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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):
February 19, 2025
BOXLIGHT CORPORATION
(Exact name of registrant as specified in its charter)
| Nevada |
|
001-37564 |
|
36-4794936 |
| (State or other jurisdiction of incorporation) |
|
(Commission File Number) |
|
(IRS Employer Identification No.) |
2750 Premiere Parkway, Ste. 900
Duluth, Georgia 30097
(Address Of Principal Executive Offices) (Zip Code)
678-367-0809
(Registrant’s telephone number, including
area code)
Not Applicable
(Former name or formed address, if changed since
last report)
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:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ¨ |
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 |
| Class
A Common Stock $0.0001 per share |
|
BOXL |
|
The Nasdaq Stock Market LLC |
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. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
On February 19, 2025, Boxlight Corporation, a
Nevada corporation (the “Company”), entered into a Securities Purchase Agreement (the “Purchase Agreement”)
with certain institutional accredited investors (the “Investors”), pursuant to which the Company agreed to issue
and sell, in a private placement priced at-the-market under the rules of The Nasdaq Stock Market (the “Private Placement”),
an aggregate of (i) 260,000 shares (the “Shares”) of the Company’s Class A common stock, par value $0.0001 per
share (“Class A Common Stock”), (ii) pre-funded warrants (the “Pre-Funded Warrants”) to purchase
up to an aggregate of 1,063,000 shares of Class A Common Stock (the “Pre-Funded Warrant Shares”), and (iii) warrants
(the “Common Warrants” and, together with the Pre-Funded Warrants, the “Warrants”) to purchase up
to an aggregate of 1,323,000 shares of Class A Common Stock (the “Common Warrant Shares” and, together with the Pre-Funded
Warrant Shares, the “Warrant Shares”). The purchase price of each Share and accompanying Common Warrant was $2.13,
and the purchase price of each Prefunded Warrant and accompanying Common Warrant was $2.1299. The Private Placement closed on February
21, 2025, and the Company issued the Shares and executed and delivered the Warrants.
The gross proceeds from the Private Placement
were approximately $2.8 million, before deducting placement agent fees and other private placement expenses. The Company intends to use
the net proceeds from the Private Placement for working capital and general corporate purposes.
Each Pre-Funded Warrant has an initial exercise
price of $0.0001 per share (subject to adjustments as set forth therein), is immediately exercisable upon issuance and will expire when
exercised in full. Each Common Warrant has an initial exercise price of $2.13 per share (subject to adjustments as set forth therein),
is exercisable six months following the date of issuance and will expire five and a half years from the date of issuance.
The Purchase Agreement contains customary representations
and warranties of the Company, indemnification obligations of the Company, customary conditions to closing and termination provisions.
The representations and warranties of each party set forth in the Purchase Agreement have been made solely for the benefit of the other
parties to the Purchase Agreement, and such representations and warranties should not be relied on by any other person.
Pursuant to the Purchase Agreement, the Company
has agreed that, from the date of the Purchase Agreement until 90 days after the closing of the Private Placement, the Company will not
(i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Class A Common Stock or securities
convertible, exchangeable or exercisable into, shares of Class A Common Stock (“Common Stock Equivalents”) or (ii)
file any registration statement or amendment or supplement thereto, other than in connection with the registration rights set forth in
the Purchase Agreement. In addition, from the date of the Purchase Agreement until 45 days after the Effective Date (as defined in the
Purchase Agreement), the Company has agreed not to enter into a Variable Rate Transaction (as defined in the Purchase Agreement);
provided, however, that the issuance and sale of shares of Class A Common Stock in an “at the market” offering at a price
greater than $2.40 per share with the Placement Agent acting as sales agent will not be prohibited.
Under the terms of the Warrants, a holder will
not have the right to exercise any portion of the Warrants if the holder (together with its affiliates) would beneficially own in excess
of 4.99% of the number of the Company's Class A Common Stock outstanding immediately after giving effect to the exercise, as such percentage
ownership is determined in accordance with the terms of the Warrants. However, upon notice from the holder to the Company, the holder
may increase the beneficial ownership limitation to 9.99% of the number of the Company's Class A Common Stock outstanding immediately
after giving effect to the exercise of Warrants.
Pursuant to the Purchase Agreement, on or before
the 45th day following the closing of the Private Placement, the Company has agreed to file a registration statement (the
“Registration Statement”) with the Securities Exchange Commission (“SEC”)
to register the resale of the Shares and the Warrant Shares. The Company further agreed to use commercially reasonable efforts to cause
the Registration Statement to be declared effective by the SEC within 60 days after the date of the closing of the Private Placement,
or 90 days after the date of the closing of the Private Placement if the SEC reviews the Registration Statement.
On February 19, 2025, the Company also entered
into a Placement Agent Agreement with A.G.P./Alliance Global Partners (“AGP” or the “placement agent”),
pursuant to which the Company engaged AGP to act as its sole placement agent in connection with the Private Placement. As compensation
to the placement agent, the Company agreed to pay AGP a cash fee of 7.0% of the aggregate gross proceeds from the Private Placement plus
reimbursement of certain expenses and reasonable legal fees.
Also, in connection with the Private Placement,
on February 21, 2025, each of the directors and executive officers of the Company entered into a lock-up agreement with the Placement
Agent, pursuant to which each director and executive officer agreed, subject to certain limited exceptions, not to: (1) offer, sell, pledge
or otherwise dispose of any shares of Class A Common Stock or Common Stock Equivalents beneficially owned, held or thereafter acquired;
or (2) make any demand for or exercise any right or cause to be filed a registration statement, including any amendments thereto, with
respect to the registration of any shares of Class A Common Stock or Common Stock Equivalents or publicly disclose the intention to do
any of the foregoing, in each case through the period ending on the date that is 90 days from the closing of the Private Placement.
The Private Placement is exempt from registration
pursuant to Section 4(a)(2) of the Securities Act of 1933, as a transaction by an issuer not involving a public offering and Regulation
D promulgated thereunder. The Investors have represented that they have not acquired the securities with a view to or for sale in connection
with any distribution thereof in violation of the Securities Act of 1933, as amended, and appropriate legends have been affixed to the
securities issued in the Private Placement.
The foregoing summaries do not purport to be complete
and are qualified in their entirety by reference to the Placement Agent Agreement, the Purchase Agreement, the form of Pre-Funded Warrant
and the form of Common Warrant, which are filed as Exhibits 10.1, 10.2, 4.1 and 4.2, respectively, to this Current Report on Form 8-K.
| 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 by reference into this Item 3.02.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On February 20, 2025, the Company filed with the
Secretary of State of the State of Nevada (i) an Amendment to the Certificate of Designation of its Series B Preferred Stock (the “Series
B Amendment”) and (ii) an Amendment to the Certificate of Designation of its Series C Preferred Stock (the “Series
C Amendment” and, together with the Series B Amendment, the “Amendments”). Each Amendment was approved by
the holders of a majority of the outstanding shares of Series B Preferred Stock or Series C Preferred Stock, as applicable, in accordance
with the applicable Certificate of Designation.
Pursuant to the Amendments, neither the Series
B Preferred Stock nor the Series C Preferred Stock shall be convertible into Class A Common Stock until the earlier of (1) the effectiveness
of an amendment to the articles of incorporation of the Company increasing the number of shares of authorized Class A Common Stock to
at least 25,000,000 shares (subject to adjustments as set forth therein) and (2) August 19, 2025.
The foregoing summaries do not purport to be complete
and are qualified in their entirety by reference to the full text of the Series B Amendment and the Series C Amendment, which are filed
as Exhibits 4.3 and 4.4 to this Current Report on Form 8-K, respectively.
| Item 7.01 | Regulation FD Disclosure. |
On February 19, 2025, the Company issued a press
release, announcing the pricing of the Private Placement. A copy of the press release is attached as Exhibit 99.1 to this Current Report
on Form 8-K.
The information in this Item 7.01 (including Exhibit
99.1) of this Current Report on Form 8-K is being furnished and shall not be deemed “filed” for purposes of Section 18 of
the Exchange Act, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall
it be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange
Act, except as expressly set forth by specific reference in such filing.
| Item 9.01 | Financial Statements and Exhibits. |
SIGNATURES
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.
BOXLIGHT CORPORATION
| By: |
/s/ Greg Wiggins |
|
| Name: |
Greg Wiggins |
|
| Title: |
Chief Financial Officer |
|
Exhibit 4.1
NEITHER THIS SECURITY NOR THE SECURITIES FOR
WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, NEITHER MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PRE-FUNDED COMMON STOCK PURCHASE WARRANT
BOXLIGHT CORPORATION
| Warrant Shares: _____________ |
|
Issue Date: February __, 2025
Initial Exercise Date: February __, 2025 |
THIS PRE-FUNDED COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, ______ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) to subscribe for and purchase from Boxlight Corporation, a Nevada corporation (the “Company”),
up to ______ shares of Class A common stock, par value $0.0001 per share (the “Common Stock”) (as subject to
adjustment hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2(b).
Section 1.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated February 19, 2025, between the Company and each purchaser
signatory thereto.
Section 2.
Exercise.
a) Exercise of Warrant.
Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail
attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice of Exercise”).
Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period
(as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee
or notarization) of any Notice of Exercise be required. The Company shall have no obligation to inquire with respect to or otherwise confirm
the authenticity of the signature(s) contained in any Notice of Exercise nor the authority of the person so executing such Notice
of Exercise. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date
on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
For the avoidance of doubt, there is no circumstance that would require the Company to net cash settle this Warrant.
b) Exercise Price.
The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.0001 per Warrant Share, was pre-funded to the
Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise price
of $0.0001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The Holder
shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining
unpaid exercise price per Warrant Share under this Warrant shall be $0.0001, subject to adjustment hereunder (the “Exercise Price”).
c) Cashless Exercise.
If at the time of exercise hereof there is no effective registration statement registering the issuance of the Warrant Shares to the Holder
or the prospectus contained therein is not available for the issuance of the Warrant Shares to the Holder, then (and only then), this
Warrant may be exercised, in whole or in part, by means of a “cashless exercise” in which the Holder shall be entitled to
receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| |
(A) = |
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
| |
|
|
| |
(B) = |
the Exercise Price of this Warrant, as adjusted hereunder; and |
| |
|
|
| |
(X) = |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued
in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act,
the Warrant Shares shall take on the registered characteristics of the Warrant. The Company agrees not to take any position contrary to
this Section 2(c), except to the extent required by applicable law, rules, or regulations.
“Bid Price”
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 bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 on a Trading Market and
if prices for the Common Stock are then reported on OTCQB or OTCQX and OTCQB or OTCQX, as applicable, is not a Trading Market, the VWAP
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Trading Day”
means any day on which the Trading Market is open for trading, including any day on which the Trading Market is open for trading for a
period of time less than the customary time.
“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 (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 on a Trading Market
and if prices for the Common Stock are then reported on OTCQB or OTCQX, and OTCQB or OTCQX, as applicable, is not a Trading Market, the
volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and prices for the Common Stock are then reported on The Pink
Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the holders of a majority in interest of the Common Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
d) Mechanics of Exercise.
i. Delivery of Warrant
Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the
Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through
its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either (A) there
is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares by the Holder
or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate representing the
Warrant Shares, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in such Notice of Exercise by
the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company, and (iii) the number of Trading Days comprising
the Standard Settlement Period, in each case, after the delivery to the Company of the Notice of Exercise (such date, the “Warrant
Share Delivery Date”); provided that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise)
is received by the Company by such date. Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes
to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date
of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within the earlier of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise and (ii) the
number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for
any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, provided that
payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Company, the Company shall
pay, beginning one (1) Trading Day after the Warrant Share Delivery Date, to the Holder, in cash, as liquidated damages and not as
a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable
Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant
Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds
such exercise. The Company agrees to maintain a transfer agent (which may be the Transfer Agent) that is a participant in the FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise
delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the
time of execution of the Purchase Agreement, the Company agrees to deliver, or cause to be delivered, the Warrant Shares subject to such
notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date, and the Initial Exercise Date shall be the Warrant
Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless
exercise) is received by the Company by such Warrant Share Delivery Date. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder,
the number of Warrant Shares available for purchase hereunder at any given time will be less than the amount stated on the face hereof.
ii. Delivery of New Warrants
Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender
of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights
of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
iii. Rescission Rights.
If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In
on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company
fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant Share Delivery Date (other than any such failure that is solely due to any action or
inaction by the Holder with respect to such exercise), and if after such date the Holder is required by its broker to purchase (in an
open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction
of a sale by the Holder of the Warrant Shares that the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price
(including reasonable and customary brokerage commissions, if any) for the Warrant Shares so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option
of the Holder, either reinstate the portion of this Warrant and equivalent number of Warrant Shares for which such exercise was not honored
(in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have
been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases
shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence
the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of this Warrant as required pursuant to the terms hereof.
v. No Fractional Shares
or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either
pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round
up to the next whole share of Common Stock.
vi. Charges, Taxes and
Expenses. The issuance and delivery of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form, attached hereto as Exhibit B, duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository
Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of
the Warrant Shares.
vii. Closing of Books.
The Company will not close its stockholder books or records in any manner that prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion
of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set
forth on the applicable Notice of Exercise, the Holder (together with (i) the Holder’s Affiliates, (ii) any other Persons
acting as a group together with the Holder or any of the Holder’s Affiliates, and (iii) any other Persons whose beneficial
ownership of Common Stock would be aggregated with the Holder’s for the purposes of determination of beneficial ownership pursuant
to Section 13(d) and Rule 13d-3 of the Exchange Act (such Persons, “Attribution Parties”)), would beneficially
own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Warrant Shares
issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Warrant
Shares that would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the
Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion
of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged
by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of
the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that
the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises
of this Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder has detrimentally
relied on the number of outstanding shares of Common Stock that was provided in writing by the Company. In addition, a determination as
to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, and the Company shall have no obligation to verify or confirm the accuracy of such determination and
shall have no liability for exercises of this Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the
extent the Holder relies on the number of outstanding shares of Common Stock that was provided by the Company. For purposes of this Section 2(e),
in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock
as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a
more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one Trading Day confirm
orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant,
by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was
reported. The “Beneficial Ownership Limitation” shall be [4.99/9.99]% of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of Warrant Shares issuable upon exercise of this Warrant. The Holder, upon written notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of Warrant Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this paragraph shall not be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) that may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. To the
extent that this Warrant is unexercisable as a result of the Holder’s Beneficial Ownership Limitation, no alternate consideration
is owing to the Holder.
Section 3.
Certain Adjustments.
a) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution
or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which,
for avoidance of doubt, shall not include any Warrant Shares issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares
of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant remains unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Reserved.
c) Subsequent Rights Offerings.
In addition to any adjustments pursuant to Section 3(a) above, if at any time that the Warrant is outstanding the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all of the
record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights that the Holder could have acquired if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on
exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the
extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to all of the holders of shares of Common Stock, 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) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e) Fundamental Transaction.
If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects
any merger or consolidation of the Company with or into another Person in which the Company is not the surviving entity (other than a
reincorporation in a different state, a transaction for changing the Company’s name, or a similar transaction pursuant to which
the surviving company remains a public company and the Company is not the surviving entity), (ii) the Company, directly or indirectly,
effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s
assets in one or a series of related transactions (which, for the avoidance of doubt, shall not include such transactions that do not
require approval of the Company’s stockholders), (iii) any, direct or indirect, purchase offer, tender offer or exchange offer
(whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell, tender or exchange
their shares for other securities, cash or property and has been accepted by the holders of more than 50% of the voting power of the common
equity of the Company, (iv) the Company, directly or indirectly, in one or more related transactions effects any reclassification,
reorganization or recapitalization of the Common Stock or any compulsory share exchange pursuant to which the Common Stock is effectively
converted into or exchanged for other securities, cash or property (other than a stock split), or (v) the Company, directly or indirectly,
in one or more related transactions consummates a stock or share purchase agreement or other business combination (including, without
limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby
such other Person or group acquires more than 50% of the voting power of the common equity of the Company (each a “Fundamental
Transaction”), then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant
Share that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option
of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common
Stock of the successor or acquiring corporation or of the Company, if it is the surviving corporation, and any additional consideration
(the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of the number of
shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any
limitation in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise
Price shall be appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable
in respect of one share of Common Stock in such Fundamental Transaction, and the Company shall apportion the Exercise Price among the
Alternate Consideration in a reasonable manner reflecting the relative value of any different components of the Alternate Consideration.
