirms that the Securities
shall be included in the definition of Securities as set forth in Section 5 of that certain Amendment and Waiver, between the Company
and the Buyer, dated December 2, 2021.


 


(dd) Closing Documents.
On or prior to fourteen (14) calendar days after the Closing Date, the Company agrees to deliver, or cause to be delivered, to the Buyer
and Jolie Kahn, Esq. a complete closing set of the executed Transaction Documents, Securities and any other document required to be delivered
to any party pursuant to Section 7 hereof or otherwise.


 


		5.	REGISTER; TRANSFER AGENT INSTRUCTIONS; LEGEND.



 


(a) Register.
The Company shall maintain at its principal executive offices (or such other office or agency of the Company as it may designate by notice
to each holder of Securities), a register for the Common Shares, Preferred Shares and the Warrants in which the Company shall record the
name and address of the Person in whose name the Common Shares, Preferred Shares and the Warrants have been issued (including the name
and address of each transferee), the number of Common Shares held by such Person and the number of Warrant Shares issuable upon exercise
of the Warrants and shares of Common Stock issuable upon conversion of the Preferred Shares held by such Person. The Company shall keep
the register open and available at all times during business hours for inspection of any Buyer or its legal representatives.


 






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(b) Transfer
Agent Instructions. The Company shall issue irrevocable instructions to its Transfer Agent and any subsequent transfer agent in a
form acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit
shares to the applicable balance accounts at DTC, registered in the name of the Buyer or its respective nominee(s), for the Common Shares,
shares issuable upon conversion of the Preferred Shares, and the Warrant Shares in such amounts as specified from time to time by the
Buyer to the Company upon the exercise of the Warrants (as the case may be). The Company represents and warrants that no instruction other
than the Irrevocable Transfer Agent Instructions referred to in this Section 5(b) will be given by the Company to its Transfer Agent
with respect to the Securities, and that the Securities shall otherwise be freely transferable on the books and records of the Company,
as applicable, to the extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or
transfer of the Securities, the Company shall permit the transfer and shall promptly instruct its Transfer Agent to issue one or more
certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by the Buyer
to effect such sale, transfer or assignment. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to a Buyer. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5(b)
will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 5(b),
that a Buyer shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and
requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being
required. The Company shall cause its counsel to issue each legal opinion referred to in the Irrevocable Transfer Agent Instructions to
the Transfer Agent as follows: (i) at the Closing with respect to the Common Shares, (ii) upon each exercise of the Warrants or conversion
of the Preferred Shares (unless such issuance covered by a prior legal opinion previously delivered to the Transfer Agent), and (iii)
on each date a registration statement with respect to the issuance or resale of any of the Securities is declared effective by the SEC.
Any fees (with respect to the Transfer Agent, counsel to the Company or otherwise) associated with the issuance of such opinions or the
removal of any legends on any of the Securities shall be borne by the Company.


 


(c) Legends.
The Buyer understands that the PIPE Securities have been issued (or will be issued in the case of the Warrant Shares) pursuant to an exemption
from registration or qualification under the 1933 Act and applicable state securities laws, and except as set forth below, the Securities
shall bear any legend as required by the “blue sky” laws of any state and a restrictive legend in substantially the following
form (and a stop-transfer order may be placed against transfer of such stock certificates):


 


[NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE EXERCISABLE HAVE BEEN][THE SECURITIES REPRESENTED
BY THIS CERTIFICATE HAVE NOT BEEN] REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES
MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY
ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE
144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.


 






