Form 8-K
8-K — Alzamend Neuro, Inc.
Accession: 0001214659-26-009469
Filed: 2026-08-03
Period: 2026-08-03
CIK: 0001677077
SIC: 2834 (PHARMACEUTICAL PREPARATIONS)
Item: Entry into a Material Definitive Agreement
Item: Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
Item: Unregistered Sales of Equity Securities
Item: Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
Item: Financial Statements and Exhibits
Documents
8-K — az7312618k.htm (Primary)
EX-3.1 — EXHIBIT 3.1 (ex3_1.htm)
EX-10.1 — EXHIBIT 10.1 (ex10_1.htm)
EX-10.2 — EXHIBIT 10.2 (ex10_2.htm)
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8-K
8-K (Primary)
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________________________________________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
___________________________________________________________________
Date of Report (Date of earliest event reported): August
3, 2026
ALZAMEND NEURO, INC.
(Exact name of registrant as specified in its charter)
Delaware
001-40483
81-1822909
(State or other jurisdiction of
incorporation or organization)
(Commission File Number)
(I.R.S. Employer Identification No.)
3480 Peachtree Road NE, Second Floor, Suite
103, Atlanta, GA 30326
(Address of principal executive offices) (Zip Code)
(844) 722-6333
(Registrant's telephone number, including area
code)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b)
of the Act:
Title of each class
Trading
Symbol(s)
Name of each exchange on which registered
Common Stock, $0.0001 par value
ALZN
The Nasdaq Capital Market
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the
Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act. o
Item 1.01 Entry into a Material Definitive Agreement.
On July 31, 2026 (the “Execution Date”),
Alzamend Neuro, Inc., a Delaware corporation (the “Company”), entered into a Securities Purchase Agreement (the “Agreement”)
with Ault Lending, LLC, a California limited liability company (the “Purchaser”), pursuant to which the Company agreed
to sell to the Purchaser up to 25,000 shares of the Company’s newly designated Series D convertible preferred stock (the “Series
D Convertible Preferred Stock”). The Agreement provides that the Purchaser may purchase up to $25 million in shares of Series
D Convertible Preferred Stock (the “Preferred Shares”) in one or more closings (collectively, the “Financing”).
On the Execution Date, the Company sold 7,500
Preferred Shares to the Purchaser, for a total cash purchase price of $7.5 million (the “Initial Tranche Closing”).
The Purchaser is an affiliate of the Company.
The material terms of the Agreement and the Preferred
Shares are summarized below.
Description of the Agreement
The Agreement provides that the Financing may
be conducted through multiple closings. The Purchaser purchased $7.5 million in Preferred Shares at the Initial Tranche Closing, and agreed
to purchase an additional $2.5 million in Preferred Shares at the second tranche closing (the “Second Tranche Closing”).
In addition, the Purchaser has the right to purchase up to $15 million in Preferred Shares, which excludes the amounts to be purchased
in the Initial Tranche Closing and the Second Tranche Closing, in subsequent tranches in accordance with the terms of the Agreement (collectively,
the “Tranche Closings”).
Pursuant to the Registration Rights Agreement
entered into by and between the Company and the Purchaser, the Company agreed to use its best efforts to file a registration statement
(the “Registration Statement”) registering for resale all the shares of the Company’s common stock, par value
$0.0001 per share (the “Common Stock”) issuable upon conversion of the Preferred Shares (the “Conversion Shares”)
with the Securities and Exchange Commission (the “Commission”) by the earlier of (i) the 5th calendar day following
the date by which the Company shall have filed its Annual Report on Form 10-K for its fiscal year ended April 30, 2026 or (ii) August
15, 2026 (in either case, the “Filing Deadline”). The Company further agreed that if the Registration Statement has
not been declared effective by the 60th calendar day following the Filing Deadline (or, in the event of a “full review” by
the Commission, the 90th calendar day following the Filing Deadline).
The Company also agreed that if: (i) the Registration
Statement is not filed on or prior to its Filing Date, or (ii) a Registration Statement registering for resale all of the Conversion Shares
is not declared effective by the Commission by the Effectiveness Date of the Registration Statement (any such failure or breach being
referred to as an “Registration Default”), and on any date such a Registration Default has occurred (a “Registration
Default Date”), then, in addition to any other rights the Purchaser may have under the Agreement, the Registration Rights Agreement
or under applicable law, on each such Registration Default Date and on each monthly anniversary of each such Registration Default Date
(if the applicable Registration Default shall not have been cured by such date) until the applicable Registration Default is cured, the
Company shall pay to the Purchaser, as partial liquidated damages and not as a penalty, an amount in cash equal to two percent (2%) of
the Stated Value of the Preferred Shares held, not to exceed fifteen percent (15%) in the aggregate.
In addition, the Company agreed to use its best
efforts to file a preliminary proxy statement no later than 15 days after the Execution Date and thereafter use its reasonable best efforts
to file a definitive proxy statement related to a special meeting of the Company’s stockholders within 45 days of the Execution
Date for purposes of seeking stockholder approval of the issuance of all the Conversion Shares in excess of the “Nasdaq Limit,”
which is 19.99% of the shares of Common Stock issued and outstanding on the Execution Date. The special meeting shall occur no later than
seventy-five (75) days after the Execution Date.
The Agreement provides that from the Execution
Date through the date that no Preferred Shares are outstanding, the Company shall not enter into any public or private offering of its
securities (including securities convertible into shares of Common Stock) with any individual or entity (an “Other Investor”)
that has the effect of establishing rights or otherwise benefiting such Other Investor in a manner more favorable to such Other Investor
than the rights and benefits established in favor of the Purchaser by the Preferred Shares, unless, in any such case, the (i) the Company
shall notify the Purchaser of such additional or more favorable term within three (3) business days of the issuance of the respective
security, and (ii) such term, at the Purchaser’s option, shall become applicable to the Purchaser. The types of terms contained
in another security that may be more favorable to the holder of such security include, but are not limited to, terms addressing redemption
features, rights of first refusal, dividends and conversion lookback periods.
For a period of three (3) years from the date
the Purchaser no longer holds any Preferred Shares (the “Obligation Period”), the Purchaser shall have a right of first
refusal (a “Right of First Refusal”) with respect to any investment proposed to be made by an Other Investor for each
and every future public or private equity offering, including a debt instrument convertible into equity of the Company during the Obligation
Period (an “Offering”). The Company must notify the Purchaser of any intention to pursue any such Offering, including
the material terms thereof, by providing written notice thereof to the Purchaser.
-2-
Moreover, during the Obligation Period, if the
Purchaser has not elected to exercise its rights described immediately above, the Purchaser shall have a right to participate in any subsequent
financing (a “Subsequent Financing”) allowing the Purchaser to purchase such number of securities in the Subsequent
Financing to allow the Purchaser to acquire 33.33% of the securities to be sold in the Subsequent Financing.
If, at any time while any Preferred Shares are
outstanding, the Company closes a financing in which it sells or grants any option to purchase or sells or grants any right to reprice
outstanding securities, or otherwise dispose of or issues any Common Stock or any security convertible or exercisable for Common Stock,
entitling any person to acquire shares of Common Stock at an effective price per share that is lower than the then Conversion Price (as
defined below) (such lower price, the “Base Conversion Price”), then the Conversion Price shall be reduced to equal
the Base Conversion Price. Notwithstanding the foregoing, no adjustment will be made in respect of an Exempt Issuance (as defined in the
Agreement). However, in no event shall the Base Conversion Price be adjusted to a price lower than the Floor Price (as defined below).
The Agreement provides for an origination fee
payable by the Company to the Purchaser in the amount of two percent (2%) of the purchase price at each Tranche Closing, which the Purchaser
may withhold from the purchase price at each such Tranche Closing.
In the event that the average closing price of
the Common Stock during the prior three trading days preceding a closing date shall not be equal to or greater than the Floor Price (as
defined below), then the applicable closing shall be delayed until such time as the price meets the required threshold.
The Purchaser may not vote or dispose of any Conversion
Shares (as defined below) to the extent that the number of such issued Conversion Shares would result in an aggregate number of shares
of Common Stock exceeding 19.99% of the total shares of Common Stock issued and outstanding as of the Execution Date, in accordance with
the rules and regulations of the Nasdaq Stock Market LLC (“Nasdaq”), unless the Company first obtains stockholder approval
(the “Stockholder Approval”). Pursuant to the Agreement and as required by Nasdaq, the Company agreed to file a proxy
statement to obtain the Stockholder Approval.
The Agreement contains customary representations,
warranties, covenants conditions and indemnification obligations of the parties. The representations, warranties, covenants conditions
and indemnification obligations contained in the Agreement were made only for purposes of such agreement and as of specific dates, were
solely for the benefit of the parties to the Agreement and are subject to limitations agreed upon by the contracting parties. Accordingly,
the Agreement is incorporated herein by reference only to provide investors with information regarding the terms of the Agreement and
not to provide investors with any other factual information regarding the Company or its business and should be read in conjunction with
the disclosures in the Company’s periodic reports and other filings with the Commission.
Description of the Series D Convertible Preferred Stock
The terms of the Preferred Shares are as set forth
in the Certificates of Designations of the Rights, Preferences and Limitations of the Series D Convertible Preferred Stock (the “Series
D Certificate of Designation”). Each Preferred Share has a stated value of $1,050 per share (the “Stated Value”).
The Preferred Shares do not accrue dividends.
Conversion Rights
Each Preferred Share is convertible at the option
of the holder into a number of shares (“Conversion Shares”) of the Company’s Common Stock, determined by dividing
the Stated Value by the Conversion Price (as defined below). The “Conversion Price” means the greater of (i) $0.2668
(the “Floor Price”) and (ii) 80% of the lowest closing bid price of the Common Stock during the five (5) trading days
immediately prior to the date of conversion into Conversion Shares, but not greater than $2.00 per share (the “Maximum Price”).
The Conversion Price is subject to adjustment in the event of issuances of Common Stock at a price per share lower than the Conversion
Price then in effect, as well as upon customary stock splits, stock dividends, combinations or similar events.
Voting Rights
The holder of the Preferred Shares are entitled to vote with the Common
Stock as a single class on an as-converted basis, subject to applicable law provisions of the Delaware General Corporation Law and Nasdaq,
provided however, that for purposes of complying with Nasdaq regulations, the conversion price, for purposes of determining the number
of votes the holder of Preferred Shares is entitled to cast, shall not be lower than $1.4175 (the “Voting Floor Price”),
which represents the price calculated by dividing (i) the closing sale price of the Common Stock on the trading day immediately prior
to the Execution Date, which was $1.35 by (ii) 1.05. The Voting Floor Price shall be adjusted for stock dividends, stock splits, stock
combinations and other similar transactions.
-3-
Liquidation Rights
In the event of liquidation, dissolution, or winding
up of the Company, the holder of the Preferred Shares have a preferential right to receive an amount in cash equal to the Stated Value
per share of the Preferred Shares before any distribution to other classes of capital stock. If the assets are insufficient, the distribution
will be prorated among the holder of the Preferred Shares. The remaining assets, if any, will then be distributed pro rata to the holders
of outstanding Common Stock. Any transaction that constitutes a change of control transaction shall be deemed to be a liquidation under
the Series D Certificate of Designation.
The foregoing descriptions of the Series D Certificate
of Designation, the Agreement and the transactions contemplated thereby do not purport to be complete and are qualified in their entirety
by reference to the Agreement filed as Exhibit 10.1 hereto, the Registration Rights Agreement filed as Exhibit 10.2
hereto and the form of the Series D Certificate of Designation, a copy of which is filed as Exhibit 3.1 to this Current
Report on Form 8-K and is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On July 20, 2026, the Company notified Nasdaq
that it was not in compliance with the majority independent board standard under Nasdaq Listing Rule 5605(b)(1) which requires
listed companies to have a majority of the board of directors be comprised of “Independent Directors” (as defined in Nasdaq
Listing Rule 5605(a)(2)) (the “Majority Independent Board Standard”). As previously disclosed by the Company in its
Current Report on Form 8-K filed on July 21, 2026 with the Securities and Exchange Commission (the “Commission”), Lynne
Fahey McGrath, M.P.H., Ph.D., a director of the Company, passed away on July 20, 2026. Prior to her passing, Dr. McGrath served as an
Independent Director of the Board of Directors of the Company (the “Board”). The Board is currently comprised of six
members, of which only three qualify as Independent Directors.
Following the Company’s notification to
Nasdaq, the Company received a letter (the “Letter”) from Nasdaq on July 29, 2026 acknowledging the Company’s
non-compliance with the Majority Independent Board Standard. The Letter further provided that, consistent with Listing Rule 5605(b)(1)(A),
Nasdaq will provide the Company a cure period in order to regain compliance with the Majority Independent Board Standard. The cure period
provides that the Company will have until the earlier of its next annual meeting of stockholders or July 20, 2027; provided, however,
that if the Company’s next annual meeting of stockholders is held before January 18, 2027, then the Company must evidence compliance
no later than January 18, 2027. The Letter has no immediate effect on the listing or trading of the Company’s common stock and the
common stock will continue to trade on The Nasdaq Capital Market under the symbol “ALZN.”
The Board is evaluating options to achieve compliance
within the cure period and while it expects to regain compliance with the Majority Independent Board Standard within the cure period,
there can be no assurance that the Company will successfully regain compliance with the Majority Independent Board Standard within the
cure period.
Forward-Looking Statements
This current report contains “forward-looking
statements” within the meaning of the U.S. federal securities laws. Forward-looking statements can be identified by words such as
“projects,” “may,” “will,” “could,” “would,” “should,” “believes,”
“expects,” “anticipates,” “estimates,” “intends,” “plans,” “potential,”
“promise” or similar references to future periods. Examples of forward-looking statements in this current report include,
without limitation, statements regarding the Company’s intent or ability to regain compliance with the Majority Independent Board
Standard. Forward-looking statements are statements that are not historical facts, nor assurances of future performance. Instead, they
are based on the Company’s current beliefs, expectations and assumptions regarding the future of its business, future plans, strategies,
projections, anticipated events and trends, the economy and other future conditions. Because forward-looking statements relate to the
future, they are subject to inherent risks and uncertainties, and actual results may differ materially from those set forth in the forward-looking
statements. Important factors that could cause actual results to differ include, without limitation, there can be no assurance that the
Company will meet the Majority Independent Board Standard during the cure period or otherwise in the future, otherwise meet Nasdaq compliance
standards, that Nasdaq will grant the Company any relief from delisting as necessary or whether the Company can agree to or ultimately
meet applicable Nasdaq requirements for any such relief, and the other important factors described under the caption “Risk Factors”
in the Form 10-K filed with the Commission on July 22, 2026 and its other filings with the Commission. Any forward-looking statement made
by the Company in this current report is based only on information currently available and speaks only as of the date on which it is made.
Except as required by applicable law, the Company expressly disclaims any obligation to publicly update any forward-looking statements,
whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise.
Item 3.02 Unregistered Sales of Equity Securities.
The information contained in Item 1.01 of this
Current Report on Form 8-K is incorporated herein by reference to this Item 3.02. Series D Convertible Preferred Stock described in this
Current Report on Form 8-K were offered and sold to the Purchaser in reliance upon exemption from the registration requirements under
Section 4(a)(2) under the Securities Act of 1933.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change In Fiscal Year.
On July 31, 2026, the Company filed the Series
D Certificate of Designation with the Secretary of State of the State of Delaware. The Series D Certificate of Designation, which is filed
as Exhibit 3.1 to this Current Report on Form 8-K, is incorporated herein by reference.
-4-
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
Exhibit No.
Description
3.1
Certificate of Designations of Preferences, Rights and Limitations of Series D Convertible Preferred Stock, filed with the Delaware Secretary of State on July 31, 2026.
10.1
Securities Purchase Agreement, dated July 31, 2026.
10.2
Registration Rights Agreement, dated July 31, 2026
101
Pursuant to Rule 406 of Regulation S-T, the cover page is formatted in Inline XBRL (Inline eXtensible Business Reporting Language).
104
Cover Page Interactive Data File (embedded within the Inline XBRL document and included in Exhibit 101).
-5-
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
ALZAMEND NEURO, INC.
Dated: August 3, 2026
/s/ Henry Nisser
Henry Nisser
Executive Vice President and General Counsel
6
EX-3.1 — EXHIBIT 3.1
EX-3.1
Filename: ex3_1.htm · Sequence: 2
Exhibit 3.1
ALZAMEND NEURO, INC.
CERTIFICATE OF DESIGNATIONS OF RIGHTS
AND PREFERENCES
OF
SERIES D CONVERTIBLE PREFERRED STOCK
July 31, 2026
The undersigned, Stephan
Jackman, does hereby certify that:
1.
He is the Chief Executive Officer of Alzamend
Neuro, Inc., a Delaware corporation (the “Corporation”).
2.
The Corporation is authorized to issue 10,000,000
shares of preferred stock, par value $0.0001 per share, nil shares of which have been previously designated.
3.
The following resolutions were duly adopted by the Board of Directors of the Corporation (the “Board”):
WHEREAS, the Certificate
of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), provides for a class of its authorized
stock known as preferred stock, consisting of 10,000,000 shares, $0.0001 par value per share, issuable from time to time in one or more
series;
WHEREAS, the Board
is authorized by resolution to provide for the issuance of preferred stock in one or more series, and to establish from time to time the
number of shares to be included in each such series, and to fix the designation, powers, privileges, preferences and relative participating,
optional or other rights, if any, of the shares of each such Series Dnd the qualifications, limitations or restrictions thereof; and
WHEREAS, it is the
desire of the Board, pursuant to its authority as described above, to fix the rights, preferences, restrictions and other matters relating
to a series of the preferred stock, which shall consist of 25,000 shares of preferred stock which the Corporation has the authority to
issue.
NOW, THEREFORE, BE IT
RESOLVED, that the Board does hereby provide for the issuance of a series of preferred stock to be designated the “Series D
Convertible Preferred Stock” (the “Series D Preferred Stock”) and does hereby in this Certificate of Designation
(the “Certificate of Designation”) establish and fix and herein state and express the designation, rights, preferences,
powers, restrictions, and limitations of such series of Preferred Stock as follows:
Section 1. Certain
Definitions. The following terms shall have the meanings defined in this Section 2:
“Affiliate”
shall have the meaning ascribed to such term in Rule 405 of the Securities Act.
“Agreement”
means that certain Securities Purchase Agreement dated July 31, 2026 by and between the Corporation and Ault Lending, LLC (the “Purchaser”).
“Business Day”
means any day, other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated
by law, regulation, or executive order to close.
“Capital Stock”
means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interest in (however
designated) capital stock.
“Change of Control
Event” shall mean the occurrence of any of the following in one or a series of related transactions:
(i) one or more acquisitions after the date hereof by an individual or legal entity
or “group” (as described in Rule 13d-5(b)(1) under the Exchange Act), resulting in a majority or more of the voting rights
or equity interests in the Corporation being transferred to such Persons or their Affiliates;
(ii) a replacement of more than a majority of the members of the Board that is not approved
by those individuals who are members of the Board on the date hereof (or other directors previously approved by such individuals);
(iii) a merger or consolidation of the Corporation or any one or more Subsidiaries owning
a majority of the consolidated assets of the Corporation and all Subsidiaries, or a sale of all or substantially all of the assets of
the Corporation and its consolidated Subsidiaries in one or a series of related transactions, unless following such transaction or series
of transactions, the holders of the Corporation’s securities immediately prior to the first such transaction continue to hold at
least a majority of the voting rights and equity interests in the surviving entity or acquirer of such assets;
(iv) a recapitalization, reorganization or other transaction involving the Corporation
or any Subsidiary that constitutes or results in a transfer of a majority or more of the voting rights or equity interests in the Corporation
to any Persons; or
(v) the execution by the Corporation or its controlling stockholders of an agreement
providing for any of the foregoing events.
“Closing Price”
means, for any security as of any date, the last closing price for such security on the Principal Market, as reported by Bloomberg, or,
if the Principal Market begins to operate on an extended hours basis and does not designate the closing price then the last price of such
security prior to 4:00:00 p.m., New York time, as reported by Bloomberg, or, if the Principal Market is not the principal securities exchange
or trading market for such security, the last closing price of such security on the principal securities exchange or trading market where
such security is listed or traded as reported by Bloomberg, or if the foregoing do not apply, the last closing price of such security
in the over-the-counter market on the electronic bulletin board for such security as reported by Bloomberg, or, if no closing price is
reported for such security by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers for such
security as reported in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC).
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock”
means the Common Stock, $0.0001 per share, of the Corporation, and any other shares of stock issued or issuable with respect thereto (whether
by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with a combination
of shares, distribution, recapitalization, merger, consolidation, other corporate reorganization or other similar event with respect to
the Common Stock).
“Common Stock Equivalents”
means any securities of the Corporation or any of its Subsidiaries which would 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.
“Conversion”
means any conversion of the Series D Preferred Stock into Conversion Shares as provided for in Section 6 hereof. No Conversions
in which the number of Conversions shares issued would exceed the Exchange Cap until the Corporation has obtained Stockholder Approval.
“Conversion Amount”
means such amount as determined by (i) multiplying the number of shares (including any fraction of a share) of Series D Preferred Stock
to be converted pursuant to a Conversion Notice by the Stated Value, and (ii) adding to the result all accrued and accumulated and unpaid
dividends on such shares of Series D Preferred Stock to be converted.
“Conversion Date”
shall have the meaning set forth in Section 6(b)(i) hereof.
“Conversion Notice” shall have
the meaning set forth in Section 6(d)(i) hereof.
- 2 -
“Conversion Price”
means the greater of (i) the greater of (A) $0.10 per share or (B) 20% of the closing price of the Common Stock on the trading day immediately
prior to the date of execution of the Agreement (the “Floor Price”), which Floor Price shall be adjusted for stock
dividends, stock splits, stock combinations and other similar transactions and (ii) 80% of the lowest closing bid price of the Common
Stock during the five (5) trading days immediately prior to the date of conversion into Conversion Shares, but not greater than $2.00
per share (the “Maximum Price”), which Maximum Price shall be adjusted for stock dividends, stock splits, stock combinations
and other similar transactions.
“Conversion Shares”
means the shares of Common Stock into which the shares of Series D Preferred Stock may be converted pursuant to Section 6 hereof.
“Date of Issuance”
means, for any share of Series D Preferred Stock, the date on which the Corporation initially issues such share (without regard to any
subsequent transfer of such share or reissuance of the certificate(s) representing such share).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder, all as in effect at
the time.
“Exchange Approval”
means approval of the Principal Market to authorize the issuance of the Series D Preferred Stock with full conversion and voting rights
pursuant to Listing Rules 5635 and 5640 of the Nasdaq Stock Market, LLC.
“Exchange Cap”
shall mean that number of shares of Common Stock or Common Stock Equivalents issuable as Conversion Shares
to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued as well as permitted
to vote or be converted pursuant to this Certificate would not exceed 19.99% of the Corporation’s outstanding shares of Common Stock
as of the date of execution of the Agreement.
“Holder”
or “Holders” shall mean each holder of shares of Series D Preferred Stock.
“Junior Securities” shall have
the meaning set forth in Section 4 hereof.
“Majority Holders”
means any Holder(s) of a majority of the then outstanding shares of Series D Preferred Stock.
“Parity Securities” shall have
the meaning set forth in Section 4 hereof.
“Person”
means an individual, a corporation, a partnership, an association, a limited liability company, an unincorporated business organization,
a trust or other entity or organization, and any government or political subdivision or any agency or instrumentality thereof.
“Preferred Shares”
means the shares of Series D Preferred Stock.
“Principal Market”
means the Nasdaq Stock Market, LLC.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder, all as in effect at the time.
“Senior Securities”
shall have the meaning set forth in Section 4 hereof.
“Stockholder Approval”
means the approval by its stockholders to authorize the issuance of the Series D Preferred Stock with full conversion and voting rights
pursuant to Rule 5635 of the Principal Market.
“Stated Value”
means $1,050.00 per share of Series D Preferred Stock (as adjusted for any stock splits, stock dividends, recapitalizations, or similar
transaction with respect to the Series D Preferred Stock).
- 3 -
“Subsidiary”
or “Subsidiaries” of any Person means (i) any corporation with respect to which more than 50% of the issued
and outstanding voting equity interests of such corporation is at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or more of such Person’s other Subsidiaries, or (ii) any partnership
or limited liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the
form of voting or participation in profits or capital contribution) of more than 50% or of which any such Person is a general partner
or may exercise the powers of a general partner.
“Trading Day”
means a day on which the Principal Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the NYSE American, the New York Stock Exchange, or any
level of the OTC Markets operated by OTC Markets Group, Inc. (or any successors to any of the foregoing).
Section 2.
Number of Shares and Designation. This series of Preferred Stock shall be designated as
the “Series D Convertible Preferred Stock,” par value $0.0001 per share (the “Series D Preferred Stock”).
The Series D Preferred Stock shall be perpetual, subject to the provisions of Section 6 hereof, and the authorized number of shares
of the Series D Preferred Stock shall be 25,000. The number of shares of Series D Preferred Stock may be increased from time to time
pursuant to the provisions of Section 18 hereof and any such additional shares of Series D Preferred Stock shall form a single
series with the Series D Preferred Stock. Each share of Series D Preferred Stock shall have the same designations, rights, preferences,
powers, restrictions and limitations as every other share of Series D Preferred Stock.
Section
3. Dividends. Other than with respect to a Distribution, the Series D Preferred Stock shall pay
no dividends.
Section
4.
Rank; Rights on Liquidation, Merger, Sale, etc.
(a) Rank.
With respect to payment of distribution of assets upon liquidation, dissolution, or winding up of the Corporation, whether voluntary or
involuntary, all shares of the Series D Preferred Stock will rank: (i) senior to all of the Corporation’s Common Stock and any other
equity securities that the Corporation may issue in the future, unless the terms of which specifically provide that such equity securities
rank on parity or senior to the Series D Preferred Stock, in each case with respect to payment of dividends and distribution of assets
upon liquidation, dissolution or winding up (“Junior Securities”); (ii) equal to any other equity securities that the
Corporation may issue in the future, the terms of which specifically provide that such equity securities rank on par with such Series
D Preferred Stock, in each case with respect to payment of dividends and distribution of assets upon liquidation, dissolution or winding
up (“Parity Securities”); and (iii) junior to all of the Corporation’s existing and future indebtedness. Without
the prior written consent of the Majority Holders, the Corporation shall not create or issue any Senior Securities or Parity Securities
as to payment of dividends and/or distribution of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary
or involuntary.