If holders of Common Stock are given any choice as to the securities, cash or property to be received in a Fundamental Transaction, then
the Holder shall be given the same choice as to the Alternate Consideration it receives upon any exercise of this Warrant following such
Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor
(the “Successor Entity”) to assume in writing all of the obligations of the Company under this Warrant and the other
Transaction Documents in accordance with the provisions of this Section 3(a) pursuant to written agreements in form and substance
reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to such Fundamental Transaction and
shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant that is exercisable for a corresponding number of shares
of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common Stock acquirable and receivable upon
exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and
with an exercise price that applies the exercise price hereunder to such shares of capital stock (but taking into account the relative
value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number
of shares of capital stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately
prior to the consummation of such Fundamental Transaction), and that is reasonably satisfactory in form and substance to the Holder. Upon
the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted for (so that from and after
the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the “Company”
shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume all of the obligations
of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor Entity had been named
as the Company herein.
f) Calculations. All
calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of
the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise
Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver
to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant
Shares and setting forth a brief statement of the facts requiring such adjustment; provided, however, that the Company may satisfy this
notice requirement in this Section 3(g) by filing such notice with the Commission pursuant to a Current Report on Form 8-K
or Quarterly or Annual Report.
ii. Notice to Allow Exercise
by Holder. If, while this Warrant is outstanding, (A) the Company declares a dividend (or any other distribution in whatever
form other than a stock split) on the Common Stock, (B) the Company declares a special nonrecurring cash dividend on, or a redemption
of, the Common Stock, (C) the Company authorizes the granting to all holders of shares of Common Stock rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of any rights (excluding any granting or issuance of rights to all of the
Company’s shareholders pursuant to a shareholder rights plan), (D) the approval of any stockholders of the Company is required
in connection with a Fundamental Transaction, or (E) the Company authorizes the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its
last email address as it shall appear upon the Warrant Register of the Company, at least three calendar days prior to the applicable record
or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the shares of Common
Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and
the date as of which it is expected that holders of the shares of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share
exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity
of the corporate action required to be specified in such notice; and provided, further, that no notice shall be required if the information
is disseminated in a press release or a document filed with the Commission. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
iii. Voluntary Adjustment
by the Company. Subject to the rules and regulations of the Trading Market on which the Common Stock is then listed, the Company
may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise
Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4.
Transfer of Warrant.
a) Transferability.
Subject to compliance with applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions
of Section 5.7 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration
rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full,
in which case, the Holder shall surrender this Warrant to the Company on the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. Subject
to compliance with applicable securities law, this Warrant may be divided or combined with other Warrants upon presentation hereof at
the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to
be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the
Issue Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register.
The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
d) Transfer Restrictions.
If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not
be (i) registered pursuant to an effective registration statement under the Securities and under applicable state securities or blue
sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant
to Rule 144, the Company may require, as a condition of allowing such transfer, the Holder or transferee of this Warrant, as the
case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
e) Representation by the
Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof,
will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling
such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to
sales registered or exempted under the Securities Act.
Section 5.
Miscellaneous.
a) No Rights as Stockholder
Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as
a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3.
Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or
to receive cash payments pursuant to Section 2(d)(i) or 2(d)(iv) herein, in no event shall the Company be required to net
cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction
or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to this Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of this Warrant, shall not include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that,
during the period this Warrant is outstanding, it will reserve from its authorized and unissued shares of Common Stock a sufficient number
of shares to provide for the issuance of the Warrant Shares underlying this Warrant. The Company further covenants that its issuance of
this Warrant shall constitute full authority to its officers who are charged with the duty of issuing the necessary Warrant Shares upon
the exercise of this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant Shares
may be issued and delivered as provided herein without violation of any applicable law or regulation, or of any requirements of the Trading
Market upon which the Common Stock may be listed. The Company covenants that all Warrant Shares that may be issued and delivered upon
the exercise this Warrant will, upon exercise of this Warrant and payment for such Warrant Shares in accordance herewith, be duly authorized,
validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in respect of the issue
thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent
as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, 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 of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment (it being understood that this Warrant shall not in any
case prevent the Company from effecting any such amendment, reorganization, transfer, consolidation, merger, dissolution, issuance or
sale). Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any shares of Common
Stock above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations
under this Warrant.
Before taking any action
that would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Jurisdiction. All
questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with
the provisions of the Purchase Agreement.
f) Restrictions. The
Holder acknowledges that exercise of the Warrant is subject to compliance with state and federal securities laws and that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal
securities laws.
g) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant or the Purchase
Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, and such failure results in any
material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. Any notice,
request or other document required or permitted to be given or delivered hereunder shall be delivered in accordance with the notice provisions
of the Purchase Agreement.
i) Limitation of Liability.
No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of
any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder,
in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance
of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for
specific performance that a remedy at law would be adequate.
k) Successors and Assigns.
Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder
or holder of Warrant Shares.
l) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holders of a majority
of the Warrant Shares.
m) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if
any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings
used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| |
BOXLIGHT CORPORATION |
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By: |
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Name: Dale Strang |
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Title: Chief Executive Officer |
EXHIBIT A
NOTICE OF EXERCISE
TO: BOXLIGHT CORPORATION
(1) The undersigned
hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full),
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take
the form of (check applicable box):
¨ in lawful
money of the United States; or
¨ if permitted
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise
this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in
subsection 2(c).
(3) Please issue said
Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following DWAC Account
Number:
(4) Accredited Investor.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity:
____________________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
___________________________________________________________________
Name of Authorized Signatory:
___________________________________________________________________
Title of Authorized Signatory:
___________________________________________________________________
Date:
___________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this form and supply required
information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
| Name: _________________________________________________________________________________________________________________ |
| (Please Print) |
| |
| Address: _______________________________________________________________________________________________________________ |
| (Please Print) |
| |
| Phone Number: __________________________________________________________________________________________________________ |
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| Email Address: __________________________________________________________________________________________________________ |
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| Dated: _________________________________________________________________________________________________________________ |
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| Holder’s Signature: _______________________________________________________________________________________________________ |
| |
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| Holder’s Address: ________________________________________________________________________________________________________ |
Exhibit 4.2
NEITHER THIS SECURITY NOR THE SECURITIES FOR
WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY
STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
AND, ACCORDINGLY, NEITHER MAY BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE WARRANT
BOXLIGHT CORPORATION
| Warrant Shares: ______________ |
|
Issue Date: February __, 2025
Initial Exercise Date: August __, 2025 |
THIS COMMON STOCK PURCHASE
WARRANT (the “Warrant”) certifies that, for value received, ______ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
August __, 2025 (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on the five
year anniversary of the Effective Date (the “Termination Date”), but not thereafter, to subscribe for and purchase
from Boxlight Corporation, a Nevada corporation (the “Company”), up to ______ shares of Class A common
stock, par value $0.0001 per share (the “Common Stock”) (as subject to adjustment hereunder, the “Warrant
Shares”). The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined
in Section 2(b).
Section 1.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated February 19, 2025, between the Company and each purchaser
signatory thereto.
Section 2.
Exercise.
a) Exercise of Warrant.
Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on or after the Initial
Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted by e-mail (or e-mail
attachment) of the Notice of Exercise in the form annexed hereto as Exhibit A (the “Notice of Exercise”).
Within the earlier of (i) one (1) Trading Day and (ii) the number of Trading Days comprising the Standard Settlement Period
(as defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee
or notarization) of any Notice of Exercise be required. The Company shall have no obligation to inquire with respect to or otherwise confirm
the authenticity of the signature(s) contained in any Notice of Exercise nor the authority of the person so executing such Notice
of Exercise. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to
the Company until the Holder has purchased all of the Warrant Shares available hereunder and this Warrant has been exercised in full,
in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading Days of the date
on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases of a portion
of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant Shares purchasable
hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall maintain records showing
the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection to any Notice of Exercise
within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this Warrant, acknowledge
and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder, the
number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on the face hereof.
For the avoidance of doubt, there is no circumstance that would require the Company to net cash settle this Warrant.
b) Exercise Price.
The exercise price per share of Common Stock under this Warrant shall be $2.13, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless Exercise.
If at the time of exercise hereof there is no effective registration statement registering the resale of the Warrant Shares by the Holder
or the prospectus contained therein is not available for the resale of the Warrant Shares by the Holder and there is no available exemption
from registration of the resale of the Warrant Shares under the Securities Act, then (and only then) this Warrant may also be exercised,
in whole or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number
of Warrant Shares equal to the quotient obtained by dividing (A-B) (X) by (A), where:
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(A) = |
as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; |
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(B) = |
the Exercise Price of this Warrant, as adjusted hereunder; and |
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(X) = |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. |
If Warrant Shares are issued
in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the Securities Act,
the holding period of the Warrant Shares being issued may be tacked onto the holding period of this Warrant. The Company agrees not to
take any position contrary to this Section 2(c), except to the extent required by applicable law, rules, or regulations.
“Bid Price”
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 bid price of the Common Stock for the time in question (or the nearest preceding date) on the Trading
Market on which the Common Stock is then listed or quoted as reported by Bloomberg (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 on a Trading Market and
if prices for the Common Stock are then reported on OTCQB or OTCQX and OTCQB or OTCQX, as applicable, is not a Trading Market, the VWAP
of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if the Common Stock is not
then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported on The Pink Open Market (or a
similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share of the Common Stock
so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an independent appraiser
selected in good faith by the Holders of a majority in interest of the Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Trading Day”
means any day on which the Trading Market is open for trading, including any day on which the Trading Market is open for trading for a
period of time less than the customary time.
“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 (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 on a Trading Market
and if prices for the Common Stock are then reported on OTCQB or OTCQX, and OTCQB or OTCQX, as applicable, is not a Trading Market, the
volume weighted average price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX, as applicable, (c) if
the Common Stock is not then listed or quoted for trading on OTCQB or OTCQX and prices for the Common Stock are then reported on The Pink
Open Market (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the holders of a majority in interest of the Common Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
d) Mechanics of Exercise.
i. Delivery of Warrant
Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer Agent to the
Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company through
its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system and either
(A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant Shares
by the Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate representing
the Warrant Shares, registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant
Shares to which the Holder is entitled pursuant to such exercise to the address specified by the Holder in such Notice of Exercise by
the date that is the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one
(1) Trading Day after delivery of the aggregate Exercise Price to the Company, and (iii) the number of Trading Days comprising
the Standard Settlement Period, in each case, after the delivery to the Company of the Notice of Exercise (such date, the “Warrant
Share Delivery Date”); provided that payment of the aggregate Exercise Price (other than in the instance of a cashless exercise)
is received by the Company by such date. Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes
to have become the holder of record of the Warrant Shares with respect to which this Warrant has been exercised, irrespective of the date
of delivery of the Warrant Shares, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise)
is received within the earlier of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise and (ii) the
number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise. If the Company fails for
any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery Date, provided that
payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received by the Company, the Company shall
pay, beginning one (1) Trading Day after the Warrant Share Delivery Date, to the Holder, in cash, as liquidated damages and not as
a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of the Common Stock on the date of the applicable
Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the third (3rd) Trading Day after the Warrant
Share Delivery Date) for each Trading Day after such Warrant Share Delivery Date until such Warrant Shares are delivered or Holder rescinds
such exercise. The Company agrees to maintain a transfer agent (which may be the Transfer Agent) that is a participant in the FAST program
so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard
settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Stock
as in effect on the date of delivery of the Notice of Exercise. Notwithstanding the foregoing, with respect to any Notice(s) of Exercise
delivered on or prior to 9:00 a.m. (New York City time) on the Initial Exercise Date, which may be delivered at any time after the
time of execution of the Purchase Agreement, the Company agrees to deliver, or cause to be delivered, the Warrant Shares subject to such
notice(s) by 4:00 p.m. (New York City time) on the Initial Exercise Date, and the Initial Exercise Date shall be the Warrant
Share Delivery Date for purposes hereunder, provided that payment of the aggregate Exercise Price (other than in the case of a cashless
exercise) is received by the Company by such Warrant Share Delivery Date. The Holder and any assignee, by acceptance of this Warrant,
acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant Shares hereunder,
the number of Warrant Shares available for purchase hereunder at any given time will be less than the amount stated on the face hereof.
ii. Delivery of New Warrants
Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and upon surrender
of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing the rights
of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects be
identical with this Warrant.
iii. Rescission Rights.
If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. Compensation for Buy-In
on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if the Company
fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant Share Delivery Date (other than any such failure that is solely due to any action or
inaction by the Holder with respect to such exercise), and if after such date the Holder is required by its broker to purchase (in an
open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver in satisfaction
of a sale by the Holder of the Warrant Shares that the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price
(including reasonable and customary brokerage commissions, if any) for the Warrant Shares so purchased exceeds (y) the amount obtained
by multiplying (1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise
at issue times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option
of the Holder, either reinstate the portion of this Warrant and equivalent number of Warrant Shares for which such exercise was not honored
(in which case such exercise shall be deemed rescinded) or deliver to the Holder the number of shares of Common Stock that would have
been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example, if the Holder purchases
shares of Common Stock having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants with
an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence
the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares of Common Stock
upon exercise of this Warrant as required pursuant to the terms hereof.
v. No Fractional Shares
or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this Warrant. As to any
fraction of a share that the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election, either
pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or round
up to the next whole share of Common Stock.
vi. Charges, Taxes and
Expenses. The issuance and delivery of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or
other incidental expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company,
and such Warrant Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form, attached hereto as Exhibit B, duly executed by the Holder
and the Company may require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto.
The Company shall pay all Transfer Agent fees required for same-day processing of any Notice of Exercise and all fees to the Depository
Trust Company (or another established clearing corporation performing similar functions) required for same-day electronic delivery of
the Warrant Shares.
vii. Closing of Books.
The Company will not close its stockholder books or records in any manner that prevents the timely exercise of this Warrant, pursuant
to the terms hereof.
e) Holder’s Exercise
Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise any portion
of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such issuance after exercise as set
forth on the applicable Notice of Exercise, the Holder (together with (i) the Holder’s Affiliates, (ii) any other Persons
acting as a group together with the Holder or any of the Holder’s Affiliates, and (iii) any other Persons whose beneficial
ownership of Common Stock would be aggregated with the Holder’s for the purposes of determination of beneficial ownership pursuant
to Section 13(d) and Rule 13d-3 of the Exchange Act (such Persons, “Attribution Parties”)), would beneficially
own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the foregoing sentence, the number of shares
of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall include the number of Warrant Shares
issuable upon exercise of this Warrant with respect to which such determination is being made, but shall exclude the number of Warrant
Shares that would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the
Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion
of any other securities of the Company (including, without limitation, any other Common Stock Equivalents) subject to a limitation on
conversion or exercise analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution
Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated
in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged
by the Holder that the Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of
the Exchange Act and the Holder is solely responsible for any schedules required to be filed in accordance therewith. To the extent that
the limitation contained in this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation
to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is
exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s
determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates
and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation,
and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for exercises
of this Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the extent the Holder has detrimentally
relied on the number of outstanding shares of Common Stock that was provided in writing by the Company. In addition, a determination as
to any group status as contemplated above shall be determined in accordance with Section 13(d) of the Exchange Act and the rules and
regulations promulgated thereunder, and the Company shall have no obligation to verify or confirm the accuracy of such determination and
shall have no liability for exercises of this Warrant that are not in compliance with the Beneficial Ownership Limitation, except to the
extent the Holder relies on the number of outstanding shares of Common Stock that was provided by the Company. For purposes of this Section 2(e),
in determining the number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock
as reflected in (A) the Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a
more recent public announcement by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth
the number of shares of Common Stock outstanding. Upon the written request of a Holder, the Company shall within one Trading Day confirm
orally and in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares
of Common Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant,
by the Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was
reported. The “Beneficial Ownership Limitation” shall be [4.99/9.99]% of the number of shares of Common Stock outstanding
immediately after giving effect to the issuance of Warrant Shares issuable upon exercise of this Warrant. The Holder, upon written notice
to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of Warrant Shares upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this paragraph shall not be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) that may be defective or inconsistent
with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly
give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. To the
extent that this Warrant is unexercisable as a result of the Holder’s Beneficial Ownership Limitation, no alternate consideration
is owing to the Holder.
Section 3.
Certain Adjustments.
a) Stock Dividends and
Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes a distribution
or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of Common Stock (which,
for avoidance of doubt, shall not include any Warrant Shares issued by the Company upon exercise of this Warrant), (ii) subdivides
outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way of reverse stock split) outstanding
shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of shares of the Common Stock any shares
of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be
the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before such event and of which the denominator
shall be the number of shares of Common Stock outstanding immediately after such event, and the number of shares issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant remains unchanged. Any adjustment
made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of stockholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b) Reserved.
c) Subsequent Rights Offerings.
In addition to any adjustments pursuant to Section 3(a) above, if at any time that the Warrant is outstanding the Company grants,
issues or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to all of the
record holders of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to
acquire, upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights that the Holder could have acquired if the Holder
had held the number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on
exercise hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken
for the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares
of Common Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the
extent that the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership
Limitation, then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such
shares of Common Stock as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance
for the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro Rata Distributions.
During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution of its assets
(or rights to acquire its assets) to all of the holders of shares of Common Stock, 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) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however,
that, to the extent that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial
Ownership Limitation, then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership
of any shares of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance
for the benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e) Fundamental Transaction.