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(d) No
Legends on RD Securities; Removal of Legends on PIPE Securities. Certificates evidencing RD Securities shall be unrestricted and shall
not be required to contain any legend. Certificates evidencing PIPE Securities shall not be required to contain the legend set forth in
Section 5(b) above or any other legend (i) while a registration statement (including a Registration Statement) covering the resale
of such PIPE Securities is effective under the 1933 Act, (ii) following any sale of such PIPE Securities pursuant to Rule 144 (assuming
neither the transferor nor the transferee is an affiliate of the Company), (iii) if such PIPE Securities are eligible to be sold, assigned
or transferred under Rule 144 (provided that a Buyer provides the Company with reasonable assurances that such PIPE Securities are eligible
for sale, assignment or transfer under Rule 144 which shall not include an opinion of Buyer’s counsel), (iv) in connection with
a sale, assignment or other transfer (other than under Rule 144), provided that the Buyer provides the Company with an opinion of counsel
to the Buyer, in a generally acceptable form, to the effect that such sale, assignment or transfer of the PIPE Securities may be made
without registration under the applicable requirements of the 1933 Act or (v) if such legend is not required under applicable requirements
of the 1933 Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC). With respect
to RD Securities or, with respect to PIPE Securities, if a legend is not required pursuant to the foregoing with respect to such PIPE
Securities, the Company shall no later than two (2) Trading Days (or such earlier date as required pursuant to the 1934 Act or other applicable
law, rule or regulation for the settlement of a trade initiated on the date the Buyer delivers such legended certificate representing
such Securities to the Company) following the delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of
a certificate representing such RD Securities or a legended certificate representing such PIPE Securities (endorsed or with stock powers
attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer, if applicable), together with
any other deliveries from the Buyer as may be required above in this Section 5(c), as directed by the Buyer, either: (A) provided
that the Company’s transfer agent is participating in the DTC Fast Automated Securities Transfer Program (“FAST”)
and such Securities are Common Shares, shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares, credit
the aggregate number of shares of Common Stock to which the Buyer shall be entitled to the Buyer’s or its designee’s balance
account with DTC through its Deposit/Withdrawal at Custodian system or (B) if the Company’s transfer agent is not participating
in FAST, issue and deliver (via reputable overnight courier) to the Buyer, a certificate representing such Securities that is free from
all restrictive and other legends, registered in the name of the Buyer or its designee (the date by which such credit is so required to
be made to the balance account of the Buyer’s or the Buyer’s nominee with DTC or such certificate is required to be delivered
to the Buyer pursuant to the foregoing is referred to herein as the “Share Delivery Deadline”). The Company shall be
responsible for any transfer agent fees or DTC fees with respect to any issuance of Securities or the removal of any legends with respect
to any Securities in accordance herewith.


 






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(e) Failure
to Timely Deliver; Buy-In. If the Company fails to fail, for any reason or for no reason, to issue and deliver (or cause to be delivered)
to a Buyer (or its designee) by the applicable Share Delivery Deadline, either (I) if the Transfer Agent is not participating in FAST,
a certificate for the number of Common Shares, shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares
(as the case may be) to which the Buyer is entitled and register such Common Shares or Warrant Shares (as the case may be) on the Company’s
share register or, if the Transfer Agent is participating in FAST, to credit the balance account of the Buyer or the Buyer’s designee
with DTC for such number of Common Shares, shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares (as
the case may be) submitted for legend removal by the Buyer pursuant to Section 5(c) above or (II) if the Registration Statement covering
the resale of the Warrant Shares submitted for legend removal by the Buyer pursuant to Section 5(c) above (the “Unavailable Shares”)
is not available for the resale of such Unavailable Shares and the Company fails to promptly, but in no event later than as required pursuant
to the Registration Rights Agreement (x) so notify the Buyer and (y) deliver the Warrant Shares electronically without any restrictive
legend by crediting such aggregate number of Warrant Shares submitted for legend removal by the Buyer pursuant to Section 5(c) above to
the Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal At Custodian system (the event described
in the immediately foregoing clause (II) is hereinafter referred as a “Notice Failure” and together with the event
described in clause (I) above, a “Delivery Failure”), then, in addition to all other remedies available to the Buyer,
the Company shall pay in cash to the Buyer on each day after the Share Delivery Deadline and during such Delivery Failure an amount equal
to 1% of the product of (A) the sum of the number of shares of Common Stock not issued to the Buyer on or prior to the Share Delivery
Deadline and to which the Buyer is entitled, and (B) any trading price of the Common Stock selected by the Buyer in writing as in effect
at any time during the period beginning on the date of the delivery by the Buyer to the Company of the applicable Common Shares or Warrant
Shares (as the case may be) and ending on the applicable Share Delivery Deadline. In addition to the foregoing, if on or prior to the
Required Delivery Date either (I) if the Transfer Agent is not participating in FAST, the Company shall fail to issue and deliver a certificate
to a Buyer and register such shares of Common Stock on the Company’s share register or, if the Transfer Agent is participating in
FAST, credit the balance account of the Buyer or the Buyer’s designee with DTC for the number of shares of Common Stock to which
the Buyer submitted for legend removal by the Buyer pursuant to Section 5(c) above (ii) below or (II) a Notice Failure occurs, and if
on or after such Trading Day the Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by the Buyer of shares of Common Stock submitted for legend removal by the Buyer pursuant to Section 5(c) above that the Buyer
anticipated receiving from the Company (a “Buy-In”), then the Company shall, within two (2) Trading Days after the
Buyer’s request and in the Buyer’s discretion, either (i) pay cash to the Buyer in an amount equal to the Buyer’s total
purchase price (including brokerage commissions and other out-of-pocket expenses, if any, for the shares of Common Stock so purchased)
(the “Buy-In Price”), at which point the Company’s obligation to so deliver such certificate or credit the Buyer’s
balance account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to so deliver to the Buyer a
certificate or certificates or credit the balance account of the Buyer or the Buyer’s designee with DTC representing such number
of shares of Common Stock that would have been so delivered if the Company timely complied with its obligations hereunder and pay cash
to the Buyer in an amount equal to the excess (if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares,
shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares (as the case may be) that the Company was required
to deliver to the Buyer by the Required Delivery Date multiplied by (B) the lowest Closing Sale Price (as defined in the Warrants) of
the Common Stock on any Trading Day during the period commencing on the date of the delivery by the Buyer to the Company of the applicable
Common Shares , shares of Common Stock issuable upon conversion of the Preferred Shares or Warrant Shares (as the case may be) and ending
on the date of such delivery and payment under this clause (ii). Nothing shall limit the Buyer’s right to pursue any other remedies
available to it hereunder, at law or in equity, including, without limitation, a decree of specific performance and/or injunctive relief
with respect to the Company’s failure to timely deliver certificates representing shares of Common Stock (or to electronically deliver
such shares of Common Stock) as required pursuant to the terms hereof. Notwithstanding anything herein to the contrary, with respect to
any given Notice Failure and/or Delivery Failure, this Section 5(d) shall not apply to the applicable Buyer the extent the Company has
already paid such amounts in full to the Buyer with respect to such Notice Failure and/or Delivery Failure, as applicable, pursuant to
the analogous sections of the Preferred Shares or Warrant, as applicable, held by the Buyer.


