Exhibit
10.3


 


SECURITIES
PURCHASE AGREEMENT


 


This
Securities Purchase Agreement (this “Agreement”) is dated as of May ___, 2022, by and between Adhera Therapeutics, Inc.,
a Delaware corporation (the “Company”), and each lender party that executes the signature page hereto as a purchaser (each,
a “Purchaser” and collectively, the “Purchasers”).


 


WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an exemption from the registration requirements of Section
5 of the Securities Act, as defined, contained in Section 4(a)(2) thereof and/or Rule 506(b) thereunder, the Company desires to issue
and sell to the Purchasers, and the Purchasers, severally and not jointly, desires to purchase from the Company, Securities of the Company
as more fully described in this Agreement.


 


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


Article
I


DEFINITIONS


 


1.1 Definitions.
In addition to the words and terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have
the meanings set forth in this Section 1.1:


 


“Acquiring
Person” shall have the meaning ascribed to such term in Section 4.5.


 


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


 


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


 


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


 


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


 


“Closing
Date” means the Trading Day on which all of the applicable Transaction Documents have been executed and delivered by the applicable
parties thereto, and all conditions precedent to (i) the Purchaser’s obligations to pay the applicable Subscription Amount and
(ii) the Company’s obligations to deliver the Securities to be issued and sold, in each case, have been satisfied or waived, but
in no event later than the second Trading Day following the date hereof.


 


“Collateral
Agent” means the party appointed agent on behalf of all Purchasers in the Security Agreement dated the same date as this Agreement
by and between the Company and the Collateral Agent.


 


“Common
Stock” means the common stock of the Company, par value $0.006 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed.


 


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


 


“Company
Counsel” means Nason, Yeager, Gerson, Harris & Fumero, P.A.


 


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


 




    	 



     


    

 


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


 


“Exempt
Issuance” means the issuance of (a) shares of Common Stock, restricted stock units or options, and the underlying shares of Common
Stock to consultants, employees, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose
(in an amount not to exceed 5% of the Company’s outstanding shares as of the Closing Date), (b) securities issued upon the exercise
or exchange of or conversion of any Securities issued hereunder and/or other securities issuable pursuant to existing agreements, exercisable
or exchangeable for or convertible into shares of Common Stock issued and outstanding on the date of this Agreement, provided that such
securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise
price, exchange price or conversion price of such securities (other than in connection with stock dividends, stock splits or combinations)
or to extend the term of such securities, (c) securities issued pursuant to a Qualified Financing, (d) securities issued pursuant, acquisitions
or strategic transactions approved by a majority of the directors of the Company, provided that any such issuance shall only be to a
Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating company or an owner of an asset
in a business synergistic with the business of the Company and which shall reasonably be expected to provide to the Company additional
benefits, 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, (e) securities issued pursuant to any purchase money equipment loan
or capital leasing arrangement with or from a commercial bank, and (f) securities upon a stock split, stock dividend or subdivision of
the Common Stock; provided, however, in each case, 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
within one hundred and twenty (120) days following the Effective Date.


 


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


 


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


 


“Indebtedness”
means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other than trade accounts payable incurred in the
ordinary course of business), (y) all guaranties, endorsements and other contingent obligations in respect of indebtedness of others,
whether or not the same are or should be reflected in the Company’s consolidated balance sheet (or the notes thereto), except guaranties
by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business; and (z)
the present value of any lease payments in excess of $50,000 due under leases required to be capitalized in accordance with GAAP.


 


“Intellectual
Property” means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable
and whether or not reduced to practice), all improvements thereto, and all U.S. and foreign patents, patent applications, and patent
disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof,
(b) all trademarks, service marks, brand names, certification marks, trade dress, logos, trade names, domain names, assumed names and
corporate names, together with all colorable imitations thereof, and including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrights, and all applications, registrations, and renewals in connection
therewith, (d) all trade secrets under applicable state laws and the common law and know-how (including formulas, techniques, technical
data, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans
and proposals), (e) all computer software (including source code, object code, diagrams, data and related documentation), and (f) all
copies and tangible embodiments of the foregoing (in whatever form or medium).


 


“Lead
Investor” means ___________.


 


“Licensed
Intellectual Property Agreement” means all licenses, sublicenses, agreements and permissions (each as amended to date) that any
third party owns and that the Company uses, including off-the-shelf software purchased or licensed by the Company.


 




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


 


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


 


“Misconduct”
shall have the meaning in Section 3.1(k)(i)(A)


 


“Notes”
means original issue discount senior secured promissory notes issued to the Purchasers, in the form of Exhibit A attached
hereto.


 


“Original
Issue Date” means the date of the first issuance of the Notes, regardless of any transfers of any Note and regardless of the number
of instruments which may be issued to evidence such Notes.


 


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


 


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


 


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


 


“Purchaser”
has the meaning contained on the first paragraph of this Agreement, and each Purchaser is identified on its respective signature page.


 


“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.


 


“Qualified
Financing” means a single public offering for cash of Common Stock and/or Common Stock Equivalents which results in the listing
of the Company’s Common Stock on a “national securities exchange” as defined in the Exchange Act.


 


“Registrable
Shares” means the Warrant Shares, provided that any particular securities of such Registrable Shares shall cease to be Registrable
Shares when (i) any registration statement of the Company that covers the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance with such registration statement, (ii) such securities shall
have become eligible to be sold to the public by the Purchaser pursuant to Rule 144 under the Securities Act without any limitations
on volume or manner of sale, or (iii) subsequent disposition of such securities shall not require registration or qualification of them
under the Securities Act or of any similar state law then in force.


 


“Regulation
FD” means Regulation FD promulgated by the SEC pursuant to the Exchange Act, as such Regulation may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same purpose and effect as such
Regulation


 


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


 


“Reserve”
shall have the meaning ascribed to such term in Section 4.9.


 


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


 


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


 


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


 




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“Securities”
means the Notes, the Warrants, the Pre-Funded Warrant Shares, and the Warrant Shares.


 


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


 


“Security
Agreement” means the Security Agreement, dated the date hereof, among the Company and the Purchasers, in the form of Exhibit
F attached hereto.


 


“Security
Documents” shall mean the Security Agreement, and any other documents and filing required thereunder in order to grant the Purchasers
a priority security interest in the assets of the Company and the Subsidiaries, if any, as provided in the Security Agreement.


 


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


 


“Subscription
Amount” means for each Purchaser, the aggregate amount to be paid for the Notes and Warrants purchased hereunder as specified below
such Purchaser’s name on the signature page of this Agreement.


 


“Subsidiary”
means with respect to any entity at any date, any direct or indirect corporation, limited or general partnership, limited liability company,
trust, estate, association, joint venture or other business entity of which (A) more than 50% of (i) the outstanding capital stock having
(in the absence of contingencies) ordinary voting power to elect a majority of the Board of Directors or other managing body of such
entity, (ii) in the case of a partnership or limited liability company, the interest in the capital or profits of such partnership or
limited liability company or (iii) in the case of a trust, estate, association, joint venture or other entity, the beneficial interest
in such trust, estate, association or other entity business is, at the time of determination, owned or controlled directly or indirectly
through one or more intermediaries, by such entity, or (B) is under the actual control of the Company.


 


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


 


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


 


“Transaction
Documents” means this Agreement, the Notes, Security Documents, the Warrants, and any other documents or agreements executed in
connection with the transactions contemplated hereunder.