If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related transactions effects
any merger or consolidation of the Company with or into another Person in which the Company is not the surviving entity (other than a
reincorporation in a different state, a transaction for changing the Company’s name, or a similar transaction pursuant to which
the surviving company remains a public company), (ii) the Company, directly or indirectly, effects any sale, lease, license, assignment,
transfer, conveyance or other disposition of all or substantially all of the Company’s assets in one or a series of related transactions
(which, for the avoidance of doubt, shall not include such transactions that do not require approval of the Company’s stockholders),
(iii) any, direct or indirect, purchase offer, tender offer or exchange offer (whether by the Company or another Person) is completed
pursuant to which holders of Common Stock are permitted to sell, tender or exchange their shares for other securities, cash or property
and has been accepted by the holders of more than 50% of the voting power of the common equity of the Company, (iv) the Company,
directly or indirectly, in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common
Stock or any compulsory share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities,
cash or property (other than a stock split), or (v) the Company, directly or indirectly, in one or more related transactions consummates
a stock or share purchase agreement or other business combination (including, without limitation, a reorganization, recapitalization,
spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other Person or group acquires more than
50% of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon any subsequent
exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable upon such exercise
immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to any limitation in
Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring corporation
or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction, the Company or any Successor Entity (as defined below) shall, at the Holder’s option, exercisable
at any time concurrently with, or within thirty (30) days after, the consummation of the Fundamental Transaction (or, if later, the date
of the public announcement of the applicable Fundamental Transaction), purchase this Warrant from the Holder by paying to the Holder,
as described below, an amount of consideration equal to the Black Scholes Value (as defined below) of the remaining unexercised portion
of this Warrant on the date of consummation of such Fundamental Transaction, provided, however, that, if the Fundamental Transaction is
not within the Company’s control, including not approved by the Company’s Board of Directors, the Holder shall only be entitled
to receive from the Company or any Successor Entity as of the date of consummation of such Fundamental Transaction the same type or form
of consideration (and in the same proportion), valued at the Black Scholes Value of the unexercised portion of this Warrant, that is being
offered and paid to the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration
be in the form of cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from
among alternative forms of consideration in connection with the Fundamental Transaction; provided further, that if holders of Common Stock
of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed
to have received shares of the Successor Entity (which Successor Entity may be the Company following such Fundamental Transaction) in
such Fundamental Transaction. “Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option
Pricing Model obtained from the “OV” function on Bloomberg determined as of the day of consummation of the applicable
Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate
for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and
the Termination Date, (B) an expected volatility equal to the 100 day volatility obtained from the HVT function on Bloomberg (determined
utilizing a 365-day annualization factor) as of the Trading Day immediately following the public announcement of the applicable Fundamental
Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per
share being offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction
and (ii) the greater of (x) the last VWAP immediately prior to the public announcement of such Fundamental Transaction and (y) the
last VWAP immediately prior to the consummation of such Fundamental Transaction, (D) a remaining option time equal to the time between
the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, and (E) a zero cost of borrow.
The payment of the Black Scholes Value will be made by wire transfer of immediately available funds within five Trading Days of the Holder’s
election (or, if later, on the effective date of the Fundamental Transaction). The Company shall cause any successor entity in a Fundamental
Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations
of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(a) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant that is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price that applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and that is reasonably satisfactory in form
and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall succeed to, and be substituted
for (so that from and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents
referring to the “Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company
and shall assume all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as
if such Successor Entity had been named as the Company herein.
f) Calculations. All
calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For purposes
of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be the sum of
the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice to Holder.
i. Adjustment to Exercise
Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly deliver
to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number of Warrant
Shares and setting forth a brief statement of the facts requiring such adjustment; provided, however, that the Company may satisfy this
notice requirement in this Section 3(g) by filing such notice with the Commission pursuant to a Current Report on Form 8-K
or Quarterly or Annual Report.
ii. Notice to Allow Exercise
by Holder. If, while this Warrant is outstanding, (A) the Company declares a dividend (or any other distribution in whatever
form other than a stock split) on the Common Stock, (B) the Company declares a special nonrecurring cash dividend on, or a redemption
of, the Common Stock, (C) the Company authorizes the granting to all holders of shares of Common Stock rights or warrants to subscribe
for or purchase any shares of capital stock of any class or of any rights, (D) the approval of any stockholders of the Company is
required in connection with a Fundamental Transaction, or (E) the Company authorizes the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its
last email address as it shall appear upon the Warrant Register of the Company, at least three calendar days prior to the applicable record
or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of the shares of Common
Stock of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date
on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and
the date as of which it is expected that holders of the shares of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share
exchange; provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity
of the corporate action required to be specified in such notice; and provided, further, that no notice shall be required if the information
is disseminated in a press release or a document filed with the Commission. The Holder shall remain entitled to exercise this Warrant
during the period commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise
be expressly set forth herein.
iii. Voluntary Adjustment
by the Company. Subject to the rules and regulations of the Trading Market on which the Common Stock is then listed, the Company
may at any time during the term of this Warrant, subject to the prior written consent of the Holder, reduce the then current Exercise
Price to any amount and for any period of time deemed appropriate by the board of directors of the Company.
Section 4.
Transfer of Warrant.
a) Transferability.
Subject to compliance with applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions
of Section 5.7 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration
rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto duly executed by the Holder or its
agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer. Upon such surrender and, if
required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable,
and in the denomination or denominations specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing
the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary,
the Holder shall not be required to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full,
in which case, the Holder shall surrender this Warrant to the Company on the date on which the Holder delivers an assignment form to the
Company assigning this Warrant in full. This Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for
the purchase of Warrant Shares without having a new Warrant issued.
b) New Warrants. Subject
to compliance with applicable securities law, this Warrant may be divided or combined with other Warrants upon presentation hereof at
the aforesaid office of the Company, together with a written notice specifying the names and denominations in which new Warrants are to
be issued, signed by the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer that may be
involved in such division or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant
or Warrants to be divided or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the
Issue Date and shall be identical with this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant Register.
The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant Register”),
in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder of this Warrant as the
absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other purposes, absent actual
notice to the contrary.
d) Transfer Restrictions.
If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this Warrant shall not
be (i) registered pursuant to an effective registration statement under the Securities and under applicable state securities or blue
sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information requirements pursuant
to Rule 144, the Company may require, as a condition of allowing such transfer, the Holder or transferee of this Warrant, as the
case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
e) Representation by the
Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise hereof,
will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or reselling
such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant to
sales registered or exempted under the Securities Act.
Section 5.
Miscellaneous.
a) No Rights as Stockholder
Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends or other rights as
a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly set forth in Section 3.
Without limiting any rights of a Holder to receive Warrant Shares on a “cashless exercise” pursuant to Section 2(c) or
to receive cash payments pursuant to Section 2(d)(i) or 2(d)(iv) herein, in no event shall the Company be required to net
cash settle an exercise of this Warrant.
b) Loss, Theft, Destruction
or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to this Warrant Shares, and in case of loss,
theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of this Warrant, shall not include the
posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make and
deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays, Sundays,
Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted herein
shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading Day.
d) Authorized Shares.
The Company covenants that,
commencing after the Initial Exercise Date and during the period this Warrant is outstanding, it will reserve from its authorized and
unissued shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares underlying this Warrant.
The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who are charged with the
duty of issuing the necessary Warrant Shares upon the exercise of this Warrant. The Company will take all such reasonable action as may
be necessary to assure that such Warrant Shares may be issued and delivered as provided herein without violation of any applicable law
or regulation, or of any requirements of the Trading Market upon which the Common Stock may be listed. The Company covenants that all
Warrant Shares that may be issued and delivered upon the exercise this Warrant will, upon exercise of this Warrant and payment for such
Warrant Shares in accordance herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens
and charges created by the Company in respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously
with such issue).
Except and to the extent
as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate
of incorporation or through any reorganization, 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 of this Warrant, but will at all
times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment (it being understood that this Warrant shall not in any
case prevent the Company from effecting any such amendment, reorganization, transfer, consolidation, merger, dissolution, issuance or
sale). Without limiting the generality of the foregoing, the Company will (i) not increase the par value of any shares of Common
Stock above the amount payable therefor upon such exercise immediately prior to such increase in par value, (ii) take all such action
as may be necessary or appropriate in order that the Company may validly and legally issue fully paid and nonassessable shares of Common
Stock upon the exercise of this Warrant and (iii) use commercially reasonable efforts to obtain all such authorizations, exemptions
or consents from any public regulatory body having jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations
under this Warrant.
Before taking any action
that would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the
Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory
body or bodies having jurisdiction thereof.
e) Jurisdiction. All
questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance with
the provisions of the Purchase Agreement.
f) Restrictions. The
Holder acknowledges that exercise of the Warrant is subject to compliance with state and federal securities laws and that the Warrant
Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions upon resale imposed by state and federal
securities laws.
g) Nonwaiver and Expenses.
No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as a waiver of such right
or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision of this Warrant or the Purchase
Agreement, if the Company willfully and knowingly fails to comply with any provision of this Warrant, and such failure results in any
material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses
including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices. Any notice,
request or other document required or permitted to be given or delivered hereunder shall be delivered in accordance with the notice provisions
of the Purchase Agreement.
i) Limitation of Liability.
No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no
enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of
any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
j) Remedies. The Holder,
in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific performance
of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any action for
specific performance that a remedy at law would be adequate.
k) Successors and Assigns.
Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the benefit of and
be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder. The provisions
of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable by the Holder
or holder of Warrant Shares.
l) Amendment. This
Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holders of a majority
of the Warrant Shares.
m) Severability. Wherever
possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law, but if
any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings. The headings
used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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BOXLIGHT CORPORATION |
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By: |
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Name: Dale Strang |
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Title: Chief Executive Officer |
EXHIBIT A
NOTICE OF EXERCISE
TO: BOXLIGHT CORPORATION
(1) The undersigned
hereby elects to purchase ________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full),
and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take
the form of (check applicable box):
¨ in lawful money of the United States;
or
¨ if permitted the cancellation of such
number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect
to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said
Warrant Shares in the name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
(4) Accredited Investor.
The undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity:
____________________________________________________________________
Signature
of Authorized Signatory of Investing Entity:
___________________________________________________________________
Name of Authorized Signatory:
___________________________________________________________________
Title of Authorized Signatory:
___________________________________________________________________
Date:
___________________________________________________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to exercise the Warrant to purchase Warrant Shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
| Name: _________________________________________________________________________________________________________________ |
| (Please Print) |
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| Address: _______________________________________________________________________________________________________________ |
| (Please Print) |
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| Phone Number: __________________________________________________________________________________________________________ |
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| Email Address: __________________________________________________________________________________________________________ |
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| Dated: _________________________________________________,________________________________________________________________ |
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| Holder’s Signature: _______________________________________________________________________________________________________ |
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| Holder’s Address: ________________________________________________________________________________________________________ |
Exhibit 4.3
EXHIBIT A
AMENDMENT TO CERTIFICATE OF DESIGNATION
(This amendment was approved by the holders
of a majority of the outstanding
Series B Preferred Stock in accordance with Section 14 of the Certificate.)
Section 9 of the Certificate is hereby
deleted and replaced in its entirety with the following:
9 No Conversion
Prior to Share Increase; Reservation of Class A Common Stock Issuable Upon Conversion After Share Increase. Notwithstanding anything
to the contrary in this Certificate, the Series B Preferred Stock shall not be convertible into the Class A Common Stock prior to the
earlier to occur of (i) the effectiveness of an amendment to the Articles of Incorporation increasing the number of shares of authorized
Class A Common Stock to at least 25,000,000 shares (with such number to be appropriately adjusted pursuant to Section 8) (the “Share
Increase”) and (ii) August 19, 2025 (such date that first occurs, the “Trigger Date”). Prior to the Trigger
Date, the Company shall be under no obligation to reserve or keep available out of its authorized but unissued shares of Class A Common
Stock any shares related to the possible future conversion of the Series B Preferred Stock. After the Trigger Date, the Series B Preferred
Stock shall be convertible as provided in this Certificate, and the Corporation shall at all times thereafter reserve and keep available
out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of effecting the conversion of the shares of
the Series B Preferred Stock, such number of its shares of Class A Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of the Series B Preferred Stock; and if at any time thereafter the number of authorized but unissued
shares of Class A Common Stock shall not be sufficient to effect the conversion of all then outstanding shares of the Series B Preferred
Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary to increase its authorized
but unissued shares of Class A Common Stock to such number of shares as shall be sufficient for such purpose, including, without limitation,
engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to the Corporation’s Articles of
Incorporation.
Exhibit 4.4
EXHIBIT A
AMENDMENT TO CERTIFICATE OF DESIGNATION
(This amendment was approved by the
holders of a majority of the outstanding
Series C Preferred Stock in accordance with Section 14 of the Certificate.)
Section 9 of the Certificate is hereby
deleted and replaced in its entirety with the following:
9 No
Conversion Prior to Share Increase; Reservation of Class A Common Stock Issuable Upon Conversion After Share Increase. Notwithstanding
anything to the contrary in this Certificate, the Series C Preferred Stock shall not be convertible into the Class A Common Stock prior
to the earlier to occur of (i) the effectiveness of an amendment to the Articles of Incorporation increasing the number of shares of
authorized Class A Common Stock to at least 25,000,000 shares (with such number to be appropriately adjusted pursuant to Section 8) (the
“Share Increase”) and (ii) August 19, 2025 (such date that first occurs, the “Trigger Date”). Prior
to the Trigger Date, the Company shall be under no obligation to reserve or keep available out of its authorized but unissued shares
of Class A Common Stock any shares related to the possible future conversion of the Series C Preferred Stock. After the Trigger Date,
the Series C Preferred Stock shall be convertible as provided in this Certificate, and the Corporation shall at all times thereafter
reserve and keep available out of its authorized but unissued shares of Class A Common Stock, solely for the purpose of effecting the
conversion of the shares of the Series C Preferred Stock, such number of its shares of Class A Common Stock as shall from time to time
be sufficient to effect the conversion of all outstanding shares of the Series C Preferred Stock; and if at any time thereafter the number
of authorized but unissued shares of Class A Common Stock shall not be sufficient to effect the conversion of all then outstanding shares
of the Series C Preferred Stock, the Corporation will take such corporate action as may, in the opinion of its counsel, be necessary
to increase its authorized but unissued shares of Class A Common Stock to such number of shares as shall be sufficient for such purpose,
including, without limitation, engaging in best efforts to obtain the requisite stockholder approval of any necessary amendment to the
Corporation’s Articles of Incorporation.
Exhibit 10.1
February 19,
2025
Boxlight Corporation
2750 Premiere Parkway, Suite 900
Duluth, Georgia 30097
Attention: Mr. Dale Strang, Chief Executive
Officer
Dear Mr. Strang:
This letter (the “Agreement”)
constitutes the agreement between A.G.P./Alliance Global Partners (“A.G.P.” or the “Placement Agent”)
and Boxlight Corporation, a Nevada corporation (the “Company”), that the Placement Agent shall serve as the exclusive
placement agent for the Company, on a reasonable “best efforts” basis, in connection with the proposed placement (the “Placement”)
of (i) shares (the “Shares”) of Class A common stock of the Company, par value $0.0001 per share (the “Common
Stock”), (ii) warrants (the “Common Warrants”) to purchase shares of Common Stock (the “Common
Warrant Shares”) and (iii) pre-funded warrants (the “Pre-Funded Warrants” and together with the Shares
and Common Warrants, the “Securities”) to purchase shares of Common Stock (the “Pre-Funded Warrant Shares”).
The Securities actually placed by the Placement Agent are referred to herein as the “Placement Agent Securities.” The
terms of the Placement shall be mutually agreed upon by the Company and the purchasers of the Securities (each, a “Purchaser”
and, collectively, the “Purchasers”), and nothing herein constitutes that the Placement Agent would have the power
or authority to bind the Company or any Purchaser, or an obligation for the Company to issue any Securities or complete the Placement.
The Company expressly acknowledges and agrees that the Placement Agent’s obligations hereunder are on a reasonable “best efforts”
basis only and that the execution of this Agreement does not constitute a commitment by the Placement Agent to purchase the Securities
and does not ensure the successful placement of the Securities or any portion thereof or the success of the Placement Agent with respect
to securing any other financing on behalf of the Company. The Placement Agent may retain other brokers or dealers to act as sub-agents
or selected dealers on its behalf in connection with the Placement. Certain affiliates of the Placement Agent may participate in the Placement
by purchasing some of the Placement Agent Securities. The sale of Placement Agent Securities to any Purchaser will be evidenced by a securities
purchase agreement (the “Purchase Agreement”) between the Company and such Purchaser, in a form mutually agreed upon
by the Company and the Purchaser. Capitalized terms that are not otherwise defined herein have the meanings given to such terms in the
Purchase Agreement. Prior to the signing of any Purchase Agreement, officers of the Company will be available upon reasonable notice and
during normal business hours to answer inquiries from the prospective Purchasers.
