Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
SECURITIES PURCHASE AGREEMENT (the “Agreement”), dated as of February 11, 2021, is by and among Conversion
Labs, Inc., a Delaware corporation (the “Company”), and the investors listed on the Schedule of Buyers attached
hereto (individually, a “Buyer” and collectively, the “Buyers”).
RECITALS
A.
The Company and each Buyer is executing and delivering this Agreement in reliance upon the exemption from securities registration
afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “1933 Act”), and Rule 506(b) of
Regulation D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the 1933 Act.
B.
Each Buyer wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this Agreement, the aggregate
number of shares of common stock, par value $0.01 per share, of the Company (the “Common Stock”) as set forth
opposite such Buyer’s name in column (3) on the Schedule of Buyers (which aggregate amount for all Buyers shall be _____________
shares of Common Stock and shall collectively be referred to herein as the “Common Shares” or the “Securities”).
C.
At the Closing, the parties hereto shall execute and deliver a Registration Rights Agreement, in the form attached hereto as Exhibit
B (the “Registration Rights Agreement”), pursuant to which the Company has agreed to provide certain
registration rights with respect to the Registrable Securities (as defined in the Registration Rights Agreement), under the 1933
Act and the rules and regulations promulgated thereunder, and applicable state securities laws.
AGREEMENT
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:
1.
PURCHASE AND SALE OF COMMON SHARES.
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(a) |
Common
Shares. Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7 below, the Company shall
issue and sell to each Buyer, and each Buyer severally, but not jointly, shall purchase from the Company on the Closing Date
(as defined below), such aggregate number of Common Shares as is set forth opposite such Buyer’s name in column (3)
on the Schedule of Buyers. |
(b)
Closing. The closing (the “Closing”) of the purchase of the Common Shares by the Buyers shall occur
at the offices of Lucosky Brookman LLP, 101 Wood Avenue South, 5th FL 08807. The date and time of the Closing (the
“Closing Date”) shall be 10:00 a.m., New York time, on the first (1st) Business Day on which the
conditions to the Closing set forth in Sections 6 and 7 below are satisfied or waived (or such later date as is mutually agreed
to by the Company and each Buyer). As used herein “Business Day” means any day other than a Saturday, Sunday
or other day on which commercial banks in New York, New York are required by law to remain closed.
(c)
Purchase Price(d). The aggregate purchase price for the Common Shares to be purchased by each Buyer (the “Purchase
Price”) shall be the amount set forth opposite such Buyer’s name in column (4) on the Schedule of Buyers.
(d)
Form of Payment. On the Closing Date, (i) each Buyer shall pay its respective Purchase Price to the Company for the Common
Shares to be issued and sold to such Buyer at the Closing, by wire transfer of immediately available funds in accordance with
the Company’s written wire instructions and (ii) the Company shall deliver to each Buyer certificates representing such
aggregate number of Common Shares as is set forth opposite such Buyer’s name in column (3) of the Schedule of Buyers duly
executed on behalf of the Company and registered in the name of such Buyer or its designee.
2.
BUYER’S REPRESENTATIONS AND WARRANTIES.
Each
Buyer, severally and not jointly, represents and warrants to the Company with respect to only itself that, as of the date hereof
and as of the Closing Date:
(a)
Organization; Authority. Such Buyer is an entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization with the requisite power and authority to enter into and to consummate the transactions contemplated
by the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.
(b)
No Public Sale or Distribution. Such Buyer is acquiring its Common Shares for its own account and not with a view towards,
or for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant
to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein, such Buyer does not
agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance with or pursuant to a registration statement or an exemption
under the 1933 Act. Such Buyer is acquiring the Securities hereunder in the ordinary course of its business. Such Buyer does not
presently have any agreement or understanding, directly or indirectly, with any Person to distribute any of the Securities in
violation of applicable securities laws.
(c)
Accredited Investor Status. Such Buyer is an “accredited investor” as that term is defined in Rule 501(a) of
Regulation D.
(d)
Reliance on Exemptions. Such Buyer understands that the Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying
in part upon the truth and accuracy of, and such Buyer’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of such Buyer set forth herein in order to determine the availability of such exemptions and the eligibility
of such Buyer to acquire the Securities.
(e)
Information. Such Buyer and its advisors, if any, have been furnished with all materials relating to the business, finances
and operations of the Company and materials relating to the offer and sale of the Securities which have been requested by such
Buyer. Such Buyer and its advisors, if any, have been afforded the opportunity to ask questions of the Company. Neither such inquiries
nor any other due diligence investigations conducted by such Buyer or its advisors, if any, or its representatives shall modify,
amend or affect such Buyer’s right to rely on the Company’s representations and warranties contained herein or any
representations and warranties contained in any other Transaction Document or any other document or instrument executed and/or
delivered in connection with this Agreement or the consummation of the transaction contemplated hereby. Such Buyer understands
that its investment in the Securities involves a high degree of risk. Such Buyer has sought such accounting, legal and tax advice
as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
(f)
No Governmental Review. Such Buyer understands that no United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of
the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(g)
Transfer or Resale. Such Buyer understands that except as provided in the Registration Rights Agreement and Section 4(g)
hereof: (i) the Securities have not been and are not being registered under the 1933 Act or any state securities laws, and may
not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) such Buyer shall have
delivered to the Company (if requested by the Company) an opinion of counsel to such Buyer, in a form reasonably acceptable to
the Company, to the effect that such Securities to be sold, assigned or transferred may be sold, assigned or transferred pursuant
to an exemption from such registration, or (C) such Buyer provides the Company with reasonable assurance that such Securities
can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto)
(collectively, “Rule 144”); (ii) any sale of the Securities made in reliance on Rule 144 may be made only in
accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of the Securities under circumstances
in which the seller (or the Person (as defined below) through whom the sale is made) may be deemed to be an underwriter (as that
term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations
of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the
Securities under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder.
(h)
Validity; Enforcement. This Agreement and the Registration Rights Agreement have been duly and validly authorized, executed
and delivered on behalf of such Buyer and constitute the legal, valid and binding obligations of such Buyer enforceable against
such Buyer in accordance with their respective terms, except as such enforceability may be limited by general principles of equity
or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws relating to, or affecting
generally, the enforcement of applicable creditors’ rights and remedies.
(i)
No Conflicts. The execution, delivery and performance by such Buyer of this Agreement and the Registration Rights Agreement
and the consummation by such Buyer of the transactions contemplated hereby and thereby will not (i) result in a violation of the
organizational documents of such Buyer or (ii) conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, any agreement, indenture or instrument to which such Buyer is a party, or (iii) result in a violation of any law, rule, regulation,
order, judgment or decree (including federal and state securities laws) applicable to such Buyer, except in the case of clauses
(ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually or in the aggregate, reasonably
be expected to have a material adverse effect on the ability of such Buyer to perform its obligations hereunder.
(j)
Residency. Such Buyer is a resident of the jurisdiction specified below its address on the Schedule of Buyers.
(k)
Certain Trading Activities. Such Buyer has not directly or indirectly, nor has any person acting on behalf of or pursuant
to any understanding with such Buyer, engaged in any transactions in the securities of the Company (including, without limitation,
Short Sales involving the Company’s securities) since the time that such Buyer was first contacted by the Company regarding
the investment in the Company contemplated herein. “Short Sales” include, without limitation, all “short
sales” as defined in Rule 200 promulgated under Regulation SHO under the 1934 Act (“Regulation SHO”)
and all types of direct and indirect stock pledges, forward sales contracts, options, puts, calls, swaps and similar arrangements
(including on a total return basis), and sales and other transactions through non-U.S. broker dealers or foreign regulated brokers
(but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
(l)
General Solicitation. Such Buyer is not 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.
(m)
Manipulation of Price. Since the time that such Buyer was first contacted by the Company or its agent regarding the investment
in the Company contemplated herein, such Buyer has not, and, to the knowledge of such Buyer, no Person acting on its behalf has,
directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid
any compensation for soliciting purchases of, any of the Securities (other than the location and/or reservation of borrowable
shares of Common Stock by any Buyer), 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 the location and/or reservation of borrowable shares of Common Stock
by any Buyer).
(n)
Experience of Such Buyer. Such Buyer, 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 Buyer 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.
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(o) |
Access
to Information. Such Buyer acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) 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; (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 Buyer acknowledges
and agrees that neither the Placement Agent (as defined below) nor any affiliate of the Placement Agent has provided such
Buyer 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 of the Placement Agent has made or makes any representation as to the Company
or the quality of the Securities and the Placement Agent and any affiliate of the Placement Agent may have acquired non-public
information with respect to the Company which such Buyer agrees need not be provided to it. In connection with the issuance
of the Securities to such Buyer, neither the Placement Agent nor any of its Affiliates has acted as a financial advisor or
fiduciary to such Buyer. |
3.
REPRESENTATIONS AND WARRANTIES OF THE
COMPANY.
The
Company represents and warrants to each of the Buyers that, as of the date hereof and as of the Closing Date:
(a)
Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly
existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authorization
to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each
of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every
jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary,
except to the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect. As used
in this Agreement, “Material Adverse Effect” means any material adverse effect on (i) the business, properties,
assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or
any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated hereby or in any of the other Transaction
Documents or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations
under any of the Transaction Documents (as defined below). “Subsidiaries” means any Person in which the Company,
directly or indirectly, (I) owns at least fifty percent (50% of the outstanding capital stock or holds at least fifty percent
(50%) of the equity or similar interest of such Person or (II) controls or operates all or any part of the business, operations
or administration of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”
(b)
Authorization; Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations
under this Agreement and the other Transaction Documents and to issue the Securities to the Buyers in accordance with the terms
hereof and thereof. The execution and delivery of this Agreement and the other Transaction Documents by the Company, and the consummation
by the Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Common
Shares to the Buyers) have been duly authorized by the Company’s board of directors and (other than the filing with the
SEC of one or more Registration Statements in accordance with the requirements of the Registration Rights Agreement, a Form D
with the SEC, and any other filings as may be required by any state securities agencies) no further filing, consent or authorization
is required by the Company, its Subsidiaries, their respective boards of directors or their stockholders or other governing body.