 






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(q) FAST
Compliance. While any Warrants or Preferred Shares remain outstanding, the Company shall maintain a transfer agent that participates
in FAST.


 


		6.	CONDITIONS TO THE COMPANY’S OBLIGATION TO SELL.



 


The obligation of the Company
hereunder to issue and sell the Common Shares, Preferred Shares and the related Warrants to the Buyer at the Closing is subject to the
satisfaction, at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s
sole benefit and may be waived by the Company at any time in its sole discretion by providing the Buyer with prior written notice thereof:


 


(a) The
Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.


 


(b) The
Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of any Buyer, the amounts withheld
pursuant to Section 4(j)) for the Common Shares and the related Warrants being purchased by the Buyer at the Closing by wire transfer
of immediately available funds in accordance with the Flow of Funds Letter.


 


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


 






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		7.	CONDITIONS TO THE BUYER’S OBLIGATION TO PURCHASE.



 


The obligation of the Buyer
hereunder to purchase its Common Shares, Preferred Shares and related Warrants at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be
waived by the Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:


 


(a) The
Company shall have duly executed and delivered to the Buyer each of the Transaction Documents and the Company shall have duly executed
and delivered to the Buyer (x) such aggregate number of Common Shares set forth across from the Buyer’s name in column (3) of the
Schedule of Buyers, (y) a Series D Warrant (initially for such aggregate number of Series A Warrant Shares as is set forth across from
the Buyer’s name in column (4) of the Schedule of Buyers) and (z) Preferred Shares (initially for such aggregate number of Preferred
Shares as is set forth across from the Buyer’s name in column (5) of the Schedule of Buyers), in each case, as being purchased by
the Buyer at the Closing pursuant to this Agreement.


 


(b) The
Buyer shall have received the opinion of Greenberg Traurig, LLP, the Company’s counsel, dated as of the Closing Date, in form reasonably
acceptable to the Buyer.


 


(c) The
Company shall have delivered to the Buyer a copy of the Irrevocable Transfer Agent Instructions, in form reasonably acceptable to the
Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.


 


(d) The
Company shall have delivered to the Buyer a certificate evidencing the formation and good standing of the Company issued by the Secretary
of State of Delaware as of a date within ten (10) days of the Closing Date.


