Exhibit 10.1


 


Execution Version


 


PURCHASE AGREEMENT


 


PURCHASE AGREEMENT (the “Agreement”),
dated as of July 8, 2020, by and between ELITE PHARMACEUTICALS, INC., a Nevada corporation (the “Company”),
and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability company (the “Investor”).


 


WHEREAS:


 


Subject to the terms and conditions set
forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from the Company, up to Twenty-Five
Million Dollars ($25,000,000) of the Company’s common stock, $0.001 par value per share (the “Common Stock”).
The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”


 


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


 


1. CERTAIN DEFINITIONS.



 


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


 


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


 


(b) “Accelerated
Purchase Floor Price” means $0.03, which shall be appropriately proportionately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction and, effective upon the consummation of any such reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction, the Accelerated Purchase Floor Price shall mean the lower of
(i) the adjusted price and (ii) $0.50.


 


(c) “Accelerated
Purchase Minimum Price Threshold” means, with respect to any Accelerated Purchase made pursuant to Section 2(b)
hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock on the applicable Purchase
Date with respect to the corresponding Regular Purchase referred to in Section 2(b) hereof and (ii) the minimum per share
price threshold set forth by the Company in the applicable Accelerated Purchase Notice.


 


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


 


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


 






     


     


    

 


(f) “Accelerated Purchase Share
Amount” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof, the number of Purchase
Shares directed by the Company to be purchased by the Investor in an Accelerated Purchase Notice, which number of Purchase Shares
shall not exceed the lesser of (i) 400% of the number of Purchase Shares directed by the Company to be purchased by the Investor
pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in Section 2(b)
hereof (subject to the Purchase Share limitations contained in Section 2(a) hereof) and (ii) an amount equal to (A) the
Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Principal
Market during the period on the applicable Accelerated Purchase Date beginning at the Accelerated Purchase Commencement Time for
such Accelerated Purchase and ending at the Accelerated Purchase Termination Time for such Accelerated Purchase.


 


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


 


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


 


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


 


(j) “Additional
Accelerated Purchase Floor Price” means $0.03 which shall be appropriately proportionately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction and, effective upon the consummation of any such
reorganization, recapitalization, non-cash dividend, stock split or other similar transaction, the Additional Accelerated Purchase
Floor Price shall mean the lower of (i) the adjusted price and (ii) $0.50.


 


(k) “Additional
Accelerated Purchase Minimum Price Threshold” means, with respect to an Additional Accelerated Purchase made pursuant
to Section 2(c) hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock on the
Business Day immediately preceding the applicable Additional Accelerated Purchase Date with respect to such Additional Accelerated
Purchase and (ii) the minimum per share price threshold set forth by the Company in the applicable Additional Accelerated Purchase
Notice.


 






    -2-


     


    

 


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


 


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


 


(n) “Additional Accelerated Purchase
Share Amount” means, with respect to an Additional Accelerated Purchase made pursuant to Section 2(c) hereof,
the number of Purchase Shares directed by the Company to be purchased by the Investor on an Additional Accelerated Purchase Notice,
which number of Purchase Shares shall not exceed the lesser of (i) 400% of the number of Purchase Shares directed by the Company
to be purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred
to in Section 2(c) hereof (subject to the Purchase Share limitations contained in Section 2(a) hereof) and (ii) an
amount equal to (A) the Additional Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume) of shares
of Common Stock traded on the Principal Market during the period on the applicable Additional Accelerated Purchase Date beginning
at the Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase and ending at the Additional
Accelerated Purchase Termination Time for such Additional Accelerated Purchase.


 


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


 


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


 






    -3-


     


    

 


(q) “Alternate
Adjusted Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section 2(a)
hereof, the maximum number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated
in accordance with this Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such
Regular Purchase, a Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, One
Hundred Thousand Dollars ($100,000).


 


(r) “Available Amount”
means, initially, Twenty-Five Million Dollars ($25,000,000) in the aggregate, which amount shall be reduced by the Purchase Amount
each time the Investor purchases shares of Common Stock pursuant to Section 2 hereof.


 


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


 


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


 


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


 


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


 


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


 


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


 






    -4-


     


    

 


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


 


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


 


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


 


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


 


(cc) “Maturity
Date” means the first day of the month immediately following the thirty-six (36) month anniversary of the Commencement
Date.


 


(dd) “PEA
Period” means the period commencing at 9:30 a.m., Eastern time, on the fifth (5th) Business Day immediately
prior to the filing of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement
(as such term is defined in the Registration Rights Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day immediately
following, the effective date of any post-effective amendment to the Registration Statement (as defined herein) or New Registration
Statement (as such term is defined in the Registration Rights Agreement).


 


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


 


(ff) “Principal
Market” means the OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized successor thereto); provided,
however, that in the event the Company’s Common Stock is ever listed or traded on The Nasdaq Capital Market, The Nasdaq Global
Market, The Nasdaq Global Select Market, the New York Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin Board,
or the OTCQX operated by the OTC Markets Group, Inc. (or any nationally recognized successor to any of the foregoing), then the
“Principal Market” shall mean such other market or exchange on which the Company’s Common Stock is then listed
or traded.


 






    -5-


     


    

 


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


 


(hh) “Purchase
Date” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the Business Day on which
the Investor receives, prior to 5:00 p.m., Eastern time, on such Business Day, a valid Regular Purchase Notice for such Regular
Purchase in accordance with this Agreement.