(b) In
the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation (a “Liquidation”),
the Holders of shares of Series D Preferred Stock shall be entitled to receive out of the assets of the Corporation available for distribution
to its stockholders, prior and in preference to any distribution to the holders of Junior Securities by reason of their ownership thereof,
an amount in cash equal to the aggregate Stated Value of all shares of Series D Preferred Stock held by such Holder, plus all unpaid accrued
and accumulated dividends on all such shares (whether or not declared). If upon any Liquidation, the assets of the Corporation available
for distribution to its stockholders are insufficient to pay all Holders of Series D Preferred Stock the full preference amount to which
they shall be entitled, the Holders of Series D Preferred Stock shall share pro rata in any distribution of assets in proportion to their
applicable full preference amounts and the Corporation shall not make or agree to make any payments to the holders of Junior Securities.
Section 5. Voting
Rights.
(a) Quorum and Voting Power. For purposes of determining the presence
of a quorum at any meeting of the stockholders of the Corporation at which the shares of Series D Preferred Stock are entitled to vote
and the voting power of the shares of Series D Preferred Stock, each Holder of outstanding shares of Series D Preferred Stock shall, subsequent
to the Company having obtained Stockholder Approval, be entitled to a number of votes equal to the number of shares of Common Stock into
which such shares of Series D Preferred Stock are then convertible, disregarding, for such purposes, any limitations on conversion set
forth herein, provided, however, that solely for purposes of this Section 5(a), the Voting Floor Price shall not be lower than
the closing sale price of the Common Stock on the Trading Day immediately preceding the execution date of the Purchase Agreement. For
purposes of this Section 5(a), the term “Voting Floor Price” shall mean the price calculated by dividing (i)
the Corporation’s closing sale price on the Trading Day immediately preceding the execution date of the Purchase Agreement by (ii)
1.05. The Voting Floor Price shall be adjusted for stock dividends, stock splits, stock combinations and other similar transactions.
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(b) Voting Generally. Each Holder shall be entitled to vote with holders of outstanding shares of Common Stock, voting together
as a single class, with respect to any and all matters presented to the stockholders of the Corporation for their action or consideration
(whether at a meeting of stockholders of the Corporation, by written action of stockholders in lieu of a meeting or otherwise), except
as provided by law or by the provisions of this Section 5(b). In any such vote, each share of the Series D Preferred Stock shall
be entitled to a number of votes equal to the number of shares of Common Stock into which the share is convertible pursuant to Section
6 herein (as may be limited by the Maximum Percentage set in Section 6(c)) as of the record date for such vote or written consent
or, if there is no specified record date, as of the date of such vote or written consent. Each Holder of outstanding shares of Series
D Preferred Stock shall be entitled to notice of all stockholder meetings or requests for written consent (and copies of proxy materials
and other information sent to stockholder), which notice shall be provided pursuant to the Corporation’s Bylaws and the DGCL. Notwithstanding
the foregoing, at no time shall the shares of Series D Preferred Stock have a per share voting power in excess of the voting power determined
by the Conversion Amount, divided by the Closing Price on the date prior to the execution of the Agreement.
(c) Protective Provisions. Without limiting the foregoing, until the later of (i) the date all the Preferred Shares are sold
pursuant to the Agreement and (ii) the Purchaser owns, or has the right to acquire, fewer than 2,500 Preferred Shares, the Corporation
shall not take, and shall cause its Subsidiaries not to take or consummate, without the prior written consent of the Majority Holders,
the following actions (any such action or transaction without such prior written consent being null and void ab initio and of no force
or effect) as follows: (i) alter or change adversely the powers, preferences or rights given to the Series D Preferred Stock or alter,
amend, modify, or repeal this Certificate of Designations, (ii) create, or authorize the creation of, any additional class or series of
capital stock of the Corporation (or any security convertible into or exercisable for any class or series of capital stock of the Corporation),
including any class or series of capital stock of the Corporation that ranks superior to or in parity with the Series D Preferred Stock
in rights, preferences, or privileges (including with respect to dividends, liquidation, redemption, or voting), (iii) alter, amend, modify,
or repeal its Certificate of Incorporation or other charter documents in any manner that adversely affects any rights of the Holders of
Series D Preferred Stock, (iv) increase or decrease the number of authorized shares of Series D Preferred Stock, (v) whether or not prohibited
by the terms of the Series D Preferred Stock, circumvent a right or preference of the Series D Preferred Stock, or (vi) enter into any
agreement with respect to, or agree or commit to do, any of the foregoing.
Section 6. Conversion
of Series D Preferred Stock.
(a) Optional Conversion. Each share of Series
D Preferred Stock is convertible, in whole or in part and at the option of the Holder, into such number of fully paid and non-assessable
shares of Common Stock (the “Conversion Shares”) determined by dividing the Stated Value of the Series D Preferred
Stock being converted by the then applicable Conversion Price. The Conversion Price shall be subject to adjustment as provided in Section
6(d) below. No conversion shall be permitted to the extent that it violates the rules of the Principal Market, including the Exchange
Cap, without Stockholder Approval.
(b) Mechanics
of Conversion.
(i) Conversion. In order to effectuate a conversion of shares of Series D Preferred Stock pursuant to this Section 6,
a Holder shall deliver (whether via facsimile or otherwise), for receipt after 4:00 p.m. and on or prior to 11:59 p.m., New York time,
a copy of an executed notice of conversion in the form attached hereto as Exhibit I and specifying the number of shares of Series
D Preferred Stock to be converted on such Conversion Date (the “Conversion Notice”). The Holder shall calculate and
state in the Conversion Notice the Conversion Amount, the Conversion Price and the number of Conversion Shares issuable pursuant to Section
6(b) hereof. On or before the first Trading Day following the date of a Conversion Notice (in each case, the “Conversion
Date”), the Corporation shall transmit to the Holder by facsimile or otherwise an acknowledgment, substantially in the form
attached hereto in Exhibit I, of receipt of such Conversion Notice, and the Corporation shall deliver to the Corporation’s
transfer agent (“the Transfer Agent”) an instruction to issue such shares of Common Stock as indicated in the Conversion
Notice, substantially in the form of Exhibit I, such that on or before the Conversion Date the Corporation, through its Transfer
Agent, shall credit such aggregate number of shares of Common Stock to which the Holder shall be entitled to the Holder’s balance
account with The Depository Trust Company’s (the “DTC”) through its Deposit/Withdrawal at Custodian (“DWAC”)
service.
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Notwithstanding the foregoing,
conversions shall be deemed to have been made immediately prior to the close of business on the date that the Purchaser transmits the
Conversion Notice, on which day the Purchaser shall have been deemed to have surrendered the Preferred Shares to be converted for cancellation,
and the person or persons entitled to receive the Conversion Shares issuable upon such conversion shall be treated for all purposes as
the record holder or holders of such shares of Common Stock as of such date. One or more conversion notices may be submitted intraday.
(ii) Book-Entry. Notwithstanding anything to the contrary set forth in this Section 6, in connection with the Conversion
of any shares of Series D Preferred Stock in accordance with the terms hereof, the Holder shall not be required to physically surrender
to the Corporation any certificate or other instrument evidencing the of shares of Series D Preferred Stock so converted unless (A) the
full or remaining number of shares of Series D Preferred Stock represented by the certificate are being converted (in which event such
certificate(s) shall be delivered to the Corporation following Conversion thereof as contemplated by Section 6(b)(i) hereof or
(B) the Holder has provided the Corporation with prior written notice (which notice may be included in a Conversion Notice) requesting
reissuance of a certificate or other instrument with respect to shares of Series D Preferred Stock not subject to the Conversion. The
Holder shall provide the Corporation with written partial releases relating to all Conversions of the Conversion Amount. Each of the Holder
and the Corporation shall maintain records showing the number of shares of Series D Preferred Stock converted and the dates of such conversions
or shall use such other method, reasonably satisfactory to the Holder and the Corporation, so as not to require physical surrender of
any certificate with respect to the shares of Series D Preferred Stock upon any Conversion until the full or remaining number of shares
of Series D Preferred Stock represented by such certificate has been converted. A Holder and any transferee or assignee, by acceptance
of a certificate, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of any shares of Series
D Preferred Stock, the number of shares of Series D Preferred Stock represented by such certificate may be less than the number of shares
of Series D Preferred Stock stated on the face thereof. Each certificate for shares of Series D Preferred Stock shall bear the following
legend:
ANY TRANSFEREE OR ASSIGNEE OF THIS CERTIFICATE
SHOULD CAREFULLY REVIEW THE TERMS OF THE CORPORATION’S CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES D PREFERRED
STOCK REPRESENTED BY THIS CERTIFICATE, INCLUDING SECTION 6(d)(ii) THEREOF. THE NUMBER OF SHARES OF SERIES D PREFERRED STOCK REPRESENTED
BY THIS CERTIFICATE MAY BE LESS THAN THE NUMBER OF SHARES OF SERIES D PREFERRED STOCK STATED ON THE FACE HEREOF PURSUANT TO SECTION 6(d)(ii)
OF THE CERTIFICATE OF DESIGNATIONS RELATING TO THE SHARES OF SERIES D PREFERRED STOCK REPRESENTED BY THIS CERTIFICATE.
(iii) Issuance of Shares Not in Dispute. In the event of a dispute as to the number of shares of Common Stock issuable to a Holder
in connection with a Conversion or an adjustment to the number of Conversion Shares to be delivered, the Corporation shall issue to the
Holder the number of shares of Common Stock not in dispute.
(c) Limitations
on Conversions. Notwithstanding anything to the contrary contained herein, and subject to the provisions of this Section 6(c),
shares of Series D Preferred Stock shall not be convertible by the Holder hereof into Conversion Shares, and the Corporation shall not
effect any conversion of shares of Series D Preferred Stock into Conversion Shares or otherwise issue any shares of Common Stock pursuant
hereto, to the extent (but only to the extent) that after giving effect to such Conversion or other share issuance hereunder the Holder
(together with its Affiliates) would beneficially own in excess of 4.99% (the “Maximum Percentage”) of the Common Stock.
To the extent the above limitation applies, the determination of whether shares of Series D Preferred Stock shall be convertible (vis-à-vis
other convertible, exercisable or exchangeable securities owned by the Holder or any of its Affiliates) and of which such securities shall
be convertible, exercisable or exchangeable (as among all such securities owned by the Holder and its Affiliates) shall, subject to such
Maximum Percentage limitation, be determined on the basis of the first submission for conversion or exercise (as the case may be). Under
no circumstances can the Maximum Percentage limitation be amended on fewer than 61 days’ notice, if, as a result of such amendment,
the Maximum Percentage is amended to be above 9.99%. No prior inability to convert shares of Series D Preferred Stock, or to issue shares
of Common Stock, pursuant to this paragraph shall have any effect on the applicability of the provisions of this paragraph with respect
to any subsequent determination of convertibility. For purposes of this paragraph, beneficial ownership and all determinations and calculations
(including, without limitation, with respect to calculations of percentage ownership) shall be determined in accordance with Section 13(d)
of the Exchange Act, and the rules and regulations promulgated thereunder. The provisions of this paragraph shall be implemented in a
manner otherwise than in strict conformity with the terms of this paragraph to correct this paragraph (or any portion hereof) which may
be defective or inconsistent with the intended Maximum Percentage beneficial ownership limitation herein contained or to make changes
or supplements necessary or desirable to properly give effect to such Maximum Percentage limitation. For any reason at any time until
the shares of Series D Preferred Stock has been converted, upon the written or oral request of a Holder, the Corporation shall within
one (1) Business Day confirm orally and in writing to the Holder the number of shares of Common Stock then outstanding, including by virtue
of any prior conversion, exchange or exercise of convertible or exercisable securities into Common Stock, including, without limitation,
shares of Series D Preferred Stock. In addition, under no circumstances whatsoever may the aggregate number of shares of Common Stock
issued to the Holder in connection with the Conversion of the Conversion Amount or Warrant (as defined in the Agreement) at any time exceed
the Exchange Cap unless the Corporation has obtained Stockholder Approval.
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(d) Adjustments
of the Conversion Price. The Conversion Price of the Series D Preferred Stock shall be subject to adjustment from time to time as
follows:
(i) Adjustments
for Recapitalization. If at any time or from time to time there shall be a recapitalization of the Common Stock, provision shall be
made so that the Holders shall thereafter be entitled to receive upon conversion of the Series D Preferred Stock the number of shares
of stock or other securities or property of the Corporation or otherwise, to which a holder of Common Stock deliverable upon conversion
would have been entitled on such recapitalization. In any such case, appropriate adjustment shall be made in the application of the provisions
of this Section 6 with respect to the rights of the Holders after the recapitalization to the end that the provisions of this Section
6 (including, without limitation, provisions for adjustments of the Conversion Price and the number of shares of Common Stock issuable
upon conversion of the Series D Preferred Stock) shall be applicable after that event as nearly equivalent as may be practicable.
(ii) Adjustment
for Stock Splits and Combinations. If the Corporation shall at any time or from time to time after the Date of Issuance effect a subdivision
of the outstanding Common Stock, the Conversion Price in effect immediately before that subdivision shall be proportionately decreased
so that the number of shares of Common Stock issuable on conversion of each share of such series shall be increased in proportion to such
increase in the aggregate number of shares of Common Stock outstanding. If the Corporation shall at any time or from time to time after
the Date of Issuance combine the outstanding shares of Common Stock, the Conversion Price in effect immediately before the combination
shall be proportionately increased so that the number of shares of Common Stock issuable on conversion of each share of such series shall
be decreased in proportion to such decrease in the aggregate number of shares of Common Stock outstanding. Any adjustment under this subsection
shall become effective at the close of business on the date the subdivision or combination becomes effective.
(iii) Adjustments
for Distribution. In addition to any adjustments pursuant to Section 6(d) hereof, in the event the Corporation shall declare
a distribution payable in Common Stock, Common Stock Equivalents or other securities of the Corporation, any Subsidiary or any other Persons,
evidences of indebtedness issued by the Corporation, any Subsidiary or other Persons, assets (or rights to acquire assets), or options,
rights or other property not referred to in Section 6(e) hereof to the holders of Common Stock, in each case whether by way of
return of capital or otherwise (including, without limitation, any distribution of cash, stock or other securities, property or options
by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar transaction) (each,
a “Distribution”), then, in each such case for the purpose of this Section 6(d), the Holders shall be entitled
to a proportionate share of any such Distribution as though they were the holders of the number of shares of Common Stock of the Corporation
into which their shares of Series D Preferred Stock are convertible as of the record date fixed for the determination of the holders of
Common Stock of the Corporation entitled to receive such Distribution.
(iv) Adjustment
for Reorganization or Reclassification. If any capital reorganization or reclassification of the capital stock of the Corporation
or a Change of Control Event, shall be effected while any shares of Series D Preferred Stock are outstanding in such a manner that holders
of shares of Common Stock shall be entitled to receive stock, securities or assets with respect to or in exchange for Common Stock, then,
as a condition of such reorganization, reclassification, or Change of Control Event, lawful and adequate provision shall be made whereby
each Holder who has not received the amounts to be distributed to such holder in accordance with this Certificate shall thereafter have
the right to receive upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately
theretofore receivable upon conversion of Series D Preferred Stock, such shares of stock, securities or assets as may be issued or payable
with respect to or in exchange for a number of outstanding shares of such Common Stock equal to the number of shares of such Common Stock
immediately theretofore so receivable had such reorganization, reclassification or Change of Control Event not taken place, and in such
case appropriate provision shall be made with respect to the rights and interests of the Holders to the end that the provisions hereof
(including, without limitation, provisions for adjustments of the Conversion Price, Conversion Rate and the number of shares of Common
Stock issuable upon conversion of the Series D Preferred Stock) shall thereafter be applicable, as nearly as may be possible, in relation
to any shares of stock, securities or assets thereafter deliverable upon the conversion of such shares of Series D Preferred Stock. Prior
to or simultaneously with the consummation of any such reorganization, reclassification or Change of Control Event, the survivor or successor
corporation (if other than the Corporation) resulting from such reorganization, reclassification or Change of Control Event shall assume
by written instrument executed and mailed or delivered to each Holder, the obligation to deliver to such Holders such shares of stock,
securities or assets as, in accordance with the foregoing provisions, such Holder may be entitled to receive, and containing the express
assumption by such successor corporation of the due and punctual performance and observance of every provision of this Certificate to
be performed and observed by the Corporation and of all liabilities and obligations of the Corporation hereunder with respect to the Series
D Preferred Stock.
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(v) Subsequent
Equity Sales. If, at any time while shares of Series D Preferred Stock are outstanding, the Corporation or any Subsidiary, as applicable,
closes a financing in which it sells or grants any option to purchase or sells or grants any right to reprice outstanding securities,
or otherwise disposes of or issues (or announces any sale, grant or any option to purchase or other disposition), any Common Stock or
any Common Stock Equivalent, entitling any Person to acquire shares of Common Stock at an effective price per share that is lower than
the then Conversion Price (such lower price, the “Base Conversion Price” and such issuances, collectively, a “Dilutive
Issuance”) (if the holder of the Common Stock or Common Stock Equivalents so issued shall at any time, whether by operation
of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options
or rights per share which are issued in connection with such issuance, be entitled to receive shares of Common Stock at an effective price
per share that is lower than the Conversion Price, such issuance shall be deemed to have occurred for less than the Conversion Price on
such date of the Dilutive Issuance), then the Conversion Price shall be reduced to equal the Base Conversion Price. Notwithstanding the
foregoing, no adjustment will be made under this Section 6 in respect of an Exempt Issuance (as hereafter defined). The Corporation
agrees to consult with the Majority Holder prior to commencing any such financing regarding its terms. Further, the Corporation shall
notify the Holder in writing, no later than the Trading Day following the issuance of any Common Stock or Common Stock Equivalents subject
to this Section 6, indicating therein the applicable issuance price, or applicable reset price, exchange price, conversion price
and other pricing terms (such notice, the “Dilutive Issuance Notice”). For purposes of clarification, whether or not
the Corporation provides a Dilutive Issuance Notice, upon the occurrence of any Dilutive Issuance, the Holder is entitled to receive a
number of shares of Common Stock upon conversion of the Series D Preferred Stock determined based upon the Base Conversion Price on or
after the date of such Dilutive Issuance, regardless of whether the Holder accurately refers to the Base Conversion Price in the Notice
of Conversion. Notwithstanding anything to the contrary in this Section 6(d)(v), in no event shall the Base Conversion Price be
adjusted to a price lower than the Floor Price.
For the purposes hereof,
an “Exempt Issuance” shall mean the issuance of (i) shares of Common Stock, restricted stock units or stock options
(and Common Stock issued upon exercise of such securities) to employees, officers, consultants, advisors or directors of the Corporation
in consideration of services to the Corporation pursuant to any stock or option plan duly adopted for such purpose by a majority of the
members of the Board or a majority of the members of a committee of directors established for such purpose, not to exceed ten percent
(10%) of the shares of Common Stock issued and outstanding on the Effective Date (as defined in the Purchase Agreement), (ii) the Securities
(as defined in the Purchase Agreement) issued hereunder and any Common Stock or other securities issued upon the conversion, exercise,
or exchange of any Securities issued hereunder and/or other securities exercisable or exchangeable for or convertible into shares of Common
Stock issued and outstanding on the date of the Purchase Agreement, provided that such securities have not been amended since the date
of the Purchase Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of such
securities; (iii) shares of Common Stock issued upon any anti-dilution adjustment to Common Stock and Common Stock Equivalents held by
current unaffiliated security holders as of the date of the Purchase Agreement; (iv) securities issued to any underwriter, placement agent
or other registered broker-dealer as reasonable commissions or fees in connection with any financing transactions; (v) securities issued
pursuant to any merger, acquisition, asset purchase or similar transaction approved by the Board or a duly authorized committee thereof,
provided that any such issuance shall only be to a Person or Persons (or to the equity holders of a Person or Persons) which is, itself
or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the Corporation
and shall have received the express prior written consent of the Purchaser, but shall not include a transaction in which the Corporation
is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities;
and (vi) securities issued pursuant to any purchase money equipment loan, capital leasing arrangement or debt financing from a commercial
bank or similar financial institution.
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(e) Good
Faith Assistance. The Corporation will not, by amendment of its Certificate of Incorporation or Bylaws or through any reorganization,
recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, avoid
or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation, but will
at all times in good faith assist in the carrying out of all the provisions of this Section 6 and in the taking of all such action
as may be necessary or appropriate in order to protect the conversion rights of the Holders against impairment.
(f) Notice
of Record Taking. In the event of any taking by the Corporation of a record of the holders of any class of securities for the purpose
of determining the holders thereof who are entitled to receive any dividend (other than a cash dividend) or other distribution, any right
to subscribe for, purchase or otherwise acquire any shares of stock of any class or any other securities or property, or to receive any
other right, the Corporation shall mail to each Holder, at least ten (10) days prior to the date specified therein, a notice specifying
the date on which any such record is to be taken for the purpose of such dividend, distribution or right, and the amount and character
of such dividend, distribution or right.
(g) Reservation
of Shares. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock,
solely for the purpose of effecting the conversion of the shares of the Series D Preferred Stock, 125% of the number of shares of Common
Stock as shall from time to time be sufficient to effect the conversion of all outstanding shares of Series D Preferred Stock (the “Required
Reserve Amount”); and if at any time the number of authorized but unissued shares of Common Stock shall not be sufficient to
enable the Corporation to satisfy its obligation to have available for issuance upon conversion of the Series D Preferred Stock at least
a number of shares of Common Stock equal to the Required Reserve Amount, then, in addition to such other remedies as shall be available
to the Holder, the Corporation will as promptly as reasonably practicable take all such corporate action as may, in the opinion of its
counsel, be necessary to increase its authorized but unissued shares of Common Stock to such number of shares as shall be sufficient for
such purposes, including, without limitation, using its best efforts to obtain the requisite stockholder approval of any necessary amendment
to these provisions as soon as possible.
(h) Payment
of Taxes. The Corporation shall pay all documentary, stamp or other transactional taxes (exclusive of income taxes) attributable to
the issuance or delivery of shares of capital stock of the Corporation upon conversion of any shares of Series D Preferred Stock; provided,
however, that the Corporation shall not be required to pay any taxes which may be payable in respect of any transfer involved in
the issuance or delivery of any certificate for such shares in a name other than that of the Holder of the shares of Series D Preferred
Stock in respect of which such shares are being issued.
(i) Status
of Shares. All shares of Common Stock that may be issued in connection with the conversion provisions set forth herein will, upon
issuance by the Corporation, be validly issued, fully paid and non-assessable and free from all taxes, liens or charges with respect thereto.
(j) Conversion
Disputes. In the case of any dispute with respect to a Conversion, including a dispute relating to the calculation of the Conversion
Price, the Closing Price, the Conversion Amount or the number of Conversion Shares to be issued in a Conversion, the Corporation shall
promptly issue such number of shares of Common Stock in accordance with Section 6(d)(iii) above as are not disputed. If such
dispute is not promptly resolved by discussion between the relevant Holder and the Corporation, the Corporation shall submit the disputed
calculations to an independent outside accountant via facsimile within ten (10) Business Days of receipt of notice of such dispute. The
accountant, at the Corporation’s sole expense, shall promptly audit the calculations and notify the Corporation and the holder of
the results no later than ten (10) Business Days from the date it receives the disputed calculations. The accountant’s calculation
shall be deemed conclusive, absent manifest error. The Corporation shall then issue the appropriate number of shares of Common Stock
in accordance with subparagraph (c) above. If the accountant determines the Corporation’s calculations are correct, the holder shall
reimburse the Corporation for the accountant’s expense.
Section 7.
Record Holders. The Corporation and its transfer agent shall deem and treat the record Holder of any shares of Series
D Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Corporation nor its transfer agent shall be
affected by any notice to the contrary.
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Section 8. Notice. Any
notice required by the provisions herein to be given to the Holders of shares of Series D Preferred Stock shall be deemed given upon hand
delivery, one (1) Business Day after the notice is sent by overnight courier or three (3) Business Days after the notice is deposited
in the United States mail, postage prepaid, and addressed to each holder of record at his address appearing on the stock books of the
Corporation. The Corporation shall provide each Holder with prompt written notice of all actions taken pursuant to the terms of this Certificate
of Designations, including in reasonable detail a description of such action and the reason therefor. Without limiting the generality
of the foregoing, the Corporation shall give written notice to each Holder (i) promptly following any adjustment of the Conversion Price,
setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at least ten (10) days prior to the date
on which the Corporation closes its books or takes a record (A) with respect to any dividend or distribution upon the Common Stock, (B)
with respect to any grant, issuances, or sales of any Common Stock, Common Stock Equivalents, assets or other property to all holders
of shares of Common Stock as a class or (C) for determining rights to vote with respect to any matter on which the holders of Common Stock
shall have the right to vote.
Section
9.
Cancellation of Series D Preferred Stock. In the event any shares of Series D Preferred Stock
shall be converted pursuant to Section 6 or otherwise reacquired by the Corporation, the shares so converted or reacquired shall
be canceled and may not be reissued. The Certificate of Incorporation of the Corporation may be appropriately amended from time to time
to effect the corresponding reduction in the Corporation’s authorized capital stock.
Section
10.