 


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


 


“Variable
Rate Transaction” means any Equity Line of Credit or agreement to issue or agree to issue any Common Stock, floating or Variable
Priced Equity Linked Instruments or any of the foregoing or equity with price reset rights (subject to adjustment for stock splits, distributions,
dividends, recapitalizations and the like) (collectively, the “Variable Rate Transaction”). For purposes of this Agreement,
“Equity Line of Credit” shall include any transaction involving a written agreement between the Company and an investor or
underwriter whereby the Company has the right to issue its securities to the investor or underwriter over an agreed period of time and
at an agreed price or price formula, and “Variable Priced Equity Linked Instruments” shall include: (A) any debt or equity
securities which are convertible into, exercisable or exchangeable for, or carry the right to receive additional shares of Common Stock
either (1) at any conversion, exercise or exchange rate or other price that is based upon and/or varies with the trading prices of or
quotations for Common Stock at any time after the initial issuance of such debt or equity security, or (2) with a fixed conversion, exercise
or exchange price that is subject to being reset at some future date at any time after the initial issuance of such debt or equity security
due to a change in the market price of the Company’s Common Stock since date of initial issuance, and (B) any amortizing convertible
security which amortizes prior to its maturity date, where the Company is required to or has the option to (or any investor in such transaction
has the option to require the Company to) make such amortization payments in shares of Common Stock which are valued at a price that
is based upon and/or varies with the trading prices of or quotations for Common Stock at any time after the initial issuance of such
debt or equity security (whether or not such payments in stock are subject to certain equity conditions). For purposes of determining
the total consideration for a convertible instrument (including a right to purchase equity of the Company) issued, subject to an original
issue or similar discount or which principal amount is directly or indirectly increased after issuance, the consideration will be deemed
to be the actual cash amount received by the Company in consideration of the original issuance of such convertible instrument.


 




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


 


“Warrant
Exercise Price” means $0.04 per share, subject to adjustment as provided in the applicable Warrant.


 


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


 


“Warrants”
means the warrants delivered to the Purchaser at the Closing in accordance with Section 2.2(a) hereof,
which warrants shall be exercisable immediately and have a term of exercise equal to 5.5 years, in the form of Exhibit B attached hereto.


 


Article
II


PURCHASE
AND SALE


 


2.1 Purchase
and Sale. On the Closing Date, upon the terms and subject to the conditions and the performance of the obligations set forth
herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to
sell, and each Purchaser, severally and not jointly, agrees to purchase an aggregate of (i) up to $3,333,333 face value of original
issue discount Notes for a total purchase price of up to $3,000,000, and (ii) Warrants to purchase up to 33,333,330 shares of Common
Stock, in the form of Exhibit B hereto. On each Closing Date, each Purchaser shall deliver to the Company, via wire transfer
immediately available funds equal to the Purchaser’s Subscription Amount, and the Company shall deliver to the Purchaser a
Note and the number of Warrants as determined herein, and the Company and each Purchaser shall deliver the other items set forth
herein deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth herein, the Closing shall occur at
the offices of Company Counsel or such other location as the parties shall mutually agree. 


 


2.2
Deliveries.


 


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


 


(i)
this Agreement (and the other Transaction Documents)
duly executed by the Company;


 


(ii)
a Note in the principal amount set forth on such Purchaser’s
signature page, registered in the name of each Purchaser;


 




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(iii)
an executed Warrant in the form of Exhibit B hereto,
to purchase up to a number of shares of Common Stock as set forth on such Purchaser’s signature page, exercisable at the Warrant
Exercise Price, registered in the name of such Purchaser;


 


(iv)
the Security Documents, duly executed by the Company;


 


(v)
a legal opinion of Company Counsel, in form and substance,
reasonably satisfactory to the Purchasers;


 


(vi)
a reservation letter from the Transfer Agent in the
form attached as Exhibit D;


 


(vii)
a Board Consent approving the issuance of the Notes
and Warrants and the execution of the Transaction Documents (including the reservation letter) on behalf of the Company in the form attached
as Exhibit E; and


 


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


 


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


 


(i)
this Agreement (and the other Transaction Documents,
as applicable) duly executed by each Purchaser; and


 


(ii)
the Purchaser’s Subscription Amount by wire transfer
to the Company.


 


2.3
Closing Conditions.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 




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


 


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


 


2.4
Post- Closing Conditions. No later than the fifth
(5th) day following the Closing Date, the Company shall cause the conversion of all of its issued and outstanding shares of
its Series E and Series F stock into shares of Common Stock.


 


Article
III

REPRESENTATIONS AND WARRANTIES


 


3.1 Representations
and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser as of the
date hereof:  


 


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


 


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


 


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


 




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


 


(e)
Filings, Consents and Approvals. The Company
is not required to obtain any consent, waiver, authorization or order of, give any notice to, or make any filing or registration with,
any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and
performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant to Section 4.4 of this Agreement,
(ii) application(s) to each applicable Trading Market for the listing of the Warrant Shares for trading thereon in the time and manner
required thereby, (iii) the filing of Form D with the SEC, and (iv) such filings as are required to be made under applicable state securities
laws (the “Required Approvals”).


 


(f)
Issuance of the Securities. The Securities are
duly authorized and, when issued and paid for in accordance with the applicable Transaction Documents, will be duly and validly issued,
fully paid and nonassessable, free and clear of all Liens imposed by the Company. The Warrant Shares, when issued in accordance with
the terms of the Warrants, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Company shall reserve from its duly authorized capital stock a number of shares of Common Stock issuable pursuant to the Warrants
equal to the amount set forth in Section 4.9.


 


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


 




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(h)
SEC Reports; Financial Statements. The Company
has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities Act
and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such shorter
period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits thereto
and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”). For so long
as any of the Warrants are outstanding, the Company shall not file Form 15 (or successor form) with the SEC or otherwise suspend or terminate
its obligation to file any SEC Reports under the Exchange Act. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The financial statements of the
Company included in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations
of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”), except
as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments. The financial statements do not reflect any transactions
which are not bona fide transactions. There are no financial statements (historical or pro forma) that are required to be included in
the SEC Reports that are not included as required; the Company and its Subsidiaries do not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations), not described in the SEC Reports; and all disclosures contained in
the SEC Reports, if any, regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of
the SEC) comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the SEC Reports fairly presents
the information called for in all material respects and has been prepared in accordance with the SEC’s rules and guidelines applicable
thereto.


 


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


 




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


 


(k)
Labor Relations. No labor dispute exists or,
to the knowledge of the Company, is imminent with respect to any of the employees of the Company, which could reasonably be expected
to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees is a member of a union that
relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company nor any of its Subsidiaries
is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that their relationships with their employees
are good. To the knowledge of the Company, no effort is underway to unionize or organize the employees of the Company or any Subsidiary.
To the knowledge of the Company, no executive officer of the Company or any Subsidiary, is, or is now expected to be, in violation of
any material term of any employment contract, confidentiality, disclosure or proprietary information agreement or non-competition agreement,
or any other contract or agreement or any restrictive covenant in favor of any third party, and the continued employment of each such
executive officer does not subject the Company or any of its Subsidiaries to any liability with respect to any of the foregoing matters.
There is no employment-related charge, complaint, grievance, investigation, inquiry or obligation of any kind including workers’
compensation liability matters, pending, or to the Company’s knowledge, threatened, relating to an alleged violation or breach
by the Company or its Subsidiaries of any law, regulation or contract that could, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.


 


(i)
To the Company’s knowledge


 


(A)
no allegations of sexual harassment, sexual misconduct
or discrimination, whether such discrimination arises from race, ethnic background, sex, gender status, age or otherwise (“Misconduct”)
have been made involving any current or former director, officer, or independent contractor of the Company or any of its Subsidiaries,


 


(B)
neither the Company nor any of its Subsidiaries have
entered into any settlement agreements related to allegations of Misconduct by any current/current or former director, officer, employee,
or independent contractor of the Company or any of its Subsidiaries.