 


(ii) “Purchase
Price” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, ninety-seven percent (97%)
of the lower of: (i) the lowest Sale Price on the Purchase Date for such Regular Purchase and (ii) the arithmetic average of the
three (3) lowest Closing Sale Prices for the Common Stock during the ten (10) consecutive Business Days ending on the Business
Day immediately preceding such Purchase Date for such Regular Purchase (in each case, to be appropriately proportionately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs on or after the
date of this Agreement).


 


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


 


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


 


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


 


(mm) “Securities”
means, collectively, the Purchase Shares and the Commitment Shares.


 


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


 


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


 


(pp) “Transaction
Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration Rights Agreement
and the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered into
or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby.


 


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


 


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


 






    -6-


     


    

 


2. PURCHASE OF COMMON STOCK. 


 


Subject to the terms
and conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has the obligation
to purchase from the Company, Purchase Shares as follows:


 


(a) Commencement of Regular Sales of
Common Stock. Upon the satisfaction of all of the conditions set forth in Sections 7 and 8 hereof (the “Commencement”
and the date of satisfaction of such conditions the “Commencement Date”) and thereafter, the Company shall have
the right, but not the obligation, to direct the Investor, by its delivery to the Investor of a Regular Purchase Notice from time
to time, to purchase up to Five Hundred Thousand (500,000) Purchase Shares, subject to adjustment as set forth below in this Section
2(a) (such maximum number of Purchase Shares, as may be adjusted from time to time, the “Regular Purchase Share Limit”),
at the Purchase Price on the Purchase Date (each such purchase a “Regular Purchase”); provided, however,
that the Regular Purchase Share Limit shall be increased to: (i) Six Hundred Thousand (600,000) Purchase Shares, if the Closing
Sale Price of the Common Stock on the applicable Purchase Date is not below $0.15, (ii) Seven Hundred Thousand (700,000) Purchase
Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $0.20, (iii) Eight Hundred Thousand
(800,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $0.25, and
(iv) Nine Hundred Thousand (900,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase
Date is not below $0.30 (all of which share and dollar amounts shall be appropriately proportionately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split or other similar transaction; provided that if, after giving effect to
the full proportionate adjustment to the Regular Purchase Share Limit therefor, the Fully Adjusted Regular Purchase Share Limit
then in effect would preclude the Company from delivering to the Investor a Regular Purchase Notice hereunder for a Purchase Amount
(calculated by multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular Purchase Share Limit, by (Y) the
Purchase Price per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase Date therefor) equal to or
greater than One Hundred Thousand Dollars ($100,000), the Regular Purchase Share Limit for such Regular Purchase Notice shall not
be fully adjusted to equal the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular Purchase Share Limit
for such Regular Purchase Notice shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share Limit as of
the applicable Purchase Date for such Regular Purchase Notice); and provided, further, however, that the Investor’s
committed obligation under any single Regular Purchase, other than any Regular Purchase with respect to which an Alternate Adjusted
Regular Purchase Share Limit shall apply, shall not exceed One Million Dollars ($1,000,000). If the Company delivers any Regular
Purchase Notice for a Purchase Amount in excess of the limitations contained in the immediately preceding sentence, such Regular
Purchase Notice shall be void ab initio to the extent of the amount by which the number of Purchase Shares set forth in
such Regular Purchase Notice exceeds the number of Purchase Shares which the Company is permitted to include in such Purchase Notice
in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Regular
Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the number of Purchase Shares
which the Company is permitted to include in such Regular Purchase Notice. The Company may deliver a Regular Purchase Notice to
the Investor as often as every Business Day, so long as all Purchase Shares subject to all prior Regular Purchases have theretofore
been received by the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding the foregoing, the Company shall
not deliver any Regular Purchase Notices to the Investor during the PEA Period.


 






    -7-


     


    

 


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


 


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


 






    -8-


     


    

 


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


 






    -9-


     


    

 


(e) Beneficial Ownership
Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue or sell,
and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated
with all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section
13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor of
more than 4.99% of the outstanding shares of Common Stock (the “Beneficial Ownership Limitation”). Upon
the written or oral request of the Investor, the Company shall promptly (but not later than 24 hours) confirm orally or in writing
to the Investor the number of shares of Common Stock then outstanding. The Investor and the Company shall each cooperate in good
faith in the determinations required hereby and the application hereof. The Investor’s written certification to the Company
of the applicability of the Beneficial Ownership Limitation, and the resulting effect thereof hereunder at any time, shall be conclusive
with respect to the applicability thereof and such result absent manifest error.


 


3. INVESTOR’S REPRESENTATIONS
AND WARRANTIES.


 


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


 


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


 


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


 


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


 


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


 






    -10-


     


    

 


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


 


(f) Transfer or
Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned or transferred unless (A)
registered pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the
terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller
(or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act)
may require compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder.


 


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


 


(h) Organization
and Standing. The Investor is a limited liability company duly organized and validly existing and in good standing under the
laws of, and maintains its principal place of business within, the State of Illinois.


 


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


 


4. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.


 


The Company represents
and warrants to the Investor that, except as set forth in the disclosure schedules attached hereto, which exceptions shall be deemed
to be a part of the representations and warranties made hereunder, as of the date hereof and as of the Commencement Date:


 


(a) Organization
and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its business as currently conducted.  Neither
the Company nor any of its Subsidiaries is in violation or default of any of the provisions of its respective certificate or articles
of incorporation, bylaws or other organizational or charter documents.  Each of the Company and its Subsidiaries is duly
qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the
nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to be so
qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect
and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or
curtail such power and authority or qualification. The Company has no Subsidiaries except as set forth on Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the year ended March 31, 2020.