SECTION 1. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations
of the Company. With respect to the Placement Agent Securities, each of the representations and warranties (together with any related
disclosure schedules thereto) and covenants made by the Company to the Purchasers in the Purchase Agreement in connection with the Placement,
is hereby incorporated herein by reference into this Agreement (as though fully restated herein) and is, as of the date of this Agreement
and as of the date of the sale of the Placement Agent Securities (the “Closing Date”), hereby made to, and in favor
of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that there are no affiliations with any Financial
Industry Regulatory Authority (“FINRA”) member firm among the Company’s officers, directors or, to the knowledge
of the Company, any five percent (5.0%) or greater stockholder of the Company, except as set forth in the Purchase Agreement or the SEC
Reports.
B. Covenants
of the Company. The Company covenants and agrees to continue to retain (i) a firm of Public Company Accounting Oversight Board
independent registered public accountants for a period of at least two (2) years after the Closing Date and (ii) a reputable
transfer agent with respect to the Common Stock for a period of two (2) years after the Closing Date, provided in each case that
the Company is then subject to the reporting requirement of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Furthermore, except as set forth below, from the date hereof until ninety (90) days after the Closing Date (the “Restriction
Period”), without the prior written consent of the Placement Agent, neither the Company nor any Subsidiary shall (i) issue,
enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common Stock or Common Stock Equivalents,
or (ii) file any registration statement or amendment or supplement thereto, other than filing the registration statement as contemplated
by the Purchase Agreement and a registration statement on Form S-8 in connection with any employee benefit plan; provided, however,
such restrictions shall not apply with respect to an Exempt Issuance. In addition, from the date hereof until forty-five (45) days after
the Effective Date (as defined in the Purchase Agreement), the Company shall not effect or enter into an agreement to effect any issuance
of Common Stock or Common Stock Equivalents involving an at-the-market offering or Variable Rate Transaction (as defined in the Purchase
Agreement). Notwithstanding the foregoing, this Section 1(B) shall not apply with respect to an Exempt Issuance and the Company
may enter into an at-the-market offering facility or similar agreement with A.G.P. and file any related prospectus supplement thereto,
provided that any sales effectuated pursuant to an at-the-market offering facility or similar agreement are at a price per share greater
than $2.40 per share. No Variable Rate Transaction shall be an Exempt Issuance.
SECTION 2. REPRESENTATIONS
OF THE PLACEMENT AGENT. The Placement Agent represents and warrants that it (i) is a member
in good standing of FINRA, (ii) is registered as a broker/dealer under the Exchange Act and the securities laws of each state in
which an offer or sale of Placement Agent Securities is made (unless excepted from the respective state’s broker-dealer registration
requirements), (iii) is licensed as a broker/dealer under the laws of the United States of America applicable to the offers and sales
of the Placement Agent Securities by the Placement Agent, (iv) is and will be a corporate entity validly existing under the laws
of its place of incorporation, and (v) has full power and authority to enter into and perform its obligations under this Agreement.
The Placement Agent will immediately notify the Company in writing of any change in its status with respect to subsections (i) through
(v) above. The Placement Agent covenants that it will use its reasonable best efforts to conduct the Placement hereunder in compliance
with the provisions of this Agreement and the requirements of applicable law.
SECTION 3. COMPENSATION.
In consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent and/or its respective designees
a cash fee of 7.0% of the aggregate gross proceeds raised from the sale of the Placement Agent Securities (the “Cash Fee”).
The Company shall not be required to pay the Placement Agent any fees or expenses except for the Cash Fee and the reimbursement of (i) accountable
legal fees and other reasonable and documented out-of-pocket accountable legal expenses incurred by the Placement Agent in connection
with the transaction in the amount of up to $60,000 and (ii) non-accountable expenses equal to $10,000. The Placement Agent reserves
the right to reduce any item of compensation or adjust the terms thereof as specified herein in the event that a determination is made
by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of that permitted by FINRA Rules or that
the terms thereof require adjustment.
SECTION 4. EXPENSES.
The Company agrees to pay all costs, fees and expenses incurred by the Company in connection with the performance of its obligations hereunder
and in connection with the transactions contemplated hereby, including, without limitation: (i) all expenses incident to the issuance,
delivery and qualification of the Placement Agent Securities (including all printing and engraving costs); (ii) all fees and expenses
of the registrar and transfer agent of the Shares; (iii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Placement Agent Securities; (iv) all fees and expenses of the Company’s counsel, independent public
or certified public accountants and other advisors; (v) all costs and expenses incurred in connection with the preparation, printing,
filing, shipping and distribution of any registration statement (including financial statements, exhibits, schedules, consents and certificates
of experts), and all amendments and supplements thereto, and this Agreement; (vi) all filing fees, reasonable attorneys’ fees
and expenses incurred by the Company in connection with qualifying or registering (or obtaining exemptions from the qualification or registration
of) all or any part of the Placement Agent Securities for offer and sale under the state securities or blue sky laws or the securities
laws of any other country; and (vii) the fees and expenses associated with including the Placement Agent Securities on the Trading
Market.
SECTION 5. INDEMNIFICATION.
A. To
the extent permitted by law, with respect to the Placement Agent Securities, the Company will indemnify the Placement Agent and its affiliates,
directors, officers, employees, members, counsel and controlling persons (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) (each such person, an “Indemnified Person”) against all losses, claims, damages,
expenses and liabilities, as the same are incurred (including the reasonable and documented fees and expenses of counsel) (“Claims”),
relating to or arising out of its activities hereunder or its status, title or role as Placement Agent pursuant to this Agreement, except
to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof) are found in a final judgment
(not subject to appeal) by a court of law to have resulted from the Placement Agent’s fraud, willful misconduct, bad faith, gross
negligence, recklessness, or violation of law or insofar as such Claims arise out of or are based upon an untrue statement or omission
or alleged untrue statement or omission in disclosure in the SEC Reports or the registration statement contemplated by the Purchase Agreement,
preliminary prospectus, or the prospectus furnished to the Company in writing by the Placement Agent expressly for use therein. Notwithstanding
anything set forth herein to the contrary, the Company agrees to indemnify the Placement Agent and its counsel, Sullivan & Worcester
LLP, to the fullest extent set forth in this Section 5, against any and all claims asserted by any or person or entity alleging that
the Placement Agent were not permitted or entitled to act as a placement agent herein, or that the Company was not permitted to hire or
retain the Placement Agent herein, including but not limited to any claims arising out of any purported right of first refusal another
person or entity claims to have to act as a placement agent or any similar role with respect to the Company or its securities.
B. Promptly
after receipt by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the
Placement Agent is entitled to indemnity hereunder, the Placement Agent will notify the Company in writing of such claim or of the commencement
of such action or proceeding, but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder,
except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses or prejudice to
the Company’s substantial rights or defenses. If the Company so elects or is requested by either of the Placement Agent, the Company
will assume the defense of such action or proceeding and will employ counsel reasonably satisfactory to the Placement Agent and will pay
the reasonable fees and expenses of such counsel. Notwithstanding the preceding sentence, the Placement Agent will be entitled to employ
its own counsel separate from counsel for the Company and from any other party in such action if counsel for the Placement Agent reasonably
determines that it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent
both the Company and the Placement Agent. In such event, the reasonable and documented fees and disbursements of no more than one (1) such
separate counsel will be paid by the Company. The Company will have the exclusive right to settle the claim or proceeding, provided that
the Company will not settle any such claim, action or proceeding without the prior written consent of the Placement Agent (which will
not be unreasonably withheld or delayed) unless such settlement provides for an unconditional and irrevocable release of the Indemnified
Persons from any and all liability arising out of such claim or proceeding.
C. The
Company agrees to notify the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement
of any action or proceeding relating to a transaction contemplated by this Agreement.
D. If
for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then
the Company shall contribute to the amount paid or payable by the Placement Agent as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and the Placement
Agent on the other, but also the relative fault of the Company on the one hand and the Placement Agent on the other that resulted in such
losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts paid or payable by a party in respect
of losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees and expenses incurred
in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions hereof, the Placement Agent’s share
of the liability hereunder shall not be in excess of the amount of fees actually received, or to be received, by the Placement Agent under
this Agreement.
E. These
indemnification provisions shall remain in full force and effect whether or not the transaction contemplated by this Agreement is completed
and shall survive the termination of this Agreement, and shall be in addition to any liability that the Company might otherwise have to
any indemnified party under this Agreement or otherwise.
SECTION 6. ENGAGEMENT
TERM. The Placement Agent’s engagement hereunder will be until the earlier of (i) May 22,
2025 and (ii) the Closing Date (such earlier date, the “Termination Date”). In the event, however, in the course
of the Placement Agent’s performance of due diligence it deems it necessary to terminate the engagement, the Placement Agent may
do so prior to the Termination Date. The Company may elect to terminate the engagement hereunder for any reason prior to the Termination
Date but will remain responsible for fees and expenses actually incurred and reimbursable pursuant to Section 3 hereof and fees and
expenses with respect to the Placement Agent Securities, if sold in the Placement. Notwithstanding anything to the contrary contained
herein, the provisions concerning the Company’s obligation to pay any fees actually earned pursuant to Section 3 hereof and
the provisions concerning confidentiality, indemnification and contribution, no fiduciary relationships and governing law (including the
waiver of the right to trial by jury) contained herein will survive any expiration or termination of this Agreement. If this Agreement
is terminated prior to the completion of the Placement, all fees due to the Placement Agent shall be paid by the Company to the Placement
Agent on or before the Termination Date (in the event such fees are earned or owed as of the Termination Date).
SECTION 7. PLACEMENT
AGENT INFORMATION. The Company agrees that any information or advice rendered by the Placement
Agent in connection with this engagement is for the confidential use of the Company only in their evaluation of the Placement and, except
as otherwise required by law, the Company will not disclose or otherwise refer to the advice or information in any manner without the
Placement Agent’s prior written consent.
SECTION 8. NO
FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not be construed as creating
rights enforceable by any person or entity not a party hereto, except those entitled hereto by virtue of the indemnification provisions
hereof. The Company acknowledges and agrees that the Placement Agent is not and shall not be construed as a fiduciary of the Company and
shall have no duties or liabilities to the equity holders or the creditors of the Company or any other person by virtue of this Agreement
or the retention of the Placement Agent hereunder, all of which are hereby expressly waived.
SECTION 9. CLOSING.
The obligations of the Placement Agent, and the closing of the sale of the Placement Agent Securities hereunder, are subject to the accuracy,
when made and on the Closing Date, of the representations and warranties on the part of the Company contained herein and in the Purchase
Agreement, to the performance by the Company of its obligations hereunder and in the Purchase Agreement, and to each of the following
additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent:
A. All
corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement,
the Placement Agent Securities, and all other legal matters relating to this Agreement and the transactions contemplated hereby with respect
to the Placement Agent Securities shall have been completed or resolved in a manner reasonably satisfactory in all material respects to
the Placement Agent.
B. The
Placement Agent shall have received from the Company’s outside legal counsel, Kilpatrick Townsend & Stockton LLP, such
counsel’s written opinion with respect to the Placement Agent Securities, addressed to the Placement Agent and dated as of the Closing
Date, in form and substance reasonably satisfactory to the Placement Agent.
C. [Reserved].
D. The
Placement Agent shall have received a customary certificate of the Company’s Chief Executive Officer, as to the accuracy of the
representations and warranties contained in the Purchase Agreement, and a certificate of the Company’s secretary certifying (i) that
each of the Company’s charter documents are true and complete, have not been modified and are in full force and effect; (ii) that
the resolutions of the Company’s Board of Directors (or any authorized committee thereof) relating to the Placement are in full
force and effect and have not been modified; and (iii) as to the incumbency of the officers of the Company.
E. As
of the Closing Date, the Common Stock, the Common Warrant Shares and the Pre-Funded Warrant Shares shall be listed for trading on the
Trading Market or other applicable U.S. national exchange and reasonable evidence of such action, if available, shall have been provided
to the Placement Agent upon its request. The Company shall have taken no action designed to terminate, or likely to have the effect of
terminating, the registration of the Shares under the Exchange Act or delisting or suspending from trading the Shares from the Trading
Market or other applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission or the
Trading Market or other U.S. applicable national exchange is contemplating terminating such registration or listing except as otherwise
publicly disclosed.
F. No
action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of the Placement Agent Securities or materially and adversely
affect or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of
any other nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent
the issuance or sale of the Placement Agent Securities or materially and adversely affect or potentially and adversely affect the business
or operations of the Company.
G. The
Company shall have entered into a Purchase Agreement with each of the several Purchasers of the Placement Agent Securities and such agreements
shall be in full force and effect and shall contain representations, warranties and covenants of the Company as agreed upon between the
Company and the Purchasers.
H. FINRA
shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company
shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf, any
filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all filing
fees required in connection therewith.
I. The
Placement Agent shall have received an executed lock-up agreement from each of the Company’s executive officers and directors prior
to the Closing Date.
J. The
Placement Agent shall have received an executed FINRA questionnaire from each of the Company and the Company’s executive officers,
directors and 5% or greater securityholders.
If any of the conditions specified
in this Section 9 shall not have been fulfilled when and as required by this Agreement, all obligations of the Placement Agent hereunder
may be cancelled by the Placement Agent at, or at any time prior to, the Closing Date. Notice of such cancellation shall be given to the
Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter in writing.
SECTION 10. GOVERNING
LAW. This Agreement will be governed by, and construed in accordance with, the laws of the State
of New York applicable to agreements made and to be performed entirely in such State, without regard to its conflict of laws principles.
This Agreement may not be assigned by either party without the prior written consent of the other party. This Agreement shall be binding
upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns. Any right to trial by jury
with respect to any dispute arising under this Agreement or any transaction or conduct in connection herewith is waived. Any dispute arising
under this Agreement may be brought into the courts of the State of New York or into the Federal Court located in New York, New York and,
by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect of its property, generally and unconditionally,
the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by delivering a copy thereof via 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
manner permitted by law. If either party shall commence an action or proceeding to enforce any provisions of this Agreement, then the
prevailing party in such action or proceeding shall be reimbursed by the other party for its attorney’s fees and other costs and
expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
SECTION 11. ENTIRE
AGREEMENT/MISCELLANEOUS. This Agreement embodies the entire agreement and understanding between
the parties hereto, and supersedes all prior agreements and understandings, relating to the subject matter hereof. If any provision of
this Agreement is determined to be invalid or unenforceable in any respect, such determination will not affect such provision in any other
respect or any other provision of this Agreement, which will remain in full force and effect. This Agreement may not be amended or otherwise
modified or waived except by an instrument in writing signed by the Placement Agent and the Company. The representations, warranties,
agreements and covenants contained herein shall survive the Closing Date of the Placement and delivery of the Placement Agent Securities
for two years after the Closing Date. 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 a .pdf format 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.
SECTION 12. NOTICES.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is sent to the email
address specified on the signature pages attached hereto prior to 6:30 p.m. (New York City time) on a business day, (b) the
next business day after the date of transmission, if such notice or communication is sent to the email address on the signature pages attached
hereto on a day that is not a business day or later than 6:30 p.m. (New York City time) on any business day, (c) the third business
day following the date of mailing, if sent by an internationally recognized air courier service, or (d) upon actual receipt by the
party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature
pages hereto.
SECTION 13. PRESS
ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, on and after the Closing Date,
have the right to reference the Placement and the Placement Agent’s role in connection therewith in the Placement Agent’s
marketing materials and on its website and to place advertisements in financial and other newspapers and journals, in each case at its
own expense.
SECTION 14. CONFIDENTIALITY.
The Placement Agent (i) will keep the Confidential Information (as such term is defined below) confidential and will not (except
as required by applicable law or Trading Market or other stock exchange requirement, regulation or legal process (“Legal Requirement”)),
without the Company’s prior written consent, disclose to any person any Confidential Information, and (ii) will not use any
Confidential Information other than in connection with the Placement. The Placement Agent further agrees to disclose the Confidential
Information only to its Representatives (as such term is defined below) who need to know the Confidential Information for the purpose
of the Placement, and who are informed by the Placement Agent of the confidential nature of the Confidential Information. The term “Confidential
Information” shall mean, all confidential, proprietary and non-public information (whether written, oral or electronic communications)
furnished by the Company to the Placement Agent or its Representatives in connection with such Placement Agent’s evaluation of the
Placement. The term “Confidential Information” will not, however, include information which (i) is or becomes
publicly available other than as a result of a disclosure by the Placement Agent or its Representatives in violation of this Agreement,
(ii) is or becomes available to the Placement Agent or any of its Representatives on a non-confidential basis from a third-party,
(iii) is known to the Placement Agent or any of its Representatives prior to disclosure by the Company or any of its Representatives,
or (iv) is or has been independently developed by the Placement Agent and/or the Representatives without use of any Confidential
Information furnished to it by the Company. The term “Representatives” shall mean with respect to the Placement Agent,
its directors, board committees, officers, employees, financial advisors, attorneys and accountants. This provision shall be in full force
until the earlier of (a) the date on which the Confidential Information ceases to be confidential and (b) two years from the
date hereof. Notwithstanding any of the foregoing, in the event that the Placement Agent or any of its Representatives are required by
Legal Requirement to disclose any of the Confidential Information, the Placement Agent and its Representatives will furnish only that
portion of the Confidential Information which the Placement Agent or its Representative, as applicable, is required to disclose by Legal
Requirement as advised by counsel, and will use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded
the Confidential Information so disclosed.