 


(l)
Compliance. Except as set forth on Schedule 3.1(l),
neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived
that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or
any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any Indebtedness, indenture, loan
or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether
or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or
other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws relating to food and drugs, unfair or deceptive trade practices,
taxes, environmental protection, occupational health and safety, COVID-19, product quality and safety and employment and labor matters,
except in each case as could not have resulted in or reasonably be expected to result in a Material Adverse Effect.


 




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


 


(n)
Regulatory Permits. 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 could or would not reasonably
be expected to result in have, individually or in the aggregate, a Material Adverse Effect, and neither the Company nor any Subsidiary
has received any notice of proceedings relating to the revocation or modification of any Material 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 on the Company or any of its Subsidiaries.


 


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


 


(p)
Intellectual Property.


 


(i)
To the Company’s knowledge, the Company owns or
possesses or has the right to use pursuant to a valid and enforceable written license, sublicense, agreement, or permission all Intellectual
Property necessary for the operation of the business of the Company as presently conducted.


 


(ii)
To the Company’s knowledge, the Intellectual Property
does not interfere with, infringe upon, misappropriate, or otherwise come into conflict with, any Intellectual Property rights of third
parties, and the Company has no knowledge that facts exist which indicate a likelihood of the foregoing. The Company has not received
any charge, complaint, claim, demand, or notice alleging any such interference, infringement, misappropriation, or conflict (including
any claim that the Company must license or refrain from using any Intellectual Property rights of any third party). To the knowledge
of the Company, no third party has interfered with, infringed upon, misappropriated, or otherwise come into conflict with, any Intellectual
Property rights of the Company.


 


(iii)
With respect to each Licensed Intellectual Property
Agreement:


 


(A)
The Licensed Intellectual Property Agreement is legal,
valid, binding, enforceable, and in full force and effect;


 




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(B)
To the Company’s knowledge, no party to the Licensed
Intellectual Property Agreement is in breach or default, and no event has occurred that with notice or lapse of time would constitute
a breach or default or permit termination, modification, or acceleration thereunder, which as to any such breach, default or event could
have a Material Adverse Effect on the Company;


 


(C)
No party to such Licensed Intellectual Property Agreement
has repudiated any provision thereof;


 


(D)
Except as set forth in such Licensed Intellectual Property
Agreement, the Company has not received written or verbal notice or otherwise has knowledge that the underlying item of Intellectual
Property is subject to any outstanding injunction, judgment, order, decree, ruling, or charge; and


 


(E)
Except as set forth on Schedule 3.1(p)(iii),
the Company has not granted any sublicense or similar right with respect to the license, sublicense, agreement, or permission.


 


(iv)
The Company has complied with and is presently in compliance
with all foreign, federal, state, local, governmental (including, but not limited to, the Federal Trade Commission and State Attorneys
General), administrative, or regulatory laws, regulations, guidelines, and rules applicable to any personal identifiable information.


 


(v)
Each Person who participated in the creation, conception,
invention or development of the Intellectual Property currently used in the business of the Company (each, a “Developer”)
which is not licensed from third parties has executed one or more agreements containing industry standard confidentiality, work for hire
and assignment provisions, whereby the Developer has assigned to the Company all copyrights, patent rights, Intellectual Property rights
and other rights in the Intellectual Property, including all rights in the Intellectual Property that existed prior to the assignment
of rights by such Person to the Company.


 


(vi)
Each Developer has signed a perpetual non-disclosure
agreement with the Company.


 


(q)
Insurance. The Company and the Subsidiaries are
insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary
for companies of the Company’s size and in the businesses in which the Company and the Subsidiaries are engaged. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase
in cost.


 


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


 




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(s)
Sarbanes-Oxley; Internal Accounting Controls.
Except as disclosed on Schedule 3.1(s), the Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated
by the SEC thereunder that are effective as of the date hereof and as of the Closing Date. Except as disclosed on Schedule 3.1(s),
the Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that:
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access
to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the
effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the
most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented in its
most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness of the
disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no
changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries
that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting of the Company
and its Subsidiaries.


 


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


 


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


 


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


 


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


 


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


 




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(y)
Disclosure. Except with respect to the material
terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms that neither it nor any other
Person acting on its behalf has provided any Purchaser or its agents or counsel with any information that it believes constitutes or
might constitute material, non-public information which is not otherwise disclosed on Schedule 3.1(y). The Company understands
and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities of the Company. All
of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, is true and correct and does
not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made not misleading. The press releases disseminated by the Company during
the 12 months preceding the date of this Agreement do not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they
were made and when made, not misleading. The Company acknowledges and agrees that the Purchasers have not made any representations or
warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2 hereof.


 


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


 


(aa)
Solvency. Based on the consolidated financial
condition of the Company as of the Closing Date, after giving effect to the receipt by the Company of the proceeds from the sale of the
Securities hereunder, (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid on
or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature, (ii)
the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed to
be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company,
consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no knowledge of any facts or circumstances which lead it to believe that
it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the
Closing Date. Schedule 3.1(aa) sets forth as of the date hereof all outstanding secured and unsecured Indebtedness of the Company
or any Subsidiary, or for which the Company or any Subsidiary has commitments. Except as set forth on Schedule 3.1(aa), neither
the Company nor any Subsidiary is in default with respect to any Indebtedness.


 


(bb)
Tax Status. The Company and each of its Subsidiaries
have filed all federal, state, local and foreign tax returns which have been required to be filed and paid all taxes shown thereon through
the date hereof, to the extent that such taxes have become due and are not being contested in good faith, except where the failure to
so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed in Schedule 3.1(bb), no tax deficiency
has been determined adversely to the Company or any of its Subsidiaries which has had, or would have, individually or in the aggregate,
a Material Adverse Effect. The Company has no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment
which has been or might be asserted or threatened against it which would have a Material Adverse Effect


 


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


 




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(dd)
Accountants. The Company’s accounting firm
is set forth in the SEC Reports. To the knowledge and belief of the Company, such accounting firm (i) is a registered public accounting
firm registered with the Public Company Accounting Oversight Board as required by the Exchange Act and (ii) will express its opinion
with respect to the financial statements included in the Company’s Annual Report for the fiscal year ending December 31, 2021.


 


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


 


(ff)
Acknowledgement Regarding Purchaser’s Trading
Activity. Notwithstanding anything in this Agreement or elsewhere to the contrary (except for Sections 3.2(f) and 4.12 hereof), it
is understood and acknowledged by the Company that: (i) no Purchaser has not been asked by the Company to agree, nor has any Purchaser
agreed, to desist from purchasing or selling, long and/or short, securities of the Company, or “derivative” securities based
on securities issued by the Company or to hold the Securities for any specified term; (ii) past or future open market or other transactions
by any Purchaser, specifically including, without limitation, Short Sales or “derivative” transactions, before or after the
closing of this or future private placement transactions, may negatively impact the market price of the Company’s publicly-traded
securities; (iii) any Purchaser, and counter-parties in “derivative” transactions to which the Purchaser is a party, directly
or indirectly, presently may have a “short” position in the Common Stock, and (iv) no Purchaser shall be deemed to have any
affiliation with or control over any arm’s length counter-party in any “derivative” transaction. The Company further
understands and acknowledges that (y) any Purchaser may engage in hedging activities at various times during the period that the Securities
are outstanding, including, without limitation, during the periods that the value of the Warrant Shares deliverable with respect to Securities
are being determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests
in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned
hedging activities do not constitute a breach of any of the Transaction Documents.