 






    -11-


     


    

 


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


 


(c) Capitalization.
As of the date hereof, the authorized capital stock of the Company is set forth in the Company’s the Company’s Annual
Report on Form 10-K for the year ended March 31, 2020. Except as disclosed in the SEC Documents (as defined below), (i) no shares
of the Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered
or permitted by the Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into,
any shares of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements
by which the Company or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company
or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities or rights convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv)
there are no agreements or arrangements under which the Company or any of its Subsidiaries is obligated to register the sale of
any of their securities under the Securities Act (except the Registration Rights Agreement), (v) there are no outstanding securities
or instruments of the Company or any of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a
security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing anti-dilution or similar
provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii) the Company does not
have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. The Company
has furnished to the Investor true and correct copies of the Company’s Articles of Incorporation, as amended and as in effect on
the date hereof (the “Articles of Incorporation”), and the Company’s Bylaws, as amended and as in effect on the
date hereof (the “Bylaws”), and summaries of the material terms of all securities convertible into or exercisable
for Common Stock, if any, and copies of any documents containing the material rights of the holders thereof in respect thereto
that, in either case, are not disclosed in the SEC Documents.


 






    -12-


     


    

 


(d) Issuance of
Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the Purchase
Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of first
refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder
of Common Stock. Upon issuance in accordance with the terms and conditions of this Agreement, the issuance of the Initial Commitment
Shares (as defined below in Section 5(e)) and the reservation for issuance and the issuance of the Purchase Shares and the
Additional Commitment Shares (as defined below in Section 5(e)) issuable under this Agreement, shall be validly issued,
fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of first refusal and preemptive rights
with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of Common Stock. 250,548,286
shares of Common Stock have been duly authorized and reserved for issuance upon purchase under this Agreement as Purchase Shares.
5,975,857 shares of Common Stock (subject to equitable proportionate adjustment for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction) have been duly authorized and reserved for issuance as Additional Commitment
Shares in accordance with this Agreement.


 


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


 






    -13-


     


    

 


(f) SEC Documents;
Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required to be filed
by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the twelve
months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred
to herein as the “SEC Documents”) on a timely basis or has received a valid extension of such time of filing
and has filed any such SEC Documents prior to the expiration of any such extension.  As of their respective dates, the
SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable.
None of the SEC Documents, when filed, contained any untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading. The financial statements of the Company included in the SEC Documents complied 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 were prepared in accordance with United States generally accepted accounting principles applied on a consistent
basis during the periods involved (“GAAP”), except as may have been otherwise specified in such financial statements
or the notes thereto and except that unaudited financial statements may not have contained all footnotes required by GAAP, and
fairly presented in all material respects the financial position of the Company and its consolidated Subsidiaries as of and for
the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements,
to normal, immaterial, year-end audit adjustments. Except as set forth in the SEC Documents, the Company has received no notices
or correspondence from the SEC for the one year preceding the date hereof. The SEC has not commenced any enforcement proceedings
against the Company or any of its Subsidiaries.


 


(g) Absence of Certain
Changes. Except as disclosed in the SEC Documents, since March 31, 2020, there has been no material adverse change in the business,
properties, operations, financial condition or results of operations of the Company or its Subsidiaries. The Company has not taken
any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor does the Company
or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy
or insolvency proceedings.


 


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


 


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


 






    -14-


     


    

 


(j) No General Solicitation;
No Integrated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf, has engaged
in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection
with the offer or sale of the Securities. Neither the Company, nor any of its affiliates, nor any Person acting on their behalf
has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances
that would require registration of the offer and sale of any of the Securities under the Securities Act, whether through integration
with prior offerings or otherwise, or cause this offering of the Securities to be integrated with prior offerings by the Company
in a manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the securities
of the Company are listed or designated. The issuance and sale of the Securities hereunder does not contravene the rules and regulations
of the Principal Market.


 


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


 


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


 


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


 






    -15-


     


    

 


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


 


(o) Regulatory Permits.
The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the appropriate federal,
state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company nor any such
Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization
or permit.


 


(p) Tax Status.
The Company and each of its Subsidiaries has made or filed all federal and state income and all other material tax returns, reports
and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and each of
its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes)
and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due
on such returns, reports and declarations, except those being contested in good faith and has set aside on its books provision
reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the
officers of the Company know of no basis for any such claim.


 


(q)
Transactions With Affiliates.  Except
as set forth in the SEC Documents, none of the officers or directors of the Company and, to the knowledge of the Company, none
of the employees of the Company 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, 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 or partner, in each case in excess of $120,000 other than for (i)
payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and
(iii) other employee benefits, including stock option agreements under any stock option plan of the Company.


 


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


 






    -16-


     


    

 


(s)
 Disclosure.  Except with
respect to the material terms and conditions of the transactions contemplated by the Transaction Documents that will be timely
publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf has provided
the Investor or its agents or counsel with any information that it believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Registration Statement or the SEC Documents.  The press releases
disseminated by the Company during the twelve months preceding the date of this Agreement, taken as a whole, are true and correct
in all material respects.   The Company understands and confirms that the Investor will rely on the foregoing representation
in effecting purchases and sales of securities of the Company.   The Company acknowledges and agrees that the Investor
neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in Section 3 hereof.


 


(t)
Foreign Corrupt Practices.  Neither
the Company, nor to the knowledge of the Company, any agent or other Person acting on behalf of the Company, 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 made by any Person acting on its behalf of which the Company is aware) which is in violation of law, or (iv) violated in any
material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.


 


(u) DTC Eligibility. The Company,
through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (FAST) Program and the Common
Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer (FAST) Program.