This Agreement has been, and the other Transaction Documents will be prior to the Closing, duly executed and delivered by the
Company or its agent, and each constitutes the legal, valid and binding obligations of the Company, enforceable against the Company
in accordance with its respective terms, except as such enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement
of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited
by federal or state securities law. “Transaction Documents” means, collectively, this Agreement, the Registration
Rights Agreement, the Irrevocable Transfer Agent Instructions (as defined below), the Placement Agency Agreement (as defined below),
and each of the other agreements and instruments entered into or delivered by any of the parties hereto in connection with the
transactions contemplated hereby and thereby, as may be amended from time to time.
(c)
Issuance of Securities. The Common Shares, when issued, will be validly issued, fully paid and nonassessable and free from
all preemptive or similar rights, taxes, liens, charges and other encumbrances with respect to the issue thereof, with the holders
being entitled to all rights accorded to a holder of Common Stock. Subject to the accuracy of the representations and warranties
of the Buyers in this Agreement, the offer and issuance by the Company of the Securities is exempt from registration under the
1933 Act.
(d)
No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and its Subsidiaries
(as applicable) and the consummation by the Company and its Subsidiaries (as applicable) of the transactions contemplated hereby
and thereby (including, without limitation, the issuance of the Common Shares to the Buyers) will not (i) result in a violation
of the Certificate of Incorporation (as defined below) or other organizational documents of the Company or any of its Subsidiaries,
the rights attendant to any capital stock of the Company or any of its Subsidiaries, or Bylaws (as defined below) of the Company
or any of its Subsidiaries, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement,
indenture or instrument to which the Company or any of its Subsidiaries is a party, or (iii) result in a violation of any law,
rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules
and regulations of The Nasdaq Capital Market (the “Principal Market”) and including all applicable federal
laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company
or any of its Subsidiaries is bound or affected except, in the case of clause (ii) or (iii) above, to the extent such violations
that could not reasonably be expected to have a Material Adverse Effect.
(e)
Consents. Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of, or
make any filing or registration with (other than the filing with the SEC of one or more Registration Statements in accordance
with the requirements of the Registration Rights Agreement, a Form D with the SEC and any other filings as may be required by
any state securities agencies), any court, governmental agency or any regulatory or self-regulatory agency or any other Person
in order for it to execute, deliver or perform any of its respective obligations under or contemplated by the Transaction Documents,
in each case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations
which the Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been obtained or effected on
or prior to the Closing Date, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which
might prevent the Company or any Subsidiary from obtaining or effecting any of the registration, application or filings contemplated
by the Transaction Documents. The Company is not in violation of the requirements of the Principal Market and has no knowledge
of any facts or circumstances which could reasonably lead to delisting or suspension of the Common Stock in the foreseeable future.
(f)
Acknowledgment Regarding Buyer’s Purchase of Securities. The Company acknowledges and agrees that to its actual knowledge,
each Buyer is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the
transactions contemplated hereby and thereby and that, except as set forth on Schedule 3(f), no Buyer is (i) an officer or director
of the Company or any of its Subsidiaries, (ii) to its actual knowledge, an “affiliate” (as defined in Rule 144) of
the Company or any of its Subsidiaries or (iii) to its knowledge, a “beneficial owner” of more than 10% of the shares
of Common Stock (as defined for purposes of Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “1934
Act”)). The Company further acknowledges that no Buyer is acting as a financial advisor or fiduciary of the Company
or any of its Subsidiaries (or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated
hereby and thereby, and any advice given by a Buyer or any of its representatives or agents in connection with the Transaction
Documents and the transactions contemplated hereby and thereby is merely incidental to such Buyer’s purchase of the Securities.
The Company further represents to each Buyer that the Company’s and each Subsidiary’s decision to enter into the Transaction
Documents to which it is a party has been based solely on the independent evaluation by the Company, each Subsidiary and their
respective representatives.
(g)
No General Solicitation; Placement Agent’s Fees. Neither the Company, nor any of its Subsidiaries or affiliates,
nor any Person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the
meaning of Regulation D) in connection with the offer or sale of the Securities. The Company shall be responsible for the payment
of any placement agent’s fees, financial advisory fees, or brokers’ commissions (other than for Persons engaged by
any Buyer or its investment advisor) relating to or arising out of the transactions contemplated hereby. Other than BTIG, LLC
(the “Placement Agent”), neither the Company nor any of its Subsidiaries has engaged any placement agent or
other agent in connection with the sale of the Securities.
(h)
No Integrated Offering. None of the Company, its Subsidiaries or any of their affiliates, nor any Person acting on their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under
circumstances that would require registration of the issuance of any of the Securities under the 1933 Act, whether through integration
with prior offerings or otherwise, or cause this offering of the Securities to require approval of stockholders of the Company
under any applicable stockholder approval provisions, including, without limitation, under the rules and regulations of any exchange
or automated quotation system on which any of the securities of the Company are listed or designated. None of the Company, its
Subsidiaries, their affiliates nor any Person acting on their behalf will take any action or steps that would require registration
of the issuance of any of the Securities under the 1933 Act or cause the offering of any of the Securities to be integrated with
other offerings.
(i)
Application of Takeover Protections; Rights Agreement. The Company and its board of directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, interested stockholder, business combination, poison
pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation,
Bylaws or other organizational documents or the laws of the jurisdiction of its incorporation or otherwise which is or could become
applicable to any Buyer as a result of the transactions contemplated by this Agreement, including, without limitation, the Company’s
issuance of the Securities and any Buyer’s ownership of the Securities. The Company and its board of directors have taken
all necessary action, if any, in order to render inapplicable any stockholder rights plan or similar arrangement relating to accumulations
of beneficial ownership of shares of Common Stock or a change in control of the Company or any of its Subsidiaries.
(j)
SEC Documents; Financial Statements. During the two (2) years prior to the date hereof, the Company has timely filed all
reports, schedules, forms, statements and other documents required to be filed by it with the SEC pursuant to the reporting requirements
of the 1934 Act (all of the foregoing filed prior to the date hereof and all exhibits included therein and financial statements,
notes and schedules thereto and documents incorporated by reference therein being hereinafter referred to as the “SEC
Documents”). The Company has delivered true, correct and complete copies of each of the SEC Documents not available
on the EDGAR system requested by the Buyers or their respective representatives. As of their respective dates, the SEC Documents
complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. As of their respective dates,
the financial statements of the Company included in the SEC Documents complied as to form in all material respects with applicable
accounting requirements and the published rules and regulations of the SEC with respect thereto as in effect as of the time of
filing. Such financial statements have been prepared in accordance with U.S. generally accepted accounting principles, consistently
applied, during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto,
or (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company
to the Buyers which is not included in the SEC Documents (including, without limitation, information referred to in Section 2(e)
of this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to
make the statements therein not misleading, in the light of the circumstance under which they are or were made.
(k)
Absence of Certain Changes. Except as set forth in the SEC Documents, there has been no material adverse change and no
material adverse development in the business, assets, liabilities, properties, operations (including results thereof), condition
(financial or otherwise) or prospects of the Company or any of its Subsidiaries. Since the date of the Company’s most recent
audited financial statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid
any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii) made
any material capital expenditures, individually or in the aggregate. Neither the Company nor any of its Subsidiaries has taken
any steps to seek protection pursuant to any law or statute relating to bankruptcy, insolvency, reorganization, receivership,
liquidation or winding up, nor does the Company or any Subsidiary have any knowledge or reason to believe that any of their respective
creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead
a creditor to do so. The Company and its Subsidiaries, individually and on a consolidated basis, are not as of the date hereof,
and after giving effect to the transactions contemplated hereby to occur at the Closing, will not be Insolvent (as defined below).
For purposes of this Section 3(k), “Insolvent” means, (I) with respect to the Company and its Subsidiaries,
on a consolidated basis, (i) the present fair saleable value of the Company’s and its Subsidiaries’ assets is less
than the amount required to pay the Company’s and its Subsidiaries’ total Indebtedness (as defined below), (ii) the
Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured or (iii) the Company and its Subsidiaries intend to incur or believe that they will
incur debts that would be beyond their ability to pay as such debts mature; and (II) with respect to the Company and each Subsidiary,
individually, (i) the present fair saleable value of the Company’s or such Subsidiary’s (as the case may be) assets
is less than the amount required to pay its respective total Indebtedness, (ii) the Company or such Subsidiary (as the case may
be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise, as such debts and liabilities
become absolute and matured or (iii) the Company or such Subsidiary (as the case may be) intends to incur or believes that it
will incur debts that would be beyond its respective ability to pay as such debts mature. Neither the Company nor any of its Subsidiaries
has engaged in any business or in any transaction, and is not about to engage in any business or in any transaction, for which
the Company’s or such Subsidiary’s remaining assets constitute unreasonably small capital.
(l)
No Undisclosed Events, Liabilities, Developments or Circumstances. No event, liability, development or circumstance has
occurred or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries or their
respective business, properties, liabilities, prospects, operations (including results thereof) or condition (financial or otherwise),
that (i) would be required to be disclosed by the Company under applicable securities laws on a registration statement on Form
S-1 filed with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly announced,
(ii) could have a Material Adverse Effect or (iii) would reasonably be expected to have a material adverse effect on any Buyer’s
investment hereunder.
(m)
Conduct of Business. Except as set forth on Schedule 3(m), neither the Company nor any of its Subsidiaries is in violation
of any term of or in default under its certificate or articles of incorporation, bylaws, any certificate of designation, preferences
or rights of any other outstanding series of preferred stock of the Company or any of its Subsidiaries or their organizational
charter, certificate of formation or certificate or articles of incorporation or bylaws, respectively. Neither the Company nor
any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance, rule or regulation applicable
to the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries will conduct its business in violation
of any of the foregoing, except in all cases for possible violations which could not, individually or in the aggregate, have a
Material Adverse Effect. Without limiting the generality of the foregoing, the Company is not in violation of any of the rules,
regulations or requirements of the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead
to delisting or suspension of the Common Stock by the Principal Market in the foreseeable future.