 


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


 


(hh)
Private Placement. Assuming the accuracy of each
Purchaser’s representations and warranties set forth in Section 3.2, no registration under the Securities Act is required for the
offer and sale of the Notes by the Company to the Purchasers as contemplated hereby.


 


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


 




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


 


(kk)
Notice of Disqualification Events. The Company
will notify the Purchaser in writing, prior to the Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person
and (ii) any event that would, with the passage of time, reasonably be expected to become a Disqualification Event relating to any Issuer
Covered Person, in each case of which it is aware.


 


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


 


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


 


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


 


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


 


(pp)
Shell Company. For over one-year, the Company
has not been a former shell company as that phrase is defined by Rule 405 under the Securities Act and Rule 12b-2 under the Exchange
Act.


 


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


 


(rr)
Absence of Schedules. In the event that the Company
does not deliver any disclosure schedule contemplated by this Agreement, the Company hereby acknowledges and agrees that (i) to the extent
the Company has (x) previously delivered to the Purchaser such disclosure schedule, the information therein has not changed as of such
date, and (y) not previously delivered to the Investor such disclosure schedule, each such undelivered disclosure schedule shall be deemed
to read as follows: “Nothing to Disclose”, and (ii) the Purchaser has not otherwise waived delivery of such disclosure schedule.


 




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(ss)
Acknowledgment of Dilution. This Agreement and
the Transaction Documents have been negotiated on an arms-length basis, and each party has retained counsel selected by it. The Company
acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of Common Stock, which dilution may
be substantial under certain market conditions. The Company further acknowledges that its obligations under the Transaction Documents,
including, without limitation, its obligations to issue the underlying Warrant Shares pursuant to the Transaction Documents, are unconditional
and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless of the effect of any such dilution
or any claim the Company may have against the Purchaser and regardless of the dilutive effect that such issuance may have on the ownership
of the other stockholders of the Company.


 


The
Company acknowledges and agrees that the representations contained in this Article III shall not modify, amend or affect the Purchaser’s
right to rely on the Company’s representations and warranties contained in this Agreement or any representations and warranties
contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement
or the consummation of the transaction contemplated hereby.


 


3.2 Representations
and Warranties of the Purchaser. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein): 


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


 


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


 


(c)
Purchaser Status. At the time the Purchaser was
offered the Securities, it was, and as of the date hereof it is, an accredited investor within the meaning of Rule 501 under the Securities
Act. The Purchaser is not subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under
the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3).


 




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


 


(e)
Access to Information. The Purchaser acknowledges
that it has had the opportunity to review the Transaction Documents (including all exhibits and schedules thereto) and has been afforded,
subject to Regulation FD, (i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives
of the Company concerning the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities;
(ii) access to information about the Company and its financial condition, results of operations, business, properties, management and
prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the
Company possesses or can acquire without unreasonable effort or expense that is necessary to make an informed investment decision with
respect to the investment; provided, however, that the Purchaser has not requested nor been provided by the Company with any non-public
information regarding the Company, its financial condition, results of operations, business, properties, management and prospects. The
Purchaser acknowledges and agrees that neither the Company nor anyone else has provided the Purchaser with any information or advice
with respect to the Securities nor is such information or advice necessary or desired.


 


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


 


Article
IV

OTHER AGREEMENTS OF THE PARTIES


 


4.1
Removal of Legends.


 


(a)
The Warrants and Warrant Shares may only be disposed
of in compliance with state and federal securities laws. In connection with any transfer of the Warrants or Warrant Shares other than
pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a
pledge as contemplated in Section 4.1(c), the Company may require the transferor to provide to the Company an opinion of counsel selected
by the transferor and reasonably acceptable to the Company at the cost of the Company, the form and substance of which opinion shall
be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Warrants
or Warrant Shares under the Securities Act.


 




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(b)
Each Purchaser agrees to the imprinting, so long as
is required by this Section 4.1, of a legend on any of the Warrants or Warrant Shares in the following form:


 


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


 


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


 


(d)
The Company shall cause to be removed any restrictive
legend from the certificates evidencing the Warrant Shares (or the Transfer Agent’s records if held in book entry form) (including
the legend set forth in Section 4.1(b) hereof): (i) while a registration statement covering the resale of such Securities is effective
under the Securities Act (the “Effective Date”), (ii) following any sale of such Warrant Shares pursuant to Rule 144, assuming
cashless exercise of the Warrants, (iii) if such Warrant Shares are eligible for sale under Rule 144, without the requirement for the
Company to be in compliance with the current public information required under Rule 144 as to such Warrant Shares and without volume
or manner-of-sale restrictions or (iv) if such legend is not required under applicable requirements of the Securities Act (including
Sections 4(a)(1) and 4(a)(7), judicial interpretations and pronouncements issued by the staff of the SEC). The Company shall, if any
of the provisions in clause (i) – (iv) above are applicable, at its expense, cause its counsel, or at the option of any Purchaser,
counsel determined by such Purchaser to issue a legal opinion to the Transfer Agent if required by the Transfer Agent to effect the removal
of the legend hereunder, subject to compliance with the Securities Act and/or Rule 144. The Company shall pay all costs associated with
such opinions. For avoidance of doubt, the Company agrees that after a two-year holding period (including periods where tacking permitted
by Rule 144) following issuance of Warrant Shares, the legend may be removed under Section 4(a)(1) of the Securities Act. The Company
agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.1(d), it will, no
later than the earlier of (i) two Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
below) following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing restricted Warrant Shares
issued with a restrictive legend (such date, the “Legend Removal Date”), deliver or cause to be delivered to such Purchaser
a certificate representing such Warrant Shares that is free from all restrictive and other legends (or provide evidence of issuance in
book entry form). The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions
on transfer set forth in this Section 4.1. Certificates for underlying Warrant Shares subject to legend removal hereunder shall be transmitted
by the Transfer Agent to such Purchaser by crediting the account of the Purchaser’s prime broker with the Depository Trust Company
System as directed by the Purchaser. As used herein, “Standard Settlement Period” means the standard settlement period, expressed
in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock as in effect on the date
of delivery of a certificate representing the Warrant Shares. Certificates for the Warrant Shares subject to legend removal hereunder
shall be transmitted by the Transfer Agent to such system as directed by each Purchaser.


 




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(e)
In addition to such Purchaser’s other available
remedies, (i) the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of the
principal amount of the Notes or $1,000 of the Warrant Shares for which a Warrant is being exercised (based on the Warrant Exercise Price),
$10 per Trading Day for each Trading Day after the Legend Removal Date (increasing to $20 per Trading Day after the fifth Trading Day)
until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser’s right to pursue actual damages
for the Company’s failure to deliver certificates representing any Securities as required by the Transaction Documents, and such
Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief, and (ii) if after the Legend Removal Date such Purchaser purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of all or any portion of the
number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion of the number of shares
of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then, the Company shall pay
to such Purchaser, in cash, an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions
and other out-of-pocket expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket
expenses, if any) (the “Buy-In Price”) over the product of (A) such number of Warrant Shares that the Company was required
to deliver to such Purchaser by the Legend Removal Date multiplied by (B) the highest closing sale price of the Common Stock on any Trading
Day during the period commencing on the date of the delivery by such Purchaser to the Company of the Warrant Shares and ending on the
date of such delivery and payment under this Section 4.1(e).