 


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


 


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


 


(x) Investment Company.
The Company is not, and immediately after receipt of payment for the Securities will not be, an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


(y) Listing and
Maintenance Requirements. The Common Stock is registered pursuant to Section 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 pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating
terminating such registration. Except as disclosed in the SEC Documents, the Company has not, in the twelve (12) months preceding
the date hereof, received any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance
requirements of the Principal Market. Except as disclosed in the SEC Documents, 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.


 






    -17-


     


    

 


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


 


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


 


(bb) Form S-3 Eligibility;
Shell Company Status. As of the date hereof and as of the date of the initial filing of the Registration Statement with the
SEC pursuant to the Registration Rights Agreement (defined below), the Company satisfies all of the requirements of the Securities
Act for the use of Form S-3 to register the resale of the Purchase Shares, all of the Initial Commitment Shares and all of the
Additional Commitment Shares by the Investor under the Securities Act in accordance with the Registration Rights Agreement, without
reliance on General Instruction I.B.6. of Form S-3, and the Company is not subject to any volume limitations imposed by Form S-3,
the Securities Act or the SEC in respect of such registration. The Company is not currently, and has not been during the three-year
period prior to the date hereof, an issuer identified in Rule 144(i)(1) under the Securities Act. The Company has filed current
“Form 10 information” (as defined in Rule 144(i)(3) under the Securities Act) with the SEC at least three years prior
to the date hereof reflecting its status as an entity that is not a shell company.


 


(cc) No Disqualification
Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer
of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s outstanding
voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under
the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities
Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under
the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification
Event.


 


5. COVENANTS.


 


(a) Filing of Current
Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange Act, file
with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions
of, the Transaction Documents (the “Current Report”). The Company shall also file with the SEC, as soon as practicable
after the date hereof, a new registration statement (the “Registration Statement”) covering only the resale
of the Purchase Shares and all of the Initial Commitment Shares and all of the Additional Commitment Shares, in accordance with
the terms of the Registration Rights Agreement between the Company and the Investor, dated as of the date hereof (the “Registration
Rights Agreement”). The Company shall permit the Investor to review and comment upon the final pre-filing draft version
of the Current Report at least two (2) Business Days prior to its filing with the SEC, and the Company shall give due consideration
to all such comments. The Investor shall use its reasonable best efforts to comment upon the final pre-filing draft version of
the Current Report within one (1) Business Day from the date the Investor receives it from the Company.


 


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


 






    -18-


     


    

 


(c) Listing/DTC.
The Company shall promptly secure the listing of all of the Purchase Shares and Commitment Shares to be issued to the Investor
hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange or
automated quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to
maintain, so long as any shares of Common Stock shall be so listed, such listing of all such Securities from time to time issuable
hereunder. The Company shall use commercially reasonable efforts to maintain the listing of the Common Stock on the Principal Market
and shall comply in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules and
regulations of the Principal Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably
be expected to result in the delisting or suspension of the Common Stock on the Principal Market. The Company shall promptly, and
in no event later than the following Business Day, provide to the Investor copies of any notices it receives from any Person regarding
the continued eligibility of the Common Stock for listing on the Principal Market; provided, however, that the Company shall not
be required to provide the Investor copies of any such notice that the Company reasonably believes constitutes material non-public
information and the Company would not be required to publicly disclose such notice in any report or statement filed with the SEC
and under the Exchange Act or the Securities Act. The Company shall pay all fees and expenses in connection with satisfying its
obligations under this Section 5(c). The Company shall take all action necessary to ensure that its Common Stock can be
transferred electronically as DWAC Shares.


 


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


 


(e) Issuance of
Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, the Company shall cause
to be issued to the Investor a total of 5,975,857 shares of Common Stock (the “Initial Commitment Shares”) promptly
following the execution of this Agreement and shall deliver to the Transfer Agent the Irrevocable Transfer Agent Instructions with
respect to the issuance of such Initial Commitment Shares. The Company shall cause to be issued to the Investor up to 5,975,857
shares of Common Stock (the “Additional Commitment Shares” and, collectively with the Initial Commitment Shares,
the “Commitment Shares”), as follows: in connection with each purchase of Purchase Shares hereunder, the Company
shall issue to the Investor a number of shares of Common Stock equal to the product of (i) 5,975,857 and (y) the Purchase Amount
Fraction. The “Purchase Amount Fraction” shall mean a fraction, the numerator of which is the Purchase Amount
purchased by the Investor with respect to such purchase of Purchase Shares and the denominator of which is Twenty-Five Million
Dollars ($25,000,000). The Additional Commitment Shares shall be equitably adjusted for any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction. For the avoidance of doubt, (1) all of the Initial Commitment Shares shall
be fully earned as of the date of this Agreement, whether or not the Commencement shall occur or any Purchase Shares are purchased
by the Investor under this Agreement and irrespective of any subsequent termination of this Agreement and (2) the Additional Commitment
Shares shall be fully earned as of the date of their issuance pursuant to this Agreement, irrespective of any subsequent termination
of this Agreement.