Please confirm that the foregoing
correctly sets forth our agreement by signing and returning to the Placement Agent the enclosed copy of this Agreement.
| |
Very truly yours, |
| |
|
| |
A.G.P./ALLIANCE GLOBAL PARTNERS |
| |
|
|
| |
By: |
/s/ Thomas J. Higgins |
| |
Name: |
Thomas J. Higgins |
| |
Title: |
Managing Director |
| |
|
| |
Address for notice: |
| |
|
| |
590 Madison Avenue, 28th Floor |
| |
New York, New York 10022 |
| |
Attn: Thomas J. Higgins |
| |
Email: thiggins@allianceg.com |
Accepted and Agreed to as of
the date first written above:
| BOXLIGHT CORPORATION |
|
| |
|
|
| By: |
/s/ Dale Strang |
|
| Name: |
Dale Strang |
|
| Title: |
Chief Executive Officer |
|
Address
for notice:
Boxlight Corporation
2750 Premiere Parkway, Suite 900Duluth,
GA 30097
Attn: Dale Strang
Email: dale.strang@boxlight.com
[Signature Page to Placement Agency Agreement]
Exhibit 10.2
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of February 19, 2025, between Boxlight Corporation, a Nevada corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act (as defined below) and Regulation
D promulgated thereunder, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires
to purchase from the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(k).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable Laws”
shall have the meaning ascribed to such term in Section 3.1(qq).
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1(qq).
“Beneficial Ownership
Limitation” shall have the meaning ascribed to such term in Section 2.1(a).
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(nn).
“Board of Directors”
means the board of directors, or any authorized committee thereof, of the Company.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date”
means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and
all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st) Trading
Day following the date hereof if this Agreement is entered into before 4:00 p.m. Eastern time, or no later than the second (2nd)
Trading Day following the date hereof, if this Agreement is entered at or after 4:00 p.m. Eastern time.
“Commission”
means the U.S. Securities and Exchange Commission.
“Common Stock”
means the Class A common stock of the Company, par value $0.0001 per share, and any other class of securities into which such securities
may hereafter be reclassified or changed.
“Common Stock Equivalents”
means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire at any time Common Stock, including,
without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Common Warrants”
means the common warrants to purchase shares of Common Stock delivered to the Purchasers at the Closing in accordance with Section 2.2(a) hereof,
in substantially the form of Exhibit B attached hereto.
“Common Warrant Shares”
means the shares of Common Stock issuable upon exercise of the Common Warrants.
“Company Counsel”
means Kilpatrick Townsend & Stockton LLP.
“Company’s
knowledge” or words of similar import mean the actual knowledge of any executive officer (as defined in Rule 405 under
the Securities Act) of the Company.
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before
midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight
(New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on
the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Disqualification
Event” shall have the meaning ascribed to such term in Section 3.1(rr).
“DVP” shall
have the meaning ascribed to such term in Section 2.1(a).
“DWAC”
shall have the meaning ascribed to such term in Section 2.1(a).
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“Effective Date”
means the earliest of the date that (a) the initial Registration Statement has been declared effective by the Commission, (b) all
of the Shares and Warrant Shares have been sold pursuant to Rule 144 or may be sold pursuant to Rule 144 without the requirement
for the Company to be in compliance with the current public information required under Rule 144 and without volume or manner-of-sale
restrictions, (c) following the one year anniversary of the Closing Date provided that a holder of Shares or Warrant Shares is not
an Affiliate of the Company, or (d) all of the Shares and Warrant Shares may be sold pursuant to an exemption from registration under
the Securities Act without volume or manner-of-sale restrictions and Company Counsel has delivered to such holders a standing written
opinion that resales may then be made by such holders of the Shares and Warrant Shares pursuant to such exemption which opinion shall
be in form and substance reasonably acceptable to such holders.
“Environmental Law”
shall have the meaning ascribed to such term in Section 3.1(n).
“Evaluation Date”
shall have the meaning ascribed to such term in Section 3.1(t).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) shares of Common Stock, options, restricted stock units, or other equity awards to employees, consultants,
contractors, advisors, officers, or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by a
majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established
for such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities
issued hereunder and upon exercise of other securities exercisable or exchangeable for or convertible into shares of Common Stock issued
and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities (other
than in connection with stock splits, combinations or pursuant to the terms of any anti-dilution provision in any existing agreement or
security) or to extend the term of such securities, (c) shares of Common Stock or securities exercisable or exchangeable for or convertible
into shares of Common Stock sold to employees, directors, consultants, or any of their affiliated entities in the ordinary course of business
or pursuant to agreements or in connection with commitments in place as of the date hereof, and (d) securities issued pursuant to
acquisitions, joint ventures, strategic alliances, or other strategic transactions, including without limitation collaborations or arrangements
involving research and development or the sale or licensing of intellectual property, approved by a majority of the disinterested directors
of the Company, except for 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 (for avoidance of doubt, securities issued to a venture arm of a strategic
investor shall be deemed an “Exempt Issuance”), provided in the case of each of clauses (c) and (d) (other than,
with respect to clause (d), for commitments in place as of the date hereof), that such securities are issued as “restricted securities”
(as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration statement in connection
therewith during the prohibition period in Section 4.12(a) herein.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Federal Reserve”
shall have the meaning ascribed to such term in Section 3.1(nn).
“FINRA”
shall have the meaning ascribed to such term in Section 3.1(e).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(i).
“Hazardous Substances”
shall have the meaning ascribed to such term in Section 3.1(n).
“Indebtedness”
shall have the meaning ascribed to such term in Section 3.1(dd).
“Intellectual Property
Rights” shall have the meaning ascribed to such term in Section 3.1(q).
“Issuer Covered Person”
shall have the meaning ascribed to such term in Section 3.1(rr).
“IT Systems”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Lien”
means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance of any
kind whatsoever.
“Lock-Up Agreements”
means the lock-up agreements, each dated as of the Closing Date in substantially the form of Exhibit A.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits”
shall have the meaning assigned to such term in Section 3.1(p).
“Money Laundering
Laws” shall have the meaning assigned to such term in Section 3.1(oo).
“OFAC”
means the Office of Foreign Assets Control of the U.S. Treasury Department.
“Offering”
means the offering of the Securities hereunder.
“Per Pre-Funded Warrant
Purchase Price” means the Per Share Purchase Price minus $0.0001.
“Per Share Purchase
Price” equals $2.13, 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.
“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.
“Personal Data”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Placement Agency
Agreement” means that certain Placement Agency Agreement by and between the Company and the Placement Agent, dated as of the
date hereof.
“Placement Agent”
means A.G.P./Alliance Global Partners.
“Pre-Funded Warrants”
means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section 2.3(a) hereof,
in substantially the form of Exhibit C attached hereto.
“Pre-Funded Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition) pending or, to the Company’s knowledge, threatened in writing against the Company, a Subsidiary or any of
their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign).
“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.9.
“Registration Statement”
shall have the meaning ascribed to such term in Section 4.19.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).
“Restriction Period”
shall have the meaning ascribed to such term in Section 4.12(a).
“Rule 144”
means Rule 144 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.
“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.
“Sanctions”
shall have the meaning ascribed to such term in Section 3.1(kk).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(h).
“Securities”
means for each Purchaser, the Shares, the Warrants and the Warrant Shares purchased pursuant to this Agreement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
locating and/or borrowing shares of Common Stock).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Shares or Pre-Funded Warrants (in lieu of Shares) and Common Warrants
purchased hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading
“Subscription Amount,” in U.S. dollars and in immediately available funds.
“Subsidiary”
and “Subsidiaries” means any subsidiary of the Company as set forth in the SEC Reports and shall, where applicable,
also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Trading Market is open for trading.
“Trading Market”
means The Nasdaq Stock Market LLC (or any nationally recognized successor thereto); provided, however, that in the event the Company’s
Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE
American, NYSE Arca, the OTC Bulletin Board, or the OTCQX or the OTCQB operated by the OTC Markets Group, Inc. (or any nationally
recognized successor to any of the foregoing), then the “Trading Market” shall mean such other market or exchange on which
the Company’s Common Stock is then listed or traded.
“Transaction Documents”
means this Agreement, the Warrants and the Lock-Up Agreements, all exhibits and schedules thereto and hereto and any other documents or
agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means VStock Transfer, LLC, the current transfer agent of the Company, with a mailing address of 18 Lafayette Place, Woodmere, NY 11598,
and any successor transfer agent of the Company.
“Variable Rate Transaction”
shall have the meaning ascribed to such term in Section 4.12(b).
“Warrants”
means, collectively, the Common Warrants and the Pre-Funded Warrants.
“Warrant Shares”
means, collectively, the Common Warrant Shares and the Pre-Funded Warrant Shares.
ARTICLE II
PURCHASE AND SALE
2.1 Closing.
(a) On
the Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser, severally
and not jointly, agrees to purchase, (i) the number of shares of Common Stock set forth under the heading “Subscription Amount”
on the Purchaser’s signature page hereto, at the Per Share Purchase Price, and (ii) Common Warrants exercisable for shares
of Common Stock as calculated pursuant to Section 2.2(a). Notwithstanding anything herein to the contrary, to the extent that a Purchaser
determines, in its sole discretion, that as a result of such Purchaser’s Subscription Amount, such Purchaser (together with such
Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates)
would beneficially own shares of Common Stock in excess of the Beneficial Ownership Limitation, the Purchaser may elect to purchase Pre-Funded
Warrants in lieu of the Shares as determined pursuant to Section 2.3(a). The “Beneficial Ownership Limitation”
shall be 4.99% (or, at the election of the Purchaser, 9.99%) of the number of shares of Common Stock outstanding immediately after giving
effect to the issuance of the Securities on the Closing Date. In each case, the election to receive Pre-Funded Warrants is solely at the
option of the Purchaser; provided, however, the Purchaser shall receive Pre-Funded Warrants at the option of the Company if necessary
to avoid a stockholder vote in connection with the purchase.
Each Purchaser shall deliver
to the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the
signature page hereto executed by such Purchaser shall be made available for Delivery Versus Payment (“DVP”) settlement
with the Company or its designees. The Company shall deliver to each Purchaser its respective Shares and Warrants as determined pursuant
to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at
the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely via
the exchange of documents and signatures or such other location as the parties shall mutually agree. Unless otherwise directed by the
Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered
in the Purchasers’ names and addresses and released by the Transfer Agent directly to the accounts at the Placement Agent identified
by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable
Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). Unless otherwise
directed by the Placement Agent, the Warrants shall be issued to each Purchaser in originally signed form.
2.2 Deliveries.
(a) On
or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel in a form reasonably acceptable to the Placement Agent;
(iii) the
Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief Financial
Officer;
(iv) subject
to the penultimate sentence of Section 2.1(a), a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to the number of shares of Common Stock set forth on such Purchaser’s signature page hereto, registered in the
name of such Purchaser;
(v) an
originally signed Common Warrant registered in the name of such Purchaser to purchase up to the number of shares of Common Stock equal
to 100% of such Purchaser’s Shares plus the Pre-funded Warrant Shares underlying such Purchaser’s Pre-Funded Warrant on the
date hereof, with an exercise price equal to $2.13, subject to adjustment as set forth therein;
(vi) if
applicable, an originally signed Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares of Common
Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded Warrants divided by the Per Pre-Funded
Warrant Purchase Price, with an exercise price equal to $0.0001, subject to adjustment therein;
(vii) Lock-up
Agreements, in substantially in the form attached hereto as Exhibit A, executed by each of the Company’s executive officers
and directors as of the date hereof;
(viii) an
Officer’s Certificate, in form and substance reasonably satisfactory to the Placement Agent; and
(ix) a
Secretary’s Certificate, in form and substance reasonably satisfactory to the Placement Agent.
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designees.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect
(as defined below), in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers contained
herein (unless as of a specific date therein in which case they shall be accurate in all material respects (or, to the extent representations
or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Trading Market
on which it is currently listed, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported
by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by U.S. or New York State authorities,
nor shall there have occurred after the date of this Agreement any material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case,
in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. The Company hereby makes the following representations and warranties to each Purchaser in addition
to the information included in the Disclosure Schedules attached hereto and SEC Reports, which Disclosure Schedules and SEC Reports shall
be deemed a part hereof and shall qualify any representation or warranty made herein to the extent of the disclosure contained in the
corresponding section of the Disclosure Schedules or in the SEC Reports:
(a) Subsidiaries.
All of the direct and indirect subsidiaries of the Company (each, a “Subsidiary”, and collectively, the “Subsidiaries”)
are as set forth in the SEC Reports. Except as disclosed in Section 3.1(a) of the Disclosure Schedules, the Company owns, directly
or indirectly, all of the capital stock or other equity interests of each Subsidiary free and clear of any Liens (other than pledges of
the capital stock or other equity interests of such Subsidiaries to secure indebtedness described in the SEC Reports), and all of the
issued and outstanding shares of capital stock or equity interests, as applicable, of each Subsidiary are validly issued and are fully
paid, non-assessable and free of preemptive rights. There are no outstanding options, warrants, scrips or rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or obligations convertible into or exercisable or exchangeable
for, or giving any Person any right to subscribe for or acquire, any capital stock or equity interests, as applicable, of any Subsidiary,
or contracts, commitments, understandings or arrangements by which any Subsidiary is or may become bound to issue capital stock or equity
interests, as applicable. If the Company has no Subsidiaries, all other references to the Subsidiaries or any of them in the Transaction
Documents shall be disregarded.
(b) Organization
and Qualification. Each of the Company and the Subsidiaries has been duly organized and validly exists as a corporation, limited partnership
or company in good standing (or the foreign equivalent thereof, if any) under the laws of its jurisdiction of organization. The Company
and each of the Subsidiaries is duly qualified to do business and is in good standing as a foreign or extra-provincial corporation, partnership,
company or limited liability company in each jurisdiction in which the character or location of its properties (owned, leased or licensed)
or the nature or conduct of its business makes such qualification necessary, except for those failures to be so qualified or in good standing
which (individually and in the aggregate) would not have a Material Adverse Effect. No Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. Neither the Company
nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of incorporation, bylaws
or other organizational or charter documents, except for those violations or failures which (individually and in the aggregate) would
not have a Material Adverse Effect. The term “Material Adverse Effect” means a material adverse effect on (i) the
business, general affairs, management, condition (financial or otherwise), results of operations, stockholders’ equity, assets,
properties or prospects of the Company and the Subsidiaries, taken as a whole, (ii) the legality, validity or enforceability of any
Transaction Document, or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations under
any Transaction Document; provided, however, that in no event shall any of the following effects after the date hereof, alone or
in combination with one another, be deemed to constitute, a Material Adverse Effect: (1) any effect resulting directly or indirectly
from general business or economic conditions, except to the extent such general business or economic conditions have a materially disproportionate
effect on the Company as compared to companies in the Company’s industry, (2) any change in the Company’s stock price
or trading volume in and of itself (but not the underlying causes thereof), or (3) any effect caused by the announcement or pendency
of the transactions contemplated by the Transaction Documents, or the identity of any Purchaser or any of its affiliates as the purchaser
in connection with the transactions contemplated by this Agreement.
(c) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors, or the Company’s stockholders in connection herewith or therewith other
than in connection with the Required Approvals (as defined below). This Agreement and each other Transaction Document to which the Company
is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof
and thereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors’ rights, (ii) as limited by general equitable principles and
laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and (iii) insofar as indemnification
and contribution provisions may be limited by applicable law.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which it
is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby do
not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such
as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings required pursuant
to Section 4.4 of this Agreement, (ii) filings with the Commission pursuant to Sections 4.19 of this Agreement, (iii) the
notice and/or application(s) to each applicable Trading Market for the listing of the Shares and Warrant Shares for trading thereon
in the time and manner required thereby, (iv) the filing of a Form D with the Commission, (v) filings required by the Financial
Industry Regulatory Authority (“FINRA”), (vi) such filings as are required to be made under applicable state securities
laws, and (vii) such consents, waivers, and authorizations that shall be obtained prior to Closing (collectively, the “Required
Approvals”)
(f) Issuance
of the Shares and Warrant Shares. The Shares and Warrant Shares are duly authorized and, when issued and paid for in accordance with
the applicable Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed
by the Company. The Warrants are duly authorized and, when issued in accordance with the terms of this agreement, will be duly and validly
issued and free and clear of all Liens imposed by the Company. The Company has reserved, or will have reserved by the time of Closing,
from its duly authorized capital stock the maximum number of shares of Common Stock currently issuable pursuant to this Agreement and
the Warrants, except as otherwise permitted by the terms of the Common Warrant.
