This INVESTMENT AGREEMENT (the “Agreement”),
dated as of October 8, 2015 (the “Execution Date”), is entered into by and between NCM Financial, a Texas corporation
(the “Company”), with its principal executive office at 0000 Xxxxx Xxxxxxx Xxxx Xxxxx 0000 Xxxxxx XX 00000,
and Northbridge Funding Inc., a Delaware Corporation (the “Investor”), with its principal executive office
at 0000 Xxxxxxx Xxxx #000 Xxxxxxxxxx, XX 00000.
WHEREAS, the parties desire that, upon the
terms and subject to the conditions contained herein, the Investor shall invest up to Ten Million Dollars ($10,000,000) to purchase
the Company’s common stock, par value $0.01 per share (the “Common Stock”);
WHEREAS, such investments will be made in reliance
upon the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933, as amended (the “1933
Act”), Rule 506 of Regulation D promulgated by the SEC under the 1933 Act, and/or upon such other exemption from the
registration requirements of the 1933 Act as may be available with respect to any or all of the investments in Common Stock to
be made hereunder; and
WHEREAS, contemporaneously with the execution
and delivery of this Agreement, the parties hereto are executing and delivering a Registration Rights Agreement substantially
in the form attached hereto as Exhibit A (the “Registration Rights Agreement”) pursuant to which the
Company has agreed to provide certain registration rights under the 1933 Act, and the rules and regulations promulgated thereunder,
and applicable state securities laws.
NOW THEREFORE, in consideration of the foregoing
recitals, which shall be considered an integral part of this Agreement, the covenants and agreements set forth hereafter, and
other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Company and the Investor
hereby agree as follows:
For all purposes of and under this Agreement,
the following terms shall have the respective meanings below, and such meanings shall be equally applicable to the singular and
plural forms of such defined terms.
“1933 Act” shall have the
meaning set forth in the recitals.
shall mean the Securities Exchange Act of 1934, as amended, or any similar federal statute, and the rules and regulations of the
SEC thereunder, all as the same will then be in effect.
shall have the meaning set forth in Section 5.7.
shall have the meaning set forth in the preamble.
shall have the meaning set forth in Section 4.3.
Incorporation” shall have the meaning set forth in Section 4.3.
shall have the meaning set forth in Section 2.5.
shall have the meaning set forth in Section 2.5.
shall have the meaning set forth in the recitals.
“Control” or “Controls”
shall have the meaning set forth in Section 5.7.
shall have the meaning set forth in Section 2.3.
shall have the meaning set forth in Section 2.3.
shall mean a written notice sent to the Investor by the Company stating the Drawdown Amount in U.S. dollars that the Company intends
to sell to the Investor pursuant to the terms of the Agreement and stating the current number of Shares issued and outstanding
on such date.
Date” shall mean the Trading Day, as set forth below, on which the Investor receives a Drawdown Notice, however a Drawdown
Notice shall be deemed delivered on (a) the Trading Day it is received by facsimile or otherwise by the Investor if such notice
is received prior to 12:00 pm Eastern Time, or (b) the immediately succeeding Trading Day if it is received by facsimile or otherwise
after 12:00 pm Eastern Time on a Trading Day. No Drawdown Notice may be deemed delivered on a day that is not a Trading Day.
Due” shall have the meaning set forth in Section 2.5.
shall mean the date the company is effectively listed and approved by FINRA
shall have the meaning set forth in Section 4.13.
shall have the meaning set forth in the preamble.
shall mean this Agreement and the Registration Rights Agreement between the Company and the Investor as of the date herewith.
shall have the meaning set forth in Section 10.
shall have the meaning set forth in Section 10.
shall have the meaning set forth in Section 10.
shall mean any period of time that the Registration Statement or any supplemental registration statement becomes ineffective or
unavailable for use for the sale or resale, as applicable, of any or all of the Registrable Securities (as defined in the Registration
Rights Agreement) for any reason (or in the event the prospectus under either of the above is not current and deliverable) during
any time period required under the Registration Rights Agreement.
shall have the meaning set forth in the preamble.
Effect” shall have the meaning set forth in Section 4.1.
Stock Issuance” shall have the meaning set forth in Section 2.6.
“Open Market Adjustment
Amount” shall have the meaning set forth in Section 2.5.