(n)
Foreign Corrupt Practices. Neither the Company nor any of its Subsidiaries nor, to the Company’s knowledge, any director,
officer, agent, employee or other Person acting on behalf of the Company or any of its Subsidiaries has, in the course of its
actions for, or on behalf of, the Company or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution,
gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment
to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision
of the U.S. Foreign Corrupt Practices Act of 1977, as amended, or the U.K. Bribery Act 2010; or (iv) made any unlawful bribe,
rebate, payoff, influence payment, kickback or other unlawful payment to any foreign or domestic government official or employee.
(o)
Sarbanes-Oxley Act. The Company and each Subsidiary is in compliance with all applicable requirements of the Sarbanes-Oxley
Act of 2002 that are effective as of the date hereof, and all applicable rules and regulations promulgated by the SEC thereunder
that are effective as of the date hereof.
(p)
Transactions With Affiliates. Other than as disclosed in the SEC Documents, none of the officers, directors or employees
of the Company or any of its Subsidiaries is presently a party to any transaction with the Company or any of its Subsidiaries
(other than for ordinary course services as employees, officers or directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any such officer, director or employee or, to the knowledge of the Company or any of its Subsidiaries,
any corporation, partnership, trust or other Person in which any such officer, director, or employee has a substantial interest
or is an employee, officer, director, trustee or partner.
(q)
Equity Capitalization. As of the date hereof, except as disclosed in the SEC Documents, the authorized capital stock of
the Company consists of (i) 100,000,000 shares of Common Stock, of which 23,310,831 are issued and outstanding (ii) warrants for
the purchase of up to 3,550,550 shares of the Company’s Common Stock (iii) options for the purchase of up 5,006,400 shares
of the Common Stock and (iii) 5,000 shares of Series B Convertible Preferred Stock, par value $0.0001 per share, of which 3,500
are outstanding pursuant to which 2,600,000 shares of Common Stock are reserved for issuance for future conversion. No shares
of Common Stock are held in treasury. All of such outstanding shares are duly authorized and have been, or upon issuance will
be, validly issued and are fully paid and nonassessable. 6,514,721shares of the Company’s issued and outstanding Common
Stock on the date hereof are as of the date hereof owned by Persons who are “affiliates” (as defined in Rule 405 of
the 1933 Act and calculated based on the assumption that only officers, directors and holders of at least 10% of the Company’s
issued and outstanding Common Stock are “affiliates” without conceding that any such Persons are “affiliates”
for purposes of federal securities laws) of the Company or any of its Subsidiaries. To the Company’s knowledge, no Person
owns 10% or more of the Company’s issued and outstanding shares of Common Stock (calculated based on the assumption that
all Equivalents, whether or not presently exercisable or convertible, have been fully exercised or converted (as the case may
be) taking account of any limitations on exercise or conversion (including “blockers”) contained therein without conceding
that such identified Person is a 10% stockholder for purposes of federal securities laws). Except as disclosed in Schedule 3(q):
(i) none of the Company’s or any Subsidiary’s capital stock is subject to preemptive rights or any other similar rights
or any liens or encumbrances suffered or permitted by the Company or any Subsidiary; (ii) there are no outstanding options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible
into, or exercisable or exchangeable for, any capital stock of the Company or any of its Subsidiaries, or contracts, commitments,
understandings or arrangements by which the Company or any of its Subsidiaries is or may become bound to issue additional capital
stock of the Company or any of its Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, or exercisable or exchangeable for, any capital stock
of the Company or any of its Subsidiaries; (iii) there are no outstanding debt securities, notes, credit agreements, credit facilities
or other agreements, documents or instruments evidencing Indebtedness of the Company or any of its Subsidiaries or by which the
Company or any of its Subsidiaries is or may become bound; (iv) there are no financing statements securing obligations in any
amounts filed in connection with the Company or any of its Subsidiaries; (v) there are no agreements or arrangements under which
the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the 1933 Act (except
pursuant to the Registration Rights Agreement); (vi) there are no outstanding securities or instruments of the Company or any
of its Subsidiaries which contain any redemption or similar provisions, and there are no contracts, commitments, understandings
or arrangements by which the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or
any of its Subsidiaries; (vii) there are no securities or instruments containing anti-dilution or similar provisions that will
be triggered by the issuance of the Securities; (viii) neither the Company nor any Subsidiary has any stock appreciation rights
or “phantom stock” plans or agreements or any similar plan or agreement; and (ix) neither the Company nor any of its
Subsidiaries have any liabilities or obligations required to be disclosed in the SEC Documents which are not so disclosed in the
SEC Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective businesses
and which, individually or in the aggregate, do not or could not have a Material Adverse Effect. The Company has furnished to
the Buyers true, correct and complete copies of the Company’s Certificate of Incorporation, as amended and as in effect
on the date hereof (the “Certificate of Incorporation”), and the Company’s bylaws, as amended and as
in effect on the date hereof (the “Bylaws”), and the terms of all securities convertible into, or exercisable
or exchangeable for, shares of Common Stock and the material rights of the holders thereof in respect thereto.
(r)
Indebtedness and Other Contracts. Except as disclosed in the SEC Documents, neither the Company nor any of its Subsidiaries
(i) has any outstanding Indebtedness (as defined below), (ii) is a party to any contract, agreement or instrument, the violation
of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected
to result in a Material Adverse Effect, (iii) is in violation of any term of, or in default under, any contract, agreement or
instrument relating to any Indebtedness, except where such violations and defaults would not result, individually or in the aggregate,
in a Material Adverse Effect, or (iv) is a party to any contract, agreement or instrument relating to any Indebtedness, the performance
of which, in the judgment of the Company’s officers, has or is expected to have a Material Adverse Effect. For purposes
of this Agreement: (x) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed
money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (including, without
limitation, “capital leases” in accordance with generally accepted accounting principles) (other than trade payables
entered into in the ordinary course of business), (C) all reimbursement or payment obligations with respect to letters of credit,
surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness
created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with
respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary
obligations under any leasing or similar arrangement which, in connection with generally accepted accounting principles, consistently
applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through
(F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts
and contract rights) owned by any Person, even though the Person which owns such assets or property has not assumed or become
liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others
of the kinds referred to in clauses (A) through (G) above; (y) “Contingent Obligation” means, as to any Person,
any direct or indirect liability, contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or
other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect
thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto; and (z) “Person” means an individual, a limited liability company, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization, any other entity and a government or any department or
agency thereof.
(s)
Absence of Litigation. Except as disclosed in the SEC Documents, there is no action, suit, proceeding, inquiry or investigation
before or by the Principal Market, any court, public board, government agency, self-regulatory organization or body pending or,
to the knowledge of the Company, threatened against or affecting the Company or any of its Subsidiaries, the Common Stock or any
of the Company’s or its Subsidiaries’ officers or directors which is outside of the ordinary course of business or
individually or in the aggregate material to the Company or any of its Subsidiaries. There has not been, and to the knowledge
of the Company, there is not pending or contemplated, any investigation by the SEC involving the Company, any of its Subsidiaries
or any current or former director or officer of the Company or any of its Subsidiaries. The SEC has not issued any stop order
or other order suspending the effectiveness of any registration statement filed by the Company under the 1933 Act or the 1934
Act.
(t)
Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses
in which the Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance
coverage sought or applied for, and neither the Company nor any such Subsidiary has any reason to believe that it will be unable
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
(u)
Employee Relations. Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement or
employs any member of a union. The Company believes that its and its Subsidiaries’ relations with their respective employees
are good. No executive officer (as defined in Rule 501(f) promulgated under the 1933 Act) or other key employee of the Company
or any of its Subsidiaries has notified the Company or any such Subsidiary that such officer intends to leave the Company or any
such Subsidiary or otherwise terminate such officer’s employment with the Company or any such Subsidiary. To the Company’s
knowledge, no executive officer or other key employee of the Company or any of its Subsidiaries is, or is now expected to be,
in violation of any material term of any employment contract, confidentiality, disclosure or proprietary information agreement,
non-competition agreement, or any other contract or agreement or any restrictive covenant, and the continued employment of each
such executive officer or other key employee (as the case may be), to the Company’s knowledge, does not subject the Company
or any of its Subsidiaries to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are
in compliance with all federal, state, local and foreign laws and regulations respecting labor, employment and employment practices
and benefits, terms and conditions of employment and wages and hours, except where failure to be in compliance would not, either
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(v)
Title. The Company and its Subsidiaries have good and marketable title in fee simple to all real property, and have good
and marketable title to all personal property (exclusive of intellectual property), owned by them which is material to the business
of the Company and its Subsidiaries, in each case, free and clear of all liens, encumbrances and defects except such as do not
materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by
the Company and any of its Subsidiaries. Any real property and facilities held under lease by the Company or any of its Subsidiaries
are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the Company or any of its Subsidiaries.
(w)
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks,
trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, original works, inventions,
licenses, approvals, governmental authorizations, trade secrets and other intellectual property rights and all applications and
registrations therefor (“Intellectual Property Rights”) necessary to conduct their respective businesses as
now conducted and as presently proposed to be conducted. None of the Company’s or its Subsidiaries’ Intellectual Property
Rights necessary to conduct their respective businesses as now conducted and as presently proposed to be conducted have expired,
terminated or been abandoned, or are expected to expire, terminate or be abandoned, within three years from the date of this Agreement.
The Company has no knowledge of any infringement by the Company or any of its Subsidiaries of Intellectual Property Rights of
others. There is no claim, action or proceeding being made or brought, or to the knowledge of the Company or any of its Subsidiaries,
being threatened, against the Company or any of its Subsidiaries regarding their Intellectual Property Rights except as disclosed
in the SEC Documents. The Company is not aware of any facts or circumstances which might give rise to any of the foregoing infringements
or claims, actions or proceedings. The Company and each of its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their Intellectual Property Rights.
(x)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all Environmental Laws (as defined below),
(ii) have received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions of any such permit, license or approval where,
in each of the foregoing clauses (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually
or in the aggregate, a Material Adverse Effect. The term “Environmental Laws” means all federal, state, local
or foreign laws relating to pollution or protection of human health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata), including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes
(collectively, “Hazardous Materials”) into the environment, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials, as well as all authorizations,
codes, decrees, demands or demand letters, injunctions, judgments, licenses, notices or notice letters, orders, permits, plans
or regulations issued, entered, promulgated or approved thereunder.