(g) Capitalization.
The equity capitalization of the Company as of the date hereof is set forth on Schedule 3.1(g), which Schedule 3.1(g) shall also
include the number of shares of Common Stock owned beneficially, and of record, by Affiliates of the Company as of the date hereof. All
of the issued and outstanding shares of Common Stock are fully paid and non-assessable and have been duly and validly authorized and issued,
in compliance with all applicable federal and state securities laws and not in violation of or subject to any preemptive or similar right
that entitles any person to acquire from the Company any Common Stock or other security of the Company or any security convertible into,
or exercisable or exchangeable for, Common Stock or any other such security, except for such rights as may have been fully satisfied or
waived prior to the date hereof. Except as set forth on Schedule 3.1(g), or as a result of the issuance and sale of the Securities,
the Company has not issued any capital stock since its most recently filed SEC Report, except pursuant to existing Company stock option
or omnibus incentive plans. Except as set forth in the SEC Reports or on Schedule 3.1(g), or as a result of the issuance and sale
of the Securities or issuances pursuant to existing Company stock option or omnibus incentive plans, the Company has no outstanding options,
warrants, scrips or rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights or obligations
convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Common Stock, or
contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional Common Stock or
Common Stock Equivalents and no Person has any right of first refusal, pre-emptive right, right of participation, or any similar right
to participate in the transactions contemplated by the Transaction Documents, except for such rights as may have been fully satisfied
or waived prior to the date hereof. Except as set forth in the SEC Reports or on Schedule 3.1(g), the issuance and sale of the
Securities will not obligate the Company to issue Common Stock or other securities to any Person (other than the Purchasers) and will
not result in a right of any holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such
securities. Except as set forth in the SEC Reports, there are no outstanding securities or instruments of the Company with any provision
that adjusts the exercise, conversion, exchange or reset price of such security or instrument upon an issuance of securities by the Company
(other than in connection with a stock split, recapitalization, or similar transaction). Except as set forth in the SEC Reports, there
are no outstanding securities or instruments of the Company that contain any redemption or similar provisions, and there are no contracts,
commitments, understandings or arrangements by which the Company is or may become bound to redeem an equity security of the Company. The
Company does not have any stock appreciation rights or “phantom share” plans or agreements or any similar plan or agreement.
Except as set forth in the SEC Reports, there are no stockholders agreements, voting agreements or other similar agreements with respect
to the Company’s capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the
Company’s stockholders.
(h) Reports.
The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under the Securities
Act and Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years preceding the date
hereof (or such shorter period as the Company was required by law or regulation to file such materials) (the foregoing materials, including
the exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”).
None of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made,
not misleading.
(i) Financial
Statements. The consolidated financial statements of the Company, including the notes thereto, included or incorporated by reference
in the SEC Reports comply in all material respects with applicable accounting requirements and the rules and regulations of the Commission
with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with accounting principles
generally accepted in the United States (“GAAP”) applied on a consistent basis during the periods involved, except
as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements may not
contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated
Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the
case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(j) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest consolidated financial statements included
in or incorporated by reference into the SEC Reports, except as set forth in the SEC Reports, (i) there has been no event, occurrence
or development that has had or that would reasonably be expected to result in a Material Adverse Effect, (ii) neither the Company
nor any Subsidiary has incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred
in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method
of accounting in any material respect, (iv) the Company has not declared or made any dividend or distribution of cash or other property
to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock and (v) the
Company has not issued any equity securities to any executive officer, director or Affiliate, except pursuant to existing Company stock
option or omnibus incentive plans. The Company does not have pending before the Commission any request for confidential treatment of information.
Except for the issuance of the Securities contemplated by this Agreement, no material event, liability, fact, circumstance, occurrence
or development has occurred or exists or is reasonably expected to occur or exist with respect to the Company or its Subsidiaries or their
respective businesses, prospects, properties, operations, assets or financial condition that would be required to be disclosed by the
Company under applicable securities laws at the time this representation is made or deemed made that has not been publicly disclosed at
least one (1) Trading Day prior to the date that this representation is made or will be publicly disclosed in the SEC Reports.
(k) Litigation.
Except as set forth in the SEC Reports, 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 before
or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign)
(collectively, an “Action”) that (i) adversely affects or challenges the legality, validity or enforceability
of any of the Transaction Documents or the Securities or (ii) would, if there were an unfavorable decision, have or reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor any director or executive officer thereof,
is, or has been during the last three years, 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, which could result in a Material Adverse Effect. There has not been during
the last three years, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving
the Company or any current or former director or executive officer of the Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.
(l) Labor
Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of the Company,
which would reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’ employees
is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the Company
nor any of its Subsidiaries is a party to a collective bargaining agreement. To the knowledge of the Company, no executive officer of
the Company or any Subsidiary, is, or is now expected to be, in violation of any material term of any employment contract, confidentiality,
disclosure or proprietary information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant
in favor of any third party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries
to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable
U.S. federal, state, local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment
and wages and hours, except where the failure to be in compliance would not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect.
(m) 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), except in each case as set forth in the SEC Reports, (ii) is in violation of any judgment, decree
or order of any court, arbitrator or other governmental authority or (iii) is, or has been during the last three years, in violation
of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state
and local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment
and labor matters, in each case that is applicable to the Company, except in each case of (i), (ii) and (iii) as would not have
or reasonably be expected to result in a Material Adverse Effect.
(n) Environmental
Law. There has been no storage, generation, transportation, handling, use, treatment, disposal, discharge, emission, contamination,
release or other activity involving any kind of hazardous, toxic or other wastes, pollutants, contaminants, petroleum products or other
hazardous or toxic substances, chemicals or materials (“Hazardous Substances”) by, due to, on behalf of, or caused
by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for whose acts or omissions the Company is or
may be liable) upon any property now or previously owned, operated, used or leased by the Company or any Subsidiary, or upon any other
property, that would be a violation of or give rise to any liability under any applicable law, rule, regulation, order, judgment, decree
or permit, common law provision or other legally binding standard relating to pollution or protection of human health and the environment
(“Environmental Law”), except for violations and liabilities which, individually or in the aggregate, would not have
a Material Adverse Effect. There has been no disposal, discharge, emission contamination or other release of any kind at, onto or from
any such property or into the environment surrounding any such property of any Hazardous Substances with respect to which the Company
or any Subsidiary has knowledge, except as would not, individually or in the aggregate, have a Material Adverse Effect. There is no pending
or, to the best of the Company’s knowledge, threatened administrative, regulatory or judicial action, claim or notice of noncompliance
or violation, investigation or proceedings relating to any Environmental Law against the Company or any Subsidiary, except as would not,
individually or in the aggregate, have a Material Adverse Effect. To the best of the Company’s knowledge, no property of the Company
or any Subsidiary is subject to any Lien under any Environmental Law, except as would not, individually or in the aggregate, have a Material
Adverse Effect. Except as disclosed in the SEC Reports, neither the Company nor any Subsidiary is subject to any order, decree, agreement
or other individualized legal requirement related to any Environmental Law, that, in any case (individually or in the aggregate), would
have a Material Adverse Effect. The Company and each Subsidiary has all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, except as would not, individually or in the aggregate, have a Material
Adverse Effect. In the ordinary course of its business, the Company periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries and identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up, closure or remediation of properties or compliance with
Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential liabilities
to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities would
not, individually or in the aggregate, have a Material Adverse Effect.
(o) Title
to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned by them and good
and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each
case free and clear of all Liens, except (i) such as would not reasonably be expected to have a Material Adverse Effect, (ii) Liens
for the payment of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and,
the payment of which is neither delinquent nor subject to penalties, and (iii) Liens securing indebtedness described in the SEC Reports.
Any real property and facilities currently held under lease by the Company and the Subsidiaries are held by them under valid, subsisting
and enforceable leases with which the Company and the Subsidiaries are in compliance in all material respects, except where the failure
to so comply would not reasonably be expected to have a Material Adverse Effect.
(p) Regulatory
Permits. The Company and the Subsidiaries possess all 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 Reports, except
where the failure to possess such permits would 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.
(q) Intellectual
Property. To the Company’s knowledge, the Company and the Subsidiaries have, or have rights to use (or can acquire on reasonable
terms), all patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses
as described in the SEC Reports and which the failure to so have could reasonably be expected to have a Material Adverse Effect (collectively,
the “Intellectual Property Rights”). None of, and neither the Company nor any Subsidiary has received a notice (written
or otherwise) that any of, the Intellectual Property Rights has expired, terminated or been abandoned, or is expected to expire or terminate
or be abandoned, within two (2) years from the date of this Agreement except as would not reasonably be expected to have a Material
Adverse Effect. Neither the Company nor any Subsidiary has received, since the date of the latest financial statements included within
or incorporated by reference into the SEC Reports, a written notice of a claim or otherwise has any knowledge that the Intellectual Property
Rights violate or infringe upon the rights of any Person or is aware of any facts which would form a reasonable basis for any such claim,
except as would not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The
Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their
intellectual properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. None of the Intellectual Property Rights used by the Company or any of its Subsidiaries in their respective businesses
has been obtained or is being used by the Company or such Subsidiary in violation of any contractual obligation binding on the Company
or any of its subsidiaries in violation of the rights of any person. The Company and its subsidiaries have taken all reasonable steps
in accordance with normal industry practice to protect and maintain the Intellectual Property Rights including, without limitation, the
execution of appropriate nondisclosure and invention assignment agreements. The consummation of the transactions contemplated by this
Agreement will not result in the loss or impairment of, or payment of, and additional amounts with respect to, nor require the consent
of, any other person regarding the Company’s or any of its subsidiaries’ right to own or use any of the Intellectual Property
Rights as owned or used in the conduct of such party’s business as currently conducted. To the knowledge of the Company and its
Subsidiaries, no employee of any of the Company or its subsidiaries is the subject of any pending claim or proceeding involving a violation
of any term of any employment contract, invention disclosure agreement, patent disclosure agreement, noncompetition agreement, non-solicitation
agreement, nondisclosure agreement or restrictive covenant to or with a former employer, where the basis of such violation relates to
such employee’s employment with the Company or its subsidiaries or actions undertaken by the employee while employed with the Company
or its Subsidiaries.
(r) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such
amounts as the Company believes 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. 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.
(s) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports, none of the executive officers or directors of the Company
or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a party to
any transaction with the Company or any Subsidiary (other than for services as employees, executive officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any executive
officer, director or such employee or, to the knowledge of the Company, any entity in which any executive officer, director, or any such
employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000
other than for (i) payment of compensation for services rendered, (ii) reimbursement for expenses incurred on behalf of the
Company and (iii) other employee benefits, including stock option agreements under any stock option or omnibus incentive plan of
the Company.
(t) Sarbanes-Oxley;
Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, except as disclosed in the SEC Reports. The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that: (i) transactions are executed in accordance with
management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance with
management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have
established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and
the Subsidiaries and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company
in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified
in the Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure
controls and procedures of the Company and the Subsidiaries as of applicable dates specified under the Exchange Act (such date, the “Evaluation
Date”). The Company presented in its most recently filed periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Except
as set forth in the SEC Reports, since the Evaluation Date, there have been no changes in the internal control over financial reporting
(as such term is defined in the Exchange Act) of the Company and the Subsidiaries that have materially affected, or is reasonably likely
to materially affect, the internal control over financial reporting of the Company and the Subsidiaries.
(u) Certain
Fees. Except for fees payable to the Placement Agent, no brokerage or finder’s fees or commissions are or will be payable by
the Company or any Subsidiary to any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other
Person with respect to the transactions contemplated by the Transaction Documents. Other than to Persons engaged by any Purchaser, the
Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees
of type contemplated in this Section that may be due in connection with the transactions contemplated by the Transaction Documents.
(v) Investment
Company. The Company is not, and immediately after receipt of payment for the Securities, will not be required to register as an “investment
company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall conduct its business in a manner
so that it will not be required to register as an “investment company” subject to registration under the Investment Company
Act of 1940, as amended.
(w) Registration
Rights. Except as set forth in the SEC Reports, and except as set forth in this Agreement, no Person has any right to cause the Company
or any Subsidiary to effect the registration under the Securities Act of any securities of the Company or any Subsidiary that has not
been satisfied or waived prior to the date hereof.
(x) Listing
and Maintenance Requirements. The Common Stock is registered with the Commission under Section 12(b) the Exchange Act. The
Company has not received any notice from the Commission that it is contemplating terminating such registration. Except as set forth in
the SEC Reports, the Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the
Common Stock are or have been listed or quoted to the effect that the Company is not in compliance with the listing or maintenance requirements
of such Trading Market. The Common Stock is currently eligible for electronic transfer through The Depository Trust Company or another
established clearing corporation and the Company is current in payment of the fees to The Depository Trust Company (or such other established
clearing corporation) in connection with such electronic transfer.
(y) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its jurisdiction
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance of
the Securities and the Purchasers’ ownership of the Securities.
(z) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information that is not otherwise disclosed in the SEC Reports.
The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions in securities
of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company and its Subsidiaries,
their respective businesses and the transactions contemplated hereby, including pursuant to the SEC Reports and the Disclosure Schedules
to this Agreement, 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. The press releases disseminated by the Company during the twelve (12) 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 no Purchaser makes or has made any representations or warranties with respect to the transactions
contemplated hereby other than those specifically set forth in Section 3.2 hereof.
(aa) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of (i) the Securities Act, or (ii) except as set forth in
the SEC Reports, any applicable stockholder approval provisions of any Trading Market on which any of the securities of the Company are
listed or designated.
(bb) Private
Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers as contemplated hereby.
The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.
(cc) No
General Solicitation. Neither the Company nor any Person acting on behalf of the Company has offered or sold any of the Securities
by any form of general solicitation or general advertising. The Company has offered the Securities for sale only to the Purchasers and
certain other “accredited investors” within the meaning of Rule 501 under the Securities Act.
(dd) Solvency.
Except as set forth in the SEC Reports, based on the consolidated financial condition of the Company as of the Closing Date, after giving
effect to the receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the
Company’s assets exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and
other liabilities (including known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably
small capital to carry on its business as now conducted and as proposed to be conducted including its capital needs taking into account
the particular capital requirements of the business conducted by the Company, consolidated and projected capital requirements and capital
availability thereof, and (iii) the current cash flow of the Company, together with the proceeds the Company would receive, were
it to liquidate all of its assets, after taking into account all anticipated uses of the cash, would be sufficient to pay all amounts
on or in respect of its liabilities when such amounts are required to be paid. Except as set forth in the SEC Reports, 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). Except as set forth in the SEC Reports, the Company has no knowledge of any facts or circumstances
that lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws of any jurisdiction
within one (1) year from the Closing Date. All outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or
for which the Company or any Subsidiary has commitments, is set forth in the SEC Reports or on Schedule 3.1(dd). For the purposes
of this Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000
(other than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent
obligations in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated
balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business; and (z) the present value of any lease payments in excess of $50,000 due under leases
required to be capitalized in accordance with GAAP. Except as set forth in the SEC Reports, neither the Company nor any Subsidiary is
in default with respect to any Indebtedness.
(ee) Tax
Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all U.S. federal, state and local income and all foreign
tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other governmental
assessments and charges that are material in amount, shown or determined to be due on such returns, reports and declarations , other than
those being contested in good faith and for which adequate reserves have been provided and (iii) has set aside on its books provision
reasonably adequate for the payment of all material taxes for periods subsequent to the periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers
of the Company or of any Subsidiary know of no basis for any such claim.
(ff) Foreign
Corrupt Practices; Criminal Acts. 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.
(gg) Accountants.
The Company’s independent registered public accounting firm is as set forth in the SEC Reports. To the knowledge and belief of the
Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(hh) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the transactions
contemplated hereby by the Company and its representatives.
(ii) Acknowledgment
Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(e) and 4.15 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has
been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future securities offering transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may
engage in hedging activities (in material compliance with applicable laws) at various times during the period that the Securities are
outstanding, and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests
in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned
hedging activities do not constitute a breach of any of the Transaction Documents.
(jj) Regulation
M Compliance. The Company has not, and to its knowledge no one acting on its behalf (other than the Placement Agent, as to which no
representation is made) has, (i) taken, directly or indirectly, any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid
for, purchased, or, paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any
Person any compensation for soliciting another to purchase any other securities of the Company, other than, in the case of clauses (ii) and
(iii), compensation paid to the Placement Agent pursuant to the Placement Agency Agreement.
(kk) Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or affiliate of the Company or any Subsidiary is currently subject to any “Sanctions,” which shall include
but are not limited to any U.S. sanctions administered by the OFAC and the Company will not, directly or indirectly, use the proceeds
of the Offering hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any person currently subject to any Sanctions, including but not limited
to U.S. sanctions administered by OFAC.