Negative Covenants. Except as otherwise permitted by this Certificate, until the later of (i)
the date all the Preferred Shares are sold pursuant to the Agreement and (ii) the Purchaser owns, or has the right to acquire, fewer than
2,500 Preferred Shares, the Company shall be prohibited from taking the following actions without the affirmative consent or approval
of the Majority Holders of the shares of Series D Preferred Stock then outstanding, whether directly or indirectly, by amendment, merger,
consolidation or otherwise, and shall not permit any Subsidiary, to:
(a)
issue any additional shares of Series D Preferred Stock except pursuant to the Agreement;
(b)
take any action to authorize, create or issue any class or series of preferred stock, whether or not ranking junior, pari passu
or senior to the Series D Preferred Stock;
(c)
set aside assets for a sinking or other similar fund for the purchase, redemption, or retirement of, or redeem, purchase, retire,
or otherwise acquire any shares of the Common Stock or of any other capital stock of the Corporation, whether now or hereafter outstanding,
except as permitted by Section 4(b);(d)
(d) make
or declare, directly or indirectly, any dividend (in cash, stock, return of capital, or any other form of assets) on, or make any other
payment or distribution on account of Common Stock or of any other capital stock of the Corporation ranking junior to the Series D Preferred
Stock as to the payment of dividends or the distribution of assets upon liquidation, dissolution or winding up, whether now or hereafter
outstanding, except that the Corporation shall have the power to issue stock dividends payable in shares of Common Stock, unless the Corporation
pays a corresponding dividend to the Holders on an “as-if-converted” basis;
(e) effect
or permit, or offer or agree to effect or permit, a liquidation or Change of Control Event with respect to the Corporation or any Subsidiary,
except as permitted by this Certificate;
(f)
reclassify the shares of Common Stock or any other shares or any class or series of capital stock hereafter created junior to the
Series D Preferred Stock into shares of any class or series of capital stock (A) ranking, either as to payment of dividends, distribution
of assets or redemptions, senior to or pari passu with the Series D Preferred Stock, or (B) which in any manner adversely affects
the Holders of shares of Series D Preferred Stock;
(g)
invest in, purchase or acquire, directly or indirectly, in one or a series of related transactions, any assets or capital stock
of any Person other than a Subsidiary, wherein the aggregate purchase price or other consideration payable for such assets or capital
stock shall exceed $100,000 in any one transaction or $250,000, in the aggregate;
(h)
issue any shares of Common Stock of the Corporation or other securities convertible into or exercisable or exchangeable for shares
of Common Stock of the Corporation;
- 10 -
(i)
entering into any related-party transactions, excluding those contemplated by the Agreement;
(j)
discontinue the Corporation’s current line of business or entering into a new line of business;
(k)
except in connection with indebtedness existing as at the date of this Certificate, purchase money indebtedness or capital leases,
incur indebtedness for borrowed money, or guaranty the obligations of any other Person, in an aggregate amount at any time outstanding
in excess of $100,000 in any individual transaction or $250,000 in the aggregate;
(l)
permit Liens to exist on its assets and properties, other than Permitted Liens (as defined in the Securities Purchase Agreement),
in an aggregate amount at any time outstanding in excess of $100,000 in any individual transaction or $250,000 in the aggregate;
(m)
sell, lease, transfer or dispose of any of its properties having a value calculated in accordance with GAAP of more than $50,000
(other than sales of assets to customers in the ordinary course of business), waive or release any rights of material value, or cancel,
compromise, release or assign any indebtedness owed to it or any claims held by it in each case having a value calculated in accordance
with GAAP of more than $125,000;
(n)
increase in any manner the compensation or fringe benefits of any of its directors, officers, employees, including any increase
of pension or retirement allowance, life insurance premiums or other benefit payments to any such directors, officers or employees, or
commit itself to any employment agreement or employment arrangement with or for the benefit of any officer, except as contemplated by
this Certificate;
(o)
enter into any transaction that would constitute a Change of Control Event;
(p)
whether or not prohibited by the terms of the Certificate of Designation, circumvent a right or preference of the Series D Preferred
Stock; or
(q)
enter into an agreement to do any of the things described in clauses (a) through (p) of this Section 10.
Section
11.
Sinking Fund. The Series D Preferred Stock shall not be entitled to the benefits of any retirement
or sinking fund.
Section
12.
Waiver. Any right or privilege of the Series D Preferred Stock may be waived (either generally
or in a particular instance and either retroactively or prospectively) by and only by the written consent of the Corporation and the Majority
Holders and any such waiver shall be binding upon each holder of Series D Preferred Stock or other securities exercisable for or convertible
into Series D Preferred Stock. No failure or delay on the part of a Holder 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.
Section
13.
Lost or Stolen Certificates. Upon receipt by the Corporation of evidence reasonably satisfactory
to the Corporation of the loss, theft, destruction or mutilation of any certificates representing Series D Preferred Stock (as to which
a written certification and indemnification shall suffice as such evidence), and, in the case of loss, theft or destruction, of an indemnification
undertaking by the applicable Holder to the Corporation in customary and reasonable form and, in the case of mutilation, upon surrender
and cancellation of the certificate(s), the Corporation shall execute and deliver new certificate(s) of like tenor and date.
Section
14.
Remedies, Characterizations, Other Obligations, Breaches and Injunctive Relief. The remedies
provided in this Certificate of Designations shall be cumulative and in addition to all other remedies available under this Certificate
of Designations or by contract, at law or in equity (including a decree of specific performance and/or other injunctive relief), and no
remedy contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy. Nothing herein shall limit
any Holder’s right to pursue actual and consequential damages for any failure by the Corporation to comply with the terms of this
Certificate of Designations. The Corporation covenants to each Holder that there shall be no characterization concerning this instrument
other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, conversion and the like (and
the computation thereof) shall be the amounts to be received by a Holder and shall not, except as expressly provided herein, be subject
to any other obligation of the Corporation (or the performance thereof). The Corporation acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Holders and that the remedy at law for any such breach may be inadequate. The Corporation
therefore agrees that, in the event of any such breach or threatened breach, each Holder shall be entitled, in addition to all other available
remedies, to an injunction restraining any such breach or any such threatened breach, without the necessity of showing economic loss and
without any bond or other security being required, to the extent permitted by applicable law. The Corporation shall provide all information
and documentation to a Holder that is requested by such Holder to enable such Holder to confirm the Corporation’s compliance with
the terms and conditions of this Certificate of Designations.
- 11 -
Section
15. Non-circumvention. The Corporation hereby covenants and agrees that the Corporation will not,
by amendment of its Certificate of Incorporation, Bylaws or through any reorganization, transfer of assets, consolidation, merger, scheme
of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance
of any of the terms of this Certificate of Designations, and will at all times in good faith carry out all the provisions of this Certificate
of Designations and take all action as may be required to protect the rights of the Holders. Without limiting the generality of the foregoing
or any other provision of this Certificate of Designations, the Corporation (i) shall not increase the par value of any shares of
Common Stock receivable upon the conversion of any shares of Series D Preferred Stock above the Stated Value then in effect, (ii) shall
take all such actions as may be necessary or appropriate in order that the Corporation may validly and legally issue fully paid and non-assessable
shares of Common Stock upon the conversion of Series D Preferred Stock and (iii) shall, so long as any shares of Series D Preferred Stock
are outstanding, take all action necessary to reserve and keep available out of its authorized and unissued shares of Common Stock, solely
for the purpose of effecting the conversion of the Series D Preferred Stock, the Required Reserve Amount.
Section
16. Transfer of Series D Preferred Stock. A Holder may transfer some or all of its shares of Series
D Preferred Stock without the consent of the Corporation. Any such transfer shall comply with all applicable securities laws.
Section
17. Register. The Corporation shall maintain at its principal executive offices (or such other office
or agency of the Corporation as it may designate by notice to the Holders), a register for the shares of Series D Preferred Stock, in
which the Corporation shall record the name, address and facsimile number of the Persons in whose name the shares of Series D Preferred
Stock have been issued, as well as the name and address of each transferee. The Corporation may treat the Person in whose name any shares
of Series D Preferred Stock is registered on the register as the owner and holder thereof for all purposes, notwithstanding any notice
to the contrary, but in all events recognizing any properly made transfers.
Section
18. Amendment. This Certificate of Designations or any provision hereof may be amended by obtaining
the affirmative vote at a meeting duly called for such purpose, or by written consent without a meeting in accordance with the DGCL, of
the Majority Holders, voting separately as a single class, and with such other stockholder approval, if any, as may then be required pursuant
to the DGCL and the Corporation’s Certificate of Incorporation and Bylaws.
Section
19. Severability. If any provision of this Certificate of Designations is invalid, illegal or unenforceable,
the balance of this Certificate of Designations shall remain in effect, and if any provision is inapplicable to any Person or circumstance,
it shall nevertheless remain applicable to all other Persons and circumstances. If it shall be found that any interest or other amount
deemed interest due hereunder violates the applicable law governing usury, the applicable rate of interest due hereunder shall automatically
be lowered to equal the maximum rate of interest permitted under applicable law.
Section
20. Next Business Day. Whenever any payment or other obligation hereunder shall be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day.
Section
21. Headings. The headings contained herein are for convenience only, do not constitute a part of
this Certificate of Designations and shall not be deemed to limit or affect any of the provisions hereof.
[Signature Page Follows]
- 12 -
IN WITNESS WHEREOF,
Alzamend Neuro, Inc. has caused this Certificate of Designations to be signed by the undersigned as of the date first written above.
ALZAMEND NEURO, INC.
By:
/s/ Stephan Jackman
Name:
Stephan Jackman
Title:
Chief Executive Officer
[Signature Page to Series D Certificate of Designation]
EXHIBIT I
CONVERSION NOTICE
Reference is made to (a) that certain Securities
Purchase Agreement, dated as of July 31, 2026 (the “Agreement”), by and between Ault Lending, LLC and Alzamend Neuro,
Inc., a Delaware corporation (the “Corporation”), (b) that certain Certificate of Designations of Rights and Preferences
of Series D Convertible Preferred Stock (the “Certificate”) and (c) certain Conversion Amount (as defined in the Agreement
and the Certificate) issued by the Corporation and outstanding as of the date hereof. In accordance with and pursuant to the Agreement
and the Certificate, the undersigned hereby elects to convert the Conversion Amount (as defined in the Certificate) indicated below into
shares of the Corporation’s Common Stock, $0.0001 par value per share (the “Common Stock”), at the Conversion
Price (as defined in the Agreement and the Certificate, as of the date specified below). Capitalized terms not defined herein shall have
the meaning as set forth in the Certificate.
Date of this Conversion Notice: _____________
Date of Conversion (the date that is one Business
Day after the date of this Conversion Notice): ___________________
Number of Shares of Series D Preferred Stock to be Converted: ___________________
Stated Value of Each Share of Series D Preferred Stock: ___________________
Accrued and Accumulated and Unpaid Dividends on such Shares: ___________________
Aggregate Conversion Amount: ____________
Conversion Price: ___________________
Aggregate number of shares of Common Stock to
be issued to the undersigned on the Date of Conversion (Aggregate Conversion Amount divided by the Conversion Price): __________________
AULT LENDING, LLC
By:
Name:
Title:
ACKNOWLEDGMENT
Alzamend Neuro, Inc. hereby acknowledges this
Conversion Notice and hereby directs Computershare Trust Company, N.A., to issue the above indicated number of shares of Common Stock
in accordance with the Transfer Agent Instructions dated [________] from the Corporation and acknowledged and agreed to by Computershare
Trust Company, N.A.
ALZAMEND NEURO, Inc.
By:
Name:
Stephan Jackman
Title:
Chief Executive Officer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: ex10_1.htm · Sequence: 3
Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is entered into and effective as of July 31, 2026 (the “Execution Date”), by
and between Alzamend Neuro, Inc., a Delaware corporation (the “Company”) and Ault Lending, LLC, a California limited
liability company (including its designees, successors and assigns, the “Purchaser”).
RECITALS
WHEREAS, the parties
desire that, upon the terms and subject to the conditions contained herein, the Company shall issue to Purchaser, and Purchaser shall
purchase from the Company, from time to time as provided herein, up to 25,000 shares of Series D Convertible Preferred Stock (the “Preferred
Shares”) at a purchase price equal to $1,000 per share (the “Purchase Price”) of Series D Preferred Stock
($25,000,000 in the aggregate), with each such Preferred Share having a stated value of $1,050 ($26,250,000 in the aggregate).
WHEREAS, the offer,
sale and issuance of the Preferred Shares provided for herein are being made without registration under the Securities Act, in reliance
upon the provisions of Section 4(a)(2) of the Securities Act and such other exemptions from the registration requirements of the Securities
Act as may be available with respect to any or all of the purchases of Preferred Shares to be made hereunder.
NOW, THEREFORE, in
consideration of the premises, the mutual provisions of this Agreement, and other good and valuable consideration the receipt and adequacy
of which are hereby acknowledged, Company and Purchaser agree as follows:
ARTICLE
I
DEFINITIONS
In addition to the terms defined
elsewhere in this Agreement, the following terms have the meanings indicated in this Article I:
“Action”
shall have the meaning ascribed to such term in Section 3.1(t).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control
with a Person, as such terms are used in and construed under Rule 144 under the Securities Act. With respect to Purchaser, without limitation,
any Person owning, owned by, or under common ownership with Purchaser, and any investment fund or managed account that is managed on a
discretionary basis by the same investment manager as Purchaser will be deemed to be an Affiliate.
“Agreement”
means this Securities Purchase Agreement including the exhibits and schedules hereto.
“Approval Date”
means the date when the Company shall have received the Principal Market Approval.
“Board”
means the board of directors of the Company.
“Certificate”
means the Certificate of Designations of Rights and Preferences of the Preferred Shares in the form attached hereto as Exhibit A.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Common Stock”
means the common stock, par value $0.0001 per share, of the Company, and any other shares of stock issued or issuable with respect thereto
(whether by way of a stock dividend or stock split or in exchange for or upon conversion of such shares or otherwise in connection with
a combination of shares, distribution, recapitalization, merger, consolidation, other corporate reorganization or other similar event
with respect to the Common Stock).
“Common Stock Equivalents”
means any securities of the Company or any of its Subsidiaries which would 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.
“Contingent Obligation”
means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease,
dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary
effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with
respect thereto.
“Contracts”
means any and all contracts, agreements, commitment, franchises, understandings, arrangements, leases, licenses, registrations, authorizations,
easements, servitudes, rights of way, mortgages, bonds, notes, guaranties, Encumbrances, evidence of indebtedness, approvals or other
instruments or undertakings to which such person is a party or to which or by which such person or the property of such person is subject
or bound, whether written or oral and whether or not entered into in the ordinary and usual course of the Person’s business, excluding
any Permits, provided that each such Contract shall provide for the payment of no less than $100,000.
“Conversion Shares”
means the shares of Common Stock into which the Preferred Shares are convertible in accordance with the Certificate.
“Disclosure Schedules”
means the disclosure schedules of the Company delivered concurrently herewith, attached hereto, and incorporated herein by reference.
The Disclosure Schedules shall contain no material non-public information.
“Disqualification
Event” shall have the meaning ascribed to such term in Section 3.1(aa).
“DTC” means
The Depository Trust Company, or any successor performing substantially the same function for Company.
“Encumbrances”
means any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional
sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected,
voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any
of the foregoing in the future.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Exempt Issuance”
means the issuance of (i) shares of Common Stock, restricted stock units or stock options (and Common Stock issued upon exercise of such
securities) to employees, officers, consultants, advisors or directors of the Company in consideration of services to the Company pursuant
to any stock or option plan duly adopted for such purpose by a majority of the members of the Board or a majority of the members of a
committee of directors established for such purpose, not to exceed fifteen percent (15%) of the shares of Common Stock issued and outstanding
on the Execution Date, (ii) the Issuable Shares issued hereunder and any Common Stock or other securities issued upon the conversion,
exercise, or exchange of any Issuable Shares issued hereunder and/or other securities exercisable or exchangeable for or convertible into
shares of Common Stock issued and outstanding on the date of this Agreement, provided that such securities have not been amended since
the date of this Agreement to increase the number of such securities or to decrease the exercise, exchange or conversion price of such
securities, (iii) shares of Common Stock issued upon any anti-dilution adjustment to Common Stock and Common Stock Equivalents held by
current unaffiliated security holders as of the date of this Agreement, provided that such anti-dilution adjustments are made pursuant
to instruments or binding agreements issued and outstanding or in force as of the date of this Agreement and that such instruments or
agreements have not been amended since the date of this Agreement to provide for new or additional anti-dilution rights or to increase
the number of shares of Common Stock issuable upon any required anti-dilution adjustment, (iv) securities issued pursuant to any merger,
acquisition, asset purchase or similar transaction approved by the Board or a duly authorized committee thereof, provided that any such
issuance shall only be to a Person or Persons (or to the equity holders of a Person or Persons) which is, itself or through its subsidiaries,
an operating company or an owner of an asset in a business synergistic with the business of the Company, 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, (v) securities issued pursuant to any purchase money equipment loan, capital leasing arrangement or debt financing from
a commercial bank or similar financial institution and (vi) shares of Common Stock or Common Stock Equivalents issuable as set forth on
Schedule I hereto.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“FINRA”
means the Financial Industry Regulatory Authority, Inc.
“GAAP”
means United States generally accepted accounting principles applied on a consistent basis during the periods involved.
“Governmental Authority”
means any nation or country (including but not limited to the United States) and any commonwealth, territory or possession thereof and
any government or governmental or regulatory, legislative, executive authority thereof, or commission, department or political subdivision
thereof, whether federal, state, regional, municipal, local or foreign, or any department, board, bureau, agency, instrumentality or authority
thereof, or any court or arbitrator (public or private), including, but not limited to, the SEC and FINRA.
2
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(x).
“Initial Shares”
means the Preferred Shares to be issued at the Initial Tranche Closing.
“Initial Tranche”
shall have the meaning set forth in Section 2.2(a).
“Initial Tranche
Closing” means the Closing with respect to the Initial Tranche.
“Initial Tranche
Closing Date” means the date of the Initial Tranche Closing.
“Initial Tranche
Purchase Price” means Seven Million, Five Hundred Thousand Dollars ($7,500,000), payable by the Purchaser in cash.
“Intellectual Property
Rights” shall have the meaning ascribed to such term in Section 3.1(ff)(i).
“Issuable Shares”
means the Preferred Shares and the Conversion Shares.
“Issuer Covered Person”
shall have the meaning ascribed to such term in Section 3.1(aa).
“Knowledge”
means, with respect to any Person, (x) such Person is actually aware of such fact or matter or (y) such Person should reasonably have
been expected to discover or otherwise become aware of such fact or matter after reasonable investigation, and for purposes hereof it
shall be assumed that such Person has conducted a reasonable investigation of the accuracy of the representations and warranties set forth
herein.
“Legal Requirement”
means any federal, state, local, municipal, foreign, multi-national or other law, common law, statute, constitutions, ordinances, rules,
regulations, codes, Orders, or legally enforceable requirements enacted, issued, adopted, promulgated, enforced, ordered, or applied by
any Governmental Authority.
“Legend Removal Date”
shall have the meaning ascribed to such term in Section 4.1(c).
“Liability”
means any liability, obligation or indebtedness of whatever kind or nature (whether known or unknown, whether asserted or unasserted,
whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes.
“Liens”
means any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional
sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected,
voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any
of the foregoing in the future.
“Loss”
or “Losses” means any and all Liability, damages, fines, fees, penalties and expenses whether or not arising out of
litigation, including without limitation, interest, reasonable expenses of investigation, court costs, reasonable out-of-pocket fees and
expenses of attorneys, accountants and other experts or other reasonable out-of-pocket expenses of litigation or other legal proceedings,
incurred in connection with the rightful enforcement of rights under this Agreement against any party hereto, and whether or not arising
out of third party claims against an indemnified party.
“Material Adverse
Effect” means any material adverse effect on (i) the legality, validity or enforceability of any Transaction Document, (ii)
the results of operations, assets, business, prospects or financial condition of the Company and the Subsidiaries, taken as a whole, or
(iii) the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document.
“Material Agreement”
means any material loan agreement, financing agreement, equity investment agreement or securities instrument to which Company is a party,
any agreement or instrument to which the Company and the Purchaser or any Affiliate of the Purchaser is a party, and any other material
agreement listed, or required to be listed, on any of Company’s reports filed or required to be filed with the SEC, including without
limitation Forms 10-K, 10-Q and 8-K.
“Maximum Investment”
means Twenty-Five Million Dollars ($25,000,000).
3
“Money Laundering
Laws” shall have the meaning ascribed to such term in Section 3.1(ii).
“OFAC”
shall have the meaning ascribed to such term in Section 3.1(hh).
“Officer’s
Certificate” has the meaning set forth in the Section 2.2(b)(i) hereof.
“Order”
means any order, writ, assessment, decision, injunction, decree, ruling, or judgment of a Governmental Entity or arbitrator, whether temporary,
preliminary, or permanent.
“Origination Fee”
shall mean an origination fee payable by the Company to the Purchaser in the amount of two percent (2%) of the Purchase Price at each
Tranche Closing, which the Purchaser may withhold from the Purchase Price at each such Tranche Closing.
“Per Share Purchase
Price” shall mean One Thousand Dollars ($1,000), provided, however, that such Per Share Purchase Price shall be subject to the
Origination Fee.
“Permits”
means any and all permits, rights, approvals, licenses, authorizations, legal status, orders or Contracts under any Legal Requirement
or otherwise granted by any Governmental Authority.
“Permitted Liens”
means the individual and collective reference to the following: (a) Liens for Taxes, assessments and other governmental charges or levies
not yet due or Liens for Taxes, assessments and other governmental charges or levies being contested in good faith and by appropriate
proceedings for which adequate reserves (in the good faith judgment of the management of the Company) have been established in accordance
with GAAP; (b) Liens imposed by law which were incurred in the ordinary course of the Company’s business, such as carriers’,
warehousemen’s and mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in the ordinary course
of the Company’s business, and which (x) do not individually or in the aggregate materially detract from the value of such property
or assets or materially impair the use thereof in the operation of the business of the Company and its consolidated Subsidiaries or (y)
are being contested in good faith by appropriate proceedings, which proceedings have the effect of preventing for the foreseeable future
the forfeiture or sale of the property or asset subject to such Lien; (c) pledges and deposits made in the ordinary course of business
in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations; and (d) deposits
to secure the performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature that are not past due, in each case in the ordinary course of business, but excluding any contract for the
payment of money.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Preferred Shares”
means the shares of Series D Convertible Preferred Stock being issued and sold to the Purchaser by the Company hereunder.
“Principal Market”
means the Nasdaq Stock Market LLC.
“Principal Market
Approval” means approval for the issuance by the Company of any Preferred Shares that are convertible into Conversion Shares
in excess of the Principal Market Cap.
“Principal Market
Cap” shall mean that number of shares of Common Stock or Common Stock Equivalents pursuant to this Agreement and the other Transaction
Documents to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued as well
as permitted to vote or be converted pursuant to this Agreement and such Transaction Documents would not exceed 19.99% of the Company’s
outstanding shares of Common Stock as of the date hereof.
“Principal Market
Rules” means the rules and regulations of the Principal Market.
“Properties”
means any and all properties and assets (real, personal or mixed, tangible or intangible) owned or used by the Company.
“Registration Rights
Agreement” means that certain Registration Rights Agreement, between the Company and the Purchaser, dated as of the date hereof,
in the form attached hereto as Exhibit B.
“Registration Statement”
has the meaning set forth in the Registration Rights Agreement.
4
“Required Approvals”
means the Stockholder Approval, Principal Market Approval and any other approvals that may be required hereunder.
“Rule 144”
means Rule 144 promulgated by the SEC pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the SEC having substantially the same effect.
“SEC” means
the United States Securities and Exchange Commission.
“SEC Documents”
has the meaning set forth in Section 3.1(g).
“Second Purchase
Shares” means the Preferred Shares to be issued at the Second Tranche Closing.
“Second Tranche”
shall have the meaning set forth in Section 2.2(a).
“Second Tranche Closing”
means the Closing with respect to the Second Tranche, which shall occur on the tenth (10th) business day after the Registration Statement
shall have been declared effective by the SEC.
“Second Tranche Closing
Date” means the date of the Second Tranche Closing.
“Second Tranche Purchase
Price” means Two Million, Five Hundred Thousand Dollars ($2,500,000), payable by the Purchaser in cash.
“Secretary’s
Certificate” has the meaning set forth in Section 2.2(b)(ii) hereof.
“Securities Act”
means the Securities Act of 1933, as amended.
“Series D Preferred
Stock” means shares of Series D Convertible Preferred Stock, $0.0001 par value per share, issuable pursuant to the Certificate.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
the location and/or reservation of borrowable shares of Common Stock).
“Stockholder Approval”
means such approval as may be required by the applicable rules and regulations of the Principal Market Rules (or the applicable rules
and regulations of any successor entity) from the stockholders of the Company with respect to the transactions contemplated by this Agreement
and the other Transaction Documents, including the issuance of all of the Issuable Shares in excess of 19.99% of the issued and outstanding
Common Stock on the Execution Date.
“Subscription Amount”
means, as to the Purchaser, the aggregate amount to be paid for the Preferred Shares purchased hereunder as specified below the Purchaser’s
name on the signature page of this Agreement and next to the heading “Subscription Amount,” in United States dollars and in
immediately available funds, consisting of the aggregate amount of all Tranche Purchase Prices.
“Subsequent Shares”
means the Preferred Shares to be issued at each Subsequent Tranche Closing.
“Subsequent Tranche”
shall have the meaning set forth in Section 2.2(a).
“Subsequent Tranche
Closing” means each Tranche Closing other than the Initial Tranche Closing and the Second Tranche Closing. The first Subsequent
Tranche Closing shall occur thirty (30) days after the closing of the Second Purchase, and on each monthly anniversary thereafter, the
Purchaser shall pay the Subsequent Tranche Purchase Prices in cash to the Company on each such Subsequent Tranche Closing Date, comprised
of the purchase of 1,000 Preferred Shares at the Per Share Purchase Price, in each case continuing until the aggregate cash purchase price
paid by the Purchaser, inclusive of the Initial Tranche Closing and the Second Tranche Closing, equals $25,000,000.
“Subsequent Tranche
Closing Date” means each date on which a One Million Dollar ($1,000,000) monthly installment of the Subsequent Tranche Purchase
Price is due and payable hereunder.
“Subsequent Tranche
Purchase Price” means an aggregate of up to Fifteen Million Dollars ($15,000,000), payable by the Purchaser in cash over the
following Fifteen (15) months, with One Million Dollars ($1,000,000) per month being payable over the first Fifteen (15) months commencing
one month after the Second Tranche Closing Date, provided that the conditions to closing of the Subsequent Tranche Closing shall have
been satisfied or waived and continuing until the entire Subscription Payment shall have been made.
5
“Subsidiary”
means any Person the Company owns or controls, or in which the Company, directly or indirectly, owns a majority of the capital stock or
similar interest that would be disclosable pursuant to Regulation S-K, Item 601(b)(21).
“Tax” means
any and all taxes, charges, fees, levies or other assessments, including, without limitation, local and/or foreign income, net worth,
gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs
duties, share capital, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal
property, sales, use, service, service use, transfer, registration, recording, ad-valorem, value-added, alternative or add-on minimum,
estimated, or other taxes, assessments or charges of any kind whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
“Tax Return”
means any federal, state, local and foreign tax return, report or similar statement required to be filed with respect to any Tax (including
any attached schedules), including, without limitation, any information return, claim for refund, amended return or declaration of estimated
Tax.
“Taxing Authority”
means the Internal Revenue Service and any other Governmental Authority responsible for the administration of any Tax.
“Termination Date”
shall mean the date of the Initial Tranche Closing Date, which shall be no later than July 31, 2026.
“Trading Day”
means any day on which the Common Stock is traded on the Trading Market; provided that it shall not include any day on which the Common
Stock is (a) scheduled to trade for less than 5 hours, or (b) suspended from trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the NASDAQ Capital Market, the NASDAQ Global Market, the NASDAQ Global Select Market, the New York Stock Exchange, OTCQB,
OTCQX, OTCID or the OTC Pink (or any successors to any of the foregoing). Notwithstanding the foregoing, term “Trading Market”
shall only include the OTC Pink for any interim period of time required upon the Company’s delisting from any other Trading Market
provided that the Company shall be required to list its Common Stock for trading or quotation on another Trading Market (excluding the
OTC Pink) promptly upon such delisting and the failure to do so shall constitute a default under the terms of this Agreement and the other
Transaction Documents.