(y)
Subsidiary Rights. The Company or one of its Subsidiaries has the unrestricted right to vote, and (subject to limitations
imposed by applicable law) to receive dividends and distributions on, all capital securities of its Subsidiaries as owned by the
Company or such Subsidiary.
(z)
Tax Status. The Company and each of its Subsidiaries (i) has timely made or filed all foreign, federal and state income
and all other tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has timely paid
all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and (iii) has set aside on its books provision reasonably
adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply
except in each case where the failure to file, pay or set aside would not have a Material Adverse Effect. There are no unpaid
taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company and
its Subsidiaries know of no basis for any such claim. The Company is not operated in such a manner as to qualify as a passive
foreign investment company, as defined in Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”).
(aa)
Internal Accounting and Disclosure Controls. Except as set forth in the SEC Documents, the Company and each of its Subsidiaries
maintains internal control over financial reporting (as such term is defined in Rule 13a-15(f) under the 1934 Act) that is effective
to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles, including that (i) transactions are executed in
accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles and to maintain asset and liability accountability,
(iii) access to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific
authorization and (iv) the recorded accountability for assets and liabilities is compared with the existing assets and liabilities
at reasonable intervals and appropriate action is taken with respect to any difference. Except as set forth in the SEC Documents,
the Company maintains disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the 1934 Act) that are
effective in ensuring that information required to be disclosed by the Company in the reports that it files or submits under the
1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the SEC,
including, without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company
in the reports that it files or submits under the 1934 Act is accumulated and communicated to the Company’s management,
including its principal executive officer or officers and its principal financial officer or officers, as appropriate, to allow
timely decisions regarding required disclosure. Except as set forth in the SEC Documents, neither the Company nor any of its Subsidiaries
has received any notice or correspondence from any accountant relating to any potential material weakness in any part of the internal
controls over financial reporting of the Company or any of its Subsidiaries.
(bb)
Off Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company or any
of its Subsidiaries and an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in
its 1934 Act filings and is not so disclosed or that otherwise could be reasonably likely to have a Material Adverse Effect.
(cc)
Investment Company Status. The Company is not, and upon consummation of the sale of the Securities will not be, an “investment
company,” an affiliate of an “investment company,” a company controlled by an “investment company”
or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company” as such terms are defined in the Investment Company Act of 1940, as amended.
(dd)
Acknowledgement Regarding Buyers’ Trading Activity. It is understood and acknowledged by the Company that: (i) other
than as contemplated by Section 2(k), following the public disclosure of the transactions contemplated by the Transaction Documents,
in accordance with the terms thereof, none of the Buyers have been asked by the Company or any of its Subsidiaries to agree, nor
has any Buyer agreed with the Company or any of its Subsidiaries, to desist from effecting any transactions in or with respect
to (including, without limitation, purchasing or selling, long and/or short) any securities of the Company, or “derivative”
securities based on securities issued by the Company or to hold the Securities for any specified term; (ii) any Buyer, and counterparties
in “derivative” transactions to which any such Buyer is a party, directly or indirectly, presently may have a “short”
position in the Common Stock which was established prior to such Buyer’s knowledge of the transactions contemplated by the
Transaction Documents; and (iii) each Buyer shall not be deemed to have any affiliation with or control over any arm’s length
counterparty in any “derivative” transaction. The Company further understands and acknowledges that following the
public disclosure of the transactions contemplated by the Transaction Documents pursuant to the Press Release (as defined below)
one or more Buyers may engage in hedging and/or trading activities at various times during the period that the Securities are
outstanding and (b) such hedging and/or trading activities, if any, can reduce the value of the existing stockholders’ equity
interest in the Company both at and after the time the hedging and/or trading activities are being conducted. The Company acknowledges
that such aforementioned hedging and/or trading activities do not constitute a breach of this Agreement or any other Transaction
Document or any of the documents executed in connection herewith or therewith.
(ee)
Manipulation of Price. Neither the Company nor any of its Subsidiaries has, and, to the knowledge of the Company, no Person
acting on their behalf has, directly or indirectly, (i) taken any action designed to cause or to result in the stabilization or
manipulation of the price of any security of the Company or any of its Subsidiaries to facilitate the sale or resale of any of
the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases of, any of the Securities (other
than the Placement Agent), or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any
other securities of the Company or any of its Subsidiaries.
(ff)
U.S. Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long
as any of the Securities are held by any of the Buyers, shall become, a U.S. real property holding corporation within the meaning
of Section 897 of the Code, and the Company and each Subsidiary shall so certify upon any Buyer’s request.
(gg)
Registration Eligibility. The Company is eligible to register the Registrable Securities for resale by the Buyers using
Form S-1 promulgated under the 1933 Act, subject to any restrictions that may be imposed by Rule 415 promulgated under the 1933
Act on the use of Form S-1 by the Company for such purpose.
(hh)
Transfer Taxes. On the Closing Date, all stock transfer or other taxes (other than income or similar taxes) which are required
to be paid in connection with the issuance, sale and transfer of the Securities to be sold to each Buyer hereunder will be, or
will have been, fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied
with.
(ii)
No Additional Agreements. The Company does not have any agreement or understanding with any Buyer with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents.
(jj)
Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided any of the Buyers
or their agents or counsel with any information that constitutes or could reasonably be expected to constitute material, non-public
information concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this
Agreement and the other Transaction Documents. The Company understands and confirms that the Buyers will rely on the foregoing
representations in effecting transactions in securities of the Company. All disclosure provided to the Buyers regarding the Company
and its Subsidiaries, their businesses and the transactions contemplated hereby, including the Company’s Corporate Presentation
dated February 2021, and the schedules to this Agreement, furnished by or on behalf of the Company or any of its Subsidiaries
is true and correct and does not contain any untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. No
event or circumstance has occurred or information exists with respect to the Company or any of its Subsidiaries or its or their
business, properties, liabilities, prospects, operations (including results thereof) or conditions (financial or otherwise), which,
under applicable law, rule or regulation, requires public disclosure at or before the date hereof or announcement by the Company
but which has not been so publicly disclosed. The Company acknowledges and agrees that no Buyer makes or has made any representations
or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 2.
(kk)
Data Privacy. Except as set forth in Schedule 3(kk), in connection with its collection, storage, transfer (including, without
limitation, any transfer across national borders) and/or use of any personally identifiable information from any individuals,
including, without limitation, any customers, prospective customers, employees and/or other third parties (collectively “Personal
Information”), the Company is and has been in compliance in all material respects with all applicable laws in all relevant
jurisdictions, the Company’s privacy policies and the requirements of any contract or codes of conduct to which the Company
is a party. Except as set forth in Schedule 3(kk), the Company has commercially reasonable physical, technical, organizational
and administrative security measures and policies in place to protect all Personal Information collected by it or on its behalf
from and against unauthorized access, use and/or disclosure. Except as set forth in Schedule 3(kk), the Company is in compliance
with the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended by the Health
Information Technology for Economic and Clinical Health Act, including all rules and regulations promulgated thereunder. The Company
is and has been in compliance in all material respects with all laws relating to data loss, theft and breach of security notification
obligations.
(ll)
Telemarketing and Communications Regulatory Matters.
(i)
The Company and its Subsidiaries have at all times been in compliance in all material respects with the Telephone Consumer Protection
Act (“TCPA”) and related regulations.
(ii)
To the knowledge of the Company, the Company and its Subsidiaries have not sent or made any communications to third parties using
automated technology without first obtaining prior express consent for informational communications, or prior express written
consent for marketing communications, and such consent has been recorded.
(iii)
The Company and its Subsidiaries promptly register and honor all revocations of consent from third parties to receive communications
using automated technology.
(iv)
The Company and its Subsidiaries use and review databases of cancelled or reassigned telephone number, Do Not Call List, or another
third-party source of information to ensure that the list of telephone numbers employed by the Company to contact third parties
through any automated means is current.
(v)
To the knowledge of the Company, there are no claims under the TCPA or related regulations pending or to the knowledge of the
Company threatened against the Company or any of its Subsidiaries, and Company is not aware of any actions, practices, or circumstances
that would reasonably be expected to result in a liability of the Company or any of its Subsidiaries to any Person under the TCPA
or related regulations, or related telemarketing rules, including the Telemarketing and Consumer Fraud and Abuse Prevention Act,
the Federal Trade Commission’s Telemarketing Sales Rule, and applicable state laws.
(mm)
FDA. As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such
product, a “Pharmaceutical Product”), such Pharmaceutical Product is being manufactured, packaged, labeled,
tested, distributed, sold and/or marketed by the Company in compliance with all applicable requirements under FDCA and similar
laws, rules and regulations relating to registration, investigational use, premarket clearance, licensure, or application approval,
good manufacturing practices, good laboratory practices, good clinical practices, product listing, quotas, labeling, advertising,
record keeping and filing of reports, except where the failure to be in compliance would not have a Material Adverse Effect. There
is no pending, completed or threatened Proceeding against the Company or any of its Subsidiaries, and none of the Company or any
of its Subsidiaries has received any notice, warning letter or other communication from the FDA or any other governmental entity,
which (i) contests the premarket clearance, licensure, registration, or approval of, the uses of, the distribution of, the manufacturing
or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its
approval of, requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal of advertising or sales promotional
materials relating to, any Pharmaceutical Product, (iii) imposes a clinical hold on any clinical investigation by the Company
or any of its Subsidiaries, (iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or proposes
to enter into a consent decree of permanent injunction with the Company or any of its Subsidiaries, or (vi) otherwise alleges
any violation of any laws, rules or regulations by the Company or any of its Subsidiaries, and which, either individually or in
the aggregate, would have a Material Adverse Effect. The properties, business and operations of the Company have been and are
being conducted in all material respects in accordance with all applicable laws, rules and regulations of the FDA. The Company
has not been informed by the FDA that the FDA will prohibit the marketing, sale, license or use in the United States of any product
proposed to be developed, produced or marketed by the Company nor has the FDA expressed any concern as to approving or clearing
for marketing any product being developed or proposed to be developed by the Company.