 


(e) The
Company shall have delivered to the Buyer a certificate evidencing the Company’s qualification as a foreign corporation and good
standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required
to so qualify, as of a date within ten (10) days of the Closing Date.


 


(f) The
Company shall have delivered to the Buyer a certificate, in the form acceptable to the Buyer, executed by the Secretary of the Company
and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board
of directors in a form reasonably acceptable to the Buyer, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws
of the Company, each as in effect at the Closing.


 


(g) Each
and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Closing Date as
though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements
and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Buyer shall have
received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect
and as to such other matters as may be reasonably requested by the Buyer in the form acceptable to the Buyer.


 






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(h) The
Company shall have delivered to the Buyer a letter or electronic mail from the Company’s transfer agent confirming the number of
shares of Common Stock outstanding on the Closing Date immediately prior to the Closing.


 


(i) The
Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended,
as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the
Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling
below the minimum maintenance requirements of the Principal Market.


 


(j) The
Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the
Securities, including without limitation, those required by the Principal Market, if any. No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent
jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents.


 


(k) Since
the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material
Adverse Effect.


 


(l) The
Company shall have filed with the Principal Market to list the Common Shares, the shares of Common Stock issuable upon conversion of the
Preferred Shares and the Warrant Shares.


 


(m) The
Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer or Chief Financial Officer
of the Company, setting forth the wire amounts of the Buyer and the wire transfer instructions of the Company (the “Flow of Funds
Letter”).


 


(n) From
the date hereof to the Closing Date, (i) trading in the Common Stock shall not have been suspended by the SEC or the Principal Market
(except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the
Closing), and, (ii) 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 the Principal 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 the Buyer,
makes it impracticable or inadvisable to purchase the Securities at the Closing


 






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(o) The
Registration Statement shall be effective and available for the issuance and sale of the RD Securities hereunder and the Company shall
have delivered to the Buyer the Prospectus and the Prospectus Supplement as required thereunder.


 


(p) The
Company and its Subsidiaries shall have delivered to the Buyer such other documents, instruments or certificates relating to the transactions
contemplated by this Agreement as the Buyer or its counsel may reasonably request.


 


(q) The Company shall
have filed the certificate of designation for the Preferred Shares with the State of Delaware.


 


		8.	TERMINATION.



 


In the event that the Closing
shall not have occurred with respect to a Buyer within five (5) days of the date hereof, then the Buyer shall have the right to terminate
its obligations under this Agreement with respect to itself at any time on or after the close of business on such date without liability
of the Buyer to any other party; provided, however, (i) the right to terminate this Agreement under this Section 8 shall not be available
to the Buyer if the failure of the transactions contemplated by this Agreement to have been consummated by such date is the result of
the Buyer’s breach of this Agreement and (ii) the abandonment of the sale and purchase of the Common Shares and the Warrants shall
be applicable only to the Buyer providing such written notice, provided further that no such termination shall affect any obligation of
the Company under this Agreement to reimburse the Buyer for the expenses described in Section 4(j) above. Nothing contained in this
Section 8 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this
Agreement or the other Transaction Documents or to impair the right of any party to compel specific performance by any other party of
its obligations under this Agreement or the other Transaction Documents.


 


		9.	MISCELLANEOUS.



 


(a) Governing
Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreement
shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision
or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. The Company 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 under
any of the other Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees
not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof to such party at the address for such notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any
right to serve process in any manner permitted by law. Nothing contained herein shall be deemed or operate to preclude any Buyer from
bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations
to the Buyer or to enforce a judgment or other court ruling in favor of the Buyer. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT
MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER ANY OTHER TRANSACTION DOCUMENT
OR IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION CONTEMPLATED HEREBY OR THEREBY.


 






    41


     


    

 


(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature
is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature
page, such signature page 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 signature page were an original thereof.


 


(c) Headings;
Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation of,
this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine,
neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words
of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like import refer to this entire Agreement instead of just the provision in
which they are found.