 


(f)
In the event a Purchaser shall request delivery of unlegended
shares as described in this Section 4.1 and the Company is required to deliver such unlegended shares, (i) the Company shall pay all
fees and expenses associated with or required by the legend removal and/or transfer including but not limited to legal fees, Transfer
Agent fees and overnight delivery charges and taxes, if any, imposed by any applicable government upon the issuance of Common Stock;
and (ii) the Company may not refuse to deliver unlegended shares based on any claim that such Purchaser or anyone associated or affiliated
with such Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other reason, unless,
an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended shares
shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of such Purchaser in the
amount of the greater of (i) 150% of the amount of the aggregate purchase price of the Warrant Shares (based on exercise price in effect
upon exercise) which is subject to the injunction or temporary restraining order, or (ii) the VWAP of the Common Stock on the Trading
Day before the issue date of the injunction multiplied by the number of unlegended shares to be subject to the injunction, which bond
shall remain in effect until the completion of the litigation of the dispute and the proceeds of which shall be payable to such Purchaser
to the extent Purchaser obtains judgment in Purchaser’s favor.


 


4.2
Furnishing of Information.


 


(a)
Until the earliest of the time that no Purchaser owns
Notes or Warrant Shares, the Company shall timely file (or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act as if it were subject to Section
13(a), and provide notice to its stockholders required by applicable state law even if the Company is not then subject to the reporting
requirements of the Exchange Act.


 


(b)
At any time during the period commencing from the six
month anniversary of the date hereof and ending at such time on the earlier to occur of: (i) the Warrants are not outstanding, or (ii)
that all of the Warrant Shares (assuming cashless exercise) may be sold without the requirement for the Company to be in compliance with
Rule 144(c)(1) and otherwise without restriction or limitation pursuant to Rule 144 or under an effective registration statement, if
the Company (i) shall fail for any reason to satisfy the current public information requirement under Rule 144(c) for a period of more
than 30 consecutive days or (ii) has ever been an issuer described in Rule 144(i)(1)(i) or becomes such an issuer in the future, and
the Company shall fail to satisfy any condition set forth in Rule 144(i)(2) for a period of more than 30 consecutive days (a “Public
Information Failure”) then, in addition to such Purchaser’s other available remedies, the Company shall pay to each Purchaser,
in cash, as partial liquidated damages and not as a penalty, by reason of any such delay in or reduction of its ability to sell the Warrant
Shares, an amount in cash equal to two percent (2.0%) of the outstanding aggregate principal amount of such Purchaser’s Note(s)
and/or Warrant Exercise Price of such Purchaser’s Warrants on the day of a Public Information Failure and on every 30th
day (pro-rated for periods totaling less than 30 days) thereafter until the earlier of (1) the date such Public Information Failure is
cured and (2) such time that such public information is no longer required for the Purchasers to transfer the Warrant Shares pursuant
to Rule 144. The payments to which each Purchaser shall be entitled pursuant to this Section 4.2(b) are referred to herein as “Public
Information Failure Payments.” Public Information Failure Payments shall be paid on the earlier of (y) the last day of the calendar
month during which such Public Information Failure Payments are incurred and (z) the second Trading Day after the event or failure giving
rise to the Public Information Failure Payments is cured. In the event the Company fails to make Public Information Failure Payments
in a timely manner, such Public Information Failure Payments shall bear interest at the rate of one and one-half percent (1.5%) per month
(prorated for partial months) until paid in full. Nothing herein shall limit such Purchaser’s right to pursue actual damages for
the Public Information Failure, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including,
without limitation, a decree of specific performance and/or injunctive relief.


 




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4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2(a)(1) of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules
and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction
unless stockholder approval is obtained before the closing of such subsequent transaction.


 


4.4 Securities
Laws Disclosure; Publicity. The Company shall, by 5:30 p.m. (New York City time) on the first Trading Day following the date of
execution hereof, file a Current Report on Form 8-K disclosing the material terms of this Agreement, including the Transaction
Documents as exhibits thereto, with the SEC. From and after the filing of the Form 8-K as provided in the preceding sentence, the
Company represents to each Purchaser that it shall have publicly disclosed all material, non-public information delivered to such
Purchaser 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 such Form 8-K,
the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or
oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates
on the one hand, and each Purchaser or any of its Affiliates on the other hand, shall terminate. The Company and each Purchaser
shall consult with each other in issuing any press releases with respect to the transactions contemplated hereby, and neither the
Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the prior consent
of the Company, with respect to any press release of any Purchaser, or without the prior consent of such Purchaser, with respect to
any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is required
by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement or
communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the SEC or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the
SEC and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall provide
each Purchaser with prior notice of such disclosure permitted under this clause (b).


 


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


 




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4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, which shall be disclosed pursuant to this Section 4.6 and except as permitted under Section 4.12, the Company covenants
and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or counsel with any
information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless prior thereto
such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information
confidential. Prior to providing a Purchaser with any material non-public information, the Company shall provide the Purchaser with
a consent substantially in the form attached as Exhibit C (“Consent”) which shall not include any material
non-public information. The Company shall not provide the Purchaser with the material non-public information if the Purchaser does
not execute and return the Consent to the Company. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company, any of its Subsidiaries,
or any of their respective officers, directors, agents, employees or Affiliates, delivers any material, non-public information to a
Purchaser without such Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any
duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees
or Affiliates, or a duty not to trade on the basis of, such material, non-public information, provided that the Purchaser shall
remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document or any other
communications made by the Company, or information provided, to the Purchaser constitutes, or contains, material non-public
information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice or other material
information with the SEC pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be
relying on the foregoing covenant in effecting transactions in securities of the Company. In addition to any other remedies provided
by this Agreement or other Transaction Documents, if the Company knowingly provides any material non-public information to any
Purchaser without its prior written consent, and it fails to immediately (no later than that Trading Day or by 9:00 am New York City
time the next Trading Day) file a Form 8-K disclosing this material non-public information, it shall pay the Purchasers as partial
liquidated damages and not as a penalty a sum equal to $1,000 per day for each $100,000 of each Purchaser’s Subscription
Amount beginning with the day the information is disclosed to a Purchaser and ending and including the day the Form 8-K disclosing
this information is filed.


 


4.7
Use of Proceeds. The Company shall use the net proceeds
from the sale of the Securities hereunder for working capital purposes, the repayment of certain of Indebtedness in the amount of $425,000,
as set forth on Schedule 4.7 hereof and shall not use such proceeds: (a) for the redemption of any Common Stock or Common Stock
Equivalents, (b) in violation of FCPA or OFAC regulations, or (c) to lend money, give credit, or make advances to any officers, directors,
employees or affiliates of the Company, except for routine travel advances.


 




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4.8
Indemnification of Purchaser.


 


(a)
Subject to the provisions of this Section 4.8, the Company
will indemnify and hold each Purchaser and its directors, officers, stockholders, members, managers, partners, employees and agents (and
any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such title or any other
title), each Person who controls the Purchaser (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, stockholders, members, managers, partners or employees and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding a lack of such title or any other title) of such controlling persons
(each, a “Purchaser Party”) harmless from any and all losses, liabilities, obligations, claims, contingencies, damages, costs
and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation
(including local counsel, if retained) that any such Purchaser Party may suffer or incur as a result of or relating to (i) any breach
of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction
Documents, or (ii) any action instituted against the Purchaser Parties in any capacity, or any of them or their respective Affiliates,
by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is solely based upon a breach of such Purchaser Party’s representations, warranties
or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may have with any such stockholder
or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser Party which constitutes
intentional fraud, gross negligence, or willful misconduct) or (iii) any untrue or alleged untrue statement of a material fact contained
in any registration statement, any prospectus or any form of prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be stated therein or necessary
to make the statements therein (in the case of any prospectus or supplement thereto, in light of the circumstances under which they were
made) not misleading. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant
to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume
the defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the
right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Purchaser Party except to the extent that (i) the employment thereof has been specifically authorized
by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ counsel
or (iii) in such action there is, in the reasonable opinion of the Purchaser Party, a material conflict on any material issue between
the position of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable
fees and expenses of no more than one such separate counsel (in addition to local counsel, if retained). The Company will not be liable
to any Purchaser Party under this Agreement (y) for any settlement by a Purchaser Party effected without the Company’s prior written
consent, which shall not be unreasonably withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants or agreements
made by such Purchaser Party in this Agreement or in the other Transaction Documents. The Purchaser Parties shall have the right to settle
any action against any of them by the payment of money provided that they cannot agree to any equitable relief and the Company, its officers,
directors and Affiliates receive unconditional releases in customary form. The indemnification required by this Section 4.8 shall be
made by periodic payments of the amount thereof during the investigation or defense, as and when bills are received or are incurred.
The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser Party against
the Company or others and any liabilities the Company may be subject to pursuant to law.