(ll) Stock
Option and Omnibus Incentive Plans. Each stock option granted by the Company under the Company’s stock option or omnibus incentive
plan, or as an inducement grant outside of such plan, was granted (i) in accordance with the terms of such plan, or under its terms,
respectively, and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date such stock
option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option or omnibus
incentive 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 the Subsidiaries or their financial results or prospects.
(mm) U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the U.S. Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s request.
(nn) Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of 1956,
as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries 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 exercises
a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation by the Federal
Reserve.
(oo) Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance 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.
(pp) Information
Technology. The Company’s and the Subsidiaries’ information technology assets and equipment, computers, systems, networks,
hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and perform in all material
respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently conducted. The
Company and the Subsidiaries maintain commercially reasonable controls, policies, procedures, and safeguards to maintain and protect their
material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and all personal,
personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed and stored thereon,
and to the knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises or unauthorized uses of
or accesses to same, except as would not reasonably be expected to have a Material Adverse Effect. The Company and the Subsidiaries have
implemented backup and disaster recovery technology consistent with industry standards and practices, and are presently in compliance
in all material respects with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any
court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and
security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation
or modification, except for any such noncompliance that would not reasonably be expected to have a Material Adverse Effect.
(qq) Regulatory.
Except as described in the SEC Reports, the Company and its Subsidiaries (i) are and at all times have been in material compliance
with all statutes, rules and regulations applicable to the Company and all other local, state, federal, national, supranational and
foreign laws, manual provisions, policies and administrative guidance relating to the regulation of the Company (collectively, the “Applicable
Laws”) except for such noncompliance which in the aggregate would not reasonably be expected to have a Material Adverse Effect;
(ii) have not received any notice from any court or arbitrator or governmental or regulatory authority or third party alleging or
asserting noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits,
registrations and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (iii) possess
all material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of any term
of any such Authorizations; (iv) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation
arbitration or other action from any court arbitrator or governmental or regulatory authority or third party alleging that any product
operation or activity is in violation of any Applicable Laws or Authorizations nor is any such claim, action, suit, proceeding, hearing,
enforcement, investigation, arbitration or other action overtly threatened; (v) have not received any written notice that any court
or arbitrator or governmental or regulatory authority has taken, is taking or intends to take, action to limit, suspend, materially modify
or revoke any Authorizations nor is any such limitation, suspension, modification revocation overtly threatened; (vi) have filed,
obtained, maintained or submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments as required by any Applicable Laws or Authorizations and that all such reports, documents, forms, notices, applications,
records, claims, submissions and supplements or amendments were complete and accurate in all material respects on the date field (or were
corrected or supplemented by a subsequent submission); and (vii) are not a party to any corporate integrity agreements, monitoring
agreements, consent decrees, settlement orders, or similar agreements with or imposed by any governmental or regulatory authority.
(rr) No
Disqualification Events. With respect to the Securities to be offered and sold hereunder in reliance on Rule 506 under the Securities
Act, none of the Company, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of the Company
participating in the offering hereunder, any beneficial owner of 20% or more of the Company’s outstanding voting equity securities,
calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected
with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad
Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent applicable,
with its disclosure obligations under Rule 506(e), and has furnished to the Purchasers a copy of any disclosures provided thereunder.
(ss) Other
Covered Persons. Other than the Placement Agent, the Company is not aware of any person (other than any Issuer Covered Person) that
has been or will be paid (directly or indirectly) remuneration for solicitation of purchasers in connection with the sale of any Securities.
(tt) Notice
of Disqualification Events. The Company will notify the Purchasers and the Placement Agent in writing, prior to the Closing Date of
(i) any Disqualification Event relating to any Issuer Covered Person it becomes aware of and (ii) any event it becomes aware
of that would, with the passage of time, become a Disqualification Event relating to any Issuer Covered Person.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof or thereof, will
constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws).
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on each date on which
it exercises any Warrants, it will be either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2),
(a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer”
as defined in Rule 144A(a) under the Securities Act.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) General
Solicitation. Such Purchaser is not, to such Purchaser’s knowledge, purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to the knowledge of such Purchaser, any other general solicitation or general advertisement.
(f) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the reports filed with the Commission, including the SEC Reports, and has been afforded: (i) the opportunity
to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning the terms
and conditions of the offering of the Securities and the merits and risks of investing in the Securities and all such questions asked
have been answered to its satisfaction; (ii) access to information about the Company and its financial condition, results of operations,
business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the opportunity to obtain
such additional information that the Company possesses or can acquire without unreasonable effort or expense that is necessary to make
an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that neither the Placement Agent,
nor any Affiliate of the Placement Agent, has provided such Purchaser with any information or advice with respect to the Securities nor
is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate has made or makes any representation
as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may have acquired non-public information
with respect to the Company which such Purchaser agrees need not be provided to it. In connection with the issuance of the Securities
to such Purchaser, neither the Placement Agent, nor any of its Affiliates has acted as a financial advisor or fiduciary to such Purchaser.
(g) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first received
a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material terms of the transactions
contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing, in the case of a Purchaser
that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets
and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions
of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion of assets managed by
the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons
party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers, directors, partners,
legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of all disclosures made
to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding the foregoing, for
the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition of, any actions
with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities of the
Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions in
the future.
(h) No
Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the Purchaser and
any other Purchaser and any of the Company’s stockholders as of the date hereof, regulating the management of the Company, the stockholders’
rights in the Company, the transfer of shares in the Company, including any voting agreements, stockholder agreements or any other similar
agreement, even if its title is different or has any other relations or agreements with any of the Company’s stockholders, directors
or officers.
(i) Brokers.
No agent, broker, investment banker, person or firm acting in a similar capacity on behalf of or under the authority of the Purchaser
is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee, directly or indirectly, for
which the Company or any of its Affiliates after the Closing could have any liabilities in connection with this Agreement, any of the
transactions contemplated by this Agreement, or on account of any action taken by the Purchaser in connection with the transactions contemplated
by this Agreement.
(j) Independent
Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on behalf of the Company
to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely
on the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any
other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, except as set forth in this Agreement, with respect to locating or borrowing shares
in order to effect Short Sales or similar transactions in the future.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) The
Securities issuable thereunder may only be disposed of in compliance with state and federal securities laws. In connection with any transfer
of the Securities issuable thereunder other than pursuant to an effective registration statement or Rule 144, to the Company or to
an Affiliate of a Purchaser without payment of consideration therefor 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 Common Warrant or Common Warrant Shares under the Securities Act.
(b) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities issuable thereunder
in substantially the following form:
NEITHER THIS SECURITY
NOR THE SECURITIES INTO WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT
IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.
The Company acknowledges
and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant
a security interest in some or all of the Securities to a financial institution that is an “accredited investor” as defined
in Rule 501(a) under the Securities Act and, if required under the terms of such arrangement, such Purchaser may transfer pledged
or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and
no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice
shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation
as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including,
if the Securities are subject to registration pursuant to Section 4.19 of this Agreement, the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately
amend the list of selling stockholders thereunder.
(c) Subject
to the remainder of this paragraph, legends (including the legend set forth in Section 4.1(b) hereof) on certificates evidencing
the Securities may be removed: (i) following any sale of such Securities pursuant to a registration statement (including the Registration
Statement) covering the resale of such security that is effective and usable under the Securities Act, (ii) following any sale of
such Securities pursuant to Rule 144, (iii) if requested by a Purchaser who is not an affiliate of the Company under Rule 144,
if such Securities have been held for over a year (after giving effect to any “tacking” of the Purchaser’s holding period
of the Securities that may be permissible under Rule 144, such as may be available in the case of cashless exercises) and are eligible
for sale under Rule 144, or (iv) if such legend is not required under applicable requirements of the Securities Act (including
judicial interpretations and pronouncements issued by the staff of the Commission). Upon the occurrence of any of the events set forth
in clauses (i), (ii) or (iii) in the preceding sentence, the Company shall cause its counsel to issue a legal opinion and an
instruction letter to the Transfer Agent or the Purchaser promptly after request by the Purchaser, if required by the Transfer Agent,
to effect the removal of the legend hereunder, conditioned upon the prior completion and submission by the Purchaser or its broker, as
applicable, of customary certificates or representation letters. The Company agrees that following such time as such legend is no longer
required under this Section 4.1(d), the Company will, no later than the later of (i) one (1) Trading Day and (ii) the
number of Trading Days comprising the Standard Settlement Period (as defined below) following the delivery by a Purchaser to the Company
or the Transfer Agent of a certificate representing Securities, as the case may be, issued with a restrictive legend together with any
customary certificate or representation letter from the Purchaser or the Purchaser’s broker, as applicable (such date when all such
conditions are satisfied, the “Legend Removal Date”), deliver or cause to be delivered to the Transfer Agent an instruction
letter with respect to the removal of legends, if required by the Transfer Agent. The Company may not make any notation on its records
or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section 4. Certificates for
Securities subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of
the Purchaser’s prime broker with the Depository Trust Company System as directed by such Purchaser. As used herein, “Standard
Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading
Market with respect to the Common Stock as in effect on the date of delivery of a certificate representing Shares or Warrant Shares, as
the case may be, issued with a restrictive legend.
(d) In
addition to such Purchaser’s other available remedies, the Company shall pay to a Purchaser, in cash, (i) as partial liquidated
damages and not as a penalty, for each $1,000 of Shares or Warrant Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $10 per Trading
Day (increasing to $20 per Trading Day five (5) Trading Days after such damages have begun to accrue) for each Trading Day after
the Legend Removal Date until an instruction letter with respect to legend removal (“Instruction Letter”), if required by
the Transfer Agent, is delivered to the Transfer Agent, and (ii) if the Company (a) fails to issue and deliver (or cause to
be delivered) to the Transfer Agent by the Legend Removal Date the Instruction Letter, if required by the Transfer Agent and (b) fails
to issue and deliver (or cause to be issued and delivered) to the Purchaser by the Legend Removal Date a certificate representing the
Securities so delivered to the Company by such Purchaser that is free from all restrictive and other legends and (c) such Purchaser
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by such Purchaser of
all or any portion of the number of shares of Common Stock, or a sale of a number of shares of Common Stock equal to all or any portion
of the number of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive legend, then,
an amount equal to the excess of such Purchaser’s total purchase price (including brokerage commissions and other out-of-pocket
expenses, if any) for the shares of Common Stock so purchased (including brokerage commissions and other out-of-pocket expenses, if any)
(the “Buy-In Price”) over the product of (A) such number of Shares or Warrant Shares that the Company was required to
deliver to such Purchaser by the Legend Removal Date multiplied by (B) the lowest closing sale price of the Common Stock on any Trading
Day during the period commencing on the date of the delivery by such Purchaser to the Company of the applicable Shares or Warrant Shares
(as the case may be) and ending on the date of such delivery and payment under this clause (ii).
(e) Each
Purchaser, severally and not jointly with the other Purchasers, agrees with the Company that such Purchaser will sell any Securities pursuant
to either the registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption
therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution
set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities as set forth
in this Section 4.1 is predicated upon the Company’s reliance upon this understanding.
4.2 Furnishing
of Information; Public Information. Until the earliest of the time that (i) no Purchaser owns Securities, (ii) the Common
Warrants have expired, and (iii) the Common Warrant Shares can be resold pursuant to Rule 144 without compliance by the Company
with the current public information requirements of Rule 144, the Company covenants to use its commercially reasonable efforts to
maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date
hereof pursuant to the Exchange Act, even if the Company is not then subject to the reporting requirements of the Exchange Act, except
in the event that the Company consummates (a) any transaction or series of related transactions as a result of which any Person (together
with its Affiliates) acquires then outstanding securities of the Company representing more than fifty percent (50%) of the voting control
of the Company; (b) a merger or reorganization of the Company with one or more other entities in which the Company is not the surviving
entity; or (c) a sale of all or substantially all of the assets of the Company (a “Change of Control Transaction”), where
the consummation of such transaction results in the Company no longer subject to the reporting requirements of the Exchange Act.
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 Securities for purposes of the rules and regulations
of any Trading Market such that it would require stockholder approval prior to the closing of such other transaction unless stockholder
approval is obtained before the closing of such subsequent transaction, other than with respect to the Securities and any stockholder
approvals related to the Securities, including, for the avoidance of doubt, the Stockholder Approval.
4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time issue a press release disclosing the material terms
of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as exhibits
thereto to the extent deemed required by the Company, with the Commission within the time required by the Exchange Act. From and after
the issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public
information delivered to any of the Purchasers by the Company or any of the Subsidiaries, or any of their respective officers, directors,
employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance
of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of the Subsidiaries or any of their respective officers, directors, agents, employees
or Affiliates on the one hand, and any of the Purchasers or any of their Affiliates on the other hand, with respect to the transactions
contemplated hereby shall terminate. The Company and each Purchaser shall consult with each other in issuing any other press releases
with respect to the transactions contemplated hereby, and neither the Company nor any Purchaser shall issue any such press release nor
otherwise make any such public statement without the prior consent of the Company, with respect to any press release of any Purchaser,
or without the prior consent of each Purchaser, with respect to any press release of the Company, which consent shall not unreasonably
be withheld or delayed, except if such disclosure is required by law, in which case the disclosing party shall promptly provide the other
party with prior notice of such public statement or communication. Notwithstanding the foregoing, the Company shall not publicly disclose
the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or applicable
Trading Market, without the prior written consent of such Purchaser, except (a) as required by federal securities law in connection
with (i) any registration statement contemplated by Section 4.19 of this Agreement and (ii) the filing of final Transaction
Documents with the Commission and (b) to the extent such disclosure is required by applicable law or Trading Market regulations,
in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.5 Stockholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.4, and any additional information disclosed in the filings pursuant to Section 4.4,
the Company covenants and agrees that neither it, nor any other Person acting on its behalf will provide any Purchaser or its agents or
counsel with any information that constitutes, or the Company reasonably believes constitutes, material non-public information, unless
prior thereto such Purchaser shall have consented to the receipt of such information and agreed with the Company to keep such information
confidential. The Company understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions
in securities of the Company. To the extent that the Company delivers any material, non-public information to a Purchaser without such
Purchaser’s consent, the Company hereby covenants and agrees that such Purchaser shall not have any duty of confidentiality to the
Company, any of the Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the Company,
any of the Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade on the basis of,
such material, non-public information, provided that the Purchaser shall remain subject to applicable law. To the extent that any notice
provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company or any
Subsidiaries, the Company shall simultaneously with the delivery of such notice file such material non-public information on with the
Commission pursuant to a Current Report on Form 8-K. The Company understands and confirms that each Purchaser shall be relying on
the foregoing covenant in effecting transactions in securities of the Company.
4.7 Use
of Proceeds. Except as set forth in Schedule 4.8, the Company shall not use such proceeds: (a) for the redemption of any
Common Stock or Common Stock Equivalents, or (b) for the settlement of any outstanding litigation, or (c) in violation of FCPA
or OFAC regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.9, the Company will indemnify and hold each Purchaser and its directors,
officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, 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 and documented attorneys’ fees and costs of investigation that any such Purchaser Party
may suffer or incur caused by or based upon (a) any material breach of any of the representations or warranties made by the Company
in this Agreement or (b) any action instituted against a Purchaser Party in any capacity, or any of them or their respective Affiliates,
by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions contemplated
by the Transaction Documents (except to the extent such action is solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may
have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser
Party that is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after
a reasonable period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion
of counsel to the applicable Purchaser Party, a material conflict on any material issue between the position of the Company and the position
of such Purchaser Party, in which case the Company shall be responsible for the reasonable and documented fees and expenses of no more
than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement
by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed;
or (2) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s
breach of any of the representations, warranties, covenants or agreements made by such Purchaser Party in this Agreement or in the other
Transaction Documents. The indemnification required by this Section 4.8 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; provided, that if any Purchaser Party
is finally judicially determined not to be entitled to indemnification or payment under this Section 4.8, such Purchaser Party shall
promptly reimburse the Company for any payments that are advanced under this sentence. The indemnity agreements contained herein shall
be in addition to any cause of action or similar right of any Purchaser Party against the Company or others and any liabilities the Company
may be subject to pursuant to law.
4.9 Reservation
of Common Stock. The Company has reserved, or as of the Closing the Company shall have reserved, and the Company shall continue to
reserve and keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling
the Company to issue the Shares pursuant to this Agreement and the Warrant Shares pursuant to any exercise of the Warrants, except to
the extent otherwise provided in the Common Warrants, if such Warrants were to be exercised now.