“Open Market Share
Purchase” shall have the meaning set forth in Section 2.5.
shall mean the period beginning on and including the Trading Day immediately following the Effective Date and ending on the earlier
to occur of (a) the date which is thirty-six (36) months from the Effective Date; or (b) termination of the Agreement in accordance
with Section 8.
shall have the meaning set forth in Section 4.6.
“Pricing Period” shall mean
Ten (10) consecutive Trading Days prior to the Drawdown Notice Date, and inclusive to the Drawdown Notice Date.
shall mean the New York Stock Exchange, the NYSE MKT, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select
Market, the OTC Markets or the OTC Bulletin Board, whichever is the principal market on which the Common Stock is listed.
shall mean the prospectus, preliminary prospectus and supplemental prospectus used in connection with the Registration Statement.
shall mean the total amount being paid by the Investor on a particular Closing Date to purchase the Securities.
shall mean Eighty (80%) percent of the lowest price traded during the Pricing Period.
Agreement” shall have the meaning set forth in the recitals.
means the registration statement of the Company filed under the 1933 Act covering the Securities issuable hereunder.
shall have the meaning set forth in Section 5.7.
shall have the meaning set forth in Section 7.5.
shall mean the U.S. Securities and Exchange Commission.
shall have the meaning set forth in Section 4.6.
shall mean the Shares and Commitment Shares issued pursuant to the terms of the Agreement.
shall mean the shares of the Company’s Common Stock.
shall have the meaning set forth in Section 4.1.
shall mean any day on which the Principal Market for the Common Stock is open for trading, from the hours of 9:30 am until 4:00
PURCHASE AND SALE OF COMMON STOCK
PURCHASE AND SALE OF COMMON STOCK. Subject to the terms and conditions set forth herein, the Company shall issue and sell
to the Investor, and the Investor shall purchase from the Company, up to that number of Shares having an aggregate Purchase Amount
of Ten Million dollars ($10,000,000).
COMMITMENT SHARES. There are no Commitment Shares
DELIVERY OF DRAWDOWN NOTICES. Subject to the terms and conditions of the Financing Agreements, and from time to time during
the Open Period, the Company may, in its sole discretion, deliver a Drawdown Notice to the Investor which states the dollar amount
(designated in U.S. Dollars), which the Company intends to sell to the Investor on a Closing Date (the “Drawdown”).
The Drawdown Notice shall be in the form attached hereto as Exhibit B and incorporated herein by reference. The maximum
amount that the Company shall be entitled to Drawdown to the Investor (the “Drawdown Amount”) shall be equal
to two hundred percent (200%) of average daily trading volume (U.S. market only) of the Common Stock during the Pricing Period
so long as such amount does not exceed 4.99% of the outstanding Shares of the Company.
CONDITIONS TO INVESTOR’S OBLIGATION TO PURCHASE SHARES. Notwithstanding anything to the contrary in this Agreement,
the Company shall not be entitled to deliver a Drawdown Notice and the Investor shall not be obligated to purchase any Shares
at a Closing unless each of the following conditions are satisfied:
a Registration Statement shall have been declared effective and shall remain effective and available for the resale of all the
Registrable Securities (as defined in the Registration Rights Agreement) at all times until the Closing with respect to the subject
at all times during the period beginning on the related Drawdown Notice Date and ending on and including the related Closing Date,
the Common Stock shall have been listed or quoted for trading on the Principal Market and shall not have been suspended from trading
thereon for a period of two (2) consecutive Trading Days during the Open Period and the Company shall not have been notified of
any pending or threatened proceeding or other action to suspend the trading of the Common Stock;
the Company has complied in all material respects with its obligations and is otherwise not in breach of or in default under,
this Agreement, the Registration Rights Agreement or any other agreement executed in connection herewith which has not been cured
prior to delivery of the Investor’s Drawdown Notice Date;
no injunction shall have been issued and remain in force, or action commenced by a governmental authority which has not been stayed
or abandoned, prohibiting the purchase or the issuance of the Securities; and
the issuance of the Securities will not violate any stockholder approval requirements of the Principal Market.
If any of the events described
in clauses (i) through (v) above occurs during a Pricing Period, then the Investor shall have no obligation to purchase the Drawdown
Amount of Common Stock set forth in the applicable Drawdown Notice.