 






    -19-


     


    

 


(f) Due Diligence;
Non-Public Information. The Investor shall have the right, from time to time as the Investor may reasonably deem appropriate
and upon reasonable advance notice to the Company, to perform reasonable due diligence on the Company during normal business hours.
The Company and its officers and employees shall provide information and reasonably cooperate with the Investor in connection with
any reasonable request by the Investor related to the Investor’s due diligence of the Company. Each party hereto agrees not to
disclose any Confidential Information of the other party to any third party and shall not use the Confidential Information for
any purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges
that the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable
measures to protect the secrecy of any Confidential Information disclosed by the other party. The Company confirms that neither
it nor any other Person acting on its behalf shall provide the Investor or its agents or counsel with any information that constitutes
or might constitute material, non-public information, unless a simultaneous public announcement thereof is made by the Company
in the manner contemplated by Regulation FD. In the event of a breach of the foregoing covenant by the Company or any Person acting
on its behalf (as determined in the reasonable good faith judgment of the Investor), in addition to any other remedy provided herein
or in the other Transaction Documents, if the Investor is holding any Securities at the time of the disclosure of material, non-public
information, the Investor shall have the right to make a public disclosure, in the form of a press release, public advertisement
or otherwise, of such material, non-public information without the prior approval by the Company; provided the Investor shall have
first provided notice to the Company that it believes it has received information that constitutes material, non-public information,
the Company shall have at least 24 hours to publicly disclose such material, non-public information prior to any such disclosure
by the Investor, the Company shall have failed to demonstrate to the Investor in writing within such time period that such information
does not constitute material, non-public information, and the Company shall have failed to publicly disclose such material, non-public
information within such time period. The Investor shall not have any liability to the Company, any of its Subsidiaries, or any
of their respective directors, officers, employees, stockholders or agents, for any such disclosure. The Company understands and
confirms that the Investor shall be relying on the foregoing covenants in effecting transactions in securities of the Company.


 


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


 


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


 


(i) Use of Proceeds.
The Company will use the net proceeds from the offering as described in the Registration Statement or the SEC Documents.


 


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


 


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


 






    -20-


     


    

 


(l) Limitation on
Variable Rate Transactions. From and after the date of this Agreement until the later of: (i) the 36-month anniversary of the
date of this Agreement and (ii) the 36-month anniversary of the Commencement Date (if the Commencement has occurred), in each case
irrespective of any earlier termination of this Agreement, the Company shall be prohibited from effecting or entering into an agreement
to effect any issuance by the Company of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving
a Variable Rate Transaction, other than in connection with an Exempt Issuance. The Investor shall be entitled to seek injunctive
relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without
the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents”
means any securities of the Company which entitle the holder thereof to acquire at any time Common Stock, including, without limitation,
any debt, preferred stock, rights, options, warrants 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. “Variable Rate Transaction”
means a transaction in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable
or exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either (A) at
a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices of or
quotations for the Common Stock at any time after the initial issuance of such debt or equity securities (including, without limitation,
pursuant to any “cashless exercise” provision, except where such cashless exercise provision is contained in a Common
Stock Equivalent and applies solely where the Company has an obligation to register the shares of Common Stock and/or Common Stock
Equivalent in the event such registration does not timely occur or during times when the registration is not current), or (B) with
a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance of such
debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business
of the Company or the market for the Common Stock (including, without limitation, any “full ratchet” or “weighted
average” anti-dilution provisions, but not including any standard anti-dilution protection for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction), (ii) issues or sells any debt or equity securities, including without
limitation, Common Stock or Common Stock Equivalents, either (A) at a price that is subject to being reset at some future date
after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent events directly or
indirectly related to the business of the Company or the market for the Common Stock (other than standard anti-dilution protection
for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction), or (B) that is subject
to or contains any put, call, redemption, buy-back, price-reset or other similar provision or mechanism (including, without limitation,
a “Black-Scholes” put or call right) that provides for the issuance of additional debt or equity securities of the
Company or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity
line of credit”, “at-the-market offering” or other continuous offering or similar offering of Common Stock or
Common Stock Equivalents, whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price. “Exempt
Issuance” means the issuance of (a) Common Stock or options to employees, officers, directors or vendors of the Company
pursuant to any stock or option plan duly adopted for such purpose, by the Board of Directors or a majority of the members of a
committee of directors established for such purpose, (b) (1) any Securities issued to the Investor pursuant to this Agreement,
(2) any securities issued upon the exercise or exchange of or conversion of any shares of Common Stock or Common Stock Equivalents
held by the Investor at any time, (3) any securities issued upon the exercise or exchange of or conversion of any Common Stock
Equivalents issued and outstanding on the date of this Agreement, provided that such securities referred to in this clause (3)
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, or (4) any securities to be issued by the Company to the Investor pursuant
to any other agreement between the Company and the Investor, (c) securities issued pursuant to acquisitions, divestitures, partnerships,
licenses, collaborations or strategic transactions approved by the Board of Directors or a majority of the members of a committee
of directors established for such purpose, which acquisitions, divestitures, partnerships, licenses, collaborations or strategic
transactions can have a Variable Rate Transaction component, 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 asset in a business synergistic
with the business of the Company and shall provide to the Company additional benefits in addition to the investment of funds, but
shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an
entity whose primary business is investing in securities, or (d) Common Stock issued pursuant to an “at-the-market offering”
by the Company exclusively through a registered broker-dealer acting as agent of the Company pursuant to a written agreement between
the Company and such registered broker-dealer.