“Tranche”
has the meaning set forth in Section 2.2.
“Tranche Closing”
has the meaning set forth in Section 2.2(a).
“Tranche Closing
Date” means the date of any Tranche Closing.
“Tranche Payment
Dates” shall mean any date on which a Tranche Payment Price is paid by the Purchaser to the Company, which Tranche Payment Dates
are set forth in Section 2.2.
“Tranche Purchase
Prices” shall mean, collectively, the Initial Tranche Purchase Price, the Second Tranche Purchase Price and the Subsequent Tranche
Purchase Price.
“Transaction”
shall mean, collectively, the transactions contemplated by the Transaction Documents.
“Transaction Documents”
means this Agreement, the Certificate, the Registration Rights Agreement and the other agreements and documents referenced herein, and
the exhibits and schedules hereto and thereto.
“Transfer Agent”
means Computershare Trust Company, N.A. or any successor transfer agent for the Common Stock.
“Variable Rate Transaction”
has the meaning set forth in Section 4.7(b).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed or
quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (New York City time) to 4:02 p.m. (New York City time)), (b) if the Common Stock is not then listed or quoted for trading on a Trading
Market and if prices for the Common Stock are then reported on the OTC Pink Marketplace maintained by OTC Markets Group Inc. (or a similar
organization or agency succeeding to its functions of reporting prices), the most recent closing price per share of the Common Stock so
reported, or (c) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser selected
in good faith by the Purchaser of a majority in interest of the Issuable Shares then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
6
ARTICLE
II
PURCHASE AND SALE
2.1 Agreement
to Purchase. Subject to the terms and conditions herein and the satisfaction of the conditions to closing set forth in this Article
II, the Company hereby agrees to issue to the Purchaser and the Purchaser hereby agrees to purchase from the Company, the 7,500 Initial
Shares in the Initial Tranche, the 2,500 Second Purchase Shares in the Second Tranche and 15,000 Subsequent Shares in the Subsequent Tranches
(each, a “Tranche”) in accordance with Section 2.2 below and, in consideration for the Preferred Shares, the Purchaser
agrees to furnish to the Company at each Closing the applicable Tranche Purchase Price, provided that, in the aggregate, the Purchaser
shall not pay more than the Maximum Investment.
2.2 Closing;
Conditions to Closing; Mechanics of Closing.
(a) Closing.
The purchase of Preferred Shares hereunder shall occur in Seventeen (17) tranche closings, representing the Initial Tranche Closing, the
Second Tranche Closing and the Fifteen (15) Subsequent Tranche Closings, in the amounts set forth below (each, a “Tranche Closing”)
which shall occur when, with respect to (i) the Initial Tranche Closing, the conditions set forth in Section 2.2(b) and Section 2.2(c)
have been satisfied or waived (the “Initial Tranche”), (ii) the Second Tranche Closing, the conditions set forth in
Section 2.2(b) and Section 2.2(d) have been satisfied or waived (the “Second Tranche”) and (iii) the Subsequent Tranche
Closings, the conditions set forth in Section 2.2(b) and Section 2.2(e) have been satisfied or waived (the “Subsequent Tranche”).
The date on which a Tranche Closing occurs is referred to herein as a “Tranche Closing Date.”
(b) Purchaser
Conditions to Closing. The obligations of the Purchaser hereunder in connection with each Tranche Closing, and, with the exception
of 2.2 (ii)(A) and (ix) below, with respect to the Second Tranche Closing and each Subsequent Tranche Closing, are subject to the following
conditions being satisfied or waived:
(i) each
and every representation and warranty of the Company shall be true and correct as of the date when made and as of the applicable Tranche
Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which
shall be true and correct as of such date) and the Company shall have performed, satisfied and complied in all respects with the covenants,
agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the applicable Tranche Closing
Date, including, without limitation the issuance of all Issuable Shares prior to the date of such Tranche Closing as required by this
Section 2.2 and the Transaction Documents and the Company has a sufficient number of duly authorized and designated Preferred Shares and
authorized Conversion Shares reserved for issuance as may be required to fulfill its obligations pursuant to the Transaction Documents
and Purchaser shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Tranche
Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser in the form acceptable
to Purchaser (the “Officer’s Certificate”);
(ii) the
Company shall have delivered to Purchaser a certificate, in the form previously provided to the Company by the Purchaser, executed by
the Secretary of the Company and dated as of the applicable Tranche Closing Date, as to (A) the resolutions as adopted by the Board authorizing
the entering into the Transaction Documents and the transactions envisioned thereby, which resolutions shall have remained in full force
and effect, (B) the Certificate of Incorporation of the Company (reflecting the filed Certificate) as in effect at the applicable Tranche
Closing and (C) the Bylaws of the Company as in effect at the applicable Tranche Closing (the “Secretary’s Certificate”);
(iii) the
Company shall have delivered to Purchaser a certificate evidencing the formation and good standing of the Company in its jurisdiction
of formation issued by the Secretary of State of such jurisdiction of formation as of a date within ten (10) days of the applicable Tranche
Closing Date;
(iv) as
of the applicable Tranche Closing Date, trading in the Common Stock shall be listed on the Principal Market and shall not have been suspended
by the SEC or the Principal Market and, at any time prior to the applicable Tranche Closing Date, trading in securities generally as reported
by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades
are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States
or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable
judgment of the Purchaser, and without regard to any factors unique to the Purchaser, makes it impracticable or inadvisable to purchase
the Issuable Shares at the Closing;
7
(v) neither
the Company nor any Significant Subsidiary, as such term is defined in Rule 1-02(w) of Regulation S-X for purposes of this definition,
shall have suffered a Material Adverse Effect;
(vi) the
Company shall not be exposed to any additional regulatory enforcement action beyond those disclosed in the SEC Documents;
(vii) the
average Closing Price (as defined in the Certificate) of the Common Stock during the prior Three (3) Trading Days preceding each Tranche
Closing, as reported by Nasdaq.com, shall have been equal to or greater than the Floor Price (as defined in the Certificate), provided,
that in the event that this Section 2.2(b)(vii) shall not have been met as of the applicable Tranche Closing Date, the Purchaser shall
make the applicable Tranche Purchase Price within Two (2) Trading Days of the condition set forth in this Section 2.2(b)(vii) having been
met;
(viii) the
average daily trading volume of the Common Stock during the preceding month shall have been no fewer than 30,000 shares of Common Stock,
provided, that in the event that this Section 2.2(b)(viii) shall not have been met as of the applicable Tranche Closing Date, the Purchaser
shall make the applicable Tranche Purchase Price within Two (2) Trading Days of the condition set forth in this Section 2.2(b)(viii) having
been met;
(ix) [reserved].
(x) The
Company shall not have any material disagreements with its independent registered public accounting firm or any of its outside law firms;
and
(xi) any
other conditions contained herein or the other Transaction Documents.
(c) Purchaser
Conditions to the Initial Tranche Closing. The obligations of the Purchaser hereunder in connection with the Initial Tranche Closing
are subject to the conditions set forth in Section 2.2(b) and Section 2.2(f) being satisfied or waived and to the following conditions
being satisfied or waived:
(i) the
Company shall have filed the Certificate with the Secretary of State of the State of Delaware, and such Certificate shall be in full force
and effect;
(ii) there
shall have been no breach of any obligations, covenants and agreements under the Transaction Documents and no existing event which, with
the passage of time or the giving of notice, would constitute a breach under the Transaction Documents;
(iii) the
Company shall have delivered the Company Initial Closing Documents to the Purchaser; and
(iv) the
Company shall have obtained Principal Market Approval; to the extent that the Initial Shares constitute more than 19.99% of the number
of shares of Common Stock issued and outstanding on the Execution Date, the parties agree and understand that, until the time that the
Company’s stockholders shall have approved the Transaction, the Purchaser may not vote or convert more than the number of Conversion
Shares equal to 19.99% of the shares of Common Stock issued and outstanding on the Execution Date,
(d) Purchaser
Conditions to the Second Tranche Closing. The obligations of the Purchaser hereunder in connection with the Subsequent Tranche Closing
are subject to the conditions set forth in Section 2.2 (other than (ii)(A), (ix) and Section 2.2(f)) being satisfied or waived and to
the following conditions being satisfied or waived:
(i) the
Company shall have delivered the Company Second Closing Documents to the Purchaser;
(ii) the
Company shall have suspended its At-the-Market offering; and
(iii) the
Company shall have caused the Registration Statement to have been declared effective by the SEC, the Registration Statement shall be in
effect at the time of the Second Tranche Closing and available for the issuance of the Issuable Shares and resale of the Conversion Shares
issuable through such Second Tranche, and the Registration Statement shall not be subject to any stop order suspending the effectiveness
of the Registration Statement.
8
(e) Purchaser
Conditions to the Subsequent Tranche Closings. The obligations of the Purchaser hereunder in connection with the Subsequent Tranche
Closing are subject to the conditions set forth in Section 2.2 (other than (ii)(A), (ix) and Section 2.2(f)) being satisfied or waived
and to the following conditions being satisfied or waived:
(i) the
Company shall have delivered the Company Subsequent Closing Documents to the Purchaser;
(ii) the
Registration Statement shall be in effect at the time of the Subsequent Tranche Closing and available for the issuance of the Issuable
Shares and resale of the Conversion Shares issuable through such Subsequent Tranches, and the Registration Statement shall not be subject
to any stop order suspending the effectiveness of the Registration Statement; and
(iii) the
Company shall have obtained Stockholder Approval and Principal Market Approval.
(f) Company
Conditions to Closing. The obligations of the Company hereunder in connection with each Closing are subject to the following conditions
being satisfied or waived:
(i) the
accuracy in all material respects as of each Tranche Closing Date of the representations and warranties of the Purchaser contained herein
(unless as of a specific date therein in which case they shall be accurate as of such date);
(ii) all
obligations, covenants and agreements of the Purchaser required by this Agreement to be performed at or prior to each Tranche Closing
Date shall have been performed; and
(iii) the
delivery by the Purchaser of the Purchaser Closing Documents.
(g) Purchaser’s
Right to Accelerate Payments. Notwithstanding the foregoing dates set forth above applicable to the various Tranche Purchase Prices,
the Purchaser shall have the ability, exercisable in its sole discretion, to purchase any number of Preferred Shares in advance of the
foregoing dates.
(h) Delivery
of Notice of Satisfaction. The Company shall, in accordance with the dates provided for in this Section 2.2, deliver an irrevocable
written notice (each, a “Notice of Satisfaction”), (i) in the form attached hereto as Exhibit D-1 with
respect to the Initial Tranche Closing, (ii) Exhibit D-2 with respect to the Second Tranche Closing and (iii) Exhibit
D-3 with respect to each Subsequent Tranche Closing, to the Purchaser, stating that the Company has fulfilled its obligations
necessary for the applicable Tranche Closing to occur, and indicate the Tranche Closing Date, together with the number of Preferred Shares
which the Purchaser shall purchase from the Company and, in the case of a Subsequent Tranche Closing, the aggregate purchase price for
such Preferred Shares which shall be equal to the number of Preferred Shares being purchased multiplied by the Per Share Purchase Price
(in each case, the “Tranche Purchase Price”). The number of Preferred Shares being purchased on each Subsequent Tranche
Closing Date shall, subject to Section 2.2(g) not having been exercised by the Purchaser, whether in part or in its entirety, be One Thousand
(1,000) such shares. A Notice of Satisfaction delivered by the Company to the Purchaser by 2:30 p.m. Eastern time on any Trading Day shall
be deemed delivered on the same day. A Notice of Satisfaction delivered by the Company to the Purchaser after 2:30 p.m. Eastern time on
any Trading Day, or at any time on a non-Trading Day, shall be deemed delivered on the next Trading Day. The date that the Notice of Satisfaction
is deemed delivered is the “Notice of Satisfaction Date.” Each Notice of Satisfaction shall be delivered via facsimile
or electronic mail, with confirming copy by overnight carrier, in each case to the address set forth after the signature page hereof.
(i) Documents
to be Delivered at the Initial Tranche Closing by the Company. The Initial Tranche Closing shall be conditioned upon the delivery
by the Company to Purchaser of each of the following (the “Company Initial Closing Documents”) on or before the applicable
Tranche Closing Date:
(i) this
Agreement duly executed by the Company;
(ii) certificates
evidencing the Initial Shares purchased in the Initial Tranche Closing shall have been delivered to the Purchaser;
(iii) the
Registration Rights Agreement, duly executed by the Company;
(iv) the
Officer’s Certificate, executed by an officer of the Company;
(v) the
Secretary’s Certificate, executed by the Corporate Secretary of the Company;
(vi) a
Certificate of Good Standing of the Company from the Secretary of State of the State of Delaware;
(vii) the
written confirmation by the Company to the Purchaser that the applicable Required Approvals, if any (for the avoidance of doubt, evidence
of neither the Principal Market Approval nor the Stockholder Approval shall be required to be delivered by the Company to the Purchaser
with respect to the Initial Tranche Closing) have been obtained; and
9
(viii) all
documents, instruments and other writings required to be delivered by the Company to Purchaser on or before the applicable Initial Tranche
Closing Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated herein.
(j) Documents
to be Delivered at the Second Tranche Closing by the Company. The Second Tranche Closing shall be conditioned upon the delivery by
the Company to Purchaser of each of the following (the “Company Second Closing Documents”) on or before the applicable
Tranche Closing Date:
(i) the
Officer’s Certificate, executed by an officer of the Company;
(ii) the
Secretary’s Certificate, executed by the Corporate Secretary of the Company;
(iii) a
Certificate of Good Standing of the Company from the Secretary of State of the State of Delaware; notwithstanding the foregoing, once
the Company has delivered to the Purchaser evidence that the Certificate of Good Standing for a particular fiscal year is valid, this
Section 2.2(j)(iii) shall no longer apply;
(iv) certificates
evidencing the number of Preferred Shares purchased in the Second Tranche Closing shall have been delivered to Purchaser;
(v) the
written confirmation by the Company to the Purchaser that any applicable Required Approvals, if any (for the avoidance of doubt, evidence
of neither the Principal Market Approval nor the Stockholder Approval shall be required to be delivered by the Company to the Purchaser
with respect to the Second Tranche Closing) have been obtained;
(vi) the
written confirmation by the Company to the Purchaser that the Registration Statement shall have been declared effective by the SEC and
remains effective, and that the Registration Statement shall not be subject to any stop order suspending the effectiveness of the Registration
Statement; and
(vii) all
documents, instruments and other writings required to be delivered by the Company to Purchaser on or before the applicable Subsequent
Tranche Closing Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated herein.
(k) Documents
to be Delivered at each Subsequent Tranche Closing by the Company. Each Subsequent Tranche Closing shall be conditioned upon the delivery
by the Company to Purchaser of each of the following (the “Company Subsequent Closing Documents”) on or before the
applicable Tranche Closing Date:
(i) the
Officer’s Certificate, executed by an officer of the Company;
(ii) the
Secretary’s Certificate, executed by the Corporate Secretary of the Company;
(iii) a
Certificate of Good Standing of the Company from the Secretary of State of the State of Delaware; notwithstanding the foregoing, once
the Company has delivered to the Purchaser evidence that the Certificate of Good Standing for a particular fiscal year is valid, this
Section 2.2(i)(iii) shall no longer apply;
(iv) certificates
evidencing the number of Preferred Shares purchased in the Subsequent Tranche Closing shall have been delivered to Purchaser;
(v) the
written confirmation by the Company to the Purchaser that any applicable Required Approvals have been obtained (for the avoidance of doubt,
evidence of the Principal Market Approval and the Stockholder Approval shall be required to be delivered by the Company to the Purchaser
with respect to any Subsequent Tranche Closing where, upon closing of such Tranche, the total cumulative number of Conversion Shares issuable
upon conversion of all Preferred Shares then issued under this Agreement would exceed the Principal Market Cap); notwithstanding the foregoing,
once the Company has delivered to the Purchaser evidence that Principal Market Approval and Stockholder Approval for the Maximum Investment
has been obtained, this Section 2.2(k)(v) shall no longer apply;
(vi) the
written confirmation by the Company to the Purchaser that the Registration Statement remains effective, and that the Registration Statement
shall not be subject to any stop order suspending the effectiveness of the Registration Statemen; and
10
(vii) all
documents, instruments and other writings required to be delivered by the Company to Purchaser on or before the applicable Subsequent
Tranche Closing Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated herein.
(l) Documents
to be Delivered at each Subsequent Tranche Closing by the Company. Each Subsequent Tranche Closing shall be conditioned upon the delivery
by the Company to Purchaser of each of the following (the “Company Subsequent Closing Documents”) on or before the
applicable Tranche Closing Date:
(i) the
Officer’s Certificate, executed by an officer of the Company;
(ii) the
Secretary’s Certificate, executed by the Corporate Secretary of the Company;
(iii) a
Certificate of Good Standing of the Company from the Secretary of State of the State of Delaware; notwithstanding the foregoing, once
the Company has delivered to the Purchaser evidence that the Certificate of Good Standing for a particular fiscal year is valid, this
Section 2.2(i)(iii) shall no longer apply;
(iv) certificates
evidencing the number of Preferred Shares purchased in the Subsequent Tranche Closing shall have been delivered to Purchaser;
(v) the
written confirmation by the Company to the Purchaser that any applicable Required Approvals have been obtained (for the avoidance of doubt,
evidence of the Principal Market Approval and the Stockholder Approval shall be required to be delivered by the Company to the Purchaser
with respect to any Tranche Closing where, upon closing of such Tranche, the total cumulative number of Conversion Shares issuable upon
conversion of all Preferred Shares then issued under this Agreement would exceed the Principal Market Cap); notwithstanding the foregoing,
once the Company has delivered to the Purchaser evidence that Principal Market Approval and Stockholder Approval for the Maximum Investment
has been obtained, this Section 2.2(i)(v) shall no longer apply;
(vi) the
written confirmation by the Company to the Purchaser that the Registration Statement shall have been declared effective by the SEC and
remains effective, and that the Registration Statement shall not be subject to any stop order suspending the effectiveness of the Registration
Statemen; and
(vii) all
documents, instruments and other writings required to be delivered by the Company to Purchaser on or before the applicable Subsequent
Tranche Closing Date pursuant to any provision of this Agreement or in order to implement and effect the transactions contemplated herein.
(m) Documents
to be Delivered at the Initial Tranche Closing Date by the Purchaser. The Initial Tranche Closing Date shall be conditioned upon the
delivery, unless otherwise provided below, by Purchaser to the Company of each of the following (the “Purchaser Closing Documents”)
on or before the Initial Tranche Closing Date:
(i) this
Agreement, duly executed by the Purchaser; and
(ii) the
Registration Rights Agreement, duly executed by the Purchaser.
(n) Mechanics
of Closing. Subject to such conditions set forth in this Agreement, each Tranche Closing shall occur by 5:00 p.m. Eastern time, on
the date which is one (1) Trading Day following (and not counting) the Notice of Satisfaction Date (each, a “Tranche Closing
Date”) at the offices of the Company. On or before any Tranche Closing Date, the Purchaser shall deliver to the Company the
applicable Subscription Amount, with any cash portion to be delivered in cash or immediately available funds as consideration for the
purchase of the Preferred Shares pursuant to wire instructions delivered to the Purchaser by the Company, and the applicable Purchaser
Closing Documents. The Company shall deliver to the Purchaser all Company Closing Documents on or before any Tranche Closing Date.
11
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as set forth under the corresponding section of the Disclosure Schedules, which shall be deemed
a part hereof and which shall not contain any material non-public information, the Company hereby represents and warrants to, and as applicable
covenants with, the Purchaser as of the date hereof and as of each Tranche Closing:
(a) Organization
and Qualification. The Company and each of the direct and indirect subsidiaries of the Company listed on Schedule 3.1(a) (the
“Subsidiaries”) is an entity duly organized, validly existing and in good standing under the laws of its state of incorporation
or formation. The Company and each of its Subsidiaries is duly qualified to do business, and is in good standing in the states required
due to (i) the ownership or lease of real or personal property for use in the operation of the Company’s business or (ii) the nature
of the business conducted by the Company, except where the failure to so qualify would not, individually or in the aggregate, have a Material
Adverse Effect. The Company and each of its Subsidiaries has all requisite power, right and authority to own, operate and lease its properties
and assets, to carry on its business as now conducted, to execute, deliver and perform its obligations under this Agreement and the other
Transaction Documents to which it is a party, and to carry out the transactions contemplated hereby and thereby, subject to the Required
Approvals. All actions on the part of the Company and its officers and directors necessary for the authorization, execution, delivery
and performance of this Agreement and the other Transaction Documents, the consummation of the transactions contemplated hereby and thereby,
and the performance of all of the Company’s obligations under this Agreement and the other Transaction Documents have been taken
or will be taken prior to the Closing. This Agreement has been, and the other Transaction Documents to which the Company is a party on
the Closing will be, duly executed and delivered by the Company, and this Agreement is, and each of the other Transaction Documents to
which it is a party on the Closing will be, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as may be limited by bankruptcy, reorganization, insolvency, moratorium and similar laws of general application
relating to or affecting the enforcement of rights of creditors, and except as enforceability of the obligations hereunder are subject
to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law). All of the
Subsidiaries and the Company’s ownership interests therein are set forth on Schedule 3.1(a). The Company owns, directly or
indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens except Permitted Liens,
and subject to the Required Approvals, and all of the issued and outstanding shares of capital stock of each Subsidiary are validly issued
and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities.
(b) Authority.
The Company has the requisite power and authority to enter into and perform its obligations under this Agreement and each of the other
Transaction Documents and to issue the Issuable Shares in accordance with the terms hereof and thereof. The execution and delivery of
the Transaction Documents by the Company and the consummation by the Company of the transactions contemplated hereby and thereby, including,
without limitation, the issuance of the Issuable Shares, have been duly authorized by the Board and no further filing (other than a Form
D with the SEC and any other filings as may be required by any state securities agencies, the Form 8-K (as hereinafter defined) and the
applicable Stockholder Approval and application regarding the listing of additional shares), consent, or authorization is required by
the Company, the Board or the Company’s stockholders. This Agreement and the other Transaction Documents have been duly executed
and delivered by the Company, and constitute the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except as such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of
applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal
or state securities laws.
(c) Capitalization.
The capitalization of the Company is as set forth in Schedule 3.1(c). Upon the filing of the Certificate with the Secretary of
State of Delaware, with respect to payment of dividends and distribution of assets upon liquidation, dissolution, or winding up of the
Company, whether voluntary or involuntary, all Preferred Shares will rank senior to all of the Company’s Common Stock and series
of preferred stock. As of the date hereof, the Company has reserved from its duly authorized capital stock 29,238,000 shares of Common
Stock for issuance as Conversion Shares. All of such outstanding shares are duly authorized and have been, or upon issuance will be, validly
issued and are fully paid and non-assessable. Except as disclosed in SEC Documents and/or in Schedule 3.1(c), hereof: (i) none
of the Company’s or any Subsidiary’s share capital is subject to preemptive rights or any other similar rights or any liens
or Encumbrances suffered or permitted by the Company or any subsidiary; (ii) there are no outstanding options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, or exercisable
or exchangeable for, any share capital 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 share capital of the Company or any of its
subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities
or rights convertible into, or exercisable or exchangeable for, any share capital of the Company or any of its subsidiaries; (iii) except
for all debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments set forth on Schedule
3.1(c), there are no outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments
evidencing indebtedness of the Company or any of its subsidiaries or by which the Company or any of its subsidiaries is or may become
bound; (iv) other than with respect to the current indebtedness of the Company or any of its subsidiaries, there are no financing statements
securing obligations in any amounts filed in connection with the Company or any of its subsidiaries; (v) 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;
(vi) 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; (vii) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the Issuable Shares; (viii) neither the Company nor any
Subsidiary has any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement; and
(ix) neither the Company nor any of its Subsidiaries has any liabilities or obligations required to be disclosed in the SEC Documents
which are not so disclosed in the SEC Documents, other than those incurred in the ordinary course of the Company’s or its subsidiaries’
respective businesses and which, individually or in the aggregate, do not or could not have a Material Adverse Effect.
12
(d) Consents.
Neither the Company nor any of its Subsidiaries is required to obtain any consent from, authorization or order of, or make any filing
(other than the Form 8-K, the PRE 14A and the DEF 14A, Stockholder Approval, the Registration Rights Agreement and the applicable Listing
of Additional Shares Notification form and receipt of Principal Market Approval) or registration with, any court, governmental agency
or any regulatory or self-regulatory agency or any other Person in order for it to execute, deliver or perform any of its respective obligations
under or contemplated by the Transaction Documents, in each case, in accordance with the terms hereof or thereof. All consents, authorizations,
orders, filings (other than the Form 8-K and the applicable notification regarding the listing of additional shares) and registrations
which the Company or any of its subsidiaries is required to obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the applicable Tranche Closing Date, including Principal Market Approval, and neither the Company nor any of its Subsidiaries
is aware of any facts or circumstances which might prevent the Company or any of its subsidiaries from obtaining or effecting any of the
registration, application or filings contemplated by the Transaction Documents. As of the date of this Agreement, the Company is not in
violation of the requirements of the Principal Market and has no knowledge of any facts or circumstances which could reasonably lead to
delisting or suspension of the Common Stock in the foreseeable future.
(e) Conflicts;
Non-Contravention; No Violations. 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 will not (A) result in a violation of the Certificate of Incorporation
(as defined above) or other organizational documents of the Company or any of its Subsidiaries, any share capital of the Company or any
of its subsidiaries or Bylaws (as defined above) of the Company or any of its Subsidiaries, (B) 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
(C) result in a violation of any law, rule, regulation, order, judgment or decree, including foreign, 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 clause (B) or (C) above, to
the extent such violations that could not reasonably be expected to have a Material Adverse Effect.
(f) Taxes
Related to the Issuable Shares. On each date the Company issues Issuable Shares to the Purchaser, all share transfer or other taxes
(other than income or similar taxes) which are required to be paid in connection with the issuance of the Issuable Shares hereunder on
such date will be, or will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have
been complied with.