MECHANICS OF PURCHASE OF SHARES BY INVESTOR. Subject to the satisfaction of the conditions set forth in Sections 2.6, 7
and 8 of this Agreement, the closing of the purchase by the Investor of the Securities (a “Closing”) shall
occur on the date (each a “Closing Date”), provided that, the Company has delivered to the Investor pursuant
to this Agreement, certificates representing the Securities to be issued to the Investor on such date and registered in the name
of the Investor (the “Certificate”), and the Certificate is cleared for trading prior to 12:00 pm Eastern Time
on such date. If the Certificate is delivered and cleared for trading after 12:00 pm Eastern Time on a Trading Day, the Closing
shall occur on the next Trading Day. On the Closing Date, the Investor shall deliver to the Company the Purchase Price to be paid
for such Securities, determined as set forth in Section 2.3. In lieu of delivering physical certificates representing the
Securities and provided that the Company’s transfer agent then is participating in The Depository Trust Company (“DTC”)
Fast Automated Securities Transfer (“FAST”) program, upon request of the Investor, the Company shall use all
commercially reasonable efforts to cause its transfer agent to electronically transmit the Securities by crediting the account
of the Investor’s prime broker (as specified by the Investor within a time reasonably in advance of the Investor’s
notice) with DTC through its Deposit Withdrawal Agent Commission (“DWAC”) system.
OVERALL LIMIT ON COMMON STOCK ISSUABLE. Notwithstanding anything contained herein to the contrary, if during the Open Period
the Company becomes listed on an exchange that limits the number of Shares that may be issued without stockholder approval, then
the number of Shares issuable by the Company and purchasable by the Investor, shall not exceed that number of the Shares that
may be issuable without stockholder approval (the “Maximum Common Stock Issuance”). If such issuance of Shares
could cause a delisting on the Principal Market, then the Maximum Common Stock Issuance shall first be approved by the Company’s
stockholders in accordance with applicable law and the Certificate of Incorporation and By-laws of the Company, if such issuance
of Shares could cause a delisting on the Principal Market. The parties understand and agree that the Company’s failure to
seek or obtain such stockholder approval shall in no way adversely affect the validity and due authorization of the issuance and
sale of Securities or the Investor’s obligation in accordance with the terms and conditions hereof to purchase a number
of Shares in the aggregate up to the Maximum Common Stock Issuance limitation, and that such approval pertains only to the applicability
of the Maximum Common Stock Issuance limitation provided in this Section 2.6.
LIMITATION ON AMOUNT OF OWNERSHIP. Notwithstanding anything to the contrary in this Agreement, in no event shall the Investor
be entitled to purchase that number of Shares, which when added to the sum of the number of Shares beneficially owned (as such
term is defined under Section 13(d) and Rule 13d-3 of the 1934 Act), by the Investor, would exceed 4.99% of the number of Shares
outstanding on the Closing Date, as determined in accordance with Rule 13d-1(j) of the 1934 Act.
INVESTOR’S REPRESENTATIONS, WARRANTIES AND COVENANTS
The Investor represents and
warrants to the Company, and covenants, that:
SOPHISTICATED INVESTOR. The Investor has, by reason of its business and financial experience, such knowledge, sophistication
and experience in financial and business matters and in making investment decisions of this type that it is capable of (a) evaluating
the merits and risks of an investment in the Securities and making an informed investment decision; (b) protecting its own interest;
and (c) bearing the economic risk of such investment for an indefinite period of time.
AUTHORIZATION; ENFORCEMENT. This Agreement has been duly and validly authorized, executed and delivered on behalf of the
Investor and is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject
as to enforceability to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation
and other similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
SECTION 9 OF THE 1934 ACT. During the term of this Agreement, the Investor will comply with the provisions of Section 9
of the 1934 Act, and the rules promulgated thereunder, with respect to transactions involving the Common Stock. The Investor agrees
not to sell the Company’s stock short or otherwise engage in hedging transactions regarding the stock, either directly or
indirectly through its affiliates, principals or advisors during the term of this Agreement.
ACCREDITED INVESTOR. Investor is an “Accredited Investor” as that term is defined in Rule 501(a) of Regulation
D of the 1933 Act.
NO CONFLICTS. The execution, delivery and performance of the Financing Agreements by the Investor and the consummation
by the Investor of the transactions contemplated hereby and thereby will not result in a violation of Partnership Agreement or
other organizational documents of the Investor.
OPPORTUNITY TO DISCUSS. The Investor has received all materials relating to the Company’s business, finance and operations
which it has requested. The Investor has had an opportunity to discuss the business, management and financial affairs of the Company
with the Company’s management.