 






    -21-


     


    

 


6. TRANSFER AGENT
INSTRUCTIONS.


 


(a) On the date of
this Agreement, the Company shall issue irrevocable instructions to the Transfer Agent substantially in the form attached hereto
as Exhibit D to issue the Initial Commitment Shares in accordance with the terms of this Agreement (the “Irrevocable
Transfer Agent Instructions”). The certificate(s) or book-entry statement(s) representing the Initial Commitment Shares,
except as set forth below, shall bear the following restrictive legend (the “Restrictive Legend”):


 


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


 


(b) On the earlier
of (i) the Commencement Date and (ii) such time that the Investor shall request, provided all conditions of Rule 144 under the
Securities Act are met, the Company shall, no later than two (2) Business Days following the delivery by the Investor to the Company
or the Transfer Agent of one or more legended certificates or book-entry statements representing Initial Commitment Shares (which
certificates or book-entry statements the Investor shall promptly deliver on or prior to the first to occur of the events described
in clauses (i) and (ii) of this sentence), as directed by the Investor, issue and deliver (or cause to be issued and delivered)
to the Investor, as requested by the Investor, either: (A) a certificate or book-entry statement representing such Initial Commitment
Shares that is free from all restrictive and other legends or (B) a number of shares of Common Stock equal to the number of Initial
Commitment Shares represented by the certificate(s) or book-entry statement(s) so delivered by the Investor as DWAC Shares. The
Company shall take all actions to carry out the intent and accomplish the purposes of the immediately preceding sentence, including,
without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to the Transfer Agent,
and any successor transfer agent of the Company, as may be requested from time to time by the Investor or necessary or desirable
to carry out the intent and accomplish the purposes of the immediately preceding sentence. On the Commencement Date, the Company
shall issue to the Transfer Agent, and any subsequent transfer agent, (i) irrevocable instructions in the form substantially similar
to those used by the Investor in substantially similar transactions (the “Commencement Irrevocable Transfer Agent Instructions”)
and (ii) the notice of effectiveness of the Registration Statement in the form attached as an exhibit to the Registration Rights
Agreement (the “Notice of Effectiveness of Registration Statement”), in each case to issue the Commitment Shares
and the Purchase Shares in accordance with the terms of this Agreement and the Registration Rights Agreement. All Purchase Shares
and Additional Commitment Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant to this
Agreement shall be issued only as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement is
effective, no instruction other than the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of
Registration Statement referred to in this Section 6(b) will be given by the Company to the Transfer Agent with respect
to the Purchase Shares or the Commitment Shares from and after Commencement, and the Purchase Shares and the Commitment Shares
covered by the Registration Statement shall otherwise be freely transferable on the books and records of the Company. The Company
agrees that if the Company fails to fully comply with the provisions of this Section 6(b) within five (5) Business Days
of the Investor providing the deliveries referred to above, the Company shall, at the Investor’s written instruction, purchase
such shares of Common Stock containing the Restrictive Legend from the Investor at the greater of the (i) purchase price paid for
such shares of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s
written instruction.


 






    -22-


     


    

 


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


 


The right of the Company
hereunder to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction of each of the following
conditions:


 


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


 


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


 


(c)  The representations
and warranties of the Investor shall be true and correct in all material respects as of the date hereof and as of the Commencement
Date.


 


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


 


The obligation of the
Investor to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions on or prior
to the Commencement Date and, once such conditions have been initially satisfied, there shall not be any ongoing obligation to
satisfy such conditions after the Commencement has occurred:


 


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


 






    -23-


     


    

 


(b) The Company shall have issued or caused
to be issued to the Investor (i) one or more certificates or book-entry statements representing the Initial Commitment Shares free
from all restrictive and other legends or (ii) a number of shares of Common Stock equal to the number of Initial Commitment Shares
as DWAC Shares, in each case in accordance with Section 6(b);


 


(c) The Common Stock
shall be listed or quoted on the Principal Market, trading in the Common Stock shall not have been within the last 365 days suspended
by the SEC or the Principal Market, and all Securities to be issued by the Company to the Investor pursuant to this Agreement shall
have been approved for listing or quotation on the Principal Market in accordance with the applicable rules and regulations of
the Principal Market, subject only to official notice of issuance;


 


(d) The Investor shall
have received the opinion of the Company’s legal counsel dated as of the Commencement Date substantially in the form heretofore
agreed by the parties hereto;


 


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


 


(f) The Board of Directors
of the Company shall have adopted resolutions in substantially the form attached hereto as Exhibit B which shall
be in full force and effect without any amendment or supplement thereto as of the Commencement Date;


 


(g) As of the Commencement
Date, the Company shall have reserved out of its authorized and unissued Common Stock, (i) solely for the purpose of effecting
purchases of Purchase Shares hereunder, 250,548,286 shares of Common Stock, and (ii) solely for the purpose of effecting the issuance
of Additional Commitment Shares hereunder, 5,975,857 shares of Common Stock;


 


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


 


(i) The Company shall
have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in the State of Nevada
issued by the Secretary of State of the State of Nevada as of a date within ten (10) Business Days of the Commencement Date;


 


(j) The Company shall
have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State of the
State of Nevada within ten (10) Business Days of the Commencement Date;


 


(k) The Company shall
have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of the Commencement
Date, in the form attached hereto as Exhibit C;


 






    -24-


     


    

 


(l) The Registration
Statement covering the resale of the Purchase Shares and all of the Initial Commitment Shares and Additional Commitment Shares
shall have been declared effective under the Securities Act by the SEC, and no stop order with respect to the Registration Statement
shall be pending or threatened by the SEC. The Company shall have prepared and filed with the SEC, not later than one (1) Business
Day after the effective date of the Registration Statement, a final and complete prospectus (the preliminary form of which shall
be included in the Registration Statement) and shall have delivered to the Investor a true and complete copy thereof. Such prospectus
shall be current and available for the resale by the Investor of all of the Securities covered thereby. The Current Report shall
have been filed with the SEC, as required pursuant to Section 5(a). All reports, schedules, registrations, forms, statements,
information and other documents required to have been filed by the Company with the SEC at or during the 12-month period immediately
preceding the date of this Agreement pursuant to the reporting requirements of the Exchange Act shall have been filed with the
SEC within the applicable time periods prescribed for such filings under the Exchange Act;


 


(m) No Event of Default
has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;


 


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


 


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


 


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


 






    -25-


     


    

 


9. INDEMNIFICATION.



 


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


 


10. EVENTS OF DEFAULT.



 


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


 


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


 


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


 






    -26-


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


(i) if at any time
the Company is not eligible to transfer its Common Stock electronically as DWAC Shares.