(g) SEC
Documents; Financial Statements. The Company has, during the preceding 12 months, filed with the SEC all reports and other materials
required to be filed by Section 13 or 15(d) of the Exchange Act, as applicable (all of the foregoing filed prior to the date hereof and
all exhibits included therein and financial statements, notes and schedules thereto and documents incorporated by reference therein being
hereinafter referred to as the “SEC Documents”). As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to the SEC
Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. As of their respective dates, the financial statements of the Company included
in the SEC Documents complied as to form in all material respects with applicable accounting requirements and the published rules and
regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements have been prepared in accordance
with generally accepted accounting principles, consistently applied, during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) and fairly present in all material respects the financial position of the Company
as of the dates thereof and the results of its operations and cash flows for the periods then ended (subject, in the case of unaudited
statements, to normal year-end audit adjustments which will not be material, either individually or in the aggregate). There is no event,
pending event or threatened event that could result in the Company not filing with the SEC all reports and other materials required to
be filed by Section 13 or 15(d) of the Exchange Act, as applicable, in compliance in all material respects with the requirements of the
Exchange Act and the rules and regulations of the SEC promulgated thereunder applicable to such filings.
13
(h) No
Material Non-Public Information. The Company confirms that neither it nor any other Person acting on its behalf has provided the Purchaser
or its agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public information
concerning the Company or any of its subsidiaries, other than the existence of the transactions contemplated by this Agreement and the
Transaction Documents. The Company understands and confirms that the Purchaser will rely on the foregoing representations in effecting
transactions in securities of the Company. To the Knowledge of the Company, all disclosures provided to the Purchaser regarding the Company
and its subsidiaries, their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished
by or on behalf of the Company or any of its subsidiaries is true and correct in all material respects and does not contain any untrue
statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of
the circumstances under which they were made, not misleading.
(i) Valid
Issuance of Issuable Shares. The issuance of each of the Preferred Shares and Conversion Shares have been duly authorized and, upon
issuance in accordance with the terms of this Agreement, the Certificate will be validly issued, fully paid and non-assessable and free
and clear of all liens, Encumbrances and rights of refusal of any kind, subject to Stockholder Approval and Principal Market Approval.
(j) Certain
Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company or any of its subsidiaries to any broker,
financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Purchaser shall have no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated
by the Transaction Documents.
(k) Acknowledgement
of Dilution. The Company acknowledges and agrees that (i) the issuance of the Issuable Shares pursuant to this Agreement may have
a dilutive effect, which may be substantial, (ii) neither the Company nor any of the Company’s Affiliates has or will provide the
Purchaser with any material non-public information regarding the Company or its securities, and (iii) the Purchaser has no obligation
of confidentiality to the Company and may sell any of its Issuable Shares issued pursuant to this Agreement at any time but subject to
compliance with applicable laws and regulations.
(l) Status
of the Purchaser. The Company acknowledges and agrees that with respect to this Agreement and the transactions contemplated hereby,
(i) the Purchaser is acting solely in an arm’s length capacity, (ii) the Purchaser does not make and has not made any representations
or warranties, other than those specifically set forth in this Agreement, (iii) except as set forth in this Agreement, the Company’s
obligations hereunder are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, regardless
of any claim the Company may have against the Purchaser, (iv) the Purchaser has not and is not acting as a legal, financial, accounting
or tax advisor to the Company, or agent or fiduciary of the Company, or in any similar capacity, and (v) any statement made by the Purchaser
or any of the Purchaser’s representatives, agents or attorneys is not advice or a recommendation to the Company.
(m) Listing
and Maintenance Requirements; Principal Market Regulation.
(i) The
Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to
its Knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company
received any notification that the SEC is 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 notice from any Principal Market on which the Common Stock is or
has been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Principal
Market. Except as disclosed on Schedule 3.1(m), 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.
(ii) The
Company shall not permit the Preferred Shares to have any conversion or voting rights or sell any shares of Common Stock or Common Stock
Equivalents pursuant to this Agreement and the other Transaction Documents to the extent that after giving effect thereto, the aggregate
number of shares of Common Stock that would be issued pursuant to this Agreement and such Transaction Documents would exceed the Principal
Market Cap, unless and until the Company obtains Stockholder Approval of the transactions contemplated by this Agreement and such Transaction
Documents and the stockholders of the Company have in fact approved the transactions contemplated by this Agreement and such Transaction
Documents in accordance with the applicable rules and regulations of the applicable Principal Market, and the Certificate of Incorporation
and Bylaws of the Company. The Company shall use its best efforts to file a preliminary proxy statement on Schedule 14A (the “PRE
14A”) with the SEC as soon as practicable but in any event no later than fifteen (15) days following the Execution Date for
a special meeting of its stockholders in order to obtain all necessary approvals of the conversion and voting power of the remaining Conversion
Shares not subject to the Principal Market Cap (it being acknowledged and agreed that all Preferred Shares shall be issued as set forth
herein but only become convertible and have voting power upon receipt of Stockholder Approval therefor) consistent with the rules and
regulations of the Principal Market. In addition, the PRE 14A shall include the unanimous recommendation of the Board that such proposal
be approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management
proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal including,
if requested by the Purchaser, the retention and utilization of a nationally known proxy solicitation firm. The Company shall use its
reasonable best efforts to: (i) promptly clear any comments received by the SEC on the PRE 14A and thereafter use its best efforts to
file a definitive proxy statement on Schedule 14A (the “DEF 14A”) related to the meeting of its stockholders
within forty-five (45) days of the Execution Date, or as soon as reasonably practicable thereafter, which meeting of stockholders shall
be held no later than seventy-five (75) days after the Execution Date, and (ii) obtain such Stockholder Approval. If the Company does
not obtain Stockholder Approval at the first such meeting, the Company shall call a meeting no later than every two (2) months thereafter
to seek Stockholder Approval until the earlier of the date on which Stockholder Approval is obtained or the Issuable Shares are no longer
outstanding. In the event that the Company has not been able to clear comments with the SEC on the PRE 14A within seventy-five (75) days
of the Execution Date, unless waived by the Purchaser, the Company will provide prompt written notification to the Purchaser regarding
the status of the comments with the SEC and the parties will, in good faith, attempt to achieve a mutually satisfactory plan to address
such comments.
14
(n) Shell
Company Status. The Company is not an issuer identified in, or subject to, Rule 144(i) under the Securities Act.
(o) No
Nasdaq Inquiries; Delisting. Except as disclosed in SEC Documents, the Company has not, in the 12 months preceding the date of this
Agreement, received notice from any national securities exchange or automated quotation system on which the shares of Common Stock are
listed or designated for quotation to the effect that the Company is not in compliance with the listing or maintenance requirements of
such national securities exchange or automated quotation system.
(p) SEC
and Nasdaq Matters. The Company’s Common Stock is listed on the Principal Market (or traded on other exchange or market reasonably
acceptable to the Purchaser). No suspension of trading of the Company’s Common Stock is in effect.
(q) DTC
Eligibility. The Company, through its Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer (“FAST”)
Program and utilizes DTC’s Deposit/Withdrawal at Custodian (“DWAC”) service, and the shares of Common Stock may
be issued and transferred electronically to third parties via DTC’s DWAC service. The Company has not, in the 12 months preceding
the date of this Agreement, received any notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits
of the shares of Common Stock, or electronic trading or settlement services with respect to the shares of Common Stock are being imposed
or are contemplated by DTC.
(r) No
Anti-Takeover Provisions. The Company and its Board have taken all necessary action, if any, in order to render inapplicable any control
share acquisition, interested stockholder, business combination, or other similar antitakeover provision under the Certificate of Incorporation,
Bylaws or other organizational documents of the Company, as currently in effect, or the laws of the jurisdiction of its incorporation
or otherwise which is or could become applicable as a result of the transactions contemplated by this Agreement, including, without limitation,
the Company’s issuance of Issuable Shares hereunder and the Purchaser’s ownership of such Issuable Shares, together with all
other securities now or hereafter owned or acquired by the Purchaser. The Company and its Board have taken all necessary action, if any,
in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of
Issuable Shares or a change in control of the Company or any of its Subsidiaries. Until the earlier of the time that the Purchaser no
longer beneficially owns any Issuable Shares or July 30, 2027, the Board shall not adopt any anti-takeover provision, including without
limitation any stockholder rights plan or similar arrangement relating to accumulations of beneficial ownership of Common Stock, that
would limit the ability of Purchaser to acquire or hold Issuable Shares in accordance with this Agreement, without the Purchaser’s
written consent.
(s) Blue
Sky Matters. The Company shall take such action as the Purchaser shall reasonably determine is necessary in order to qualify the Issuable
Shares issuable to the Purchaser hereunder under applicable securities or “blue sky” laws of the states of the United States
for the issuance to the Purchaser hereunder and for resale by the Purchaser to the public (or to obtain an exemption from such qualification).
Without limiting any other obligation of the Company hereunder, the Company shall timely make all filings and reports relating to the
offer and issuance of such Issuable Shares required under all applicable securities laws (including, without limitation, all applicable
federal securities laws and all applicable state securities or “blue sky” laws), and the Company shall comply with all applicable
federal, state, local and foreign laws, statutes, rules, regulations and the like relating to the offering and issuance of such Issuable
Shares to the Purchaser.
(t) Litigation.
There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the Knowledge of the Company, threatened
against or affecting the Company, any Subsidiary or any of their respective properties except as set forth in Schedule 3.1(t),
or against or affecting the Company’s current or former officers or directors in their capacity as such, before or by any court,
arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively, an
“Action”) which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction
Documents or the Issuable Shares or (ii) could, if there were an unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect, and neither the Company nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action
involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has
not been, and to the Knowledge of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company
or any current or former director or officer of the Company that is likely to lead to action that can reasonably be expected to result
in a Material Adverse Effect. There has not been, and to the Knowledge of the Company, there is not pending or contemplated, any investigation
by the SEC involving the Company or any current or former director or officer of the Company. The SEC has not issued any stop order or
other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or
the Securities Act.
15
(u) No
Defaults. Except as disclosed in SEC Documents and/or in Schedule 3.1(u) hereof, the Company is not in a default under, or
has given 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.
(v) Employee
Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or employs any member
of a union. The Company believes that its and its Subsidiaries’ relations with their respective employees are good. The Company
and its Subsidiaries are in compliance with all federal, state, local and foreign laws and regulations respecting labor, employment and
employment practices and benefits, terms and conditions of employment and wages and hours, except as disclosed in Schedule 3.1(v)
or where failure to be in compliance would not, either individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect.
(w) Tax
Matters.
(i) All
Tax Returns required to be filed by or on behalf of the Company have been duly and timely filed with the appropriate Taxing Authority
in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which
to make such filings), and all such Tax Returns are true, complete and correct in all material respects. All Taxes payable by or on behalf
of the Company (whether or not shown on any Tax Return) have been fully and timely paid. With respect to any period for which Tax Returns
have not yet been filed or for which Taxes are not yet due or owing, the Company has made due and sufficient accruals for such Taxes in
the GAAP Financial Statements and in its books and records. All required estimated Tax payments sufficient to avoid any underpayment penalties
or interest have been made by or on behalf of the Company. The Company has complied in all material respects with all applicable Legal
Requirements relating to the payment and withholding of Taxes in connection with amounts paid or owing to any employee, independent contractor,
creditor, equity owner or other third party and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts
required to be so withheld and paid under all applicable Legal Requirements.
(ii) The
Company has not (i) requested any extension of time within which to file any Tax Return, which Tax Return has since not been filed, (ii)
granted any extension for the assessment or collection of Taxes, which Taxes have not since been paid, or (iii) granted to any Person
any power of attorney that is currently in force with respect to any Tax matter. The Company is not a foreign person within the meaning
of Sections 7701(a)(1) and 7701(a)(5) of the Code. The Company has never been a shareholder of any consolidated, combined, affiliated
or unitary group of corporations for any Tax purposes. The Company is not a party to any Tax allocation or Tax sharing agreement nor does
it have any liability for the Taxes of any Person under Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof
of any analogous or similar provision under Legal Requirement), as a transferee or successor, by contract, or otherwise.
(iii) The
Company has not made any payments, is not obligated to make any payments, or is not a party to any agreement that obligates it to make
any payments that are not deductible under Section 280G of the Code. The Company has not been a United States real property holding corporation
within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(a)(ii) of the Code.
(x) Indebtedness
and Other Contracts. Except as set forth on Schedule 3.1(x), neither the Company nor any of its Subsidiaries (i) has any outstanding
Indebtedness (as defined below), (ii) is a party to any contract, agreement or instrument, the violation of which, or default under which,
by the other party(ies) to such contract, agreement or instrument could reasonably be expected to result in a Material Adverse Effect,
(iii) is in violation of any term of, or in default under, any contract, agreement or instrument relating to any Indebtedness, except
where such violations and defaults would not result, individually or in the aggregate, in a Material Adverse Effect, or (iv) is a party
to any contract, agreement or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s
officers, has or is expected to have a Material Adverse Effect. For purposes of this Agreement: (x) “Indebtedness”
of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as
the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance with generally
accepted accounting principles) (other than trade payables entered into in the ordinary course of business), (C) all reimbursement or
payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes,
bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property,
assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred
as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights
and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property),
(F) all monetary obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles,
consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A)
through (F) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured
by) any mortgage, claim, lien, tax, right of first refusal, pledge, charge, security interest or other encumbrance upon or in any property
or assets (including accounts and contract rights) owned by any Person, even though the Person which owns such assets or property has
not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (A) through (G) above.
16
(y) Absence
of Certain Changes. Other than as disclosed in the SEC Documents, since the date of the Company’s most recent audited financial
statements contained in a Form 10-K, there has been no material adverse change and no material adverse development in the business, assets,
liabilities, properties, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any
of its Subsidiaries. Except as disclosed in the SEC Documents, since the date of the Company’s most recent audited financial statements
contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends, (ii) sold any assets,
individually or in the aggregate, outside of the ordinary course of business or (iii) made any capital expenditures, individually or in
the aggregate, outside of the ordinary course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek
protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up,
nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate
involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and
its Subsidiaries, on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated hereby
to occur at the Closing, will not be Insolvent (as defined below). For purposes of this Section 3(y), “Insolvent” means,
with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the Company’s
and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’ total indebtedness,
(B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend to incur or believe that they will incur debts
that would be beyond their ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries has engaged in any business
or in any transaction, and is not about to engage in any business or in any transaction, for which the Company’s or such Subsidiary’s
remaining assets constitute unreasonably small capital with which to conduct the business in which it is engaged as such business is now
conducted and is proposed to be conducted.
(z) No
Undisclosed Events, Liabilities, Developments or Circumstances. Since April 30, 2025, except as set forth in the SEC Documents: (i)
there has been no event, occurrence or development that has had or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any material liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses
incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in the SEC Documents, (iii) the Company has not altered its method of accounting, (iv)
the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed
or made any agreements to purchase or redeem any shares of its capital stock and (v) except as set forth on Schedule 3.1(z), the
Company has not issued any equity securities to any officer, director or Affiliate. The Company does not have pending before the SEC any
request for confidential treatment of information. Except for the issuance of the Issuable Shares contemplated by this Agreement or as
set forth on Schedule 3.1(z), no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably
expected to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, properties, operations, assets
or financial condition, that would be required to be disclosed by the Company under applicable securities laws at the time this representation
is made or deemed made that has not been publicly disclosed at least two Trading Days prior to the date that this representation is made.
(aa) 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 Transaction 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). The Company has exercised reasonable care
to determine whether any Issuer Covered Person is subject to a Disqualification Event.
(bb) General Solicitation.
None of the Company, any of its Affiliates or any person acting on behalf of the Company or such Affiliate will solicit any offer to buy
or offer or sell the Issuable Shares by means of any form of general solicitation or general advertising within the meaning of Regulation
D, including: (i) any advertisement, article, notice or other communication published in any newspaper, magazine or similar medium or
broadcast over television or radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general
advertising.
17
(cc) Compliance. Neither
the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred that has not been waived that, with
notice or lapse of time or both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary
received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other
agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation
has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator or other governmental authority or (iii)
is or has been in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation
all foreign, federal, state and local laws relating to ERISA, taxes, environmental protection, occupational health and safety, product
quality and safety and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material
Adverse Effect.
(dd) Regulatory Permits.
The Company and the Subsidiaries possess all approvals, certificates, authorizations and permits issued by the appropriate federal, state,
local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Documents, except where
the failure to possess such permits could not reasonably be expected to result in a Material Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification of any Material
Permit.
(ee) Title to Assets.
The Company and the Subsidiaries have good and marketable title in fee simple to all real property (if any) owned by them and good and
marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except as set forth on Schedule 3.1(ee) and except for (i) Liens as do not materially affect
the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and
the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for which appropriate reserves have been made in accordance
with GAAP and the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by
the Company and the Subsidiaries is held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance, or where the failure of a lease to be enforceable would not result in a Material Adverse Effect.
(ff) Intellectual Property.
(i) The
term “Intellectual Property Rights” includes:
(A) the
name of the Company and each Subsidiary, all fictional business names, trading names, registered and unregistered trademarks, service
marks, and applications of the Company and each Subsidiary (collectively, “Marks”);
(B) all
patents, patent applications, and inventions and discoveries that may be patentable of the Company and each Subsidiary (collectively,
“Patents”);
(C) all
copyrights in both unpublished works and published works of the Company and each Subsidiary (collectively, “Copyrights”);
(D) all
rights in mask works of the Company and each Subsidiary (collectively, “Rights in Mask Works”); and
(E) all
know-how, trade secrets, confidential information, customer lists, software, technical information, data, process technology, plans, drawings,
and blue prints (collectively, “Trade Secrets”); owned, used, or licensed by the Company and each Subsidiary as licensee
or licensor.
(ii) Agreements.
Except as set forth on Schedule 3.1(ff), there are no outstanding and, to the Company’s Knowledge, no threatened disputes
or disagreements with respect to any agreements relating to any Intellectual Property Rights to which the Company is a party or by which
the Company is bound.
(iii) Know-How
Necessary for the Business. The Intellectual Property Rights are all those necessary for the operation of the Company’s businesses
as it is currently conducted. The Company is the owner of all right, title, and interest in and to each of the Intellectual Property Rights,
except as set forth on Schedule 3.1(ff), free and clear of all liens, security interests, charges, encumbrances, equities, and
other adverse claims, and has the right to use all of the Intellectual Property Rights. To the Company’s Knowledge, no employee
of the Company has entered into any contract that restricts or limits in any way the scope or type of work in which the employee may be
engaged or requires the employee to transfer, assign, or disclose information concerning his work to anyone other than of the Company.
18
(iv) Patents.
The Company is the owner of, or has acquired the right and maintains the right to use, all right, title and interest in and to each of
the Patents, free and clear of all Liens and other adverse claims. All of the issued Patents are currently in compliance with formal legal
requirements (including payment of filing, examination, and maintenance fees and proofs of working or use), are valid and enforceable,
and are not subject to any maintenance fees or taxes or actions falling due within ninety days after the Initial Tranche Closing Date.
No Patent has been or is now involved in any interference, reissue, reexamination, or opposition proceeding. To the Company’s Knowledge
except as set forth in Schedule 3.1(ff): (1) there is no potentially interfering patent or patent application of any third party,
and (2) no Patent is infringed or has been challenged or threatened in any way. To the Company’s Knowledge, none of the products
manufactured and sold, nor any process or know-how used, by the Company infringes or is alleged to infringe any patent or other proprietary
right of any other Person.
(v) Trademarks.
The Company is the owner of all right, title, and interest in and to each of the Marks, free and clear of all Liens and other adverse
claims. All Marks that have been registered with the United States Patent and Trademark Office are currently in compliance with all formal
legal requirements (including the timely post-registration filing of affidavits of use and incontestability and renewal applications),
are valid and enforceable, and except as set forth on Schedule 3.1(ff) are not subject to any maintenance fees or taxes or actions
falling due within ninety days after the Initial Tranche Closing Date. Except as set forth in Schedule 3.1(y), no Mark has been
or is now involved in any opposition, invalidation, or cancellation and, to the Company’s Knowledge, no such action is threatened
with respect to any of the Marks. To the Company’s Knowledge: (1) there is no potentially interfering trademark or trademark application
of any third party, and (2) no Mark is infringed or has been challenged or threatened in any way. To the Company’s Knowledge, none
of the Marks used by the Company infringes or is alleged to infringe any trade name, trademark, or service mark of any third party.
(vi) Copyrights.
The Company is the owner of all rights, title, and interest in and to each of the Copyrights, free and clear of all Liens and other adverse
claims. All the Copyrights have been registered and are currently in compliance with formal requirements, are valid and enforceable, and
are not subject to any maintenance fees or taxes or actions falling due within ninety days after the date of the Closing. To the Company’s
Knowledge, no Copyright is infringed or has been challenged or threatened in any way. To the Company’s Knowledge, none of the subject
matter of any of the Copyrights infringes or is alleged to infringe any copyright of any third party or is a derivative work based on
the work of a third party. All works encompassed by the Copyrights have been marked with the proper copyright notice.
(vii) Trade
Secrets. With respect to each Trade Secret, the documentation relating to such Trade Secret is current, accurate, and sufficient in
detail and content to identify and explain it and to allow its full and proper use without reliance on the Knowledge or memory of any
individual. The Company has taken all reasonable precautions to protect the secrecy, confidentiality, and value of its Trade Secrets.
The Company has good title and an absolute and exclusive right to use the Trade Secrets. The Trade Secrets are not part of the public
knowledge or literature, and, to the Company’s Knowledge, have not been used, divulged, or appropriated either for the benefit of
any Person (other the Company) or to the detriment of the Company, except as disclosed on Schedule 3.1(ff). No Trade Secret is
subject to any adverse claim or has been challenged or threatened in any way.
(gg) Stock Option Plans.
Each stock option granted by the Company under the stock option plan was granted (i) in accordance with the terms of such stock option
plan and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock option would be
considered granted under GAAP and applicable law. No stock option granted under any stock option plan has been backdated. The Company
has not knowingly granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise
knowingly coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company
or its Subsidiaries or their financial results or prospects.
(hh) Office of Foreign
Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s Knowledge, any director, officer, agent, employee
or affiliate of the Company is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“OFAC”).
(ii) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material
respects with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the Knowledge of the Company
or any Subsidiary, threatened.
(jj) No Integrated Transaction.
Assuming the accuracy of the Purchaser’s representations and warranties set forth in Section 3.2, neither the Company, nor any of
its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or
solicited any offers to buy any security, under circumstances that would cause this offering of the Issuable Shares to be integrated with
prior offerings by the Company for purposes of: (i) the Securities Act which would require the registration of any such securities under
the Securities Act, or (ii) any applicable Stockholder Approval provisions of the Principal Market on which any of the securities of the
Company are listed or designated.
19
(kk) Application of Takeover
Protections. The Company and the Board will, no later than five (5) Business Days prior to the Initial Tranche Closing Date, have
taken all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Company’s Certificate of Incorporation
(or similar charter documents) or the laws of its state of incorporation that is or could become applicable to the Purchaser as a result
of the Purchaser and the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Issuable Shares and the Purchaser’s ownership of the Issuable Shares.
(ll) Sarbanes-Oxley; Internal
Accounting Controls. The Company and the Subsidiaries are in material compliance with any and all applicable requirements of the Sarbanes-Oxley
Act of 2002 that are effective as of the date hereof, and any and all applicable rules and regulations promulgated by the SEC thereunder
that are effective as of the date hereof and as of the Initial Tranche Closing Date. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that, except as set forth in the SEC Documents: (i) transactions
are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted
only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the
Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company
and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the SEC’s rules and forms.
(mm) Insurance. The
Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not limited
to, directors and officers insurance coverage at least equal to the Subscription Amount, except as set forth on Schedule 3.1(mm).
Neither the Company nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as
and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without
a significant increase in cost.
(nn) Disclosure. All
of the disclosure furnished by or on behalf of the Company to the Purchaser regarding the Company and its Subsidiaries, their respective
businesses and the transactions contemplated hereby, including the Disclosure Schedules to this Agreement, when taken together as a whole,
is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary in order
to make the statements made therein, in light of the circumstances under which they were made, not misleading. The press releases disseminated
by the Company during the twelve months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made and when made, not misleading. The Company acknowledges and agrees that the Purchaser
neither makes nor has made any representations or warranties with respect to the transactions contemplated hereby other than those specifically
set forth herein.
(oo) Solvency.
Based on the consolidated financial condition of the Company as of the Initial Tranche Closing Date, and the Company’s good faith
estimate of the fair market value of its assets, after giving effect to the receipt by the Company of the proceeds from the sale of the
Issuable Shares hereunder: (i) the fair saleable value of the Company’s assets exceeds the amount that will be required to be paid
on or in respect of the Company’s existing debts and other liabilities (including known contingent liabilities) as they mature,
(ii) the Company’s assets do not constitute unreasonably small capital to carry on its business as now conducted and as proposed
to be conducted including its capital needs taking into account the particular capital requirements of the business conducted by the Company,
consolidated and projected capital requirements and capital availability thereof, and (iii) the current cash flow of the Company, together
with the proceeds the Company would receive, were it to liquidate all of its assets, after taking into account all anticipated uses of
the cash, would be sufficient to pay all amounts on or in respect of its liabilities when such amounts are required to be paid. The Company
does not intend to incur debts beyond its ability to pay such debts as they mature (taking into account the timing and amounts of cash
to be payable on or in respect of its debt). The Company has no Knowledge of any facts or circumstances which lead it to believe that
it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction within one year from the
Initial Tranche Closing Date. Schedule 3.1(oo) sets forth as of the date hereof all outstanding liens and secured and unsecured
Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments. Except as disclosed on Schedule
3.1(mm), neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(pp) Foreign Corrupt Practices.
Neither the Company nor any Subsidiary, nor to the Knowledge of the Company or any Subsidiary, any agent or other person acting on behalf
of the Company or any Subsidiary, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or
other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf of which the Company is aware) which
is in violation of law or (iv) violated in any material respect any provision of FCPA.
20
(qq) Bank Holding Company
Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956, as amended
(the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal Reserve”).
Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent (5%) or more of the
outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or Affiliates exercises
a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal
Reserve.
(rr) Accountants and Lawyers.
The Company’s independent registered public accounting firm is set forth on Schedule 3.1(rr). To the Knowledge and belief
of the Company, such accounting firm: (i) is an independent registered public accounting firm and (ii) has expressed its opinion with
respect to the financial statements included in the Company’s Annual Report for the fiscal year ended April 30, 2025. There are
no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise, between the Company and the accountants
and lawyers formerly or presently employed by the Company and the Company is current with respect to any fees owed to its accountants
and lawyers which could affect the Company’s ability to perform any of its obligations under any of the Transaction Documents.
(ss) Material Agreements.
Except for the Transaction Documents (with respect to clause (i) only) or as set forth on Schedule 3.1(pp) hereto, or as would
not be reasonably likely to have a Material Adverse Effect, (i) the Company and each of its Subsidiaries have performed all obligations
required to be performed by them to date under any Material Agreement, (ii) neither the Company nor any of its Subsidiaries has received
any notice of default under any Material Agreement and, (iii) to the best of the Company’s Knowledge, neither the Company nor any
of its Subsidiaries is in default under any Material Agreement now in effect.