(nn)
Regulatory Matters. The Company and its Subsidiaries have complied in all material respects with all statutes and regulations
related to the research, manufacture and sale of its products to the extent applicable to the Company’s and its Subsidiaries’
activities. Items manufactured or under investigation by the Company and its Subsidiaries comply in all material respects with
all applicable manufacturing practices regulations and other requirements established by government regulators in the jurisdictions
in which the Company or its Subsidiaries manufacture or sell their products. The Company is not and its Subsidiaries are not the
subject of any investigation by any competent authority with respect to the development, testing, manufacturing and distribution
of their products, nor has any investigation, prosecution, or other enforcement action been threatened by any regulatory agency.
Neither the Company nor any of its Subsidiaries has received from any regulatory agency any letter or other document asserting
that the Company or any Subsidiary has violated any statute or regulation enforced by that agency with respect to the development,
testing, manufacturing and distribution of their products. To the Company’s knowledge, research conducted by or for the
Company and its Subsidiaries has complied in all material respects with all applicable legal requirements. To the Company’s
knowledge, research involving human subjects conducted by or for the Company and its Subsidiaries has been conducted in compliance
in all respects with all applicable statutes and regulations governing the protection of human subjects and not involved any investigator
who has been disqualified as a clinical investigator by any regulatory agency or has been found by any agency with jurisdiction
to have engaged in scientific misconduct.
(oo)
OFAC and Related Matters. None of the transactions contemplated hereby will violate (i) any Sanctions, or (ii) the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, Public Law 107-56 (October 26, 2001). The Company is in compliance with Sanctions in all material respects. There are no
pending or threatened claims or legal actions, or investigations by any Governmental Authority, of or against the Company, nor
are there any judgments imposed (or threatened to be imposed) upon the Company by or before any Governmental Authority, in each
case, in connection with any alleged violation of Sanctions. Neither the Purchase Price nor any other proceeds received by the
Company hereunder will be used in any dealings or transactions with any Sanctioned Person or in any manner that will result in
a violation of Sanctions. “Governmental Authority” means any federal, national, supranational, foreign, state,
provincial, local, county, municipal or other government, any governmental, regulatory or administrative authority, agency, department,
bureau, board, commission or official or any quasi-governmental or private body exercising any regulatory, taxing, importing or
other governmental or quasi-governmental authority, or any court, tribunal, judicial or arbitral body, or any Self-Regulatory
Organization. “Self-Regulatory Organization” means any securities exchange, futures exchange, contract market,
any other exchange or corporation or similar self-regulatory body or organization applicable to a Party to this Agreement. “Sanctions”
means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by relevant Governmental
Authorities, including, but not limited those administered by the U.S. government through OFAC or the U.S. Department of State,
the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom. “Sanctioned
Person” means any Person that is the target of Sanctions, including, (a) any Person listed in any Sanctions related
list of designated Persons maintained by OFAC or the U.S. Department of State, by the United Nations Security Council, the European
Union or Her Majesty’s Treasury of the United Kingdom, (b) any Person located, organized or resident in a Sanctioned Territory,
or (c) any Person directly or indirectly owned or controlled by any such Person or Persons described in the foregoing clauses
(a) and (b).
(pp)
Company Benefit Plans.
(i)
Schedule 3(pp) lists each material Company Benefit Plan. “Company Benefit Plan” means each (i) “employee
benefit plan” within the meaning of Section 3(3) of ERISA, (ii) other benefit and compensation plan, contract, policy, program,
practice, arrangement or agreement, including, but not limited to, pension, profit-sharing, savings, termination, executive compensation,
phantom stock, change-in-control, retention, salary continuation, vacation, sick leave, disability, death benefit, insurance,
hospitalization, medical, dental, life (including all individual life insurance policies as to which the Company or its Subsidiaries
are the owners, the beneficiaries, or both), employee loan, educational assistance, fringe benefit, deferred compensation, retirement
or post-retirement, severance, equity or equity-based, incentive and bonus plan, contract, policy, program, practice, arrangement
or agreement and (iii) other employment, consulting or other individual agreement, plan, practice, policy, contract, program and
arrangement, in each case, (x) which is sponsored or maintained by the Company or any of its ERISA Affiliates in respect of any
current or former employees, directors, independent contractors, consultants or leased employees of the Company or any of its
Subsidiaries or (y) with respect to which the Company or any of its Subsidiaries has any actual or potential liability. “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended. “ERISA Affiliate” means any Person (whether
or not incorporated) that together with the Company or any of its Subsidiaries is treated as a single employer within the meaning
of Section 414 of the Code.
(ii)
Neither the Company nor any of its ERISA Affiliates has ever maintained, sponsored, contributed to, or had an obligation to maintain,
sponsor or contribute to, or has any liability under or with respect to (i) a “defined benefit plan,” as defined in
Section 3(35) of ERISA, (ii) a pension plan subject to the minimum funding standards of Section 302 of ERISA or Section 412 of
the Code, (iii) a “multiemployer plan,” as defined in Section 3(37) of ERISA, (iv) a “multiple employer plan”
(within the meaning of Section 413 of the Code), (v) a “voluntary employees’ beneficiary association” (within
the meaning of Section 501(c)(9) of the Code), (vi) an organization or trust described in Sections 501(c)(17) or 501(c)(20) of
the Code or (vii) a “welfare benefits fund” described in Section 419(e) of the Code. No current or former employee,
officer, director, consultant or other service provider of the Company or any of its Subsidiaries is or may become entitled under
any Company Benefit Plan to receive health, life insurance or other welfare benefits (whether or not insured), beyond their retirement
or other termination of service, other than health continuation coverage as required by Section 4980B of the Code.
(iii)
Each Company Benefit Plan has been administered in all material respects in accordance with its terms and applicable Law. Each
Company Benefit Plan intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter
from the U.S. Internal Revenue Service (the “IRS”) or may rely on a favorable opinion letter issued by the
IRS, and, to the knowledge of the Company, nothing has occurred since the date of such determination or opinion letter that would
reasonably be expected to adversely affect such qualification.
(iv)
Except as would not be reasonably likely to result in a Material Adverse Effect, there are no actions, suits, audits or investigations
by any Governmental Authority or other claims (except for routine claims for benefits) pending or, to the knowledge of the Company,
threatened, against or involving any Company Benefit Plan.
(v)
Neither the execution and delivery of this Agreement, nor the consummation of the transactions contemplated hereby will (whether
alone or upon the occurrence of any additional or further acts or events) (i) result in any payment becoming due to any current
or former employee, officer, director or independent contractor of the Company or any Subsidiary thereof or satisfy any prerequisite
(whether exclusive or non-exclusive) to any payment or benefit to any current or former employee, director or independent contractor
of the Company or any Subsidiary thereof, (ii) increase any benefits under any Company Benefit Plan, (iii) result in the acceleration
of the time of payment, vesting or funding of any such benefits under any Company Benefit Plan, or (iv) result in the forgiveness
of any indebtedness of any current or former employee, officer, director or independent contractor of the Company or any Subsidiary
thereof.
(qq)
No Disqualification Events. With respect to Securities to be offered and sold hereunder in reliance on Rule 506(b) under
the 1933 Act (“Regulation D Securities”), none of the Company, any of its predecessors, any affiliated issuer,
any director, executive officer, other officer of the Company participating in the offering contemplated hereby, any beneficial
owner of 20% or more of the Company’s outstanding voting equity securities, calculated on the basis of voting power, nor
any promoter (as that term is defined in Rule 405 under the 1933 Act) connected with the Company in any capacity at the time of
sale (each, an “Issuer Covered Person” and, together, “Issuer Covered Persons”) is subject
to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the 1933 Act (a “Disqualification
Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3). The Company has exercised reasonable
care to determine whether any Issuer Covered Person is subject to a Disqualification Event. The Company has complied, to the extent
applicable, with its disclosure obligations under Rule 506(e), and has furnished to the Placement Agent and the Buyers a copy
of any disclosures provided thereunder.
(rr)
Other Covered Persons. The Company is not aware of any Person (other than the Placement Agent) that has been or will be
paid (directly or indirectly) remuneration for solicitation of Buyers or potential purchasers in connection with the sale of any
Regulation D Securities.
(ss)
Accountants and Lawyers. The Company’s independent auditing firm is set forth on Schedule 3(ss). To the knowledge
of the Company, such auditing firm: (i) is a registered public accounting firm as required by the 1934 Act and (ii) shall express
its opinion with respect to the financial statements to be included in the Company’s Annual Report for the fiscal year ending
December 31, 2020. There are no disagreements of any kind presently existing, or reasonably anticipated by the Company to arise,
between the Company and the auditors, accountants and lawyers formerly or presently employed by the Company and the Company is
current with respect to any fees owed to its auditors, accountants and lawyers which could affect the Company’s ability
to perform any of its obligations under any of the Transaction Documents.
4.
COVENANTS.
(a)
Efforts. Each Buyer shall use its reasonable best efforts to timely satisfy each of the conditions to be satisfied by it
as provided in Section 6 of this Agreement. The Company shall use its reasonable best efforts to timely satisfy each of the conditions
to be satisfied by it as provided in Section 7 of this Agreement.
(b)
Form D and Blue Sky. The Company agrees to file with the SEC a Form D with respect to the Securities as required under
Regulation D and to provide a copy thereof to each Buyer promptly after such filing. The Company shall, on or before the Closing
Date, take such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to, qualify
the Securities for sale to the Buyers at the Closing pursuant to this Agreement under applicable securities or “Blue Sky”
laws of the states of the United States (or to obtain an exemption from such qualification), and shall provide evidence of any
such action so taken to the Buyers on or prior to the Closing Date. The Company shall make any filings and reports relating to
the offer and sale of the Securities required under applicable securities or “Blue Sky” laws of the states of the
United States following the Closing Date.
(c)
Use of Proceeds. The Company shall use the proceeds from the sale of the Securities for new patient acquisition and the
payment of the fees and expenses described in Section 4(f) below and general corporate purposes.