 




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(b)
Settlement Without Consent if Failure to Reimburse.
If an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for reasonable fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 4.8 effected
without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement.


 


4.9 Reservation
of Common Stock. Beginning on the four month anniversary of the Closing Date until no portion of the Notes remain outstanding
and all Warrants have been exercised, the Company shall reserve and keep available at all times in favor of the Purchasers, on a pro
rata basis based on the Purchasers’ Subscription Amount, free of preemptive rights, four times the number of
shares issuable to the Purchasers upon exercise of the Warrants (subject to adjustment for stock splits and dividends, combinations
and similar events) (the “Reserve” or the “Required Minimum”). The Reserve amount shall
thereafter be increased, on a first-priority basis, as and when new shares of Common Stock become available for reserve. If, on any
date, the number of authorized but unissued (and otherwise unreserved) shares of Common Stock is less than the Required Minimum on
such date, then the Board of Directors shall use its best efforts to amend the Company’s Articles of Incorporation to increase
the number of authorized but unissued shares of Common Stock to at least the Required Minimum at such time, as soon as possible and
in any event not later than the 60th day after such date.


 


4.10
Listing of Common Stock. The Company hereby agrees to
use best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it is currently listed. The
Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such
application all of the Warrant Shares and will take such other action as is necessary to cause all of the Warrant Shares to be listed
or quoted on such other Trading Market as promptly as possible. The Company will then take all action necessary to continue the listing
and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other
obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic
transfer through the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment
of fees to the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer. The
Company shall provide to the Purchasers evidence of such listing or quotation and maintain the listing or quotation of such Common Stock
on any date at least equal to the Reserve on such date on such Trading Market or another Trading Market. The Company shall not enter
into any agreement or file any amendment to its Certificate or Articles of Incorporation (including the filing of a Certificate of Designation)
which conflicts with this Section 4.10 while the Notes and Warrants remain outstanding.


 




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4.11
Participation in Future Financing.


 


(a)
Until the later of: (i) 24 months from the date of this
Agreement and (ii) the date that the Notes are no longer outstanding, upon any issuance by the Company or any of its Subsidiaries of
Common Stock or Common Stock Equivalents for cash consideration, Indebtedness or a combination of the foregoing in a transaction exempt
from registration under the Securities Act (a “Subsequent Financing”), the Purchasers (as a group) shall have the right to
participate in up to an amount of the Subsequent Financing equal to 15% of the Subsequent Financing (the “Participation
Maximum”) on the same terms, conditions and price provided for in the Subsequent Financing. At least five Trading Days prior to
the closing of the Subsequent Financing, the Company shall deliver to each Purchaser a written notice of its intention to effect a Subsequent
Financing (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if it wants to review the details of such financing (such
additional notice, a “Subsequent Financing Notice”). Upon the request of a Purchaser, and only upon a request by such Purchaser,
for a Subsequent Financing Notice, the Company shall promptly, but no later than one Trading Day after such request, deliver a Subsequent
Financing Notice to such Purchaser. The Subsequent Financing Notice shall describe in reasonable detail the proposed terms of such Subsequent
Financing, the amount of proceeds intended to be raised thereunder and the Person or Persons through or with whom such Subsequent Financing
is proposed to be effected and shall include a term sheet or similar document relating thereto as an attachment.


 


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


 


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


 


(d)
If by 5:30 p.m. (New York City time) on the fifth Trading
Day after all of the Purchasers have received the Pre-Notice, the Company receives responses to a Subsequent Financing Notice from Purchasers
seeking to purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall have the right to purchase
its Pro Rata Portion (as defined below) of the Participation Maximum. “Pro Rata Portion” means the ratio of (x) the Subscription
Amount of Securities purchased on the Closing Date by a Purchaser participating under this Section 4.11 and (y) the sum of the aggregate
Subscription Amounts of Securities purchased on the Closing Date by all Purchasers participating under this Section 4.11.


 


(e)
The Company must provide the Purchasers with a second
Subsequent Financing Notice, and the Purchasers will again have the right of participation set forth above in this Section 4.11, if the
Subsequent Financing subject to the initial Subsequent Financing Notice is not consummated for any reason on the terms set forth in such
Subsequent Financing Notice within 30 Trading Days after the date of the initial Subsequent Financing Notice.


 


(f)
The Company and each Purchaser agree that if any Purchaser
elects to participate in the Subsequent Financing, the transaction documents related to the Subsequent Financing shall not include any
term or provision whereby such Purchaser shall be required to agree to any restrictions on trading as to any of the Securities purchased
hereunder or be required to consent to any amendment to or termination of, or grant any waiver, release or the like under or in connection
with, this Agreement, without the prior written consent of such Purchaser.


 


(g)
Notwithstanding anything to the contrary in this Section
4.11 and unless otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such Purchaser that the transaction
with respect to the Subsequent Financing has been abandoned or shall publicly disclose its intention to issue the securities in the Subsequent
Financing, in either case in such a manner such that such Purchaser will not be in possession of any material, non-public information,
by 30 Trading Days following delivery of the Subsequent Financing Notice. If by such 30th Trading Day, no public disclosure regarding
a transaction with respect to the Subsequent Financing has been made, and no notice regarding the abandonment of such transaction has
been received by such Purchaser, such transaction shall be deemed to have been abandoned and such Purchaser shall not be deemed to be
in possession of any material, non-public information with respect to the Company or any of its Subsidiaries.


 




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(h)
Notwithstanding the foregoing, this Section 4.11 shall
not apply in respect of an Exempt Issuance.


 


4.12 Certain
Transactions and Confidentiality. The Purchaser covenants that neither it nor any Affiliate acting on its behalf or pursuant to
any understanding with it will execute any purchases or sales, including Short Sales of any of the Company’s securities during
the period commencing with the execution of this Agreement and ending at such time that the transactions contemplated by this
Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4. Each Purchaser, severally
and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are
publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, the Purchaser will maintain the
confidentiality of the existence and terms of this transaction and the information included in the Disclosure Schedules.
Notwithstanding the foregoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly
acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in
effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are
first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted or
prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press
release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the
securities of the Company to the Company or its Subsidiaries after the issuance of the initial press release as described in Section
4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of the Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of the Purchaser’s assets, the covenant set forth
above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to
purchase the Securities covered by this Agreement.


 


4.13 Market
Stand Off Agreement. In the event of the consummation of a Qualified Offering, on the request of the Company’s lead
underwriter, each Purchaser will execute and deliver a customary market stand off agreement for a period of six months following the
Qualified Offering in form satisfactory to each Purchaser and its counsel.