(tt) Promotional Stock
Activities. Neither the Company, its officers, its directors, nor any Affiliates or agents of the Company have engaged in any stock
promotional activity that could give rise to a complaint, inquiry, or trading suspension by the SEC alleging (i) a violation of the anti-fraud
provisions of the federal securities laws, (ii) violations of the anti-touting provisions, (iii) improper “gun-jumping; or (iv)
promotion without proper disclosure of compensation.
(uu) No “Off-balance
Sheet Arrangements.” Other than as set forth in Schedule 3.1(uu), neither the Company nor any of its Affiliates is involved
in any “Off-balance Sheet Arrangements”. For purposes hereof an “Off-balance Sheet Arrangement” means any
transaction or contract to which an entity unconsolidated with the Company or any of its Affiliates is a party and under which either
the Company or any such Affiliate has: (i) any obligation under a guarantee contract pursuant to which the Company or any of its Affiliates
could be required to make payments to the guaranteed party, including any standby letter of credit, market value guarantee, performance
guarantee, indemnification agreement, keep-well or other support agreement; (ii) any retained or contingent interest in assets transferred
to such unconsolidated entity that serves as credit, liquidity or market risk support to the entity in respect of such assets; (iii) any
variable interest held in such unconsolidated entity where such entity provides financing, liquidity, market risk or credit risk support
to, or engages in leasing, hedging or research and development services with the Company of any of its Affiliates; and (iv) any liability
or obligation of the same nature as those described in clauses (i) through (iii) of this sentence even if of a different name (whether
absolute, accrued, contingent or otherwise) that would not be required to be reflected in the Company or any of its Affiliates’
financial statements.
(vv) Compliance with Registration
Requirements. At the time the Company’s most recent Annual Report on Form 10-K for the period ended April 30, 2025 was filed
with the SEC, the Company met the then-applicable requirements for use of Form S-3 under the Securities Act. The documents incorporated
or deemed to be incorporated by reference in the Registration Statement, at the time they were or hereafter are filed with the SEC, or
became effective under the Exchange Act, as the case may be, complied and will comply with in all material respects with the requirements
of the Exchange Act.
(ww) Full Disclosure.
No representation or warranty by the Company in this Agreement and no statement contained in the Disclosure Schedules to this Agreement
or any certificate or other document furnished or to be furnished to the Purchaser pursuant to this Agreement contains any untrue statement
of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light of the circumstances
in which they are made, not misleading.
(xx) Survival.
The foregoing representations and warranties shall not survive the applicable Tranche Closing Date.
21
(yy) No Other Representations
or Warranties. Except for the representations and warranties made by the Company in this Section 3.1, neither the Company nor any
other Person makes any representation or warranty with respect to the Company or its Affiliates or Subsidiaries or their respective business,
operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to the Purchaser
or any of its Affiliates or representatives of any documentation, forecasts or other information with respect to any one or more of the
foregoing. Except for the representations and warranties contained in this Section 3.1, the Company hereby disclaims all liability and
responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally
or in writing) to the Purchaser or any of its Affiliates or representatives (including any opinion, information, projection, or advice
that may have been or may be provided to the Purchaser or by any director, officer, employee, agent, consultant, or representative of
the Company or any of its Affiliates). The Company makes no representations or warranties to the Purchaser or any of its Affiliates or
representatives regarding the probable success or profitability of the Company.
3.2 Representations
and Warranties of the Purchaser. The Purchaser hereby represents and warrants to, and as applicable covenants with, the Company as
of the date hereof and as of each Tranche Closing:
(a) Authority.
The Purchaser has all necessary company power and authority to execute and deliver the Transaction Documents, to perform its obligations
hereunder and to consummate the transactions contemplated hereby and thereby. The execution and delivery of this Agreement and the Transaction
Documents by the Purchaser, and the consummation by the Purchaser of the transactions contemplated hereby have been duly and validly authorized
by its managing member, and no other company proceedings on the part of the Purchaser are necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement and the Transaction Documents have been duly validly executed and delivered
by the Purchaser and, assuming due authorization, execution and delivery by the Company, constitute a legally valid and binding obligation
of the Purchaser, each enforceable against the Purchaser in accordance with its terms (except as such enforceability may be limited by
applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting creditors’ rights
generally and subject to the effect of general principles of equity, whether considered in a proceeding in equity or at law).
(b) No
Conflict. None of the execution, delivery or performance of the Transaction Documents by the Purchaser, the consummation by the Purchaser
of the transactions contemplated by this Agreement, or compliance by the Purchaser with any of the provisions of this Agreement will (with
or without notice or lapse of time, or both): (a) conflict with or violate any provision of the organizational or governing documents
of the Purchaser, or (b) assuming that all consents, approvals, authorizations and permits described in Section 3.1(d) have been obtained
and all filings and notifications described in Section 3.1(d) have been made and any waiting periods thereunder have terminated or expired,
conflict with or violate any law applicable to the Purchaser, except, with respect to clause (b), for any such conflicts, violations,
consents, breaches, losses, defaults, other occurrences which, individually or in the aggregate, have not had a material adverse effect
on the ability of the Purchaser to perform its obligations hereunder.
(c) Information
in the Form 8-K and Registration Statement. The information supplied by the Purchaser in writing expressly for inclusion or incorporation
by reference in the Form 8-K, the Registration Statement, and any amendment thereof, will not, on the date submitted to the Company, contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under which they are made, not misleading; provided, that such information
shall only consist the name, address and other information that is required to be provided in the Form 8-K and Registration Statement
for purposes of identifying the Purchaser.
(d) No
Litigation. There are no actions, suits, arbitrations, mediations, proceedings or claims pending or, to the knowledge of the Purchaser,
threatened against Purchaser that seeks to restrain or enjoin the consummation of the transactions contemplated hereby.
(e) Securities
Act Representations.
(i) Restricted
Shares. The Purchaser represents that it understands that except as provided herein or in the Registration Rights Agreement, the Issuable
Shares to be sold to it pursuant to this Agreement will not be registered pursuant to the registration requirements of the Securities
Act and that the resale of such Issuable Shares is subject to certain restrictions hereunder and under federal and state securities laws.
The Purchaser represents that it is acquiring such Issuable Shares for its own account, not as a nominee or agent, and not with a view
to the distribution thereof in violation of applicable securities laws. The Purchaser further represents that it has been advised and
understands that to the extent such Issuable Shares have not been registered under the Securities Act, such Issuable Shares must be held
indefinitely unless (i) the resale of such Issuable Shares has been registered under the Securities Act, (ii) a sale of such Issuable
Shares is made in conformity with the holding period, volume and other limitations of Rule 144 promulgated by the SEC under the Securities
Act, or (iii) in the opinion of counsel reasonably acceptable to the Company, some other exemption from registration is available with
respect to any proposed sale, transfer or other disposition of such Issuable Shares.
(ii) Legend.
The Purchaser represents that it has been advised and understands that, subject to applicable securities laws, stop transfer instructions
will be given to the Company’s Transfer Agent with respect to the Issuable Shares and that a legend, substantially in the form provided
for in Section 3.2(f) hereof, setting forth the restrictions on transfer will be set forth on the certificates for the Issuable Shares
or any substitutions therefor.
22
(iii) Accredited
Investor. The Purchaser is an “accredited investor” (as such term is defined in Regulation D under the Securities Act).
(iv) Affiliate
Status. As of the date of this Agreement and during the 90 calendar days prior to the date of this Agreement, neither the Purchaser
nor any Affiliate thereof is or was an officer, director, or 10% or more stockholder of the Company.
(v) Certain
Fees. The Purchaser represents that it has not paid, and shall not pay, any commissions or other remuneration, directly or indirectly,
to any third party for the solicitation of any transaction contemplated by this Agreement and no additional consideration from the Purchaser
was received or will be received by the Company for the Issuable Shares.
(vi) Absence
of Reliance. Purchaser understands and acknowledges that the issuance and transfer to it of the Issuable Shares has not been reviewed
by the SEC or any state securities regulatory authority because such transaction is intended to be exempt from the registration requirements
of the Securities Act, and applicable state securities laws. Purchaser understands that the Company is relying upon the truth and accuracy
of, and Purchaser’s compliance with, the representations, warranties, acknowledgments and understandings of Purchaser set forth
herein in order to determine the availability of such exemptions and the eligibility of Purchaser to acquire the Issuable Shares.
(vii) Status
of Purchaser. Purchaser has such knowledge and experience in financial and business matters that it is capable of evaluating the merits
and risks of Purchaser’s investment in the Company through Purchaser’s acquisition of the Issuable Shares. The Purchaser is
able to bear the economic risk of its investment in the Company through Purchaser’s acquisition of the Issuable Shares for an indefinite
period of time. The Purchaser can afford a complete loss of such investment and has no need for liquidity in such investment. Purchaser
acknowledges that it has prior investment experience and that it recognizes and fully understands the highly speculative nature of Purchaser’s
investment in the Company pursuant to its acquisition of the Issuable Shares. The Purchaser acknowledges that it, either alone or together
with its professional advisors, has the capacity to protect its own interests in connection with the transactions contemplated hereby.
(viii) No
General Solicitation. The Purchaser represents and warrants that it was not induced to invest in the Company (pursuant to the issuance
to it of the Issuable Shares) by any form of general solicitation or general advertising, including, but not limited to, the following:
(a) any advertisement, article, notice or other communication published in any newspaper, magazine or similar media (including via the
Internet) or broadcast over the news or radio or (b) any seminar or meeting whose attendees were invited by any general solicitation or
advertising.
(ix) No
Short Sales. Purchaser agrees that neither it nor its Affiliates, agents or representatives shall at any time engage in any Short
Sales of, or sell put options or similar instruments with respect to, the Company’s Common Stock or any other of the Company’s
securities.
(x) Acknowledgement
of Receipt of Information. The Purchaser has had an opportunity to ask questions and receive answers and materials, and to discuss
the business of the Company and its subsidiaries and related matters, with certain key officers of the Company and its subsidiaries regarding
the transactions contemplated hereby. The Purchaser hereby acknowledges and agrees that other than the Company’s representations
and warranties set forth in Section 3.1 hereof, neither the Company nor any of its representatives makes or has made any representation
or warranty, express or implied, at law or in equity, with respect to the business of the Company or any subsidiary thereof nor with respect
to the Issuable Shares.
(f) The
Purchaser understands and agrees that the certificates for the Issuable Shares shall bear substantially the following legend:
“NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.”
23
(g) Certificates
evidencing Issuable Shares shall not be required to contain the legend set forth in Section 3.2 (h) above or any other legend (i) while
a registration statement covering the resale of such Issuable Shares is effective under the Securities Act, (ii) following any sale of
such Issuable Shares pursuant to Rule 144 (assuming the transferor is not an affiliate of the Company), (iii) if such Issuable Shares
are eligible to be sold, assigned or transferred under Rule 144 (provided that the Purchaser provides the Company with reasonable assurances
that such Issuable Shares are eligible for sale, assignment or transfer under Rule 144 which shall not include an opinion of the Purchaser’s
counsel), (iv) in connection with a sale, assignment or other transfer (other than under Rule 144), provided that the Purchaser provides
the Company with an opinion of counsel, in a generally acceptable form, to the effect that such sale, assignment or transfer of the Issuable
Shares may be made without registration under the applicable requirements of the Securities Act or (v) if such legend is not required
under applicable requirements of the Securities Act (including, without limitation, controlling judicial interpretations and pronouncements
issued by the SEC). If a legend is not required pursuant to the foregoing, the Company shall no later than three (3) business days following
the delivery by the Purchaser to the Company or the transfer agent (with notice to the Company) of a legended certificate representing
such Issuable Shares (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance
and/or transfer, if applicable), together with any other deliveries from the Purchaser as may be required above in this Section 3.2 (i),
as directed by the Purchaser, either: (A) provided that the Company’s transfer agent is participating in the DTC Fast Automated
Securities Transfer Program and the Issuable Shares are Conversion Shares, credit the aggregate number of Conversion Shares to which the
Purchaser shall be entitled to the Purchaser’s or its designee’s balance account with DTC through its Deposit and Withdrawal
at Custodian system or (B) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities Transfer Program,
issue and deliver (via reputable overnight courier) to the Purchaser, a certificate representing such Issuable Shares that is free from
all restrictive and other legends, registered in the name of the Purchaser or its designee. The Company shall be responsible for any transfer
agent fees, fees of legal counsel to the Company or DTC fees with respect to any issuance of Issuable Shares or the removal of any legends
with respect to any Issuable Shares in accordance herewith.
(h) The
Purchaser understands that neither the SEC nor any state securities commission has approved the Issuable Shares or passed upon or endorsed
the merits of the Transaction. There is no government or other insurance covering any of the Issuable Shares.
(i) The
Purchaser has taken no action that would give rise to any claim by any person for brokerage commissions, finders’ fees or the like
relating to this Agreement or the transactions contemplated hereby.
(j) The
Purchaser and the Purchaser’s attorney, accountant, purchaser representative and/or tax advisor, if any (collectively, the “Advisors”)
has such knowledge and experience in legal, financial and business matters as to be capable of evaluating the merits and risks of a prospective
investment in the Issuable Shares. The Purchaser has not been organized solely for the purpose of acquiring the Issuable Shares. The Purchaser
is not relying on the Company or any of its employees, agents, or advisors with respect to the legal, tax, economic and related considerations
of an investment in the Issuable Shares, and the Purchaser has relied on the advice of, or has consulted with, only its own Advisors.
(k) No
oral or written representations have been made, or oral or written information furnished, to the Purchaser or its Advisors, if any, in
connection with the Transaction that are in any way inconsistent with the information contained herein.
(l) The
Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the Transaction, and has so evaluated the merits and risks of such investment.
The Purchaser has not authorized any person or entity to act as its Purchaser Representative (as that term is defined in Regulation D
of the General Rules and Regulations under the Securities Act) in connection with the Transaction. The Purchaser is able to bear the economic
risk of an investment in the Issuable Shares and, at the present time, is able to afford a complete loss of such investment.
ARTICLE
IV
COVENANTS
4.1 Transfer
Restrictions.
(a) The
Issuable Shares may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Issuable
Shares other than pursuant to an effective registration statement or Rule 144, to the Company or to an Affiliate of the Purchaser or in
connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an
opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall
be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Issuable
Shares under the Securities Act. As a condition of such transfer, any such transferee shall agree in writing to be bound by the terms
of this Agreement and the other applicable Transaction Documents and shall have the rights and obligations of the Purchaser under this
Agreement.
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(b) The
Purchaser agrees to the imprinting, so long as is required by this Section 4.1, of a legend on the Issuable Shares in the following form:
“NEITHER THE ISSUANCE AND SALE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED
OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION
IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING
THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED
BY THE SECURITIES.”
The Company acknowledges and
agrees that, the Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Issuable Shares to a financial institution that is an “accredited investor” as defined
in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and the other applicable Transaction
Documents and, if required under the terms of such arrangement, the Purchaser may transfer pledged or secured Issuable Shares into the
name of the pledgees or secured parties, in their respective capacities as such. Such a pledge or transfer would not be subject to approval
of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith.
Further, no notice shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver
such reasonable documentation as a pledgee or secured party of Issuable Shares may reasonably request in connection with a pledge or transfer
of the Issuable Shares.
(c) Certificates
evidencing the Conversion Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration
statement covering the resale of any such securities are effective under the Securities Act; (ii) following any sale of such Conversion
Shares pursuant to Rule 144; if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations
and pronouncements issued by the staff of the SEC). The Company shall upon request of the Purchaser and at the Company’s sole expense
cause its counsel (or at the Purchaser’s option, counsel selected by the Purchaser) to issue a legal opinion reasonably satisfactory
to the Company to the Transfer Agent promptly after any of the events described in (i)-(ii) in the preceding sentence if required by the
Transfer Agent to effect the removal of the legend hereunder (with a copy to the applicable Purchaser and its broker). If all or any portion
of any Preferred Shares is converted at a time when there is an effective registration statement to cover the resale of the Conversion
Shares, or if such Conversion Shares may be sold under Rule 144 or if such legend is not otherwise required under applicable requirements
of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the SEC) then such Conversion Shares
shall be issued free of all legends. The Company agrees that following such time as such legend is no longer required under this Section
4.1(c), it will, no later than 9:00 AM the next Trading Day following the delivery by a Purchaser to the Company or the Transfer Agent
of a certificate representing Conversion Shares issued with a restrictive legend (such Trading Day, the “Legend Removal Date”),
instruct the Transfer Agent to deliver or cause to be delivered to the Purchaser a certificate representing such shares of Common Stock
that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the
Transfer Agent that enlarge the restrictions on transfer set forth in this Article IV. Certificates for the Conversion Shares that are
subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser’s
prime broker with the Depository Trust Company System as directed by the Purchaser.
(d) In
lieu of delivering physical certificates representing the unlegended shares, upon request of the Purchaser, so long as the certificates
therefor do not bear a legend and the Purchaser is not obligated to return such certificate for the placement of a legend thereon and
provided it is commercially reasonable for the Company to do so, the Company shall cause its transfer agent to electronically transmit
the unlegended shares by crediting the account of Purchaser’s prime broker with the Depository Trust Company through its DWAC system,
provided that the Company’s Common Stock is DTC eligible and the Company’s transfer agent participates in the Deposit Withdrawal
at Custodian system and such Issuable Shares are Conversion Shares. Such delivery must be made on or before the Legend Removal Date.
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(e) In
the event the Purchaser shall request delivery of unlegended shares as described in this Section 4.1 and the Company is required to deliver
such unlegended shares, the Company may not refuse to deliver unlegended shares based on any claim that the Purchaser or anyone associated
or affiliated with the Purchaser has not complied with Purchaser’s obligations under the Transaction Documents, or for any other
reason, unless, an injunction or temporary restraining order from a court, on notice, restraining and or enjoining delivery of such unlegended
shares shall have been sought and obtained by the Company and the Company has posted a surety bond for the benefit of the Purchaser in
the amount of the greater of (i) 100% of the amount of the aggregate stated value of the Conversion Shares which is subject to the injunction
or temporary restraining order, or (ii) the VWAP of the Common Stock on the trading day before the issue date of the injunction multiplied
by the number of unlegended shares to be subject to the injunction, which bond shall remain in effect until the completion of arbitration/litigation
of the dispute and the proceeds of which shall be payable to the Purchaser to the extent Purchaser obtains judgment in Purchaser’s
favor.
4.2 Furnishing
of Information. For as long as the Purchaser owns Preferred Shares, the Company covenants to timely file (or obtain extensions in
respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant
to the Exchange Act. Upon the request of the Purchaser, the Company shall deliver to the Purchaser a written certification of a duly authorized
officer as to whether it has complied with the preceding sentence. For as long as the Purchaser owns Preferred Shares, if the Company
is not required to file reports pursuant to such laws, it will prepare and furnish to the Purchaser and make publicly available in accordance
with Rule 144(c) such information as is required for the Purchaser to sell the Preferred Shares under Rule 144. The Company further covenants
that it will take such further action as any holder of Preferred Shares may reasonably request, all to the extent required from time to
time to enable such Person to sell such Preferred Shares without registration under the Issuable Shares Act within the limitation of the
exemptions provided by Rule 144.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in Section
2 of the Securities Act) that would be integrated with the offer or sale of the Preferred Shares in a manner that would require the registration
under the Securities Act of the sale of the Preferred Shares to Purchaser or that would be integrated with the offer or sale of the Preferred
Shares for purposes of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing
of such other transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.4 Securities
Laws Disclosure; Publicity. The Company shall timely file a Current Report on Form 8-K (the “Form 8-K”) as required
by this Agreement, and may issue a press release, in each case reasonably acceptable to Purchaser, disclosing the material terms of the
transactions contemplated hereby. The Company and Purchaser shall consult with each other in issuing any press releases with respect to
the transactions contemplated hereby, and neither the Company nor Purchaser shall issue any such press release or otherwise make any such
public statement without the prior consent of the Company, with respect to any such press release of Purchaser, or without the prior consent
of Purchaser, with respect to any such press release of the Company, which consent shall not unreasonably be withheld or delayed, except
if such disclosure is required by law or Principal Market Rules, in which case the disclosing party shall promptly provide the other party
with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the
name of the Purchaser, or include the name of the Purchaser in any filing with the SEC or any regulatory agency or Principal Market, without
the prior written consent of the Purchaser, except (i) as contained in the Form 8-K and press release described above, (ii) as required
by federal securities law in connection with any registration statement under which the securities are registered, (iii) to the extent
such disclosure is required by law or Principal Market Rules, in which case the Company shall provide Purchaser with prior notice of such
disclosure, or (iv) to the extent such disclosure is required in any SEC Document filed by the Company.
4.5 Certain
Rights Granted to the Purchaser. For as long as the Purchaser and its affiliates beneficially own no less than five percent (5%) of
the Common Stock:
(a) William
B. Horne will remain the Chairman of the Board and be paid $50,000 per annum for his services;
(b) Henry
C. W. Nisser will remain a member of the Board for no additional remuneration;
(c) Milton
C. Ault:
(i) will
be named as the Company’s Founder and Chairman Emeritus in any public filing or other publicized report filed or issued by the Company;
and
(ii) will
remain a member of the Board and be paid $25,000 per annum for serving in such capacity.
4.6 [Reserved]
4.7 Stockholders
Rights Plan; Investment Company. No claim will be made or enforced by the Company or, to the Knowledge of the Company, any other Person
that Purchaser is an “Acquiring Person” under any stockholders rights plan or similar plan or arrangement in effect or hereafter
adopted by the Company, or that Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving
Preferred Shares under the Transaction Documents or under any other agreement between the Company and Purchaser. The Company shall conduct
its business in a manner so that it will not become subject to the Investment Company Act of 1940, as amended.
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4.8 Non-Public
Information. The Company covenants and agrees that neither it nor any other Person acting on its behalf will provide Purchaser or
its agents or counsel with any information that the Company believes constitutes MNPI, unless prior thereto Purchaser shall have executed
a written agreement regarding the confidentiality and use of such information. On and after the date hereof, other than as described herein,
neither Purchaser nor any Affiliate of Purchaser shall have any duty of trust or confidence that is owed directly, indirectly, or derivatively,
to the Company or the stockholders of the Company, or to any other Person who is the source of material non-public information regarding
the Company. The Company understands and confirms that Purchaser shall be relying on the foregoing in effecting transactions in securities
of the Company.
4.9 Use
of Proceeds. For each of the Initial Closing, the Second Closing and all Subsequent Closings, the Company shall use the net proceeds
from all such closings for general working capital and corporate purposes, as well as to pay the Origination Fee.
4.10 Certain
Limitations. Notwithstanding anything contained in any Transaction Document to the contrary, the parties covenant and agree that the
Purchaser shall not convert any Preferred Shares or sell any Conversion Shares to the extent it would exceed the Principal Market Cap,
unless and until the Company obtains Principal Market Approval and Stockholder Approval of the Transaction in accordance with the Principal
Market Rules. The Purchaser further covenants and agrees not to vote any of its Issuable Shares at the meeting of the stockholders held
for the purpose of obtaining such Stockholder Approval.
4.11 [Reserved]
4.12 Certain
Transactions. The Purchaser covenants and agrees that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding
with it will execute any Short Sales of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect
to the Company’s Common Stock) during the period commencing with the execution of this Agreement and ending on the date of the full
conversion of the Preferred Shares.
4.13 Registration
Statement. The Company shall file with the SEC a registration statement covering the sale of the Conversion Shares (the “Registration
Statement”) as further described in the Registration Rights Agreement.
4.14 Maintenance
of Registration Statement. For so long as any of the Issuable Shares remains outstanding, the Company shall use its best efforts to
maintain the effectiveness of the Registration Statement for the sale thereunder of the Issuable Shares. The Company shall promptly amend
the Registration Statement on such other form as may be necessary to maintain the effectiveness of the Registration Statement for this
purpose. If at any time following the date hereof the Registration Statement is not effective or is not otherwise available for the issuance
of the Issuable Shares or any prospectus contained therein is not available for use, the Company shall immediately notify the Purchaser
in writing that the Registration Statement is not then effective or a prospectus contained therein is not available for use and thereafter
shall promptly notify the Purchaser when the Registration Statement is effective again and available for the issuance of the Issuable
Shares or such prospectus is again available for use.
4.15 Primary
Market Compliance. Notwithstanding anything in this Agreement or any other Transaction Document to the contrary, the parties shall
use commercially reasonable efforts to comply with the rules of the Principal Market, including the listing requirements, and as long
as the Common Stock remains listed on the Principal Market the parties shall not enforce any provision of any Transaction Document which
does not comply with the rules of the Principal Market.
4.16 Reservation
of Shares. The Company shall initially duly authorize and reserve 25,000 shares of Series D Convertible Preferred Stock and thereafter
shall have a sufficient number of duly authorized shares of Series D Convertible Preferred Stock to be able to issue the Preferred Shares
to the Purchaser. The Company shall initially reserve 29,283,000 shares of its authorized and unissued Common Stock, solely for the purpose
of issuing the Conversion Shares. Thereafter, the Company shall reserve and keep available out of its authorized and unissued Common Stock,
solely for the purpose of issuing the Conversion Shares, a number of authorized and unissued shares of Common Stock as indicated in the
Certificate.
4.17 Listing.
The Company shall promptly secure the listing or designation for quotation (as the case may be) of all of the Conversion Shares upon each
trading market and national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or
designated for quotation (as the case may be) (so that all such Conversion Shares may be traded on the foregoing, subject to official
notice of issuance) and shall maintain such listing or designation for quotation (as the case may be) of all Conversion Shares from time
to time issuable under the terms of the Transaction Documents on such national securities exchange or automated quotation system. The
Company shall maintain the Common Stock’s listing or designation for quotation (as the case may be) on the Principal Market, the
New York Stock Exchange, the Nasdaq Global Select Market, the Nasdaq Global Market or the Nasdaq Capital Market (each, an “Eligible
Market”). The Company shall not take any action which could be reasonably expected to result in the delisting or suspension
of the Common Stock on the Principal Market or any Eligible Market. The Company shall pay all fees and expenses in connection with satisfying
its obligations under this Section 4.17.
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4.18 Additional
Investment Right. At any time on or prior to the three-year anniversary of the Execution Date (the “AIR Period”),
the Purchaser shall have the right to purchase up to an additional $25 million of Preferred Shares, on the same terms as contained in
the Transaction Documents, pursuant to a securities purchase agreement and related documents substantially the same as these Transaction
Documents (the “Additional Investment Right”). The Company and the Purchaser shall use their collective best efforts
to execute new documents for the Additional Investment Right within ten (10) Business Days after the Purchaser provides written notice
to the Company during the AIR Period of its election to exercise the Additional Investment Right and the amount of the Additional Investment
Right. In the event that the Purchaser exercises the Additional Investment Right, such right shall continue, until the earlier of (i)
the end of the AIR Period or (ii) the Purchaser has purchased an aggregate of $50 million of Preferred Shares between this Transaction
and the Additional Investment Right.