 


(d) Severability;
Maximum Payment Amounts. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended
to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall
not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified continues to express, without
material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as
close as possible to that of the prohibited, invalid or unenforceable provision(s). Notwithstanding anything to the contrary contained
in this Agreement or any other Transaction Document (and without implication that the following is required or applicable), it is the
intention of the parties that in no event shall amounts and value paid by the Company and/or any of its Subsidiaries (as the case may
be), or payable to or received by any of the Buyers, under the Transaction Documents (including without limitation, any amounts that would
be characterized as “interest” under applicable law) exceed amounts permitted under any applicable law. Accordingly, if any
obligation to pay, payment made to any Buyer, or collection by any Buyer pursuant the Transaction Documents is finally judicially determined
to be contrary to any such applicable law, such obligation to pay, payment or collection shall be deemed to have been made by mutual mistake
of the Buyer, the Company and its Subsidiaries and such amount shall be deemed to have been adjusted with retroactive effect to the maximum
amount or rate of interest, as the case may be, as would not be so prohibited by the applicable law. Such adjustment shall be effected,
to the extent necessary, by reducing or refunding, at the option of the Buyer, the amount of interest or any other amounts which would
constitute unlawful amounts required to be paid or actually paid to the Buyer under the Transaction Documents. For greater certainty,
to the extent that any interest, charges, fees, expenses or other amounts required to be paid to or received by the Buyer under any of
the Transaction Documents or related thereto are held to be within the meaning of “interest” or another applicable term to
otherwise be violative of applicable law, such amounts shall be pro-rated over the period of time to which they relate.


 






    42


     


    

 


(e) Entire
Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto and thereto
and the instruments referenced herein and therein supersede all other prior oral or written agreements between the Buyers, the Company,
its Subsidiaries, their affiliates and Persons acting on their behalf, including, without limitation, any transactions by any Buyer with
respect to Common Stock or the Securities, and the other matters contained herein and therein, and this Agreement, the other Transaction
Documents, the schedules and exhibits attached hereto and thereto and the instruments referenced herein and therein contain the entire
understanding of the parties solely with respect to the matters covered herein and therein; provided, however, nothing contained in this
Agreement or any other Transaction Document shall (or shall be deemed to) (i) have any effect on any agreements any Buyer has entered
into with, or any instruments any Buyer has received from, the Company or any of its Subsidiaries prior to the date hereof with respect
to any prior investment made by the Buyer in the Company or (ii) waive, alter, modify or amend in any respect any obligations of the Company
or any of its Subsidiaries, or any rights of or benefits to any Buyer or any other Person, in any agreement entered into prior to the
date hereof between or among the Company and/or any of its Subsidiaries and any Buyer, or any instruments any Buyer received from the
Company and/or any of its Subsidiaries prior to the date hereof, and all such agreements and instruments shall continue in full force
and effect. Except as specifically set forth herein or therein, neither the Company nor any Buyer makes any representation, warranty,
covenant or undertaking with respect to such matters. For clarification purposes, the Recitals are part of this Agreement. No provision
of this Agreement may be amended other than by an instrument in writing signed by the Company and the Required Holders (as defined below),
and any amendment to any provision of this Agreement made in conformity with the provisions of this Section 9(e) shall be binding
on all Buyers and holders of Securities, as applicable, provided that no such amendment shall be effective to the extent that it (A) applies
to less than all of the holders of the Securities then outstanding or (B) imposes any obligation or liability on any Buyer without the
Buyer’s prior written consent (which may be granted or withheld in the Buyer’s sole discretion). No waiver shall be effective
unless it is in writing and signed by an authorized representative of the waiving party, provided that the Required Holders may waive
any provision of this Agreement, and any waiver of any provision of this Agreement made in conformity with the provisions of this Section 9(e)
shall be binding on all Buyers and holders of Securities, as applicable, provided that no such waiver shall be effective to the extent
that it (1) applies to less than all of the holders of the Securities then outstanding (unless a party gives a waiver as to itself only)
or (2) imposes any obligation or liability on any Buyer without the Buyer’s prior written consent (which may be granted or withheld
in the Buyer’s sole discretion). No consideration (other than reimbursement of legal fees) shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration also
is offered to all of the parties to the Transaction Documents, all holders of the Common Shares, or all holders of the Warrants (as the
case may be). From the date hereof and while any Warrants are outstanding, the Company shall not be permitted to receive any consideration
from a Buyer or a holder of Warrants that is not otherwise contemplated by the Transaction Documents in order to, directly or indirectly,
induce the Company or any Subsidiary (i) to treat the Buyer or holder of Warrants in a manner that is more favorable than to other similarly
situated Buyers or holders of Warrants, as applicable, or (ii) to treat any Buyer(s) or holder(s) of Warrants in a manner that is less
favorable than the Buyer or holder of Warrants that is paying such consideration; provided, however, that the determination of whether
a Buyer has been treated more or less favorably than another Buyer shall disregard any securities of the Company purchased or sold by
any Buyer. The Company has not, directly or indirectly, made any agreements with any Buyers relating to the terms or conditions of the
transactions contemplated by the Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing,
the Company confirms that, except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other obligation
to provide any financing to the Company, any Subsidiary or otherwise. As a material inducement for the Buyer to enter into this Agreement,
the Company expressly acknowledges and agrees that (x) no due diligence or other investigation or inquiry conducted by a Buyer, any of
its advisors or any of its representatives shall affect the Buyer’s right to rely on, or shall modify or qualify in any manner or
be an exception to any of, the Company’s representations and warranties contained in this Agreement or any other Transaction Document
and (y) unless a provision of this Agreement or any other Transaction Document is expressly preceded by the phrase “except as disclosed
in the SEC Documents,” nothing contained in any of the SEC Documents shall affect the Buyer’s right to rely on, or shall modify
or qualify in any manner or be an exception to any of, the Company’s representations and warranties contained in this Agreement
or any other Transaction Document. “Required Holders” means (I) prior to the Closing Date, Buyers entitled to purchase,
in the aggregate, at least a majority of the number of Common Shares at the Closing and (II) on or after the Closing Date, holders of,
in the aggregate, at least a majority of the Underlying Securities as of such time (excluding any Underlying Securities held by the Company
or any of its Subsidiaries as of such time or any Underlying Securities sold to a Person without the assignment of the rights under this
Agreement with respect thereto).