INVESTMENT PURPOSES. The Investor is purchasing the Securities for its own account for investment purposes and not with
a view towards distribution and agrees to resell or otherwise dispose of the Securities solely in accordance with the registration
provisions of the 1933 Act (or pursuant to an exemption from such registration provisions).
NO REGISTRATION AS A DEALER. The Investor is not and will not be required to be registered as a “dealer” under
the 1934 Act, either as a result of its execution and performance of its obligations under this Agreement or otherwise.
ORGANIZATION; GOOD STANDING. The Investor is a limited liability company, duly organized, validly existing and in good
standing in the State of Texas.
TAX LIABILITIES. The Investor understands that it is liable for its own tax liabilities.
REGULATION M. The Investor will comply with Regulation M under the 1934 Act, if applicable.
No Short Sales. No short sales shall be permitted by the Investor or its
affiliates during the period commencing on the Execution Date and continuing through the termination of this Agreement.
ACKNOWLEDGEMENT OF RISK. The Investor agrees, acknowledges and understands that its investment in the Securities involves
a significant degree of risk, including, without limitation that: (a) the Company is a development stage business and may require
substantial funds; (b) an investment in the Company is highly speculative and only Persons who can afford the loss of their entire
investment should consider investing in the Company and the Securities; (c) the Investor may not be able to liquidate its investment;
(d) transferability of the Securities is extremely limited; and (e) in the event of a disposition of the Securities, the Investor
can sustain the loss of its entire investment. The Investor has considered carefully and understands the risks associated with
an investment in the Securities.
RELIANCE ON REPRESENTATIONS. The Investor agrees, acknowledges and understands that the Company and its counsel are entitled
to rely on the representations, warranties and covenants made by the Investor herein. The Investor further represents and warrants
that this Agreement does not contain any untrue statement or a material fact or omit any material fact concerning the Investor
and that the Investor Questionnaire accompanying this Agreement in the form attached hereto as Exhibit C does not contain
any untrue statement or a material fact or omit any material fact concerning the Investor.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the
Schedules attached hereto, or as disclosed in the Company’s SEC Documents, the Company represents and warrants to the Investor
on the date of this Agreement that:
ORGANIZATION AND QUALIFICATION. The Company is a corporation duly organized and validly existing in good standing under
the laws of the State of Texas, and has the requisite corporate power and authorization to own its properties and to carry on
its business as now being conducted. Both the Company and the companies it owns or controls (“Subsidiaries”)
are duly qualified to do business and are 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 a change, event, circumstance, effect or state of facts that has had or is reasonably likely to have, a material adverse
effect on the business, properties, assets, operations, results of operations, financial condition or prospects of the Company
and its Subsidiaries, if any, taken as a whole, or on the transactions contemplated hereby or by the agreements and instruments
to be entered into in connection herewith, or on the authority or ability of the Company to perform its obligations under the
Financing Agreements; provided, however, that none of the following, individually or in the aggregate, shall be
taken into account in determining whether a Material Adverse Effect has occurred or insofar as reasonably can be foreseen would
likely occur: (a) changes in conditions in the U.S. or global capital, credit or financial markets generally, including changes
in the availability of capital or currency exchange rates; (b) any effect of the announcement of, or the consummation of the transactions
contemplated by, this Agreement and the other Financing Agreements on the Company’s relationships, contractual or otherwise,
with customers, suppliers, vendors, bank lenders, strategic venture partners or employees; and (c) the receipt of any notice that
the Common Stock may be ineligible to continue listing or quotation on the Trading Market, other than a final and non-appealable
notice that the listing or quotation of the Common Stock on the Trading Market shall be terminated on a date certain.
AUTHORIZATION; ENFORCEMENT; COMPLIANCE WITH OTHER INSTRUMENTS.
The Company has the requisite corporate power and authority to enter into and perform this Financing Agreements, and to issue
the Securities in accordance with the terms hereof and thereof.
The execution and delivery of the Financing Agreements by the Company and the consummation by it of the transactions contemplated
hereby and thereby, including without limitation the issuance of the Securities pursuant to this Agreement, have been duly and
validly authorized by the Company’s Board of Directors and no further consent or authorization is required by the Company,
its Board of Directors, or its stockholders.
The Financing Agreements have been duly and validly executed and delivered by the Company.
The Financing Agreements constitute the valid and binding obligations of the Company enforceable against the Company in accordance
with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’
rights and remedies.