 


In addition to any other rights and remedies
under applicable law and this Agreement, so long as an Event of Default has occurred and is continuing, or if any event which,
after notice and/or lapse of time, would reasonably be expected to become an Event of Default, has occurred and is continuing,
the Company shall not deliver to the Investor any Regular Purchase Notice, Accelerated Purchase Notice or Additional Accelerated
Purchase Notice.


 


11. TERMINATION


 


This Agreement may
be terminated only as follows:


 


(a) If pursuant to
or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding against
the Company which is not discharged within 90 days, a Custodian is appointed for the Company or for all or substantially all of
its property, or the Company makes a general assignment for the benefit of its creditors (any of which would be an Event of Default
as described in Sections 10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without
any liability or payment to the Company (except as set forth below) without further action or notice by any Person.


 






    -27-


     


    

 


(b) In the event that
(i) the Company fails to file the Registration Statement with the SEC within the period specified in Section 5(a) hereof
in accordance with the terms of the Registration Rights Agreement or (ii) the Commencement shall not have occurred on or before
November 30, 2020, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect
to the Commencement, then, in the case of clause (i) above, this Agreement may be terminated by the Investor at any time prior
to the filing of the Registration Statement and, in the case of clause (ii) above, this Agreement may be terminated by either party
at the close of business on November 30, 2020 or thereafter, in each case without liability of such party to the other party (except
as set forth below); provided, however, that the right to terminate this Agreement under this Section 11(b) shall not be
available to any party if such party is then in breach of any covenant or agreement contained in this Agreement or any representation
or warranty of such party contained in this Agreement fails to be true and correct such that the conditions set forth in Section
7(c) or Section 8(e), as applicable, could not then be satisfied.


 


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


 


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


 


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


 


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


 






    -28-


     


    

 


12. MISCELLANEOUS.


 


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


 


(b) Counterparts.
This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that a facsimile
signature or signature delivered by e-mail in a “.pdf” format data file shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.


 


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


 


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


 


(e) Entire Agreement.
The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company, their affiliates
and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other Transaction Documents
and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation,
warranty, covenant or undertaking with respect to such matters. The Company acknowledges and agrees that is has not relied on,
in any manner whatsoever, any representations or statements, written or oral, other than as expressly set forth in the Transaction
Documents.


 






    -29-


     


    

 


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


 


If to the Company:


Elite Pharmaceuticals, Inc.


165 Ludlow Avenue


Northvale, NJ 07647


	Telephone:	(201) 750-2646
	Facsimile:	(201) 750-2755
	E-mail:	NHakim@elitepharma.com
	Attention: 	Nasrat Hakim, President and CEO


 


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


Richard Feiner, Esq.


Wall Street Plaza


88 Pine Street, 22nd
Floor


New York, NY 10005


	Telephone:	(646) 822-1170
	Facsimile:	(917) 720-0863
	Email:	rfeinerlaw@silverfirm.com
	Attention:	Richard Feiner, Esq.


 


If to the Investor:


Lincoln Park Capital Fund, LLC


440 North Wells, Suite 410


Chicago, IL 60654


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


 


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


Dorsey &
Whitney LLP


51 West 52nd
Street


New York,
NY 10019


	Telephone:	(212) 415-9214
	Facsimile:	(212) 953-7201
	E-mail:	marsico.anthony@dorsey.com
	Attention:	Anthony J. Marsico, Esq.


 


If to the Transfer Agent:


American Stock Transfer & Trust
Company


6201 15th Avenue


Brooklyn, NY 11219


	Telephone:	(718) 921-8208
	Facsimile:	(718) 331-1852
	Attention:	Alexandra M. Albrecht


 


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


 






    -30-


     


    

 


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


 


(h) No Third Party
Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted successors and
assigns and, except as set forth in Section 9, is not for the benefit of, nor may any provision hereof be enforced by, any other
Person.


 


(i) Publicity.
The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall consult with the Investor
and its counsel on the form and substance of, and shall give due consideration to all such comments from the Investor or its counsel
on, any press release, SEC filing or any other public disclosure by or on behalf of the Company relating to the Investor, its purchases
hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby, not less than 24 hours prior to
the issuance, filing or public disclosure thereof. The Investor must be provided with a final version of any such press release,
SEC filing or other public disclosure at least 24 hours prior to any release, filing or use by the Company thereof. The Company
agrees and acknowledges that its failure to fully comply with this provision constitutes a Material Adverse Effect.


 


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


 


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


 


(l) No Strict Construction.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and
no rules of strict construction will be applied against any party.


 






    -31-


     


    

 


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


 


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


 


(o) Amendment and Waiver; Failure or
Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties from and after the date that
is one (1) Business Day immediately preceding the initial filing of the Registration Statement with the SEC. Subject to the immediately
preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument signed by both parties
hereto and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the party against whom
enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other right, power or privilege.


 


*         *         *         *         *


 




    -32-


     


    


 


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


 


	 	THE COMPANY:
	 	 
	 	ELITE PHARMACEUTICALS, INC.
	 	 	 