 






    43


     


    

 


(r) Notices.
Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement must be in
writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic
mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does
not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to such
recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case,
properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications shall be:


 


If to the Company:


 


American Virtual Cloud Technologies, Inc.

1720 Peachtree Street, Suite 629

Atlanta, GA 30309

Telephone: (404) 769-3236

Attention: Chief Financial Officer

E-Mail: tking@avctechnologies.com


 


With a copy (for informational purposes only) to:


 


Greenberg Traurig, LLP

1750 Tysons Blvd., Suite 1000

McLean, VA 22102

Telephone: (703) 749-1300

Attention: Jason Simon, Esq.

E-Mail: simonj@gtlaw.com


 


If to the Transfer Agent:


 


Continental Stock Transfer & Trust Company

1 State Street, 30th Floor

New York, NY 10004-1561

Telephone: (212) 845-3285

Attention: Richard Viscovich

E-Mail: rviscovich@continentalstock.com


 


If to a Buyer, to its mailing address and e-mail
address set forth on the Schedule of Buyers, with copies to the Buyer’s representatives as set forth on the Schedule of Buyers,


 


with a copy (for informational purposes only) to:


 


Jolie Kahn, Esq.


12 E. 49th Street, 11th floor


New York, NY 10017


Telephone (516) 217-6379

E-mail: joliekahnlaw@sbcglobal.net


 


or to such other mailing address and/or e-mail
address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party
five (5) days prior to the effectiveness of such change, provided that Jolie Kahn, Esq. shall only be provided copies of notices sent
to the lead Buyer. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication,
(B) mechanically or electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C)
provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 






    44


     


    

 


(f) Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns,
including any purchasers of any of the Warrants (but excluding any purchasers of Common Shares or Warrant Shares in open market transactions,
unless pursuant to a written assignment by the Buyer). The Company shall not assign this Agreement or any rights or obligations hereunder
without the prior written consent of the Buyer, including, without limitation, by way of a Fundamental Transaction (as defined in the
Warrants) (unless the Company is in compliance with the applicable provisions governing Fundamental Transactions set forth in the Warrants).
A Buyer may assign some or all of its rights hereunder in connection with any transfer of any of its Securities without the consent of
the Company, in which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights.


 


(g) No
Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors
and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than the Indemnitees
referred to in Section 9(j).


 


(h) Survival.
The representations, warranties, agreements and covenants shall survive the Closing. The Buyer shall be responsible only for its own representations,
warranties, agreements and covenants hereunder.