 


4.14 DTC
Program. For so long as any of the Notes or Warrants are outstanding, the Company will employ as the Transfer Agent for the
Common Stock and Warrant Shares a participant in the Depository Trust Company Automated Securities Transfer Program and cause the
Common Stock to be transferable pursuant to such program.


 


4.15 Maintenance
of Property. The Company shall keep all of its property necessary for the operations of its business, which is necessary or
useful to the conduct of its business, in good working order and condition, ordinary wear and tear excepted.


 


4.16 Preservation
of Corporate Existence. The Company shall preserve and maintain its corporate existence, rights, privileges and franchises in
the jurisdiction of its incorporation, and qualify and remain qualified, as a foreign corporation in each jurisdiction in which such
qualification is necessary in view of its business or operations and where the failure to qualify or remain qualified might
reasonably have a Material Adverse Effect upon the financial condition, business or operations of the Company taken as a
whole.


 


4.17 No
Registration of Securities. While the Notes are outstanding, unless at least 30% of the aggregate principal amount of the Notes
has been repaid or at least 30% of the proceeds from the sale of the shares under Form S-1 or Form S-3 is used to pay off the
principal of the Notes, the Company will not file any new registration statements on Form S-1 or Form S-3. For the avoidance of
doubt, the foregoing shall not prevent the Company from filing a Registration Statement on Form S-8 with respect to equity
compensation plans or a Form S-1 or Form S-3 for a Qualified Financing.


 




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4.18 Variable
Rate Transactions. While any of the Notes are outstanding, the Company shall be prohibited from entering a Variable Rate
Transaction, other than with the Lead Investor.


 


4.19 No
Repurchase of Common Stock. Prior to purchasing or otherwise acquiring any shares of Common Stock, the Company shall give each
Purchaser at least 20 Trading Days prior written notice of its intent to do so. If during the 20 Trading Day period any Purchaser
gives the Company notice that it will violate the beneficial ownership limitation contained in the Note or Warrants by virtue of
such purchase or acquisition by the Company, the Company shall not complete the purchase or acquisition except to the extent that it
does not cause any Purchaser to exceed the beneficial ownership limitation. For avoidance of doubt, in no event shall any Purchaser
own more than 9.99% of the Company’s outstanding Common Stock by virtue of such purchase or acquisition.


 


4.20 Prohibition
on certain Debt. Until such time as the Notes are no longer outstanding, the Company shall be prohibited from incurring
Indebtedness.


 


4.21 Most
Favored Nation Provision. Notwithstanding anything contained herein to the contrary, if at any time from and after the Closing
Date until the Notes are no longer outstanding, the Company proposes to offer and sell additional securities in a Subsequent
Financing, each Purchaser may elect, in its sole discretion, to exchange all or a portion of such Purchaser’s Securities then
held by such Purchaser for securities of the same type issued in such Subsequent Financing (such exchange to be made at the same
time as the closing of such Subsequent Financing), on the same terms and conditions as the Subsequent Financing, based on the
principal aggregate amount of such Purchaser’s Note, and accrued and unpaid interest and late charges on the principal and
interest of the Note. By way of example, if the Company undertakes a Subsequent Financing of notes, each Purchaser shall have the
right to participate in such Subsequent Financing and use the exchange of its Notes as consideration, on a dollar for dollar basis,
in lieu of cash consideration. The procedural and notice requirements under Section 4.11 are incorporated in this Section 4.21, as
applicable.


 


4.22 Registration.
If the SEC amends or proposes to amend Rule 144 which would prohibit or limit any Purchaser’s ability to tack the holding
period of the Warrant Shares to the Warrants (in a cashless exercise), the Company shall file a registration statement within 30
days of any Purchaser’s written request registering all of such Purchaser’s Warrant Shares.


 


4.23 Subsequent
Equity Sales. From the date hereof until 90 days after the Closing Date except for Exempt Issuances, neither the Company nor any
Subsidiary shall issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common
Stock or Common Stock Equivalents.


 


4.24 Collateral
Agent. Each Purchaser (i) hereby appoints Lead Investor as Collateral Agent under the Security Agreement and (ii) acknowledges
that Lead Investor, as the Collateral Agent, owes no fiduciary duties to the Purchasers as a result its appointment as Collateral
Agent.


 


4.25
Reserved.


 


4.26 Capital
Changes. Until the date that is 18 months following the Closing Date, except for changes in the Company’s capital in order
to maintain the Required Minimum as required under this Agreement, the Company shall not undertake a reverse or forward stock split
or reclassification of the Common Stock without the prior written consent of the Purchasers holding a majority in Principal Amount
outstanding of the Notes; provided however, such written consent of the Purchasers shall not be unreasonably withheld if such
reverse or forward stock split or reclassification of the Common Stock is required for the Company to list its Common Stock on a
national securities exchange, and shall be deemed given if a reverse stock split is effected in connection with a Qualified
Financing at the recommendation of the underwriter or placement agent.


 




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Article
V

MISCELLANEOUS


 


5.1 Fees
and Expenses. Except as expressly set forth below and in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer
Agent fees (including, without limitation, any fees required for same-day processing of any instruction letter delivered by the
Company and any exercise notice delivered by a Purchaser), stamp taxes and other taxes and duties levied in connection with the
delivery of any Securities to the Purchaser. For the avoidance of doubt, the Company shall also pay all fees and expenses related to
any Purchaser sales pursuant to Rule 144. Upon the Closing, the Company agrees to pay legal fees of the Lead Investor in an amount
not to exceed $30,000 (which may be withheld from the Subscription Amount).


 


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


 


5.3 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and
shall be deemed given and effective on the earliest of: (a) the date of transmission, if such notice or communication is delivered
by email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (Eastern
Standard or Daylight Savings Time, as applicable) on a Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via email attachment at the email address as set forth on the signature pages attached hereto
on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second Trading Day
following the date of transmission, if sent by U.S. nationally recognized overnight delivery service or (d) upon actual receipt by
the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the
signature pages attached hereto unless changed by a party. To the extent that any notice provided pursuant to any Transaction
Document constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall
simultaneously file a Current Report with the SEC on Form 8-K, or which failure to do so will subject the Company to the liquidated
damages provided for in Section 4.6.


 


5.4 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed,
in the case of an amendment, by the Company and a majority in interest of the outstanding balance of the Notes (including the Lead
Investor) or, in the case of a waiver, by the party against whom enforcement of any such waived provision is sought. No waiver of
any default with respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in
the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of any party to exercise any right hereunder in any manner impair the exercise of any such right. Any amendment
effected in accordance with accordance with this Section 5.4 shall be binding upon the Purchasers and any holder of Securities and
the Company.


 


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


 


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


 


5.7 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and
permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise
set forth in Section 4.8 and this Section 5.7.