4.19 Conduct
of Business. The business of the Company shall not be conducted in violation of any law, ordinance or regulation of any governmental
entity, except where such violations would not result, either individually or in the aggregate, in a Material Adverse Effect.
4.20 Passive
Foreign Investment Company. The Company shall conduct its business in such a manner as will ensure that the Company will not be deemed
to constitute a passive foreign investment company within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.
4.21 Notice
of Disqualification Events. The Company will notify the Purchaser in writing, prior to any Tranche Closing Date of (i) any Disqualification
Event relating to any Issuer Covered Person and (ii) any event that would, with the passage of time, become a Disqualification Event relating
to any Issuer Covered Person not otherwise disclosed herein.
4.22 Indemnification
of Purchaser. Subject to the provisions of this Section 4.22, the Company will indemnify and hold the Purchaser and its officers,
managers, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person holding such
titles notwithstanding a lack of such title or any other title), each Person who controls the Purchaser (within the meaning of Section
15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, managers, stockholders, agents, members, partners
or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding a lack of such
title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court
costs and reasonable attorneys’ fees and costs of investigation that any the Purchaser Party may suffer or incur as a result of
or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement
or in the other Transaction Documents or (b) any action instituted against, or any subpoena directed to, the Purchaser Parties in any
capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of the Purchaser Party,
with respect to any of the transactions contemplated by the Transaction Documents (unless such action is based upon a breach of the Purchaser
Party’s representations, warranties or covenants under the Transaction Documents or any agreements or understandings the Purchaser
Party may have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct
by the Purchaser Party which constitutes fraud, gross negligence or willful misconduct). If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement, the Purchaser Party shall promptly notify the Company in
writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably acceptable to
the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of the Purchaser Party except to the extent that (i) the employment
thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume
such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of counsel retained to represent such Purchaser
Party, a material conflict on any material issue between the position of the Company and the position of the Purchaser Party, in which
case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel. The Company will
not be liable to any Purchaser Party under this Agreement (x) for any settlement by the Purchaser Party effected without the Company’s
prior written consent, which shall not be unreasonably withheld or delayed; or (y) to the extent, but only to the extent that a loss,
claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties, covenants
or agreements made by the Purchaser Party in this Agreement or in the other Transaction Documents or such Purchaser Party’s fraud,
gross negligence or willful misconduct. The indemnification required by this Section 4.22 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are received or are incurred. The indemnification contained
herein shall be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities
the Company may be subject to pursuant to applicable law.
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4.23 Form
D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the sale of the Issuable Shares by the Company under
this Agreement as required under Regulation D. The Company shall take such action as the Company shall reasonably determine is necessary
in order to obtain an exemption for, or to qualify the Issuable Shares for, sale to the Purchaser at the Closing under applicable securities
or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly upon request of
the Purchaser.
4.24 Board
Observer Rights. As long as the Purchaser holds any Preferred Shares, the Purchaser shall be entitled to board observation rights
unless individuals affiliated with the Purchaser are members of the Board.
4.25 Most
Favored Nation Status. From the date hereof through the date that no Preferred Shares are outstanding, the Company shall not enter
into any public or private offering of its securities (including securities convertible into shares of Common Stock) with any individual
or entity (an “Other Investor”) that has the effect of establishing rights or otherwise benefiting such Other Investor
in a manner more favorable to such Other Investor than the rights and benefits established in favor of the Purchaser by the Preferred
Shares and the other Transaction Documents, unless, in any such case, the (i) the Company shall notify the Purchaser of such additional
or more favorable term within three (3) Business Days of the issuance of the respective security, and (ii) such term, at the Purchaser’s
option, shall become a part of the Transaction Documents with the Company (regardless of whether the Company complied with the notification
provision of this Section 4.25). The types of terms contained in another security that may be more favorable to the holder of such security
include, but are not limited to, terms addressing redemption features, rights of first refusal, dividends and conversion lookback periods.
4.26 Right
of First Refusal. For a period of three (3) years from the date the Purchaser no longer holds any Preferred Shares, the Company grants
the Purchaser the right of first refusal (a “Right of First Refusal”) with respect to any investment proposed to be
made by an Other Investor for each and every future public or private equity offering, including a debt instrument convertible into equity
of the Company during such three-year period (an “Offering”). The Company shall notify the Purchaser of its intention
to pursue any such Offering, including the material terms thereof, by providing written notice thereof to the Purchaser. If the Purchaser
fails to accept in writing any such proposal for such Offering within seven (7) business days after receipt of a written notice in accordance
with this Section 4.26 from the Company, then the Purchaser will have no claim or right with respect to any such Offering contained in
any such notice. If the Purchaser determines to participate in the Offering, it shall have fifteen (15) days thereafter to close upon
that Offering. If, thereafter, such proposal is modified in any material respect, the Company will adopt the same procedure as with respect
to the original proposed Offering and the Purchaser shall have the right of first refusal with respect to such revised proposal.
4.27 Right
of Participation. For a period of three (3) years from the date the Purchaser no longer holds any Preferred Shares or Conversion Shares,
the Company acknowledges and agrees that the right set forth in this Section 4.27 is a right granted by the Company, separately, to the
Purchaser.
(a) If
the Purchaser has been advised by the Company of an Offering but the Purchaser fails or declines to exercise its Right of First Refusal
with respect thereto, and if the Company has delivered to the Purchaser or its assigns a notice (an “MNPI Pre-Notice”)
and offer to deliver material non-public information (“MNPI”), and the Purchaser or its assigns has delivered written
notice that it will accept such MNPI and only in that event, at least ten (10) Business Days prior to any proposed or intended sale by
the Company of its Common Stock or other securities or equity linked debt obligations other than an Exempt Issuance other than (v) thereof
(each, a “Subsequent Placement”), the Company shall deliver to the Purchaser a written notice of its proposal or intention
to effect a Subsequent Placement (each such notice, a “Pre-Notice”), which Pre-Notice shall not contain any information
(including, without limitation, material, non-public information) other than: (A) a statement that the Company proposes or intends to
effect a Subsequent Placement, (B) a statement that the statement in clause (A) above does not constitute material, non-public information
and (C) a statement informing the Purchaser that it is entitled to receive an Offer Notice (as defined below) with respect to such Subsequent
Placement upon its written request. Upon the written request of the Purchaser within five (5) Business Days after the Company’s
delivery to the Purchaser of such Pre-Notice, and only upon a written request by the Purchaser, the Company shall promptly, but no later
than three (3) Business Days after such request, deliver to the Purchaser an irrevocable written notice (the “Offer Notice”)
of any proposed or intended issuance or sale or exchange (the “Offer”) of the securities being offered (the “Offered
Securities”) in a Subsequent Placement, which Offer Notice shall (I) identify and describe the Offered Securities, (II) describe
the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered Securities to be
issued, sold or exchanged, (III) identify the persons (if known) to which or with which the Offered Securities are to be offered, issued,
sold or exchanged and (IV) offer to issue and sell to or exchange with the Purchaser in accordance with the terms of the Offer such number
of Offered Securities entitling the Purchaser to acquire up to 33.33% of the Offered Securities in the Subsequent Placement (the “Participation
Amount”).
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(b) To
accept an Offer, in whole or in part, the Purchaser must deliver a written notice to the Company prior to the end of the third (3rd) Business
Day after the Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth the portion of the
Purchaser’s Participation Amount that the Purchaser elects to purchase. Notwithstanding the foregoing, if the Company desires to
modify or amend the terms and conditions of the Offer prior to the expiration of the Offer Period, the Company may deliver to the Purchaser
a new Offer Notice and the Offer Period shall expire on the fifth (5th) Business Day after the Purchaser’s receipt of such new Offer
Notice. Notwithstanding anything herein to the contrary, in the event that the Subsequent Placement is an “overnight” registered
direct offering (“RDO”), there shall be no Pre-Notice required to be delivered to the Purchaser; provided that the
Subsequent Placement is delivered between the time period of 4:00 pm (New York City time) and 6:00 pm (New York City time) on the Trading
Day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement (or, if the Trading Day of the expected
announcement of the Subsequent Placement is the first Trading Day following a holiday or a weekend (including a holiday weekend), between
the time period of 4:00 pm (New York City time) on the Trading Day immediately prior to such holiday or weekend and 2:00 pm (New York
City time) on the day immediately prior to the Trading Day of the expected announcement of the Subsequent Placement). The Offer Notice
shall describe in reasonable detail the proposed terms of such Subsequent Placement, the amount of proceeds intended to be raised thereunder
and the Person or Persons through or with whom such Subsequent Placement is proposed to be effected and shall include a term sheet or
similar document relating thereto as an attachment. In addition, in the event of an RDO, any Purchaser desiring to participate in such
Subsequent Placement must provide written notice to the Company by 6:30 am (New York City time) on the Trading Day following the date
on which the Offer Notice is delivered to such Purchaser (the “Notice Termination Time”) that such Purchaser is willing
to participate in the Subsequent Placement, the amount of such Purchaser’s participation, and representing and warranting that such
Purchaser has such funds ready, willing, and available for investment on the terms set forth in the Offer Notice. If the Company receives
no such notice from a Purchaser as of such Notice Termination Time, such Purchaser shall be deemed to have notified the Company that it
does not elect to participate in such Subsequent Placement.
ARTICLE
V
TERMINATION
5.1 Termination.
(a) The
Purchaser may elect to terminate this Agreement upon the occurrence of any of the following:
(i) if
at any time the Company has filed for and/or is subject to any bankruptcy, insolvency, reorganization or liquidation proceedings or other
proceedings for relief under any bankruptcy law or any law for the relief of debtors instituted by or against the Company or any Subsidiary
of the Company;
(ii) the
Company is in breach or default of any Material Agreement, which breach or default could reasonably be expected to have a Material Adverse
Effect; or
(iii) the
Company is in breach or default of this Agreement, any Transaction Document, or any agreement with any Purchaser or any Affiliate of the
Purchaser, which breach or default could reasonably be expected to have a Material Adverse Effect.
(b) The
Company may elect to terminate this Agreement in the event that the Purchaser is in breach or default of this Agreement, any Transaction
Document, or any agreement with the Company or any Affiliate of the Company, which breach or default could reasonably be expected to have
a Material Adverse Effect.
(c) This
Agreement will automatically terminate if the Initial Closing has not occurred prior to the Termination Date, unless extended by the mutual
consent of the parties in writing.
ARTICLE
VI
MISCELLANEOUS
6.1 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever the Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then the Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights; provided, however, that in the case of a rescission of a conversion of any Preferred
Share, the Purchaser shall be required to return any shares of Common Stock subject to any such rescinded conversion or exercise notice
concurrently with the return to the Purchaser of the aggregate exercise price paid to the Company for such shares.
6.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its Advisors, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees, DTC fees, stamp taxes
and other similar taxes and duties levied in connection with the delivery of any Issuable Shares to the Purchaser in addition to paying
the cost of any counsel or other expenses incurred in rendering Rule 144 opinions of counsel for the benefit of the Purchaser upon request.
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6.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
6.4 Notices.
All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and,
unless otherwise specified herein, shall be (i) personally served, (ii) delivered by reputable air courier service with charges prepaid,
or (iv) transmitted by email, addressed as set forth below or to such other address as such party shall have specified most recently by
written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand
delivery or delivery by email, at the address or number designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during
normal business hours where such notice is to be received) or (b) on the second business day following the date of express courier service,
fully prepaid, addressed to such address, or upon actual receipt of such delivery, whichever shall first occur. The addresses for such
communications shall be: (i) if to the Company, to: Alzamend Neuro, Inc., 3802 Spectrum Blvd., Suite 112C, Tampa, FL 33612, Attn. Stephan
Jackman, CEO, email: Sjackman@alzamend.com with a copy by e-mail only (which shall not constitute notice) to: Alzamend Neuro, Inc., 122
East 42nd Street, 50th Floor, Suite 5000, New York, NY 10168, Attn: James M. Turner, Esq., email: James@alzamend.com, and (ii)
if to the Purchaser, to: the addresses and email address indicated on the signature pages hereto.
6.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and the Purchaser, or, in the case of a waiver, by the party against whom enforcement of any
such waived provision is sought. No waiver of any default with respect to any provision, condition or requirement of this Agreement shall
be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition
or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner impair the exercise
of any such right.
6.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
6.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Purchaser. The
Purchaser may assign any or all of its rights under this Agreement to any Person to whom the Purchaser assigns or transfers any Issuable
Shares, provided that such transferee agrees in writing to be bound, with respect to the transferred Issuable Shares, by the provisions
of the Transaction Documents that apply to the “Purchasers.”
6.8 No
Third-Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, except as otherwise set forth herein.
6.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the State, City and County of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in the State, City and County of for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any 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 improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an action or proceeding to enforce any provisions of the Transaction Documents, then the prevailing
party in such action, suit or proceeding shall be reimbursed by the other party for its reasonable attorneys’ fees and other costs
and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
6.10 Survival.
The representations and warranties contained herein shall not survive the applicable Tranche Closing Date.
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6.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery
of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original
thereof.
6.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
6.13 Further
Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute
and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
6.14 Replacement
of Issuable Shares. If any certificate or instrument evidencing any of the Issuable Shares is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon surrender and cancellation thereof (in the case
of mutilation), or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company of such loss, theft, destruction, or mutilation, and of the ownership of such Security. The applicant for
a new certificate or instrument under such circumstances shall also pay any reasonable third-party costs (including customary indemnity
and bonds) associated with the issuance of such replacement Issuable Shares.
6.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchaser
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and hereby
agree to waive and not to assert in any action for specific performance of any such obligation the defense that a remedy at law would
be adequate.
6.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to the Purchaser pursuant to any Transaction Document or the
Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are
required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
6.17 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts due thereunder
have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
6.18 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted
herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business Day.
6.19 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall
not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference to
share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
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6.20 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.
6.21 Equitable
Adjustment. Trading volume amounts, price/volume amounts and similar figures in the Transaction Documents shall be equitably adjusted
(but without duplication) to offset the effect of stock splits, similar events and as otherwise described in this Agreement, if such events
shall occur between the date of this Agreement and a Tranche Closing.
[signature pages follow]
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IN WITNESS WHEREOF,
the undersigned has caused this Agreement to be duly executed by its authorized signatory as of the date first indicated above.
ALZAMEND NEURO, INC.
By:
/s/ Stephan Jackman
Name:
Stephan Jackman
Title:
Chief Executive Officer
PURCHASER SIGNATURE PAGE TO AULT LENDING,
LLC
SECURITIES PURCHASE AGREEMENT
IN WITNESS WHEREOF,
the undersigned has caused this Securities Purchase Agreement to be duly executed by its authorized signatory of the date first indicated
above.
Name of Purchaser:
Ault Lending, LLC
Signature of Authorized Signatory of Purchaser:
/s/ William B. Horne
Name of Authorized Signatory:
William B. Horne
Title of Authorized Signatory:
Chief Executive Officer
Address for Notice to Purchaser:
Ault Lending, LLC
940 South Coast Drive, Suite 200
Costa Mesa, CA 92626
Attn. William B. Horne, CEO
Email: Will@ault.com
with a copy by e-mail only (which shall not constitute notice) to:
Ault Lending, LLC
c/o Hyperscale Data, Inc.
122 East 42nd Street, 50th Floor, Suite 5000
New York, NY 10168
Attn: Henry Nisser, Esq.
Email: Henry@ault.com
Maximum Investment:
$25,000,000
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: ex10_2.htm · Sequence: 4
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement
(this “Agreement”) is made and entered into as of July 31, 2026 (the “Execution Date”), between
Alzamend Neuro, Inc., a Delaware corporation (the “Company”) and Ault Lending, LLC, a California limited liability
company (the “Purchaser”).
This Agreement is made pursuant
to the Securities Purchase Agreement, dated as of the date hereof, between the Company and the Purchaser (the “Purchase Agreement”).
The Company and the Purchaser
hereby agree as follows:
1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such
terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
“Advice”
shall have the meaning set forth in Section 4(d).
“Commission”
means the Securities and Exchange Commission.
“Effectiveness Deadline”
means, with respect to the Initial Registration Statement required to be filed hereunder, as promptly as practicable but in no event later
than the 60th calendar day following the Filing Deadline (or, in the event of a “full review” by the Commission, the 90th
calendar day following the Filing Deadline) and with respect to any additional Registration Statements which may be required pursuant
to Section 2(c), the 60th calendar day following the date on which an additional Registration Statement is required to be filed hereunder
(or, in the event of a “full review” by the Commission, the 90th calendar day following the date such additional Registration
Statement is required to be filed hereunder); provided, however, that in the event the Company is notified by the Commission
that one or more of the above Registration Statements will not be reviewed or is no longer subject to further review and comments, the
Effectiveness Deadline as to such Registration Statement shall be the fifth Trading Day following the date on which the Company is so
notified if such date precedes the dates otherwise required above, provided, further, if such Effectiveness Deadline falls on a day that
is not a Trading Day, then the Effectiveness Deadline shall be the next succeeding Trading Day.
“Effectiveness Period”
shall have the meaning set forth in Section 2(a).
“Event”
shall have the meaning set forth in Section 2(d).
“Event Date”
shall have the meaning set forth in Section 2(d).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Filing Deadline”
means, (i) with respect to the Initial Registration Statement, that the Company shall use its best efforts to file such Initial Registration
Statement by the earlier of (A) the 5th calendar day following the date by which the Company shall have filed its Annual Report on Form
10-K for its fiscal year ended April 30, 2026 or (B) August 15, 2026 and (ii) with respect to any additional Registration Statements which
may be required pursuant to Section 2(c), the earliest practical date on which the Company is permitted by SEC Guidance to file such additional
Registration Statement related to the Registrable Securities.
“Holder”
or “Holders” means the holder or holders, as the case may be, from time to time of Registrable Securities.
“Indemnified Party”
shall have the meaning set forth in Section 6(c).
“Indemnifying Party”
shall have the meaning set forth in Section 6(c).
“Initial Registration
Statement” means the initial Registration Statement filed pursuant to Section 2(a) of this Agreement.
“Losses”
shall have the meaning set forth in Section 6(a).
“Plan of Distribution”
shall have the meaning set forth in Section 2(a).
“Prospectus”
means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously
omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commission
pursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of
any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities”
means, as of any date of determination, (a) all of the Conversion Shares Stock then issued and issuable upon conversion in full of the
Preferred Shares (assuming on such date the Preferred Shares are converted in full without regard to any conversion limitations therein),
(b) any additional shares of Common Stock issued and issuable in connection with any anti-dilution provisions in the Preferred Shares
(without giving effect to any limitations on conversion set forth in the Preferred Shares), and (c) any securities issued or then issuable
upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing; provided, however,
that any such securities shall cease to be Registrable Securities (and the Company shall not be required to maintain the effectiveness
of any, or file another, Registration Statement hereunder with respect thereto) for so long as (i) a Registration Statement with respect
to the sale of such Registrable Securities is declared effective by the Commission under the Securities Act and such Registrable Securities
have been disposed of by the Holder in accordance with such effective Registration Statement, (ii) such Registrable Securities have been
sold in accordance with Rule 144 and the Company has delivered certificates representing such securities that no longer bear a legend
and/or for which the Transfer Agent has not instituted a stop order restricting further transfer, or (iii) such securities become eligible
for resale without volume or manner-of-sale restrictions and without current public information pursuant to Rule 144 as set forth in a
written opinion letter to such effect, addressed, delivered and acceptable to the Transfer Agent and the affected Holders (assuming that
such securities and any securities issuable upon exercise or conversion of which, or as a dividend upon which, such securities were issued
or are issuable, were at no time held by any Affiliate of the Company, as reasonably determined by the Company, upon the advice of counsel
to the Company).
“Registration Default”
shall have the meaning ascribed thereto in Section 2(e).
“Registration Statement”
means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registration statements contemplated
by Section 2(c), including (in each case) the Prospectus, amendments and supplements to any such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all material incorporated by reference or deemed to be incorporated
by reference in any such registration statement.
“Rule 144”
means Rule 144 promulgated by the Commission under the 1933 Act, as such rule may be amended from time to time, or any other similar or
successor rule or regulation of the Commission that may at any time permit the Holders to sell securities of the Company to the public
without registration.
“Rule 415”
means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission providing for offering securities on a continuous or delayed basis.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Selling Stockholder
Questionnaire” shall have the meaning set forth in Section 4(a).
“SEC Guidance”
means (i) any publicly available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commission
staff and (ii) the Securities Act.
“Securities Act”
means the Securities Act of 1933, as amended.
2. Required
Registration.
(a) The
Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with the Commission a Registration
Statement covering the resale of all of the Registrable Securities (the “Initial Registration Statement”); provided
that the Initial Registration Statement shall register for resale at least the number of shares of Common Stock equal to 125% of the maximum
number of shares of Common Stock issuable upon conversion of the Preferred Shares at the initial conversion price thereof (the “Initial
Required Registration Amount”). Each Registration Statement filed hereunder shall be on Form S-1 (except if the Company is not
then eligible to register for resale the Registrable Securities on Form S-1, in which case such registration shall be on another appropriate
form in accordance herewith, subject to the provisions of Section 2(e)) and shall contain (unless otherwise directed by at least a Majority
in Interest of the Holders) substantially the “Plan of Distribution” attached hereto as Annex A. Subject
to the terms of this Agreement, the Company shall cause each Registration Statement filed under this Agreement to be declared effective
under the Securities Act as promptly as possible after the filing thereof, but in any event no later than the applicable Effectiveness
Deadline, and shall keep such Registration Statement continuously effective under the Securities Act until the date that all Registrable
Securities covered by such Registration Statement no longer constitute Registrable Securities (the “Effectiveness Period”).
The Company shall telephonically request effectiveness of a Registration Statement as of 4:30 PM. Eastern Time on a Trading Day. The Company
shall promptly notify the Holders via facsimile or by e-mail of the effectiveness of a Registration Statement on the same Trading Day
that the Company telephonically confirms effectiveness with the Commission, which shall be the date requested for effectiveness of such
Registration Statement. The Company shall, by 9:30 a.m. Eastern Time on the Trading Day after the effective date of such Registration
Statement, file a final Prospectus with the Commission as required by Rule 424. Failure to so notify the Holders within one (1) Trading
Day of such notification of effectiveness or failure to file a final Prospectus as foresaid shall be deemed an Event under Section 2(d).
2
(b) Notwithstanding
the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of the Registrable Securities cannot,
as a result of the application of Rule 415, be registered for resale as a secondary offering on a single registration statement, the Company
agrees to promptly inform each of the Holders thereof and use its reasonable best efforts to file amendments to the Initial Registration
Statement as required by the Commission, covering the maximum number of Registrable Securities permitted to be registered by the Commission,
on Form S-3 or such other form available to register for resale the Registrable Securities as a secondary offering, subject to the provisions
of Section 2(e); with respect to filing on Form S-3 or other appropriate form; provided, however, that prior to filing such
amendment, the Company shall be obligated to use diligent efforts to advocate with the Commission for the registration of all of the Registrable
Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09. Notwithstanding
the obligations of the Company under this Section 2(b), the provisions of Section 2(d) shall apply with respect to the payment of the
Liquidated Damages.
(c) Notwithstanding
any other provision of this Agreement, if the Commission or any SEC Guidance sets forth a limitation on the number of Registrable Securities
permitted to be registered on a particular Registration Statement as a secondary offering (and notwithstanding that the Company used diligent
efforts to advocate with the Commission for the registration of all or a greater portion of Registrable Securities), unless otherwise
(i) directed in writing by a Holder as to its Registrable Securities, or (ii) directed by the Commission as to the limitations or restrictions
that it would require, the number of Registrable Securities to be registered on such Registration Statement will be reduced as follows:
a. First, the Company shall reduce or eliminate any securities to be included by any Person other
than a Holder;
b. Second, the Company shall reduce or eliminate Registrable Securities contemplated by clause (c)
of the definition of Registrable Securities (applied, in the case that only some such Registrable Securities may be registered, to the
Holders on a pro rata basis based on the total number of such unregistered Registrable Securities held by such Holders); and
c. Third, the Company shall reduce Registrable Securities represented by Conversion Shares (applied,
in the case that some Conversion Shares may be registered, to the Holders on a pro rata basis based on the total number of unregistered
Conversion Shares held by such Holders.
In the event of a cutback
hereunder, the Company shall give the Holder at least five (5) Trading Days prior written notice along with the calculations as to such
Holder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, or determines
to file an additional Registration Statement, the Company will use its reasonable best efforts to file with the Commission, as promptly
as allowed by Commission or SEC Guidance provided to the Company or to registrants of securities in general, one or more Registration
Statements on Form S-1 or such other form available to register for resale those Registrable Securities that were not registered for resale
on the Initial Registration Statement, as amended, as a result of any cutback of Registrable Securities of the Holders or any Registrable
Securities not included in the Initial Registration Statement. In any additional Registration Statement filed because of a cutback in
the number of Registrable Securities included in the Initial Registration Statement, all holders of shares of Common Stock included in
such additional Registration Statement shall be subject to any additional cutbacks that may be required by the Commission on a pro
rata basis. The Company shall file one or more Registration Statements in accordance with the foregoing until such time as all Registrable
Securities have been included in Registration Statements that have been declared effective and the prospectus contained therein is available
for use by the Holder.
(d) If
Form S-1 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resale
of the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form S-1 as soon
as such form is available, if at all, during the Effectiveness Period; provided that the Company shall only be required to maintain
the effectiveness of the Registration Statement then in effect until the earlier of (A) such time as a Registration Statement on Form
S-1 covering the Registrable Securities has been declared effective by the Commission or (B) the expiration of the Effectiveness Period.
(e) If:
(i) the Initial Registration Statement is not filed on or prior to its Filing Deadline, or (ii) a Registration Statement registering for
resale all of the Initial Required Registration Amount is not declared effective by the Commission by the Effectiveness Date of the Initial
Registration Statement, (any such failure or breach being referred to as an “Registration Default”), and on any date
such a Registration Default has occurred (a “Registration Default Date”), then, in addition to any other rights the
Purchaser may have hereunder or under applicable law, on each such Registration Default Date and on each monthly anniversary of each such
Registration Default Date (if the applicable Registration Default shall not have been cured by such date) until the applicable Registration
Default is cured, the Company shall pay to the holder of Registrable Securities, as partial liquidated damages and not as a penalty, an
amount in cash equal to two percent (2%) of the Stated Value of the Preferred Shares held, not to exceed fifteen percent (15%) in the
aggregate.