 


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


 


(j) Indemnification.
In consideration of the Buyer’s execution and delivery of the Transaction Documents and acquiring the Securities thereunder and
in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Buyer and each holder of any Securities and all of their stockholders, partners, members, officers, directors, employees
and direct or indirect investors and any of the foregoing Persons’ agents or other representatives (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses
in connection therewith (irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought),
and including reasonable attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee
as a result of, or arising out of, or relating to (i) any misrepresentation or breach of any representation or warranty made by the Company
or any Subsidiary in any of the Transaction Documents, (ii) any breach of any covenant, agreement or obligation of the Company or any
Subsidiary contained in any of the Transaction Documents or (iii) any cause of action, suit, proceeding or claim brought or made against
such Indemnitee by a third party (including for these purposes a derivative action brought on behalf of the Company or any Subsidiary)
or which otherwise involves such Indemnitee that arises out of or results from (A) the execution, delivery, performance or enforcement
of any of the Transaction Documents, (B) any transaction financed or to be financed in whole or in part, directly or indirectly, with
the proceeds of the issuance of the Securities, (C) any disclosure properly made by the Buyer pursuant to Section 4(k), or (D) the
status of the Buyer or holder of the Securities either as an investor in the Company pursuant to the transactions contemplated by the
Transaction Documents or as a party to this Agreement (including, without limitation, as a party in interest or otherwise in any action
or proceeding for injunctive or other equitable relief). To the extent that the foregoing undertaking by the Company may be unenforceable
for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law. Except as otherwise set forth herein, the mechanics and procedures with respect to the rights
and obligations under this Section 9(j) shall be the same as those set forth in Section 6 of the Registration Rights Agreement.


 






    45


     


    

 


(k) Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rules
of strict construction will be applied against any party. No specific representation or warranty shall limit the generality or applicability
of a more general representation or warranty. Each and every reference to share prices, shares of Common Stock and any other numbers in
this Agreement that relate to the Common Stock shall be automatically adjusted for any stock splits, stock dividends, stock combinations,
recapitalizations or other similar transactions that occur with respect to the Common Stock after the date of this Agreement. Notwithstanding
anything in this Agreement to the contrary, 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 the Buyer (or its broker or other financial representative) to effect short
sales or similar transactions in the future.


 


(l) Remedies.
The Buyer and in the event of assignment by Buyer of its rights and obligations hereunder, each holder of Securities, shall have all rights
and remedies set forth in the Transaction Documents and all rights and remedies which such holders have been granted at any time under
any other agreement or contract and all of the rights which such holders have under any law. Any Person having any rights under any provision
of this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages
by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such Subsidiary’s (as the
case may be) obligations under the Transaction Documents, any remedy at law would inadequate relief to the Buyers. The Company therefore
agrees that the Buyers shall be entitled to specific performance and/or temporary, preliminary and permanent injunctive or other equitable
relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a
bond or other security. The remedies provided in this Agreement and the other Transaction Documents shall be cumulative and in addition
to all other remedies available under this Agreement and the other Transaction Documents, at law or in equity (including a decree of specific
performance and/or other injunctive relief).


 


(m) Withdrawal
Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the Transaction Documents,
whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the Company or any Subsidiary does not
timely perform its related obligations within the periods therein provided, then the Buyer may rescind or withdraw, in its sole discretion
from time to time upon written notice to the Company or such Subsidiary (as the case may be), any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights.


 






    46


     


    

 


(n) Payment
Set Aside; Currency. To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant to any of the other
Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or 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, foreign, 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.
Unless otherwise expressly indicated, all dollar amounts referred to in this Agreement and the other Transaction Documents are in United
States Dollars (“U.S. Dollars”), and all amounts owing under this Agreement and all other Transaction Documents shall
be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount
in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount of
currency to be converted into U.S. Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal
on the relevant date of calculation.


 


(o) Judgment
Currency.


 


(i) If
for the purpose of obtaining or enforcing judgment against the Company in connection with this Agreement or any other Transaction Document
in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this
Section 9(o) referred to as the “Judgment Currency”) an amount due in US Dollars under this Agreement, the conversion
shall be made at the Exchange Rate prevailing on the Trading Day immediately preceding:


 


(1) the
date actual payment of the amount due, in the case of any proceeding in the courts of New York or in the courts of any other jurisdiction
that will give effect to such conversion being made on such date: or


 


(2) the
date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which
such conversion is made pursuant to this Section 9(o)(i)(1) being hereinafter referred to as the “Judgment Conversion Date”).