 




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5.8 Governing
Law; Exclusive Jurisdiction; Attorneys’ Fees. All questions concerning the construction, validity, enforcement and
interpretation of the Transaction Documents shall be governed by and construed and enforced in accordance with the internal Laws of
the State of Illinois without regard to the principles of conflicts of law thereof. Any disputes, claims, or controversies arising
out of or relating to the Transaction Documents, or the transactions, contemplated thereby, or the breach, termination, enforcement,
interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall
be referred to and resolved solely and exclusively by binding arbitration to be conducted before the Judicial Arbitration and
Mediation Service (“JAMS”), or its successor pursuant the expedited procedures set forth in the JAMS Comprehensive
Arbitration Rules and Procedures (the “Rules”), including Rules 16.1 and 16.2 of those Rules. The arbitration shall be
held in New York, New York, before a tribunal consisting of three arbitrators each of whom will be selected in accordance with the
“strike and rank” methodology set forth in Rule 15. Either party to this Agreement may, without waiving any remedy under
this Agreement, seek from any federal or state court sitting in the State of New York any interim or provisional relief that is
necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal. The costs and
expenses of such arbitration shall be paid by and be the sole responsibility of the Company, including but not limited to the
Purchasers attorneys’ fees and each arbitrator’s fees. The arbitrators’ decision must set forth a reasoned basis
for any award of damages or finding of liability. The arbitrators’ decision and award will be made and delivered as soon as
reasonably possibly and in any case within 60 days’ following the conclusion of the arbitration hearing and shall be final and
binding on the parties and may be entered by any court having jurisdiction thereof. If any party shall commence an Action to enforce
any provisions of the Transaction Documents, then, in addition to the obligations of the Company elsewhere in this Agreement, the
prevailing party in such Action shall be reimbursed by the non-prevailing party for its reasonable attorneys’ fees and other
costs and expenses incurred with the investigation, preparation and prosecution of such Action.


 


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


 


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


 


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


 


5.12 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then that Purchaser
may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or
election in whole or in part without prejudice to its future actions and rights; provided, however, that in the case of a rescission
of an exercise of a Warrant, the Purchaser shall be required to return any Warrant Shares subject to any such rescinded Exercise
Notice concurrently with the restoration of such Purchaser’s right to acquire such Warrant Shares pursuant to the
Warrant.


 


5.13 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company
shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in
lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction without requiring the posting of any bond.


 




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


 


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


 


5.16 Independent
Nature of Purchasers’ Obligations and Rights; Equal Treatment of Purchasers. The obligations of each Purchaser under any
Transaction Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in
any way for the performance or non-performance of the obligations of any other Purchaser under any Transaction Document. Nothing
contained herein or in any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be
deemed to constitute the Purchasers as a partnership, an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group with respect to such obligations or the transactions
contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently protect and enforce its rights
including, without limitation, the rights arising out of this Agreement or out of the other Transaction Documents, and it shall not
be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose. Each Purchaser has been
represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. The Company has elected to
provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was
required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this
Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the
Purchasers collectively and not between and among the Purchasers. No consideration (including any modification of any Transaction
Document) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction
Documents unless the same consideration is also offered to all of the parties to the Transaction Documents. For clarification
purposes, this provision constitutes a separate right granted to each Purchaser by the Company and negotiated separately by each
Purchaser, and is intended for the Company to treat the Purchasers as a class and shall not in any way be construed as the
Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of Securities or
otherwise.


 


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


 


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


 


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


 




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5.20 Waiver
of Jury Trial. In any action, suit, or proceeding in any jurisdiction brought by any party against any other party, the parties
each knowingly and intentionally, to the greatest extent permitted by applicable law, hereby absolutely, unconditionally,
irrevocably and expressly waive forever trial by jury.


 


5.21 Non-Circumvention.
The Company hereby covenants and agrees that the Company will not, by amendment of its Articles of Incorporation, including any
Certificates of Designation, or Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme of
arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms of this Agreement, and will at all times in good faith carry out all of the provision of this
Agreement and take all action as may be required to protect the rights of all holders of the Securities. Without limiting the
generality of the foregoing or any other provision of this Agreement or the other Transaction Documents, the Company (a) shall not
increase the par value of any Warrant Shares issuable upon exercise of the Warrants above the Warrant Exercise Price then in effect
and (b) shall take all such action as may be necessary or appropriate in order that the Company may validly and legally issue fully
paid and nonassessable Warrant Shares upon the exercise of the Warrants. Notwithstanding anything herein to the contrary, if after
six months from the Original Issue Date, the Purchasers are not permitted to exercise their Warrants, in full, for any reason,
subject to the Purchaser’s compliance with Rule 144 the Company shall use its best efforts to promptly remedy such failure,
including, without limitation, obtaining such consent or approvals as necessary to permit such exercise.


 


5.22 Entire
Agreement; No Third Party Beneficiaries. This Agreement, taken together with the Disclosure Schedules and the Transaction
Documents, (a) constitutes the entire agreement, and supersede all prior agreements and understandings, both written and oral, among
the Parties with respect to the Transactions and (b) are not intended to confer upon any person other than the Parties any rights or
remedies.


 


5.23
Usury. To the extent it may lawfully do so, the Company
hereby agrees not to insist upon or plead or in any manner whatsoever claim, and will resist any and all efforts to be compelled to take
the benefit or advantage of, usury laws wherever enacted, now or at any time hereafter in force, in connection with any Action or Proceeding
that may be brought by any Purchaser in order to enforce any right or remedy under any Transaction Document. Notwithstanding any provision
to the contrary contained in any Transaction Document, it is expressly agreed and provided that the total liability of the Company under
the Transaction Documents for payments in the nature of interest shall not exceed the maximum lawful rate authorized under applicable
law (the “Maximum Rate”), and, without limiting the foregoing, in no event shall any rate of interest or default interest,
or both of them, when aggregated with any other sums in the nature of interest that the Company may be obligated to pay under the Transaction
Documents exceed such Maximum Rate. It is agreed that if the maximum contract rate of interest allowed by law and applicable to the Transaction
Documents is increased or decreased by statute or any official governmental action subsequent to the date hereof, the new maximum contract
rate of interest allowed by law will be the Maximum Rate applicable to the Transaction Documents from the effective date thereof forward,
unless such application is precluded by applicable law. If under any circumstances whatsoever, interest in excess of the Maximum Rate
is paid by the Company to any Purchaser with respect to indebtedness evidenced by the Transaction Documents, such excess shall be applied
by such Purchaser to the unpaid principal balance of any such indebtedness or be refunded to the Company, the manner of handling such
excess to be at such Purchaser’s election.


 


(Signature
Pages Follow)


 




    	31



     


    

 


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


 


	ADHERA THERAPEUTICS,
    INC. 	 	Address for Notice:
	 
	 	 
	By:	 	 	 
	Name:	 	 	 
	Title:	 	 	Email: _________________.com
	 	 	 
	With a copy
    to (which shall not constitute notice): 	 	 


 


[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK


SIGNATURE
PAGE FOR PURCHASER FOLLOWS]


 


Signature
Page to Securities Purchase Agreement


 




    	 



     


    

 


PURCHASER
SIGNATURE PAGE TO


SECURITIES
PURCHASE AGREEMENT


 


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


 


Name
of Purchaser:


 


Signature
of Authorized Signatory of Purchaser: ______________________________________


 


Name
of Authorized Signatory:


 


Title
of Authorized Signatory: Authorized Representative


 


Email
Address of Authorized Signatory:


 


Address
for Notice to Purchaser:


 


____________________________________


 


____________________________________


 


Subscription
(Purchase) Amount: $___________


 


Principal
of Note: $______________


 


Number
of Warrants: _______________


 


EIN
Number: ___________________


 


Signature
Page to Securities Purchase Agreement


 




    	 



     


    

 


SCHEDULE
3.1(l)


Compliance


 




    	 



     


    

 


SCHEDULE
3.1(aa)


Solvency


 




    	 



     


    

 


EXHIBIT
A


Form
of Note


 




    	 



     


    

 


EXHIBIT
B


Form
of Warrant


 




    	 



     


    

 


EXHIBIT
C


Form
of Consent


 




    	 



     


    

 


EXHIBIT
D


Form
of Irrevocable Transfer Instruction Agreement


 




    	 



     


    

 


EXHIBIT
E


Unanimous
Written Consent of the Board of Directors


 




    	 



     


    

 


EXHIBIT
F


Form
of Security Agreement