As of the date hereof, the authorized capital stock of the Company consists of 2,500,000,000 shares of the Common Stock of which
as of the date hereof, 388,475,000 shares are issued and outstanding. To the knowledge of the executive officers of the Company,
all of such outstanding shares have been, or upon issuance will be, validly issued and are fully paid and nonassessable.
Except as disclosed in the
Company’s SEC Documents or as otherwise set forth on Schedule 4.3:
no shares of the Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances
suffered or permitted by the Company;
there are no outstanding debt securities;
there are no outstanding shares of capital stock, options, warrants, scrip, rights to subscribe to, calls or commitments of any
character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company or any
of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants,
scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible
into, any shares of capital stock of the Company or any of its Subsidiaries;
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 the Registration Rights Agreement);
there are no outstanding securities 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;
there are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of
the Securities as described in this Agreement;
vii. the Company does not have any stock appreciation rights or “phantom
stock” plans or agreements or any similar plan or agreement; and
viii. there is no dispute as to the classification of any shares of the Company’s
The Investor has had access through XXXXX to, true and correct
copies of the Company’s Second Amended and Restated Certificate of Incorporation, as in effect on the date hereof (the “Certificate
of Incorporation”), and the Company’s Amended and Restated By-laws, as in effect on the date hereof (the “By-laws”),
and the terms of all securities convertible into or exercisable for Common Stock and the material rights of the holders thereof
in respect thereto.
ISSUANCE OF SHARES. The Company has reserved 50,000,000 Shares for issuance pursuant to the Financing Agreements, which
have been duly authorized and reserved (subject to adjustment pursuant to the Company’s covenant set forth in Section
5.5 below) pursuant to this Agreement. Upon issuance in accordance with this Agreement, the Securities will be validly issued,
fully paid for and non-assessable and free from all taxes, liens and charges with respect to the issuance thereof. In the event
the Company cannot register a sufficient number of Securities for issuance pursuant to this Agreement, the Company will use its
commercially reasonable efforts to authorize and reserve for issuance the number of Securities required for the Company to perform
its obligations hereunder as soon as reasonably practicable.
NO CONFLICTS. The execution, delivery and performance of the Financing Agreements by the Company and the consummation by
the Company of the transactions contemplated hereby and thereby will not (i) result in a violation of the Certificate of Incorporation,
any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the By-laws;
or (ii) conflict with, or constitute a material default (or an event which with notice or lapse of time or both would become a
material default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any material
agreement, contract, indenture mortgage, indebtedness or instrument to which the Company or any of its Subsidiaries is a party,
or to the Company’s knowledge result in a violation of any law, rule, regulation, order, judgment or decree (including United
States federal and state securities laws and regulations and the rules and regulations of the Principal Market or principal securities
exchange or trading market on which the Common Stock is traded or listed) 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. Neither the Company nor its
Subsidiaries is in violation of any term of, or in default under, the Certificate of Incorporation, any Certificate of Designations,
Preferences and Rights of any outstanding series of preferred stock of the Company or the By-laws or their organizational charter
or by-laws, respectively, or any contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree or order
or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts, defaults, terminations,
amendments, accelerations, cancellations and violations that would not individually or in the aggregate have or constitute a Material
Adverse Effect. The business of the Company and its Subsidiaries is not being conducted, and shall not be conducted, in violation
of any law, statute, ordinance, rule, order or regulation of any governmental authority or agency, regulatory or self-regulatory
agency, or court, except for possible violations the sanctions for which either individually or in the aggregate would not have
a Material Adverse Effect. Except as specifically contemplated by this Agreement and as required under the 1933 Act or any securities
laws of any states, to the Company’s knowledge, the Company is not required to obtain any consent, authorization, permit
or order of, or make any filing or registration (except the filing of a registration statement as outlined in the Registration
Rights Agreement between the parties) with, any court, governmental authority or agency, regulatory or self-regulatory agency
or other third party in order for it to execute, deliver or perform any of its obligations under, or contemplated by, the Financing
Agreements in accordance with the terms hereof or thereof. Except for state blue sky filings and filings required as a result
of the transactions contemplated herein pursuant to the federal securities laws or regulation, all consents, authorizations, permits,
orders, filings and registrations which the Company is required to obtain pursuant to the preceding sentence have been obtained
or effected on or prior to the date hereof and are in full force and effect as of the date hereof. The Company and its Subsidiaries
are unaware of any facts or circumstances which might give rise to any of the foregoing. The Company is not, and will not be,
in violation of the listing requirements of the Principal Market as in effect on the date hereof and on each of the Closing Dates
and is not aware of any facts which would reasonably lead to delisting of the Common Stock by the Principal Market in the foreseeable
SEC DOCUMENTS; FINANCIAL STATEMENTS. As of the date hereof, the Company has 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 and schedules thereto and
documents incorporated by reference therein, and amendments thereto, being hereinafter referred to as the “SEC Documents”).