(d)
Financial Information. The Company agrees to send the following to each Investor (as defined in the Registration Rights
Agreement) during the Registration Period (as defined in the Registration Rights Agreement), unless the following are filed with
or furnished to the SEC through EDGAR and are available to the public through the EDGAR system, (i) within one (1) Business Day
after the filing thereof with the SEC, a copy of its Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, any interim
reports or any consolidated balance sheets, income statements, stockholders’ equity statements and/or cash flow statements
for any period other than annual that are made publicly available, any Current Reports on Form 8-K and any registration statements
(other than on Form S-8) or amendments filed pursuant to the 1933 Act, (ii) within two business days of the release thereof, facsimile
copies of all press releases issued by the Company or any of its Subsidiaries and (iii) copies of any notices and other information
made available or given to the stockholders of the Company generally, contemporaneously with the making available or giving thereof
to the stockholders.
(e)
Listing. The Company shall use its reasonable best efforts to promptly secure the listing or designation for quotation
(as the case may be) of all of the Registrable Securities upon each national securities exchange and automated quotation system,
if any, upon which the Common Stock is then listed or designated for quotation (as the case may be) (subject to official notice
of issuance) and shall maintain such listing or designation for quotation (as the case may be) of all Registrable Securities from
time to time issuable under the terms of the Transaction Documents on such national securities exchange or automated quotation
system. The Company shall use its reasonable best efforts to maintain the Common Stock’s listing or authorization for quotation
(as the case may be) on the Principal Market, the NYSE American, the New York Stock Exchange, The Nasdaq Global Market or The
Nasdaq Global Select Market (each, an “Eligible Market”). Neither the Company nor any of its Subsidiaries shall
take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on an Eligible
Market. The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 4(e).
(f)
Fees. The Company shall be responsible for the payment of any placement agent’s fees, financial advisory fees, transfer
agent fees, DTC (as defined below) fees or broker’s commissions (other than for Persons engaged by any Buyer) relating to
or arising out of the transactions contemplated hereby (including, without limitation, any fees payable to the Placement Agent,
who is the Company’s sole placement agent in connection with the transactions contemplated by this Agreement pursuant to
that certain letter agreement, dated January 29, 2021 (the “Placement Agency Agreement”), including, without
limitation, the Transaction Fee (as defined in the Placement Agency Agreement), and the reasonable out-of-pocket expenses of the
Placement Agent in connection with the transactions contemplated by the Transaction Documents, including the fees of the Placement
Agent’s counsel, pursuant to Section 3 of the Placement Agency Agreement). The Company shall pay, and hold each Buyer harmless
against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out-of-pocket expenses)
arising in connection with any claim relating to any such payment. Except as otherwise set forth in the Transaction Documents,
each party to this Agreement shall bear its own expenses in connection with the sale of the Securities to the Buyers.
(g)
Pledge of Securities. Notwithstanding anything to the contrary contained in Section 2(g), the Company acknowledges and
agrees that the Securities may be pledged by a Buyer in connection with a bona fide margin agreement or other bona fide loan or
financing arrangement that is secured by the Securities. The pledge of Securities shall not be deemed to be a transfer, sale or
assignment of the Securities hereunder, except as may otherwise be required under applicable securities laws, and no Buyer effecting
a pledge of Securities shall be required to provide the Company with any notice thereof or otherwise make any delivery to the
Company pursuant to this Agreement or any other Transaction Document. The Company hereby agrees to execute and deliver such documentation
as a pledgee of the Securities may reasonably request in connection with a pledge of the Securities to such pledgee by a Buyer.
(h) Disclosure
of Transactions and Other Material Information. The Company shall, on or before 9:00 a.m., New York time, on the
first (1st) Business Day after the date of this Agreement, issue a press release (the “Press
Release”) reasonably acceptable to the Buyers disclosing all the material terms of the transactions contemplated by
the Transaction Documents. On or before 9:00 a.m., New York time, on the first (1st) Business
Day following the date of this Agreement, the Company shall file a Current Report on Form
8-K describing all the material terms of the transactions contemplated by the Transaction Documents in the form required by
the 1934 Act and attaching all the material Transaction Documents (including, without limitation, this Agreement (and all
schedules to this Agreement) and the form of the Registration Rights Agreement) (including all attachments, the “8-K
Filing”). From and after the issuance of the 8-K Filing, the Company shall have disclosed all material, non-public
information (if any) delivered to any of the Buyers by the Company or any of its Subsidiaries, or any of their respective
officers, directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. The
Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers,
directors, employees and agents not to, provide any Buyer with any material, non-public information regarding the Company or
any of its Subsidiaries from and after the issuance of the Press Release without the express prior written consent of such
Buyer. Subject to the foregoing, neither the Company, its Subsidiaries nor any Buyer shall issue any press releases or any
other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be
entitled, without the prior approval of any Buyer, to make any press release or other public disclosure with respect to such
transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith and (ii) as is required by
applicable law and regulations (provided that in the case of clause (i) each Buyer shall receive an advanced draft of any
such press release or other public disclosure prior to its release). Without the prior written consent of the applicable
Buyer, the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of such Buyer
in any filing, announcement, release or otherwise, except as otherwise required by any law, rule or regulation applicable to
the Company after consultation with the Buyer.
(i)
Additional Registration Statements. Until the Applicable Date (as defined below) and at any time thereafter while any Registration
Statement is not effective or the prospectus contained therein is not available for use, the Company shall not file a registration
statement under the 1933 Act relating to securities that are not the Registrable Securities. “Applicable Date”
means the earlier of (i) the first date on which the resale by the Buyers of all Registrable Securities is covered by one or more
effective Registration Statements (as defined in the Registration Rights Agreement) (and each prospectus contained therein is
available for use on such date) and (ii) the date on which the Buyers of all Registrable Securities can freely sell such Registrable
Securities under Rule 144.
(j)
Conduct of Business. The business of the Company and its Subsidiaries shall not be conducted in violation of any law, ordinance
or regulation of any governmental entity, except where such violations would not result, either individually or in the aggregate,
in a Material Adverse Effect.
(k)
Passive Foreign Investment Company. The Company shall conduct its business in such a manner as will ensure that the Company
will not be deemed to constitute a passive foreign investment company within the meaning of Section 1297 of the Code.
(l)
Regulation M. The Company will not take any action prohibited by Regulation M under the 1934 Act, in connection with the
distribution of the Securities contemplated hereby.
(m)
General Solicitation(a). None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act) or any
person acting on behalf of the Company or such affiliate will solicit any offer to buy or offer or sell the Securities by means
of any form of general solicitation or general advertising within the meaning of Regulation D, including: (i) any advertisement,
article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or
radio; and (ii) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(n)
Integration(b). None of the Company, any of its affiliates (as defined in Rule 501(b) under the 1933 Act), or any person
acting on behalf of the Company or such affiliate will sell, offer for sale, or solicit offers to buy or otherwise negotiate in
respect of any security (as defined in the 1933 Act) which will be integrated with the sale of the Securities in a manner which
would require the registration of the Securities under the 1933 Act or require stockholder approval under the rules and regulations
of the Principal Market and the Company will take all action that is appropriate or necessary to assure that its offerings of
other securities will not be integrated for purposes of the 1933 Act or the rules and regulations of the Principal Market, with
the issuance of Securities contemplated hereby.
(o)
Waiver of Preemptive Rights. The Company shall, on or before the Closing Date, take such action as is necessary in order
to obtain from all holders (the “Series B Preferred Holders”) of outstanding shares of the Company’s
Series B Convertible Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”), a waiver,
in form and substance reasonably acceptable to the Placement Agent and its counsel, of the preemptive rights set forth in Section
5.3 of that certain Securities Purchase Agreement, dated as of August 28, 2020, by and between the Company and each of the Series
B Preferred Holders (the “Series B Preferred Purchase Agreement”).
(p)
Notice of Disqualification Events(a). The Company will notify the Buyers and the Placement Agent in writing, prior to the
Closing Date of (i) any Disqualification Event relating to any Issuer Covered Person and (ii) any event that would, with the passage
of time, become a Disqualification Event relating to any Issuer Covered Person.
5.
TRANSFER AGENT INSTRUCTIONS; LEGEND.
(a)
Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent and any subsequent
transfer agent in a form acceptable to each of the Buyers (the “Irrevocable Transfer Agent Instructions”) to
issue certificates or credit shares to the applicable balance accounts at The Depository Trust Company (“DTC”),
registered in the name of each Buyer or its respective nominee(s), for the Common Shares. The Company represents and warrants
that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 5(a), and stop transfer
instructions to give effect to Section 2(g) hereof, will be given by the Company to its transfer agent with respect to the Securities,
and that the Securities shall otherwise be freely transferable on the books and records of the Company, as applicable, to the
extent provided in this Agreement and the other Transaction Documents. If a Buyer effects a sale, assignment or transfer of the
Securities in accordance with Section 2(g), the Company shall permit the transfer and shall promptly instruct its transfer agent
to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations
as specified by such Buyer to effect such sale, transfer or assignment. In the event that such sale, assignment or transfer involves
Common Shares sold, assigned or transferred pursuant to an effective registration statement or in compliance with Rule 144 (assuming
the transferor is not an affiliate of the Company), the transfer agent shall issue such shares to such Buyer, assignee or transferee
(as the case may be) without any restrictive legend in accordance with Section 5(c) below. The Company acknowledges that a breach
by it of its obligations hereunder will cause irreparable harm to a Buyer. Accordingly, the Company acknowledges that the remedy
at law for a breach of its obligations under this Section 5(a) will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Section 5(a), that a Buyer shall be entitled, in addition to all other available
remedies, to seek an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the
necessity of showing economic loss and without any bond or other security being required. The Company shall cause its counsel
to issue the legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent promptly
following each Effective Date (as defined in the Registration Rights Agreement). Any fees (with respect to the transfer agent,
counsel to the Company or otherwise) associated with the issuance of such opinion or the removal of any legends on any of the
Securities shall be borne by the Company.