	 	By:	/s/ Nasrat Hakim
	 	Name:	Nasrat Hakim
	 	Title:	President and Chief Executive Officer


 


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


 




    -33-


     


    


 


EXHIBITS


 


	Exhibit A	Form of Officer’s Certificate
	Exhibit B	Form of Resolutions of Board of Directors of the Company
	Exhibit C	Form of Secretary’s Certificate
	Exhibit D	Form of Letter to Transfer Agent


 




     


     


    


 


EXHIBIT A


 


FORM OF OFFICER’S CERTIFICATE


 


This Officer’s
Certificate (“Certificate”) is being delivered pursuant to Section 8(e) of that certain Purchase Agreement
dated as of July 8, 2020 (“Purchase Agreement”), by and between ELITE PHARMACEUTICALS, INC., a Nevada
corporation (the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”).
Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.


 


The undersigned, ___________,
______________ of the Company, hereby certifies, on behalf of the Company and not in his individual capacity, as follows:


 


1. I
am the _____________ of the Company and make the statements contained in this Certificate;


 


2. The representations
and warranties of the Company are true and correct in all material respects (except to the extent that any of such representations
and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which case, such representations
and warranties are true and correct without further qualification) as of the date when made and as of the Commencement Date as
though made at that time (except for representations and warranties that speak as of a specific date, in which case such representations
and warranties are true and correct as of such date);


 


3. The Company
has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.


 


4. The Company
has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor
does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become
due.


 


IN WITNESS WHEREOF,
I have hereunder signed my name on this ___ day of ___________.


 


	 	 
	 	Name:
	 	Title:


 


The undersigned as
Secretary of ELITE PHARMACEUTICALS, INC., a Nevada corporation, hereby certifies that ___________ is the duly elected, appointed,
qualified and acting ________ of _________ and that the signature appearing above is his genuine signature.


 


	 	 
	 	Secretary



 



     


     


    


 


EXHIBIT B


 


UNANIMOUS WRITTEN CONSENT OF 


ELITE PHARMACEUTICALS, INC.


 


[To be attached.]


 




     


     


    


 


EXHIBIT C


 


FORM OF SECRETARY’S CERTIFICATE


 


This Secretary’s Certificate (“Certificate”)
is being delivered pursuant to Section 8(k) of that certain Purchase Agreement dated as of July 8, 2020 (“Purchase
Agreement”), by and between ELITE PHARMACEUTICALS, INC., a Nevada corporation (the “Company”), and LINCOLN
PARK CAPITAL FUND, LLC (the “Investor”), pursuant to which the Company may sell to the Investor up to Twenty-Five
Million Dollars ($25,000,000) of the Company’s Common Stock, $0.001 par value per share (the “Common Stock”). Terms used
herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.


 


The undersigned, ____________, Secretary of the Company, hereby
certifies, on behalf of the Company and not in his individual capacity, as follows:


 


1. I am the Secretary
of the Company and make the statements contained in this Secretary’s Certificate.


 


2. Attached hereto
as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s bylaws (“Bylaws”)
and Articles of Incorporation (“Charter”), in each case, as amended through the date hereof, and no action has been
taken by the Company, its directors, officers or stockholders, in contemplation of the filing of any further amendment relating
to or affecting the Bylaws or Charter.


 


3. Attached hereto
as Exhibit C are true, correct and complete copies of the resolutions duly adopted by unanimous written consent of the Board
of Directors of the Company on [________]. Such resolutions have not been amended, modified or rescinded and remain in full force
and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors, or any committee thereof,
or the stockholders of the Company relating to or affecting (i) the entering into and performance of the Purchase Agreement, or
the issuance, offering and sale of the Purchase Shares and the Commitment Shares and (ii) and the performance of the Company of
its obligation under the Transaction Documents as contemplated therein.


 


4.
As of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.


 


IN WITNESS WHEREOF, I have hereunder
signed my name on this ___ day of ____________.


 


	 	 
	 	Secretary 


 


The undersigned as ___________ of ELITE
PHARMACEUTICALS, INC., a Nevada corporation, hereby certifies that ____________ is the duly elected, appointed, qualified and
acting Secretary of _________, and that the signature appearing above is his genuine signature.


 


	 	 


 




     


     


    


 


EXHIBIT D


 


FORM OF LETTER TO THE TRANSFER AGENT
FOR THE ISSUANCE OF THE INITIAL COMMITMENT SHARES AT SIGNING OF THE PURCHASE AGREEMENT


 


[COMPANY LETTERHEAD]


 


[DATE]


 


[TRANSFER AGENT]


__________________


__________________


__________________


 


Re: Issuance of Common Stock to Lincoln Park Capital Fund, LLC


 


Dear ________,


 


On behalf of ELITE PHARMACEUTICALS,
INC., (the “Company”), you are hereby instructed to issue as soon as possible a book-entry statement
representing an aggregate of 5,975,857 shares of our common stock in the name of Lincoln Park Capital Fund, LLC.
The book-entry statement should be dated July 8, 2020. The book-entry statement should bear the following restrictive legend:


 


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


 


The book-entry statement should be sent as soon as possible
via overnight mail to the following address:


 


Lincoln Park Capital Fund, LLC


440 North Wells, Suite 410


Chicago, IL 60654


Attention: Josh Scheinfeld/Jonathan
Cope


 


Thank you very much for your help. Please call me at ______________
if you have any questions or need anything further.


 


	ELITE PHARMACEUTICALS, INC.	 
	 	 	 
	BY:	                               	 
	 	[name]	 
	 	[title]