 


(ii) If
in the case of any proceeding in the court of any jurisdiction referred to in Section 9(o)(i)(1) above, there is a change in the
Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall
pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate
prevailing on the date of payment, will produce the amount of US Dollars which could have been purchased with the amount of Judgment Currency
stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.


 






    47


     


    

 


(iii) Any
amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained
for any other amounts due under or in respect of this Agreement or any other Transaction Document.


 


(p) Independent
Nature of Buyers’ Obligations and Rights. The obligations of the Buyer under the Transaction Documents are several and not joint
with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance of the obligations of any other
Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document, and no action taken by any Buyer
pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges that the Buyers do not so constitute,
a partnership, an association, a joint venture or any other kind of group or entity, or create a presumption that the Buyers are in any
way acting in concert or as a group or entity, and the Company shall not assert any such claim with respect to such obligations or the
transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Buyers are not acting in
concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the transactions contemplated
by the Transaction Documents. The decision of the Buyer to purchase Securities pursuant to the Transaction Documents has been made by
the Buyer independently of any other Buyer. The Buyer acknowledges that no other Buyer has acted as agent for the Buyer in connection
with the Buyer making its investment hereunder and that no other Buyer will be acting as agent of the Buyer in connection with monitoring
the Buyer’s investment in the Securities or enforcing its rights under the Transaction Documents. The Company and the Buyer confirms
that the Buyer has independently participated with the Company and its Subsidiaries in the negotiation of the transaction contemplated
hereby with the advice of its own counsel and advisors. The Buyer shall be entitled to independently protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement or out of any other Transaction Documents, and it shall not be necessary
for any other Buyer to be joined as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate
the purchase and sale of the Securities contemplated hereby was solely in the control of the Company, not the action or decision of any
Buyer, and was done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested to do
so by any Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document
is between the Company, each Subsidiary and a Buyer, solely, and not between the Company, its Subsidiaries and the Buyers collectively
and not between and among the Buyers.


 


[signature pages follow]


 




    48


     


    

 


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


 


	 	
    COMPANY: 

	 	 
	 	AMERICAN VIRTUAL CLOUD TECHNOLOGIES, INC.
	 	 
	 	By:	/s/ Thomas King
	 	 	Name: 	Thomas King
	 		Title:	Chief Financial Officer



 




     


     


    

 


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


 


	 	
    BUYER: 

	 	 
	 	HUDSON BAY MASTER FUND LTD
	 	 
	 	By:	/s/ Richard Allison
	 	 	Name: 	 Richard Allison
	 	 	Title:	Authorized Signatory*



 


	 	*Authorized Signatory
	 	Hudson Bay Capital Management LP
	 	not individually, but solely as
	 	Investment Advisor to Hudson Bay Master Fund Ltd.



 




     


     


    

 


SCHEDULE OF BUYERS


 





	(1)	 	(2)	 	 	(3)		 	 	(4)		 	 	(5)		 	 	(6)		 	(7)
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Buyer	 	Mailing Address
 and E-mail Address	 	 


Aggregate
 Number of
 Common
 Shares





	 	 	Aggregate
 Number of
 Series D
 Warrant 
 Shares


	 	 	Aggregate
 Number of
 Preferred
 Shares


	 	 	Purchase Price


	 	 	Legal Representative’s
 Mailing Address
 and E-mail Address
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Hudson Bay Master Fund Ltd.	 	Please deliver any notices other than Pre-Notices to: 
  
c/o Hudson Bay Capital Management LP 
28 Havemeyer Place 
Greenwich, CT 06830 
Attn: Direct Investments Team
 E-mail: investments@hudsonbaycapital.com
 Residence: Cayman Islands 
  
Please deliver any Pre-Notice to: 

 c/o Hudson Bay Capital Management LP 
777 Third Ave., 30th Floor 
New York, NY 10017 
Attention: Scott Black 
General Counsel and Chief Compliance Officer 
	 	 	7,840,000	 	 	 	15,625,000	 	 	 	12,456	 	 	$	25,000,000	 	 	Jolie Kahn, Esq. 
12 E. 49th Street, 11th floor 
New York, NY 10017 
Telephone: (516) 217-6379 
Email: joliekahnlaw@sbcglobal.net