The Company has delivered to the Investor or its representatives, or they have had access through XXXXX to, true and complete
copies of the SEC Documents. As of their respective filing 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 or the time they were amended, if amended, contained any
untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading. 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. Such financial statements have
been prepared in accordance with generally accepted accounting principles, by a firm that is a member of the Public Companies
Accounting Oversight Board (“PCAOB”) 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). No other written information provided
by or on behalf of the Company to the Investor which is not included in the SEC Documents, including, without limitation, information
referred to in Section 4.3 of this Agreement, contains any untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein, in the light of the circumstance under which they are or were made, not misleading.
Neither the Company nor any of its Subsidiaries or any of their officers, directors, or agents have provided the Investor with
any material, nonpublic information which was not publicly disclosed prior to the date hereof and any material, nonpublic information
provided to the Investor by the Company or its Subsidiaries or any of their officers, directors, or agents prior to any Closing
Date shall be publicly disclosed by the Company prior to such Closing Date.
ABSENCE OF CERTAIN CHANGES. Except as otherwise set forth in the SEC Documents, the Company does not intend to change the
business operations of the Company in any material way. The Company has not taken any steps, and does not currently expect to
take any steps, to seek protection pursuant to any bankruptcy law nor does the Company or its Subsidiaries have any knowledge
or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings.
ABSENCE OF LITIGATION AND/OR REGULATORY PROCEEDINGS. Except as set forth in the SEC Documents, there is no material action,
suit, proceeding, inquiry or investigation before or by any court, public board, government agency, self-regulatory organization
or body pending or, to the knowledge of the executive officers of Company or any of its Subsidiaries, threatened against or affecting
the Company, the Common Stock or any of the Company’s Subsidiaries or any of the Company’s or the Company’s
Subsidiaries’ officers or directors in their capacities as such.
ACKNOWLEDGMENT REGARDING INVESTOR’S PURCHASE OF SHARES. The Company acknowledges and agrees that the Investor is
acting solely in the capacity of an arm’s length purchaser with respect to the Financing Agreements and the transactions
contemplated hereby and thereby. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary
of the Company (or in any similar capacity) with respect to the Financing Agreements and the transactions contemplated hereby
and thereby and any advice given by the Investor or any of its respective representatives or agents in connection with the Financing
Agreements and the transactions contemplated hereby and thereby is merely incidental to the Investor’s purchase of the Securities,
and is not being relied on by the Company. The Company further represents to the Investor that the Company’s decision to
enter into the Financing Agreements has been based solely on the independent evaluation by the Company and its representatives.
4.10 NO UNDISCLOSED
EVENTS, LIABILITIES, DEVELOPMENTS OR CIRCUMSTANCES. Except as set forth in the SEC Documents, as of the date hereof, no event,
liability, development or circumstance has occurred or exists, or to the Company’s knowledge is contemplated to occur, with
respect to the Company or its Subsidiaries or their respective business, properties, assets, prospects, operations or financial
condition, that would be required to be disclosed by the Company under applicable securities laws on a registration statement
filed with the SEC relating to an issuance and sale by the Company of its Common Stock and which has not been publicly announced.
RELATIONS. Neither the Company nor any of its Subsidiaries is involved in any union labor dispute nor, to the knowledge of
the Company or any of its Subsidiaries, is any such dispute threatened. Neither the Company nor any of its Subsidiaries is a party
to a collective bargaining agreement, and the Company and its Subsidiaries believe that relations with their employees are good.
No executive officer (as defined in Rule 501(f) of the 0000 Xxx) has notified the Company that such officer intends to leave the
Company’s employ or otherwise terminate such officer’s employment with the Company.