4.10 Listing
of Common Stock. The Company hereby agrees to use commercially reasonable best efforts to maintain the listing or quotation of the
Common Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list
or quote all of the Shares and Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Warrant
Shares on such Trading Market to the extent required by the rules of such Trading Market; provided, however, that the Purchasers
acknowledge that the Common Stock is currently subject to delisting by the Trading Market; provided further, that the Company shall not
be obligated to use commercially reasonable efforts to maintain its listing if it consummates a Change of Control Transaction. The Company
further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will then include in such application
all of the Shares and Warrant Shares, and will take such other action as is necessary to cause all of the Shares and Warrant Shares to
be listed or quoted on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to
continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s reporting,
filing and other obligations under the bylaws or rules of the Trading Market. For so long as the Company maintains a listing or quotation
of the Common Stock on a Trading Market, the Company agrees to use commercially reasonable efforts to maintain the eligibility of the
Common Stock for electronic transfer through the Depository Trust Company or another established clearing corporation, including, without
limitation, by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with
such electronic transfer.
4.11 Subsequent
Equity Sales.
(a) From
the date hereof until ninety (90) days after the Closing Date (the “Restriction Period”), neither the Company nor any
Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares of Common
Stock or Common Stock Equivalents or (ii) file any registration statement or amendment or supplement thereto, in each case, other
than as contemplated pursuant to Section 4.19 of this Agreement.
(b) From
the date hereof until the forty-five (45) days after the Effective Date, the Company shall be prohibited from effecting or entering into
an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents (or
a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for,
or include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or exchange rate
or other price that is based upon and/or varies with the trading prices of or quotations for the Common Stock at any time after the initial
issuance of such debt or equity securities, or (B) with a conversion, exercise or exchange price that is subject to being reset at
some future date after the initial issuance of such debt or equity security (other than in connection with a stock split or stock dividend
or similar event) or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company
or the market for the Common Stock, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited
to, an equity line of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined
price regardless of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently
cancelled; provided, however, that, the issuance of shares of Common Stock in an “at the market” offering
with the Placement Agent as sales agent (i) at a price per share greater than $2.40 during the length of the prohibition set forth
in Section 4.11(a) and (ii) at any price per share after the prohibition period set forth in Section 4.11(a), shall
not be deemed a Variable Rate Transaction. Any Purchaser shall be entitled to obtain injunctive relief against the Company to preclude
any such issuance, which remedy shall be in addition to any right to collect damages.
(c) Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate Transaction shall
be an Exempt Issuance.
4.12 Equal
Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered or paid to any
Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration is
also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate right
granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers
as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition
or voting of Shares or otherwise.
4.13 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor
any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short Sales,
of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time that
the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4.
Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by
this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.4, such Purchaser
will maintain the confidentiality of the existence and terms of this transaction and the information included in this Agreement, including
the schedules hereto. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company
expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage
in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement are first
publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser shall be restricted
or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities
of the Company to the Company or the Subsidiaries after the issuance of the initial press release as described in Section 4.4. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect
to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this
Agreement.
4.14 Form D;
Blue Sky Filings. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and
to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take such action as the Company shall reasonably
determine is necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the Purchasers at the Closing under
applicable securities or “Blue Sky” laws of the states of the United States, and shall provide evidence of such actions promptly
upon request of any Purchaser.
4.15 Acknowledgment
of Dilution. The Company acknowledges that the issuance of the Securities may result in dilution of the outstanding shares of Common
Stock, which dilution may be substantial under certain market conditions. The Company further acknowledges that its obligations under
the Transaction Documents, including, without limitation, its obligation to issue the Shares and Warrant Shares pursuant to the Transaction
Documents, are unconditional and absolute and not subject to any right of set off, counterclaim, delay or reduction, other than the conditions
set forth in this Agreement, regardless of the effect of any such dilution or any claim the Company may have against any Purchaser and
regardless of the dilutive effect that such issuance may have on the ownership of the other stockholders of the Company.
4.16 Exercise
Procedures. The form of Notice of Exercise included in the Warrants sets forth the totality of the procedures required of the Purchasers
in order to exercise the Warrants. No additional legal opinion, other information, or instructions shall be required of the Purchasers
to exercise their Warrants. Without limiting the preceding sentences, no ink-original Notice of Exercise shall be required, nor shall
any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise form be required in order to exercise the
Warrants. The Company shall honor exercises of the Warrants and shall deliver Warrant Shares in accordance with the terms, conditions,
and time periods set forth in the Transaction Documents. The Company shall have no obligation to inquire with respect to or otherwise
confirm the authenticity of the signature(s) appearing in any Notice of Exercise, or to confirm the authority of any person executing
such Notice.
4.17 [Reserved].
4.18 Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party to
a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its commercially reasonable efforts
to seek specific performance of the terms of such Lock-Up Agreement.
4.19 Registration
Rights.
On
or before the forty fifth (45) day following the Closing Date, the Company will file a registration statement (the “Registration
Statement”) with the Commission registering for resale the Common Warrant Shares, and will use commercially reasonable efforts
to have such Registration Statement declared effective by the Commission no later than the sixtieth (60) day following the Closing Date
(or, in the event of a review by the Commission, the ninetieth (90) day following the Closing Date) and to keep such registration statement
effective at all times until the earlier of (i) no Purchaser owns any Common Warrants or Common Warrant Shares issuable upon exercise
thereof, (ii) one year following the expiration of the exercise period of the Common Warrants and (iii) such time as all Purchasers
are eligible to resell all Common Warrant Shares pursuant to Rule 144 without compliance by the Company with the current public information
requirement of Rule 144. The Company’s obligations hereunder are conditioned upon each Purchaser completing and furnishing
to the Company a customary selling shareholder questionnaire on a date that is not less than five (5) Trading Days prior to the filing
date of the Registration Statement contemplated by this Section 4.19 and to provide the Company such other customary information
it may reasonably request from time to time in order to file and maintain the effectiveness of the Registration Statement.
(a) Notwithstanding
anything to the contrary contained herein, the Company may, upon written notice to all holders of Common Warrants and Common Warrant Shares,
suspend the use of the Registration Statement if the Company (i) determines that it would be required to make disclosure of material
information in the Registration Statement that the Company has a bona fide business purpose for preserving as confidential, (ii) the
Company determines it must amend or supplement the Registration Statement or the related prospectus so that such Registration Statement
or prospectus shall not include 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, (iii) the
Company has experienced or is experiencing some other material non-public event, including a pending transaction involving the Company,
the disclosure of which at such time, in the good faith judgment of the Company, would adversely affect the Company, or (iv) the
Company determines it must amend or supplement the Registration Statement or prospectus in connection with a fundamental change; provided,
however, in no event shall holders be suspended from selling Common Warrant Shares pursuant to the Registration Statement (A) under
clauses (i), (ii) or (iii) above, for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days in any 180-day
period, or (B) under clause (iv) above, for a period that exceeds 90 consecutive Trading Days in any 365-day period.
ARTICLE V
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by (i) any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect
whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties, or (ii) by the
Company, by written notice to the Purchasers, if in either case the Closing has not been consummated on or before the fifth (5th) Trading
Day following the date hereof; provided, however, that no such termination will affect the right of any party to sue for any breach by
any other party (or parties).
5.2 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 advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser). The Company shall pay any issuance, stamp or documentary taxes (other than transfer taxes) or charges imposed by any
governmental body, agency or official (other than income taxes) by reason of the issuance of Shares to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior agreements and understandings, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via
email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing,
if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and Purchasers that purchased at least 50.1% in interest of the Securities based on the initial
Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against
whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately and
adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or at least 50.1% in
interest of such group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or requirement
of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder in any manner
impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely affects the
rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require the prior
written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding
upon each Purchaser and holder of Securities and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser (other
than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or
transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities, by
the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 Third-Party
Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties of the Company in Section 3.1
and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for the benefit of the parties
hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision hereof be enforced by,
any other Person, except as otherwise set forth in Section 4.9 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective affiliates,
directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting
in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably
waives, and agrees not to assert in any action or proceeding, any claim that it is not personally subject to the jurisdiction of any such
court, that such action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If any party shall commence an action
or proceeding to enforce any provisions of the Transaction Documents, then, in addition to the obligations of the Company under Section 4.9,
the prevailing party in such action or proceeding shall be reimbursed by the non-prevailing party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities for a period of three
(3) years from the Closing.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, by other electronic signing created on an electronic platform (such as DocuSign) or by digital signing (such as Adobe
Sign), 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 “.pdf” or other electronic or digital signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any of
the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document and
the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind or withdraw,
in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in whole or in part
without prejudice to its future actions and rights provided, however, that in the case of a rescission of an exercise of a Warrant, the
applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded exercise notice concurrently
(if such shares were delivered to the applicable Purchaser) with the return to such Purchaser of the aggregate exercise price paid to
the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s
Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company of
such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
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.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or are required
to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including, without
limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several and
not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
Sullivan & Worcester LLP, the legal counsel of the Placement Agent, and Sullivan & Worcester LLP, as legal counsel of
the Placement Agent, does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide
all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested
to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each other
Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively and not
between and among the Purchasers.
5.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been
paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due
and payable shall have been canceled.
5.19 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding Trading
Day.
5.20 Currency.
Unless otherwise stated, all dollar amounts and references to “$” in this Agreement refer to the lawful currency of the United
States.
5.21 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference
to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.22 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES EACH
KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
| BOXLIGHT
CORPORATION |
|
| |
|
|
| By: |
|
|
| Name: |
Dale
Strang |
|
| Title: |
Chief
Executive Officer |
|
Address for Notice:
Boxlight Corporation
2750 Premiere Parkway, Suite 900
Duluth, GA 30097
Attn: Dale Strang
Email: Email: dale.strang@boxlight.com
With
a copy to (which shall not constitute notice):
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street N.E., Suite 2800
Atlanta, GA 30309
Attn.: David Eaton and Isabelle Dinerman
Email: deaton@ktslaw.com and idinerman@ktslaw.com
[PURCHASER SIGNATURE PAGES TO BOXL
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser:
Signature
of Authorized Signatory of Purchaser:
Name of Authorized Signatory:
Title of Authorized Signatory:
Email Address of Authorized Signatory:
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser
(if not same as address for notice):
DWAC for Common Stock:
Subscription Amount: $
Shares of Common Stock:
Pre-Funded
Warrant Shares: ___________ Beneficial Ownership Blocker ¨
4.99% or ¨ 9.99%
Common
Warrant Shares: _____________ Beneficial Ownership Blocker ¨
4.99% or ¨ 9.99%
EIN Number: ____________________
¨
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed
to purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the
Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the
Closing shall occur on the second (1st) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated
by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed
of any agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead
be an unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or
the like or purchase price (as applicable) to such other party on the Closing Date.
Exhibit A
Form of Lock-Up Agreement
(See attached)
Exhibit B
Form of Common Warrant
(See attached)
Exhibit C
Form of Pre-Funded Warrant
(See attached)
Exhibit 99.1
Boxlight Announces
Pricing of $2.8 Million Private Placement
Priced At-the-Market
Under Nasdaq Rules
DULUTH, Ga.
– February 19, 2025--(BUSINESS WIRE)--Boxlight Corporation (Nasdaq: BOXL) (the “Company or “Boxlight”),
a globally recognized leader in educational technology, today announced that it has entered into securities purchase agreements for the
purchase and sale of 1,323,000 shares of its Class A common stock (the “Common Stock”) (or Common Stock equivalents
in lieu thereof) and warrants to purchase up to 1,323,000 shares of Common Stock (the “Warrants”) in a private placement
priced at-the-market under Nasdaq rules. The combined purchase price of each share of Common Stock (or Common Stock equivalent in lieu
thereof) together with the accompanying Warrant is $2.13. The Warrants will have an exercise price of $2.13 per share, will be exercisable
six months following the date of issuance and will expire five and a half years from the date of issuance.
The closing of the private placement is expected
to occur on or about February 21, 2025, subject to the satisfaction of customary closing conditions. The gross proceeds from the
private placement are expected to be approximately $2.8 million. The Company intends to use the net proceeds from the private placement
for working capital and general corporate purposes.
A.G.P./Alliance Global Partners is acting as the
sole placement agent for the private placement.
The offer and sale of the foregoing securities
is being made in a transaction not involving a public offering, and the securities have not been and will not be registered under the
Securities Act of 1933, as amended (the “Securities Act”), or applicable state securities laws. Accordingly, the securities
may not be offered or sold in the United States except pursuant to an effective registration statement or an applicable exemption from
the registration requirements of the Securities Act and such applicable state securities laws. Pursuant to the securities purchase agreements
entered into with the investors, the Company agreed to file a registration statement with the U.S. Securities and Exchange Commission
(the “SEC”) covering the resale of the shares of Common Stock (including the shares of Common Stock underlying the Warrants)
to be issued to the investors no later than 45 days after the closing of the private placement and to use commercially reasonable efforts
to have the registration statement declared effective as promptly as practicable thereafter, and in any event no later than 60 days after
the closing of the private placement, or in the event of a “full review” by the SEC, 90 days after the closing of the private
placement.
This press release shall not constitute an offer
to sell or the solicitation of an offer to buy any of the securities described herein, nor shall there be any sale of these securities
in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or jurisdiction.
####
Forward Looking Statements
This press release contains forward-looking statements
within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements often use words such as “believe,”
“may,” “will,” “estimate,” “target,” “continue,” “anticipate,”
“intend,” “expect,” “should,” “would,” “propose,” “plan,” “project,”
“forecast,” “predict,” “potential,” “seek,” “future,” “outlook,”
and similar variations and expressions. Forward-looking statements are those that do not relate strictly to historical or current facts.
Examples of forward-looking statements may include, among others, statements regarding the completion of the private placement, the satisfaction
of customary closing conditions related to the private placement, and the intended use of proceeds from the private placement. Forward-looking
statements are not guarantees of future performance and are subject to risks and uncertainties, many of which are outside of the Company’s
control. Important factors that could cause actual results, developments and business decisions to differ materially from forward-looking
statements include, among other things: the Company’s ability to maintain a listing of its Common Stock on Nasdaq Capital Market;
uncertainty regarding whether the recently effected 1-for-5 reverse stock split of the Common Stock will restore compliance with Nasdaq’s
minimum bid price rule, and thus prevent a delisting; the Company’s ability to continue to operate as a going concern; the Company’s
ability to comply with certain covenants, minimum liquidity and borrowing base requirements under our existing credit agreement, or in
the alternative, to continue to obtain forbearances or waivers from the lender thereunder; the Company’s ability to pay the redemption
price of its outstanding Series B Preferred Stock and Series C Preferred Stock in the event the holders thereof were to opt
to cause the Company to redeem the Series B Preferred Stock or Series C Preferred Stock; the Company’s indebtedness, a
substantial amount of which is bearing interest at a variable rate; the Company’s history of operating losses; the Company’s
ability to raise additional capital; changes in the sales of the Company’s display products; seasonal fluctuations in the Company’s
business; changes in the Company’s working capital requirements and cash flow fluctuations; competition in the Company’s industry;
and the other risks described in the sections titled “Risk Factors” in the Company’s filings with the Securities and
Exchange Commission, including its most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q, as well as reports
on Form 8-K. Forward-looking statements in this press release are made as of the date hereof, and the Company undertakes no duty
to update or revise any such statements, whether as a result of new information, future events or otherwise. Except as required by applicable
law, the Company expressly disclaims any obligations 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.
Contacts
Investor Relations
Greg Wiggins
+1 360-464-4478
investor.relations@boxlight.com
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xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionCommission file number. The field allows up to 17 characters. The prefix may contain 1-3 digits, the sequence number may contain 1-8 digits, the optional suffix may contain 1-4 characters, and the fields are separated with a hyphen.
| Name: |
dei_EntityFileNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:fileNumberItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTwo-character EDGAR code representing the state or country of incorporation.
| Name: |
dei_EntityIncorporationStateCountryCode |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarStateCountryItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe exact name of the entity filing the report as specified in its charter, which is required by forms filed with the SEC. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityRegistrantName |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionThe Tax Identification Number (TIN), also known as an Employer Identification Number (EIN), is a unique 9-digit value assigned by the IRS. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b-2
| Name: |
dei_EntityTaxIdentificationNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:employerIdItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionLocal phone number for entity.
| Name: |
dei_LocalPhoneNumber |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:normalizedStringItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 13e
-Subsection 4c
| Name: |
dei_PreCommencementIssuerTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14d
-Subsection 2b
| Name: |
dei_PreCommencementTenderOffer |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTitle of a 12(b) registered security. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
| Name: |
dei_Security12bTitle |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:securityTitleItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
| Name: |
dei_SecurityExchangeName |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:edgarExchangeCodeItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
| Name: |
dei_SolicitingMaterial |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionTrading symbol of an instrument as listed on an exchange.
| Name: |
dei_TradingSymbol |
| Namespace Prefix: |
dei_ |
| Data Type: |
dei:tradingSymbolItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
| Name: |
dei_WrittenCommunications |
| Namespace Prefix: |
dei_ |
| Data Type: |
xbrli:booleanItemType |
| Balance Type: |
na |
| Period Type: |
duration |
|
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