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3. Company
Obligations. In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not
less than Two (2) Trading Days prior to the filing of any related Prospectus or any amendment or supplement thereto (including any document
that would be incorporated or deemed to be incorporated therein by reference), the Company shall (i) furnish to each Holder copies of
all such documents proposed to be filed, which documents (other than those incorporated or deemed to be incorporated by reference) will
be subject to the review of such Holders, and (ii) cause its officers and directors, counsel and independent registered public accountants
to respond to such inquiries as shall be necessary, in the reasonable opinion of respective counsel to each Holder, to conduct a reasonable
investigation within the meaning of the Securities Act. Notwithstanding the above, the Company shall not be obligated to provide the Holder
advance copies of any universal shelf registration statement registering securities in addition to those required hereunder, or any Prospectus
prepared thereto.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectus
used in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to register
for resale under the Securities Act all of the Registrable Securities, (ii) cause the related Prospectus to be amended or supplemented
by any required Prospectus supplement (subject to the terms of this Agreement), and, as so supplemented or amended, to be filed pursuant
to Rule 424, (iii) respond as promptly as reasonably possible to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto, and (iv) comply in all material respects with the applicable provisions of the Securities Act and
the Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement during the applicable
period in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holders thereof set forth
in such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If
during the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of shares of Common Stock
then registered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to the
applicable Filing Deadline, an additional Registration Statement covering the resale by the Holders of not less than the number of such
Registrable Securities.
(d) Notify
the Holders of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompanied by
an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonably possible (i)(A)
when a Prospectus or any Prospectus supplement or post-effective amendment to a Registration Statement has been filed, (B) when the Commission
notifies the Company whether there will be a “review” of such Registration Statement, and (C) with respect to a Registration
Statement or any post-effective amendment, when the same has become effective, (ii) of any request by the Commission or any other federal
or state governmental authority for amendments or supplements to a Registration Statement or Prospectus or for additional information,
in each case, after the such Registration Statement has been declared effective, (iii) of the issuance by the Commission or any other
federal or state governmental authority of any stop order suspending the effectiveness of a Registration Statement covering any or all
of the Registrable Securities or the initiation of any Proceedings for that purpose, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such purpose, (v) of the occurrence of any event or passage of time
that makes the financial statements included in a Registration Statement ineligible for inclusion therein or any statement made in a Registration
Statement or Prospectus or any document incorporated or deemed to be incorporated therein by reference untrue in any material respect
or that requires any revisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement
or the Prospectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not
misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that the Company
believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company to allow continued
availability of a Registration Statement or Prospectus, provided, however, in no event shall any such notice contain any
information which would constitute material, non-public information regarding the Company or any of its Subsidiaries.
(e) Use
its reasonable best efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspending the
effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.
4
(f) Furnish
to each Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including
financial statements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested
by such Person, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference)
promptly after the filing of such documents with the Commission; provided, that any such item which is available on the EDGAR system (or
successor thereto) need not be furnished. Subject to the terms of this Agreement, the Company hereby consents to the use of such Prospectus
and each amendment or supplement thereto by each of the selling Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto, except after the Company has given notice pursuant to Section 3(d).
(g) The
Company shall cooperate with any broker-dealer through which a Holder proposes to resell its Registrable Securities in effecting a filing
with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110, as requested by any such Holder.
(h) Prior
to any resale of Registrable Securities by a Holder, use its reasonable best efforts to register or qualify or cooperate with the selling
Holders in connection with the registration or qualification (or exemption from the Registration or qualification) of such Registrable
Securities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as any Holder
reasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the Effectiveness
Period and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the Registrable
Securities covered by each Registration Statement; provided, that, the Company shall not be required to qualify generally to do business
in any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is not
then so subject or file a general consent to service of process in any such jurisdiction.
(i) If
requested by a Holder, cooperate with such Holder to facilitate the timely preparation and delivery of certificates representing Registrable
Securities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registered
in such names as any such Holder may request.
(j) Upon
the occurrence of any event contemplated by clause (v) or (vi) of Section 3(d), as promptly as reasonably possible under the circumstances
taking into account the Company’s good faith assessment of any adverse consequences to the Company and its stockholders of the premature
disclosure of such event, prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement or a supplement
to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. If the Company notifies the Holders in accordance with clauses (iii) through
(vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes to such Prospectus have been made, then the
Holders shall suspend use of such Prospectus. The Company will use its reasonable best efforts to ensure that the use of the Prospectus
may be resumed as promptly as is practicable.
(k) Comply
with all applicable rules and regulations of the Commission.
(l) The
Company may require each selling Holder to furnish to the Company a certified statement as to the number of shares of Common Stock beneficially
owned by such Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the
shares. During any periods that the Company is unable to meet its obligations hereunder with respect to the registration of the Registrable
Securities solely because any Holder fails to furnish such information within three Trading Days of the Company’s request, any liquidated
damages that are accruing at such time shall be tolled and any Event that may otherwise occur solely because of such delay shall be suspended
until such information is delivered to the Company.
4. Obligations
of the Holders.
(a) Each
Holder agrees to furnish to the Company a completed questionnaire in the form attached to this Agreement as Annex B (a “Selling
Stockholder Questionnaire”) on a date that is not less than Ten (10) days prior to the Filing Deadline or by the end of the
Fourth (4th) Trading Day following the date on which such Holder receives draft materials in accordance with Section 3(a). Each Holder
shall furnish in writing to the Company such additional information regarding itself, the Registrable Securities held by it and the intended
method of disposition of the Registrable Securities held by it, and shall execute such documents in connection with such registration,
as shall be reasonably required to effect the registration of such Registrable Securities. A Holder shall provide such information to
the Company at least two (2) Business Days prior to the first anticipated filing date of such Registration Statement if such Holder elects
to have any of the Registrable Securities included in the Registration Statement. The Company shall not be required to include the Registrable
Securities of a Holder in a Registration Statement, and no Event shall be deemed to occur and or continue solely as a result of the failure
to include the Registrable Securities of such Holder in the Registration Statement, if such Holder fails to furnish to the Company a fully
completed Selling Stockholder Questionnaire at least two (2) Business Days prior to the Filing Deadline.
5
(b) Each
Holder agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of a
Registration Statement hereunder, unless such Holder has notified the Company in writing of its election to exclude all of its Registrable
Securities from such Registration Statement.
(c) Each
Holder covenants and agrees that it will comply with the prospectus delivery requirements of the Securities Act as applicable to it (unless
an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to a Registration Statement.
(d) Each
Holder agrees that, upon receipt of any notice from the Company of either (i) the commencement of an Allowed Delay or (ii) the happening
of an event pursuant to Section 3(d)(iii) – (vi) hereof, such Holder will immediately discontinue disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities, until it is advised in writing (the “Advice”)
by the Company that the use of the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will
use its reasonable best efforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.
5. Registration
Expenses. All fees and expenses incident to the performance of or compliance with, this Agreement by the Company shall be borne by
the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to
in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including, without limitation, fees
and expenses of the Company’s counsel and independent registered public accountants) (A) with respect to filings made with the Commission,
(B) with respect to filings required to be made with any Trading Market on which the Common Stock is then listed for trading, and (C)
in compliance with applicable state securities or Blue Sky laws reasonably agreed to by the Company in writing (including, without limitation,
fees and disbursements of counsel for the Company in connection with Blue Sky qualifications or exemptions of the Registrable Securities),
(ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities), (iii) messenger,
telephone and delivery expenses of the Company, (iv) fees and disbursements of counsel for the Company, (v) Securities Act liability insurance,
if the Company so desires such insurance, and (vi) fees and expenses of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement. In addition, the Company shall be responsible for all of its internal
expenses incurred in connection with the consummation of the transactions contemplated by this Agreement (including, without limitation,
all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit and the
fees and expenses incurred in connection with the listing of the Registrable Securities on any securities exchange as required hereunder.
In no event shall the Company be responsible for any broker or similar commissions of any Holder or, except to the extent provided for
in the Transaction Documents, any legal fees or other costs of the Holders.
6. Indemnification.
(a) Indemnification
by the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless each Holder, the
officers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal as a
result of a pledge or any failure to perform under a margin call of Common Stock), investment advisors and employees of the Company, each
Person who controls any such Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the
officers, directors, members, stockholders, partners, agents, investment advisors and employees of each such controlling Person, to the
fullest extent permitted by applicable law, from and against any and all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable attorneys’ fees) and expenses (collectively, “Losses”), as incurred, arising out of or
relating to (i) any untrue or alleged untrue statement of a material fact contained in a Registration Statement, any Prospectus or any
form of prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating to any omission
or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in the case of any Prospectus
or supplement thereto, in light of the circumstances under which they were made) not misleading or (ii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection
with the performance of its obligations under this Agreement, except to the extent, but only to the extent, that (A) such untrue statements
or omissions are based solely upon information regarding such Holder furnished in writing to the Company by such Holder expressly for
use therein (it being understood that such information shall only consist of the name of the Holder, the number of offered shares (excluding
percentages), the address and other information with respect to the Holder and the information included on Annex A hereto, each only to
the extent which such information appears in an effective Registration Statement or any Prospectus) or (B) in the case of an occurrence
of an event of the type specified in Section 3(d)(iii)-(vi), the use by such Holder of an outdated, defective or otherwise unavailable
Prospectus after the Company has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for
use by such Holder and prior to the receipt by such Holder of the Advice contemplated in Section 4(d). The Company shall notify the Holders
promptly of the institution, threat or assertion of any Proceeding arising from or in connection with the transactions contemplated by
this Agreement of which the Company is aware. Such indemnity shall remain in full force and effect regardless of any investigation made
by or on behalf of such indemnified person and shall survive the transfer of any Registrable Securities by any of the Holders in accordance
with Section 7(e).
6
(b) Indemnification
by Holders. Each Holder shall, severally and not jointly, indemnify and hold harmless the Company, its directors, officers, agents
and employees, each Person who controls the Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act), and the directors, officers, agents or employees of such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, to the extent arising out of or based solely upon: (i) such Holder’s failure to comply
with any applicable prospectus delivery requirements of the Securities Act through no fault of the Company or (ii) any untrue or alleged
untrue statement of a material fact contained in any Registration Statement, any Prospectus, or in any amendment or supplement thereto
or in any preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of the circumstances
under which they were made) not misleading to the extent, but only to the extent, that such untrue statement or omission is contained
in any information so furnished in writing by such Holder to the Company expressly for inclusion in such Registration Statement or such
Prospectus (it being understood that such information shall only consist of the name of the Holder, the number of offered shares (excluding
percentages), the address and other information with respect to the Holder and the information included on Annex A hereto, each only to
the extent which such information appears in an effective Registration Statement or any Prospectus), such Prospectus or in any amendment
or supplement thereto or (iii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi), to the extent,
but only to the extent, related to the use by such Holder of an outdated, defective or otherwise unavailable Prospectus after the Company
has notified such Holder in writing that the Prospectus is outdated, defective or otherwise unavailable for use by such Holder and prior
to the receipt by such Holder of the Advice contemplated in Section 4(d). In no event shall the liability of any selling Holder under
this Section 6(b) be greater in amount than the dollar amount of the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation, except in the case of fraud or willful misconduct by such Holder.
(c) Conduct
of Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnity hereunder
(an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnity is sought (the
“Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all reasonable fees and expenses incurred
in connection with defense thereof; provided, that, the failure of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally determined
by a court of competent jurisdiction (which determination is not subject to appeal or further review) that such failure shall have materially
and adversely prejudiced the Indemnifying Party. An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party
or Parties unless: (1) the Indemnifying Party has agreed in writing to pay such fees and expenses, (2) the Indemnifying Party shall have
failed promptly to assume the defense of such Proceeding and to employ counsel reasonably satisfactory to such Indemnified Party in any
such Proceeding, or (3) the named parties to any such Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and counsel to the Indemnified Party shall reasonably believe that a material conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the Indemnifying Party (in which case, if such Indemnified Party
notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying
Party shall not have the right to assume the defense thereof and the reasonable fees and expenses of no more than one separate counsel
shall be at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability on claims that are the subject matter of such Proceeding. Subject to the terms of
this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurred
in connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paid
to the Indemnified Party, as incurred, within Thirty (30) calendar days of written notice thereof to the Indemnifying Party; provided,
that, the Indemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such
actions for which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject
to appeal or further review) not to be entitled to indemnification hereunder.
(d) Contribution.
If the indemnification under Section 6(a) or 6(b) is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party
harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party, in such
proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions,
statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether any action in question, including
any untrue or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by,
or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party
as a result of any Losses shall be deemed to include, subject to the limitations set forth in this Agreement, any reasonable attorneys’
or other fees or expenses incurred by such party in connection with any Proceeding to the extent such party would have been indemnified
for such fees or expenses if the indemnification provided for in this Section was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 6(d) were determined by pro
rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section 6(d), no Holder shall be required to contribute pursuant to this Section
6(d), in the aggregate, any amount in excess of the amount by which the net proceeds actually received by such Holder from the sale of
the Registrable Securities subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
7
(e) The
indemnity and contribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have
to the Indemnified Parties.
7. Miscellaneous.
(a) Remedies.
In the event of a breach by the Company or by a Holder of any of their respective obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery
of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and each Holder agrees that
monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions
of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall
not assert or shall waive the defense that a remedy at law would be adequate.
(b) Prohibition
on Filing Other Registration Statements. The Company shall not, other than as provided in the Purchase Agreement, file any other registration
statements until all Registrable Securities are registered pursuant to a Registration Statement that is declared effective by the Commission,
provided that this Section 7(b) shall not prohibit the Company from filing amendments to registration statements filed prior to the date
of this Agreement and shall not prohibit the Company from filing a registration statement on Form S-3 or other available form for a primary
offering by the Company, provided that the Company makes no offering of securities pursuant to such registration statement prior to the
effective date of the Registration Statement required hereunder that includes all of the Registrable Securities.
(c) Amendments
and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by the
Company and the Holders of 51% or more of the then outstanding Registrable Securities (for purposes of clarification, this includes any
Registrable Securities issuable upon exercise or conversion of any Security). If a Registration Statement does not register all of the
Registrable Securities pursuant to a waiver or amendment done in compliance with the previous sentence, then the number of Registrable
Securities to be registered for each Holder shall be reduced pro rata among all Holders and each Holder shall have the right to designate
which of its Registrable Securities shall be omitted from such Registration Statement. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder or some Holders and that
does not directly or indirectly affect the rights of other Holders may be given only by such Holder or Holders of all of the Registrable
Securities to which such waiver or consent relates; provided, however, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the first sentence of this Section 7(c). No consideration shall
be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration
also is offered to all of the parties to this Agreement.
(d) Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forth
in the Purchase Agreement.
(e) Successors
and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each Holder. The Company may not assign (except by merger) its rights or obligations hereunder
without the prior written consent of all of the Holders of the then outstanding Registrable Securities. Each Holder may assign their respective
rights hereunder in the manner and to the Persons as permitted under the Purchase Agreement.
(f) Execution
and Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,
it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission
or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature
page were an original thereof.
(g) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined in
accordance with the provisions of the Purchase Agreement.
(h) Cumulative
Remedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.
8
(i) Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable best efforts to
find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Headings.
The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
(k) Independent
Nature of Holders’ Obligations and Rights. The obligations of each Holder hereunder are several and not joint with the obligations
of any other Holder hereunder, and no Holder shall be responsible in any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Holder
pursuant hereto or thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint venture or any other kind
of group or entity, or create a presumption that the Holders are in any way acting in concert or as a group or entity with respect to
such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Holders
are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions.
Each Holder shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement,
and it shall not be necessary for any other Holder to be joined as an additional party in any proceeding for such purpose. The use of
a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or
decision of any Holder, and was done solely for the convenience of the Company and not because it was required or requested to do so by
any Holder. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and a Holder,
solely, and not between the Company and the Holders collectively and not between and among Holders.
********************
(Signature Pages Follow)
9
IN WITNESS WHEREOF,
the parties have executed this Registration Rights Agreement as of the date first written above.
ALZAMEND NEURO, INC.
By:
/s/ Stephan Jackman
Name:
Stephan Jackman
Title:
Chief Executive Officer
[SIGNATURE PAGE OF HOLDER FOLLOWS]
Name of Holder:
Ault Lending, LLC
Signature of Authorized Signatory of Holder:
/s/ William B. Horne
Name of Authorized Signatory:
William B. Horne
Title of Authorized Signatory:
Chief Executive Officer
[SIGNATURE PAGE OF HOLDER FOLLOWS]
Annex A
Plan of Distribution
Each Selling Stockholder (the
“Selling Stockholders”) of the securities and any of their pledgees, assignees and successors-in-interest may, from
time to time, sell any or all of their securities covered hereby on the principal Trading Market or any other stock exchange, market or
trading facility on which the securities are traded or quoted or in private transactions. These sales may be at fixed or negotiated prices.
A Selling Stockholder may use any one or more of the following methods when selling securities:
· ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
· block trades in which the broker-dealer will attempt to sell the securities as agent but may position
and resell a portion of the block as principal to facilitate the transaction;
· purchases by a broker-dealer as principal and resales by the broker-dealer for its account;
· an exchange distribution in accordance with the rules of the applicable exchange;
· privately negotiated transactions;
· settlement of short sales;
· in transactions through broker-dealers that agree with the Selling Stockholders to sell a specified number
of such securities at a stipulated price per security;
· through the writing or settlement of options or other hedging transactions, whether through an options
exchange or otherwise;
· a combination of any such methods of sale; or
· any other method permitted pursuant to applicable law.
The Selling Stockholders may
also sell securities under Rule 144 under the Securities Act of 1933, as amended (the “Securities Act”) or any other exemption
from registration, if available, rather than under this prospectus.
Broker-dealers engaged by
the Selling Stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts
from the Selling Stockholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser) in amounts
to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in excess of a
customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction, a markup or markdown in
compliance with FINRA Rule 2121.
In connection with the sale
of the securities or interests therein, the Selling Stockholders may enter into hedging transactions with broker-dealers or other financial
institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they assume. The Selling
Stockholders may also sell securities short and deliver these securities to close out their short positions, or loan or pledge the securities
to broker-dealers that in turn may sell these securities. The Selling Stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or create one or more derivative securities which require the delivery to such broker-dealer
or other financial institution of securities offered by this prospectus, which securities such broker-dealer or other financial institution
may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The Selling Stockholders and
any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters” within the meaning
of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts under the Securities
Act. Each Selling Stockholder has informed the Company that it does not have any written or oral agreement or understanding, directly
or indirectly, with any person to distribute the securities.
The Company is required to
pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company has agreed to indemnify
the Selling Stockholders against certain losses, claims, damages and liabilities, including liabilities under the Securities Act.
Annex A-1
Because Selling Stockholders
may be deemed to be “underwriters” within the meaning of the Securities Act, they will be subject to the prospectus delivery
requirements of the Securities Act including Rule 172 thereunder. We will make copies of this prospectus available to the Selling Stockholders
and have informed them of the need to deliver a copy of this prospectus to the Purchaser at or prior to the time of the sale (including
by compliance with Rule 172 under the Securities Act). In addition, any securities covered by this prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under Rule 144 rather than under this prospectus. The Selling Stockholders have advised
us that there is no underwriter or coordinating broker acting in connection with the proposed sale of the resale securities by the Selling
Stockholders.
We agreed to keep this prospectus
effective until the earlier of (i) the date on which the securities may be resold by the Selling Stockholders without registration and
without regard to any volume or manner-of-sale limitations by reason of Rule 144, without the requirement for the Company to be in compliance
with the current public information under Rule 144 under the Securities Act or any other rule of similar effect or (ii) all of the securities
have been sold pursuant to this prospectus or Rule 144 under the Securities Act or any other rule of similar effect. The resale securities
will be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in
certain states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is available and is complied with.
Under applicable rules and
regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously engage in market
making activities with respect to the Company’s common stock for the applicable restricted period, as defined in Regulation M, prior
to the commencement of the distribution. In addition, the Selling Stockholders will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the Company’s
common stock by the Selling Stockholders or any other person.
Annex A-2
Annex B
ALZAMEND NEURO, INC.
Selling Stockholder Notice and Questionnaire
The undersigned beneficial
owner of Common Stock (the “Registrable Securities”) of Alzamend Neuro, Inc., a Delaware corporation (the “Company”),
understands that the Company has filed or intends to file with the Securities and Exchange Commission (the “Commission”)
a registration statement (the “Registration Statement”) for the registration and resale under Rule 415 of the Securities
Act of 1933, as amended (the “Securities Act”), of the Registrable Securities, in accordance with the terms of the
Registration Rights Agreement (the “Registration Rights Agreement”) to which this document is annexed. A copy of the
Registration Rights Agreement is available from the Company upon request at the address set forth below. All capitalized terms not otherwise
defined herein shall have the meanings ascribed thereto in the Registration Rights Agreement.
Certain legal consequences
arise from being named as a selling stockholder in the Registration Statement and the related prospectus. Accordingly, holders and beneficial
owners of Registrable Securities are advised to consult their own securities law counsel regarding the consequences of being named or
not being named as a selling stockholder in the Registration Statement and the related prospectus.
NOTICE
The undersigned beneficial
owner (the “Selling Stockholder”) of Registrable Securities hereby elects to include the Registrable Securities owned
by it in the Registration Statement. The undersigned hereby provides the following information to the Company and represents and warrants
that such information is accurate:
QUESTIONNAIRE
1. Name.
(a) Full Legal Name of Selling Stockholder
(b) Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities
are held:
(c) Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone
or with others has power to vote or dispose of the securities covered by this Questionnaire):
2. Address for Notices to Selling Stockholder:
Address:
Telephone:
Email:
Fax:
Contact Person:
Annex B-1
3. Broker-Dealer Status:
(a) Are you a broker-dealer?
Yes ☐ No
☐
(b) If “yes” to Section 3(a), did you receive your Registrable Securities as compensation for
investment banking services to the Company?
Yes ☐ No
☐
Note: If “no” to Section 3(b), the Commission’s staff has indicated that you should be identified
as an underwriter in the Registration Statement.
(c) Are you an affiliate of a broker-dealer?
Yes ☐ No
☐
(d) If you are an affiliate of a broker-dealer, do you certify that you purchased the Registrable Securities
in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements
or understandings, directly or indirectly, with any person to distribute the Registrable Securities?
Yes ☐ No
☐
Note: If “no” to Section 3(d), the Commission’s staff has indicated that you should be identified
as an underwriter in the Registration Statement.
4. Beneficial Ownership of Securities of the Company Owned by the Selling Stockholder.
Please state the number of
securities of the Company beneficially owned by the Selling Stockholder, regardless of the time acquired or the source from which derived.
(a) Number of shares of Common Stock beneficially owned:
(b) Number of shares of Common Stock beneficially owned to be registered pursuant to the Registration Statement
(if not the same as 4(a) above):
“Beneficial ownership”
of a security means a person’s ability, directly or indirectly through any contract, arrangement, understanding, relationship or
otherwise, to exercise alone or together with others:
· voting power, which includes the power to vote, or to direct the voting of, a security; or
· investment power, which includes the power to dispose, or to direct the disposition, of a security.
This term also includes having
the right to acquire beneficial ownership of a security within 60 days, including any right to acquire the security through the exercise
of any option, warrant or right, through the conversion of a security, pursuant to the power to revoke a trust, discretionary account
or similar arrangement or pursuant to the automatic termination of a trust, discretionary account or similar arrangement.
The above definition of beneficial
ownership is very broad and may include, for example, securities held in the name of another person, such as any relative living in your
home, custodians, brokers, or pledgees for your account, or any partnership, trust estate or closely-held corporation in which you have
an interest or are an officer or director. You are also the beneficial owner of securities if you, directly or indirectly, create or use
a trust, proxy, power of attorney, pooling arrangement or any other contract, arrangement or device with the purpose or effect of divesting
yourself of beneficial ownership of such securities or preventing the vesting of such beneficial ownership.
Annex B-2
5. Voting and Investment Power (to be completed only if the Selling Stockholder is not a natural person):
(a) Please name each person or persons who have voting or investment power over the Common Stock beneficially
owned by the Selling Stockholder. As described in Question 4 above, please note that for purposes of answering this Question 5:
(1) Voting power includes the power to vote, or to direct the voting of, such security; and
(2) Investment power includes the power to dispose, or to direct the disposition, of such security.
(b) For each person named above in this Question 5, please state the number of shares of Common Stock beneficially
owned by the Selling Stockholder in which that person has sole voting power, shared voting power, sole investment power and/or shared
investment power.
Beneficial Ownership
Number of Shares
Total number of shares as to which the person has sole voting power
Total number of shares as to which the person has shared voting power
Total number of shares as to which the person has sole investment power
Total number of shares as to which the person has shared investment power
If necessary, use the blank
page attached hereto as Exhibit B.
(c) Do you have any reason to believe that the ownership of the Common Stock of the registered holder identified
in response to Question 1 above should be aggregated with the ownership of any other registered holder of the Common Stock, for purposes
of describing the beneficial ownership of those shares of Common Stock in the Registration Statement? Ownership could be aggregated where
there is a relationship that, as a factual matter, confers on a person a significant ability to affect how voting power or investment
power over the shares will be exercised.
Yes ☐ No
☐
If “yes,” please explain below:
6. Relationships with the Company:
Except as set forth below,
neither the undersigned nor any of its affiliates, officers, directors or principal equity holders (owners of 5% of more of the equity
securities of the undersigned) has held any position or office or has had any other material relationship with the Company (or its predecessors
or affiliates) during the past three years.
State any exceptions here:
“Affiliate” means a person
that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a specified
person.
“Control” means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership
of voting securities, by contract or otherwise.
Annex B-3
The undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information provided herein that may occur subsequent to the date hereof
at any time while the Registration Statement remains effective.
By signing below, the undersigned
consents to the disclosure of the information contained herein in its answers to Items 1 through 5 and the inclusion of such information
in the Registration Statement and the related prospectus and any amendments or supplements thereto. The undersigned understands that such
information will be relied upon by the Company in connection with the preparation or amendment of the Registration Statement and the related
prospectus and any amendments or supplements thereto.
Annex B-4
IN WITNESS WHEREOF,
the undersigned, by authority duly given, has caused this Notice and Questionnaire to be executed and delivered either in person or by
its duly authorized agent.
Date:
Beneficial Owner:
By:
Name:
Title:
PLEASE FAX A COPY (OR EMAIL A .PDF COPY) OF
THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL BY OVERNIGHT MAIL, TO:
James Turner, Esq.
Deputy General Counsel
James@Alzamend.com
Annex B-5
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