(b)
Legends. Each Buyer understands that the Securities have been issued pursuant to an exemption from registration or qualification
under the 1933 Act and applicable state securities laws, and except as set forth below, the Securities shall bear any legend as
required by the “blue sky” laws of any state and a restrictive legend in substantially the following form (and a stop-transfer
order may be placed against transfer of such stock certificates):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL
TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED
UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE
FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT
SECURED BY THE SECURITIES.
| |
(c) |
Removal
of Legends. Certificates evidencing Securities shall not be required to contain the legend set forth in Section 5(b) above
or any other legend (i) while a registration statement (including a Registration Statement) covering the resale of such Securities
is effective under the 1933 Act, (ii) following any sale of such Securities pursuant to Rule 144 (assuming the transferor
is not an affiliate of the Company), (iii) if such Securities are eligible to be sold, assigned or transferred under Rule
144 (provided that a Buyer provides the Company with reasonable assurances that such Securities are eligible for sale, assignment
or transfer under Rule 144 which shall not include an opinion of counsel), (iv) in connection with a sale, assignment or other
transfer (other than under Rule 144), provided that such Buyer provides the Company with an opinion of counsel to such Buyer
in a generally acceptable form, to the effect that such sale, assignment or transfer of the Securities may be made without
registration under the applicable requirements of the 1933 Act or (v) if such legend is not required under applicable requirements
of the 1933 Act (including, without limitation, controlling judicial interpretations and pronouncements issued by the SEC).
If a legend is not required pursuant to the foregoing, the Company shall no later than two (2) Trading Days following the
delivery by a Buyer to the Company or the transfer agent (with notice to the Company) of a legended certificate representing
such Securities (endorsed or with stock powers attached, signatures guaranteed, and otherwise in form necessary to affect
the reissuance and/or transfer, if applicable), together with any other deliveries from such Buyer as may be required above
in this Section 5(c), as directed by such Buyer either: (A) provided that the Company’s transfer agent is participating
in the DTC Fast Automated Securities Transfer Program, credit the aggregate number of shares of Common Stock to which such
Buyer shall be entitled to such Buyer’s or its designee’s balance account with DTC through its Deposit/Withdrawal
at Custodian system or (B) if the Company’s transfer agent is not participating in the DTC Fast Automated Securities
Transfer Program, issue and deliver (via reputable overnight courier) to such Buyer, a certificate representing such Securities
that is free from all restrictive and other legends, registered in the name of such Buyer or its designee (the date by which
such credit is so required to be made to the balance account of such Buyer’s or such Buyer’s nominee with DTC
or such certificate is required to be delivered to such Buyer pursuant to the foregoing is referred to herein as the “Required
Delivery Date”). |
(d)
Buy-In. If the Company fails to so properly deliver such unlegended certificates or so properly credit the balance account
of such Buyer’s or such Buyer’s nominee with DTC by the Required Delivery Date, and if on or after the Required Delivery
Date such Buyer purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a
sale by such Buyer of shares of Common Stock that such Buyer anticipated receiving from the Company without any restrictive legend,
then, in addition to all other remedies available to such Buyer, the Company shall, within three (3) Trading Days after such Buyer’s
request and in such Buyer’s sole discretion, either (i) pay cash to such Buyer in an amount equal to such Buyer’s
total purchase price (including brokerage commissions, if any) for the shares of Common Stock so purchased (the “Buy-In
Price”), at which point the Company’s obligation to deliver such certificate or credit such Buyer’s balance
account shall terminate and such shares shall be cancelled, or (ii) promptly honor its obligation to deliver to such Buyer a certificate
or certificates or credit such Buyer’s DTC account representing such number of shares of Common Stock that would have been
issued if the Company timely complied with its obligations hereunder and pay cash to such Buyer in an amount equal to the excess
(if any) of the Buy-In Price over the product of (A) such number of shares of Common Shares that the Company was required to deliver
to such Buyer by the Required Delivery Date times (B) the closing sale price of the Common Stock on the Trading Day immediately
preceding the Required Delivery Date (as reported by Bloomberg, LP).
6.
CONDITIONS TO THE COMPANY’S OBLIGATION
TO SELL.
(a)
The obligation of the Company hereunder to issue and sell the Common Shares to each Buyer at the Closing is subject to the satisfaction,
at or before the Closing Date, of each of the following conditions, provided that these conditions are for the Company’s
sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice
thereof:
(i)
Such Buyer shall have executed each of the other Transaction Documents to which it is a party and delivered the same to the Company.
(ii)
Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price for the Common Shares being purchased by
such Buyer at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company.
(iii)
The representations and warranties of such Buyer shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific
date, which shall be true and correct as of such date), and such Buyer shall have performed, satisfied and complied in all material
respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with
by such Buyer at or prior to the Closing Date.
7.
CONDITIONS TO EACH BUYER’S OBLIGATION
TO PURCHASE.
(a)
The obligation of each Buyer hereunder to purchase its Common Shares at the Closing is subject to the satisfaction, at or before
the Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit
and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof:
(i)
The Company and each Subsidiary (as the case may be) shall have duly executed and delivered to such Buyer each of the Transaction
Documents to which it is a party and the Company shall have duly executed and delivered to such Buyer the Common Shares in such
aggregate number of Common Shares as is set forth across from such Buyer’s name in column (3) of the Schedule of Buyers
being purchased by such Buyer at the Closing pursuant to this Agreement.
(ii)
Such Buyer and the Placement Agent shall have received the opinion of Lucosky Brookman LLP, the Company’s counsel, dated
as of the Closing Date, in the form acceptable to such Buyer and the Placement Agent.
(iii)
The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to
such Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent.
(iv)
The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each
of its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office)
of such jurisdiction of formation as of a date within ten (10) days of the Closing Date.
(v)
The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Delaware
Secretary of State within ten (10) days of the Closing Date.
(vi)
The Company shall have delivered to such Buyer a certificate, in the form acceptable to such Buyer, duly executed by the Secretary
of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s
board of directors, in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and (iii)
the Bylaws of the Company, each as in effect at the Closing.
(vii)
Each and every representation and warranty of the Company shall be true and correct in all material respects as of the date when
made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as
of a specific date, which shall be true and correct as of such date) and the Company shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by
the Company at or prior to the Closing Date. Such Buyer shall have received a certificate, duly executed by the Chief Executive
Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably
requested by such Buyer in the form acceptable to such Buyer.
(viii)
The Company shall have delivered to such Buyer a letter from the Company’s transfer agent certifying the number of shares
of Common Stock outstanding on the Closing Date immediately prior to the Closing.
(ix)
The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended,
as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC
or the Principal Market have been threatened, as of the Closing Date, either (A) in writing by the SEC or the Principal Market
or (B) by falling below the minimum maintenance requirements of the Principal Market.
(x)
The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the
sale of the Securities, including without limitation, those required by the Principal Market.
(xi)
No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any Governmental Authority of competent jurisdiction that prohibits the consummation of any of the transactions contemplated
by the Transaction Documents.
(xii)
Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or
result in a Material Adverse Effect.
(xiii)
The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Common
Shares.
(xiv)
The Company shall have obtained a waiver, in form and substance reasonably acceptable to the Placement Agent and its counsel,
from all Series B Preferred Holders of outstanding shares of Series B Preferred Stock of the preemptive rights set forth in Section
5.3 of the Series B Preferred Purchase Agreement.
(xv)
Such Buyer and the Placement Agent shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive
Officer of the Company, setting forth the wire instructions of the Company.
(xvi)
The Company and its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated
by this Agreement as such Buyer or its counsel may reasonably request.
8.
TERMINATION.
In
the event that the Closing shall not have occurred with respect to a Buyer within five (5) days of the date hereof, then such
Buyer shall have the right to terminate its obligations under this Agreement with respect to itself at any time on or after the
close of business on such date without liability of such Buyer to any other party; provided, however, (i) the right to terminate
this Agreement under this Section 8 shall not be available to such Buyer if the failure of the transactions contemplated by this
Agreement to have been consummated by such date is the result of such Buyer’s breach of this Agreement and (ii) the abandonment
of the sale and purchase of the Common Shares shall be applicable only to such Buyer providing such written notice, provided further
that no such termination shall affect any obligation of the Company under this Agreement to reimburse such Buyer for the expenses
described in Section 4(f) above. Nothing contained in this Section 8 shall be deemed to release any party from any liability for
any breach by such party of the terms and provisions of this Agreement or the other Transaction Documents or to impair the right
of any party to compel specific performance by any other party of its obligations under this Agreement or the other Transaction
Documents.
9.
MISCELLANEOUS.
(a)
Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law
or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. 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, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any
such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b)
Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one
and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other
party; provided that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file, including
any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com, etc.,
shall be considered due execution and shall be binding upon the signatory thereto with the same force and effect as if the signature
were an original signature.
(c)
Headings; Gender. The headings of this Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to
include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,”
“include” and words of like import shall be construed broadly as if followed by the words “without limitation.”
The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Agreement
instead of just the provision in which they are found.
(d)
Severability. If any provision of this Agreement is prohibited by law or otherwise determined to be invalid or unenforceable
by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such
provision shall not affect the validity of the remaining provisions of this Agreement so long as this Agreement as so modified
continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective
expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred
upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable
provision(s).
(e)
Entire Agreement; Amendments. This Agreement, the other Transaction Documents and the schedules and exhibits attached hereto
and thereto and the instruments referenced herein and therein supersede all other prior oral or written agreements between the
Buyers, the Company, its Subsidiaries, their affiliates and Persons acting on their behalf solely with respect to the matters
contained herein and therein, and this Agreement, the other Transaction Documents, the schedules and exhibits attached hereto
and thereto and the instruments referenced herein and therein contain the entire understanding of the parties solely with respect
to the matters covered herein and therein; provided, however, nothing contained in this Agreement or any other Transaction Document
shall (or shall be deemed to) (i) have any effect on any agreements any Buyer has entered into with the Company or any of its
Subsidiaries prior to the date hereof with respect to any prior investment made by such Buyer in the Company or (ii) waive, alter,
modify or amend in any respect any obligations of the Company or any of its Subsidiaries, or any rights of or benefits to any
Buyer or any other Person, in any agreement entered into prior to the date hereof between or among the Company and/or any of its
Subsidiaries and any Buyer and all such agreements shall continue in full force and effect. Except as specifically set forth herein
or therein, neither the Company nor any Buyer makes any representation, warranty, covenant or undertaking with respect to such
matters. For clarification purposes, the Recitals are part of this Agreement. No provision of this Agreement may be amended or
waived other than by an instrument in writing signed by the Company and the holders of a majority of the Registrable Securities
(excluding any Registrable Securities held by the Company or any of its Subsidiaries) issued or issuable hereunder, and any amendment
or to, or waiver of any provision of, this Agreement made in conformity with the provisions of this Section 9(e) shall be binding
on all Buyers and holders of Securities, as applicable, provided that any party may give a waiver in writing as to itself. No
such amendment or waiver (unless given pursuant to the foregoing proviso in the case of a waiver) shall be effective to the extent
that it applies to less than all of the holders of the Registrable Securities then outstanding. The Company has not, directly
or indirectly, made any agreements with any Buyers relating to the terms or conditions of the transactions contemplated by the
Transaction Documents except as set forth in the Transaction Documents. Without limiting the foregoing, the Company confirms that,
except as set forth in this Agreement, no Buyer has made any commitment or promise or has any other obligation to provide any
financing to the Company, any Subsidiary or otherwise.