PROPERTY RIGHTS. The Company and its Subsidiaries own or possess adequate rights or licenses to use all trademarks, trade
names, service marks, service xxxx registrations, service names, patents, patent rights, copyrights, inventions, licenses, approvals,
governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. Except
as set forth in the SEC Documents, none of the Company’s trademarks, trade names, service marks, service xxxx registrations,
service names, patents, patent rights, copyrights, inventions, licenses, approvals, government authorizations, trade secrets or
other intellectual property rights necessary to conduct its business as now or as proposed to be conducted have expired or terminated,
or are expected to expire or terminate within two (2) years from the date of this Agreement. The Company and its Subsidiaries
do not have any knowledge of any infringement by the Company or its Subsidiaries of trademark, trade name rights, patents, patent
rights, copyrights, inventions, licenses, service names, service marks, service xxxx registrations, trade secret or other similar
rights of others, or of any such development of similar or identical trade secrets or technical information by others and, except
as set forth in the SEC Documents, there is no claim, action or proceeding being made or brought against, or to the Company’s
knowledge, being threatened against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights,
invention, copyright, license, service names, service marks, service xxxx registrations, trade secret or other infringement; and
the Company and its Subsidiaries are unaware of any facts or circumstances which might give rise to any of the foregoing. The
Company and its Subsidiaries have taken commercially reasonable security measures to protect the secrecy, confidentiality and
value of all of their intellectual properties.
LAWS. The Company and its Subsidiaries (i) are, to the knowledge of the executive officers and directors of the Company and
its Subsidiaries, in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(“Environmental Laws”); (ii) have, to the knowledge of the executive officers and directors of the Company,
received all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective
businesses; and (iii) are in compliance, to the knowledge of the executive officers and directors of the Company, with all terms
and conditions of any such permit, license or approval where, in each of the three (3) foregoing cases, the failure to so comply
would have, individually or in the aggregate, a Material Adverse Effect.
The Company and its Subsidiaries have good and marketable title to all personal 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
are described in the SEC Documents or 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 or 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 and its Subsidiaries.
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 the executive officers of the Company reasonably believes to be prudent and customary in the businesses
in which the Company and its Subsidiaries are engaged. Neither the Company nor any of its Subsidiaries has been refused any insurance
coverage sought or applied for and neither the Company nor its Subsidiaries has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a Material Adverse Effect.
PERMITS. The Company and its Subsidiaries have in full force and effect all certificates, approvals, authorizations and permits
from the appropriate federal, state, local or foreign regulatory authorities and comparable foreign regulatory agencies, necessary
to own, lease or operate their respective properties and assets and conduct their respective businesses, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
approval, authorization or permit, except for such certificates, approvals, authorizations or permits which if not obtained, or
such revocations or modifications which would not have a Material Adverse Effect.
ACCOUNTING CONTROLS. Except as otherwise set forth in the SEC Documents, the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general
or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles by a firm with membership to the PCAOB and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company’s executive officers have determined that the Company’s internal accounting controls
were effective as of the date of this Agreement as further described in the SEC Documents.
4.18 NO MATERIALLY
ADVERSE CONTRACTS, ETC. Neither the Company nor any of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation which in the judgment of the Company’s officers has or is
expected in the future to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is a party to any contract
or agreement which in the judgment of the Company’s officers has or is expected to have a Material Adverse Effect.
4.19 TAX STATUS.
The Company and each of its Subsidiaries has made or filed all United States federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company and
each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported
taxes) and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined
to be due on such returns, reports and declarations, except those being contested in good faith and has set aside on its books
provision reasonably adequate for the payment of all taxes for periods subsequent to the periods to which such returns, reports
or declarations apply. There are no unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Company know of no basis for any such claim.
TRANSACTIONS. Except as set forth in the SEC Documents filed at least ten (10) days prior to the date hereof and except for
arm’s length transactions pursuant to which the Company makes payments in the ordinary course of business upon terms no
less favorable than the Company could obtain from disinterested third parties and other than the grant of stock options disclosed
in the SEC Documents, none of the officers, directors, or employees of the Company is presently a party to any transaction with
the Company or any of its Subsidiaries (other than for services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property
to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the knowledge of the Company,
any corporation, partnership, trust or other entity in which any officer, director, or any such employee has a substantial interest
or is an officer, director, trustee or partner, such that disclosure would be required in the SEC Documents.