(f)
Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on
file by the sending party); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery
specified, in each case, properly addressed to the party to receive the same. The addresses and facsimile numbers for such communications
shall be:
If
to the Company:
Conversion
Labs, Inc.
800
Third Avenue, Suite 2800
New York, NY 10022
Telephone: (212) 351-5907
Email:
justin@conversionlabs.com
Attention: Justin Schreiber
Chief
Executive Officer
With
a copy (for informational purposes only) to:
Lucosky
Brookman LLP
101 Wood Avenue South, 5th Floor
Woodbridge, New Jersey 08830
Telephone: (732) 395-4400
Facsimile: (732) 395-4401
Email:
lmetelitsa@lucbro.com
Attention: Lawrence M. Metelitsa, Esq.
If
to the Transfer Agent:
Worldwide
Stock Transfer LLC
One University Plaza Drive, #505
Hackensack, NJ 07601
Telephone: (201) 820-2008
Facsimile: (201) 820-2010
Email: ykopstick@wwstr.com
Attention:
Yonah Kopstick
If
to a Buyer, to its address and facsimile number set forth on the Schedule of Buyers, with copies to such Buyer’s representatives
as set forth on the Schedule of Buyers,
with
a copy (for informational purposes only) to the Placement Agent:
BTIG,
LLC
600
Montgomery Street, 6th Floor
San
Francisco, CA 94111
Telephone:
(415) 248-2260
Facsimile:
(212) 588-6554
Email:
sdruskin@btig.com
Attention:
Steven Druskin, Esq.
General
Counsel
and:
Dorsey
& Whitney LLP
51 West 52nd Street
New York, NY 10019-6119
Telephone: (212) 415-9214
Facsimile: (212) 953-7201
Email:
marsico.anthony@dorsey.com
Attention: Anthony J. Marsico, Esq.
or
to such other address and/or facsimile number and/or to the attention of such other Person as the recipient party has specified
by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt
(A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated
by the sender’s facsimile machine containing the time, date, recipient facsimile number and an image of the first page of
such transmission or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.
(g)
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns, including any purchasers of any of the Securities. The Company shall not assign this Agreement or any
rights or obligations hereunder without the prior written consent of holders of a majority of the Registrable Securities (excluding
any Registrable Securities held by the Company or any of its Subsidiaries) issued or issuable hereunder. A Buyer may assign some
or all of its rights hereunder in connection with any transfer of any of its Securities without the consent of the Company, in
which event such assignee shall be deemed to be a Buyer hereunder with respect to such assigned rights.
(h)
No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person, other than
the Indemnitees referred to in Section 9(k). Notwithstanding the foregoing, the Placement Agent shall be the third party beneficiary
of the representations and warranties of the Buyers and the Company in Sections 2 and 3 hereof, respectively, and the covenants
and agreements of the Company in Section 5 hereof.
(i)
Survival. The representations, warranties, agreements and covenants shall survive the Closing. Each Buyer shall be responsible
only for its own representations, warranties, agreements and covenants hereunder.
(j)
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as any other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby.
(k)
Indemnification. In consideration of each Buyer’s execution and delivery of the Transaction Documents and acquiring
the Securities thereunder and in addition to all of the Company’s other obligations under the Transaction Documents, the
Company shall defend, protect, indemnify and hold harmless each Buyer and each holder of any Securities and all of their stockholders,
partners, members, officers, directors, employees and direct or indirect investors and any of the foregoing Persons’ agents
or other representatives (including, without limitation, those retained in connection with the transactions contemplated by this
Agreement) (collectively, the “Indemnitees”) from and against any and all actions, causes of action, suits,
claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith (irrespective of whether
any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable attorneys’
fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of, or arising
out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company or any Subsidiary
in any of the Transaction Documents, (b) any breach of any covenant, agreement or obligation of the Company or any Subsidiary
contained in any of the Transaction Documents or (c) any cause of action, suit or claim brought or made against such Indemnitee
by a third party (including for these purposes a derivative action brought on behalf of the Company or any Subsidiary) and arising
out of or resulting from (i) the execution, delivery, performance or enforcement of any of the Transaction Documents, (ii) any
transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities,
(iii) any disclosure properly made pursuant to Section 4(h) or (iv) the status of such Buyer or holder of the Securities as an
investor in the Company pursuant to the transactions contemplated by the Transaction Documents. To the extent that the foregoing
undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment
and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law. Except as otherwise set forth
herein, the mechanics and procedures with respect to the rights and obligations under this Section 9(k) shall be the same as those
set forth in Section 6 of the Registration Rights Agreement.
(l)
Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party.
(m)
Remedies. Each Buyer and each holder of any Securities shall have all rights and remedies set forth in the Transaction
Documents and all rights and remedies which such holders have been granted at any time under any other agreement or contract and
all of the rights which such holders have under any law. Any Person having any rights under any provision of this Agreement shall
be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights granted by law. Furthermore, the Company recognizes
that in the event that it or any Subsidiary fails to perform, observe, or discharge any or all of its or such Subsidiary’s
(as the case may be) obligations under the Transaction Documents, any remedy at law may prove to be inadequate relief to the Buyers.
The Company therefore agrees that the Buyers shall be entitled to seek specific performance and/or temporary, preliminary and
permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity
of proving actual damages and without posting a bond or other security.
(n)
Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of)
the Transaction Documents, whenever any Buyer exercises a right, election, demand or option under a Transaction Document and the
Company or any Subsidiary does not timely perform its related obligations within the periods therein provided, then such Buyer
may rescind or withdraw, in its sole discretion from time to time upon written notice to the Company or such Subsidiary (as the
case may be), any relevant notice, demand or election in whole or in part without prejudice to its future actions and rights.
(o)
Payment Set Aside; Currency(p). To the extent that the Company makes a payment or payments to any Buyer hereunder or pursuant
to any of the other Transaction Documents or any of the Buyers enforce or exercise their rights hereunder or thereunder, and such
payment or payments or the proceeds of such enforcement or exercise or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, recovered from, disgorged by or are required to be refunded, repaid or otherwise
restored to the Company, a trustee, receiver or any other Person under any law (including, without limitation, any bankruptcy
law, foreign, state or federal law, common law or equitable cause of action), then to the extent of any such restoration the obligation
or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment
had not been made or such enforcement or setoff had not occurred. Unless otherwise expressly indicated, all dollar amounts referred
to in this Agreement and the other Transaction Documents are in United States Dollars (“U.S. Dollars”), and
all amounts owing under this Agreement and all other Transaction Documents shall be paid in U.S. Dollars. All amounts denominated
in other currencies (if any) shall be converted in the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the
date of calculation. “Exchange Rate” means, in relation to any amount of currency to be converted into U.S.
Dollars pursuant to this Agreement, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date
of calculation.
(q)
Independent Nature of Buyers’ Obligations and Rights. The obligations of each Buyer under the Transaction Documents
are several and not joint with the obligations of any other Buyer, and no Buyer shall be responsible in any way for the performance
of the obligations of any other Buyer under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Buyer pursuant hereto or thereto, shall be deemed to constitute the Buyers as, and the Company acknowledges
that the Buyers do not so constitute, a partnership, an association, a joint venture or any other kind of group or entity, or
create a presumption that the Buyers are in any way acting in concert or as a group or entity with respect to such obligations
or the transactions contemplated by the Transaction Documents or any matters, and the Company acknowledges that the Buyers are
not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or the
transactions contemplated by the Transaction Documents. The decision of each Buyer to purchase Securities pursuant to the Transaction
Documents has been made by such Buyer independently of any other Buyer. Each Buyer acknowledges that no other Buyer has acted
as agent for such Buyer in connection with such Buyer making its investment hereunder and that no other Buyer will be acting as
agent of such Buyer in connection with monitoring such Buyer’s investment in the Securities or enforcing its rights under
the Transaction Documents. The Company and each Buyer confirms that each Buyer has independently participated with the Company
and its Subsidiaries in the negotiation of the transaction contemplated hereby with the advice of its own counsel and advisors.
Each Buyer shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising
out of this Agreement or out of any other Transaction Documents, and it shall not be necessary for any other Buyer to be joined
as an additional party in any proceeding for such purpose. The use of a single agreement to effectuate the purchase and sale of
the Securities contemplated hereby was solely in the control of the Company, not the action or decision of any Buyer, and was
done solely for the convenience of the Company and its Subsidiaries and not because it was required or requested to do so by any
Buyer. It is expressly understood and agreed that each provision contained in this Agreement and in each other Transaction Document
is between the Company and a Buyer, solely, and not between the Company and the Buyers, collectively, and not between and among
the Buyers.
[signature
pages follow]
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.
| |
COMPANY: |
| |
|
| |
CONVERSION
LABS, INC. |
| |
|
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.
IN
WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Agreement to be duly executed
as of the date first written above.
| |
[OTHER
BUYERS] |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
Schedule
of Buyers
| (1) |
(2) |
(3) |
(4) |
(5) |
| |
|
|
|
|
Buyer |
Address
and Facsimile Number |
Number
of Common Shares |
Purchase
Price |
Legal
Representative’s
Address and Facsimile Number |
| |
|
|
$ |
|
| |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
| |
|
|
|
|
SCHEDULES
Schedule
3(f)
Schedule
3(m)
Schedule
3(q)
Schedule
3(kk)
Schedule
3(pp)
Schedule
3 (ss)