EFFECT. The Company understands and acknowledges that the number of Shares issuable upon purchases pursuant to this Agreement
will increase in certain circumstances including, but not necessarily limited to, the circumstance wherein the trading price of
the Common Stock declines during the period between the Effective Date and the end of the Open Period. The Company’s executive
officers and directors have studied and fully understand the nature of the transactions contemplated by this Agreement and recognize
that they have a potential dilutive effect on the stockholders of the Company. The Board of Directors of the Company has concluded,
in its good faith business judgment, and with full understanding of the implications, that such issuance is in the best interests
of the Company. The Company specifically acknowledges that, subject to such limitations as are expressly set forth in the Financing
Agreements, its obligation to issue Shares upon purchases pursuant to this Agreement is absolute and unconditional regardless
of the dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.
The Company shall cause its executive officers or directors or other related parties under control of the Company, to refrain
from selling Common Stock during each Pricing Period.
4.23 NO GENERAL
SOLICITATION. Neither the Company, nor any of its affiliates, nor any person acting on its 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
Common Stock to the Investor as set forth in this Agreement.
BROKERS, FINDERS OR FINANCIAL ADVISORY FEES OR COMMISSIONS. No brokers, finders or financial advisory fees or commissions
will be payable by the Company, its agents or Subsidiaries, with respect to the transactions contemplated by this Agreement.
COVENANTS OF THE COMPANY
REASONABLE EFFORTS. The Company shall use all commercially reasonable efforts to timely satisfy each of the conditions
set forth in Section 7 of this Agreement.
REPORTING STATUS. Until one of the following occurs, the Company shall file all reports required to be filed with the SEC
pursuant to the 1934 Act, and the Company shall not terminate its status, or take an action or fail to take any action, which
would terminate its status as a reporting company under the 1934 Act: (i) this Agreement terminates pursuant to Section 8
and the Investor has the right to sell all of the Securities without restrictions pursuant to Rule 144 promulgated under the 1933
Act, or such other exemption, or (ii) the date on which the Investor has sold all the Securities and this Agreement has been terminated
pursuant to Section 8.
USE OF PROCEEDS. The Company will use the proceeds from the sale of the Securities (excluding amounts paid by the Company
for fees as set forth in the Financing Agreements) for general corporate and working capital purposes and acquisitions or assets,
businesses or operations or for other purposes that the board of directors, in its good xxxxx xxxx to be in the best interest
of the Company.
FINANCIAL INFORMATION. During the Open Period, the Company agrees to make available to the Investor via XXXXX or other
electronic means the following documents and information on the forms set forth: (i) within five (5) Trading Days after the filing
thereof with the SEC, a copy of its Annual Reports on Form 10-K, its Quarterly Reports on Form 10-Q, any Current Reports on Form
8-K and any Registration Statements or amendments filed pursuant to the 1933 Act; (ii) 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; and (iii) within two (2) calendar days of filing or delivery thereof, copies of all documents filed with,
and all correspondence sent to, the Principal Market, any securities exchange or market, or the Financial Industry Regulatory
Association, unless such information is material nonpublic information.
RESERVATION OF SHARES. The Company shall take all action necessary to at all times have authorized, and reserved the amount
of Shares included in the Company’s registration statement for issuance pursuant to the Financing Agreements. In the event
that the Company determines that it does not have a sufficient number of authorized Shares to reserve and keep available for issuance
as described in this Section 5.5, the Company shall use all commercially reasonable efforts to increase the number of authorized
Shares by seeking stockholder approval for the authorization of such additional Shares.
LISTING. The Company shall promptly secure and maintain the listing of all of the Registrable Securities (as defined in
the Registration Rights Agreement) on the Principal Market and each other national securities exchange and automated quotation
system, if any, upon which Shares are then listed (subject to official notice of issuance) and shall maintain, such listing of
all Registrable Securities from time to time issuable under the terms of the Financing Agreements. Neither the Company nor any
of its Subsidiaries shall take any action which would be reasonably expected to result in the delisting or suspension of the Common
Stock on the Principal Market (excluding suspensions of not more than two (2) Trading Days resulting from business announcements
by the Company). The Company shall promptly provide to the Investor copies of any notices it receives from the Principal Market
regarding the continued eligibility of the Common Stock for listing on such automated quotation system or securities exchange.
The Company shall pay all fees and expenses in connection with satisfying its obligations under this Section 5.6.
TRANSACTIONS WITH AFFILIATES. The Company shall not, and shall cause each of its Subsidiaries not to, enter into, amend,
modify or supplement, or permit any Subsidiary to enter into, amend, modify or supplement, any agreement, transaction, commitment
or arrangement with any of its or any Subsidiary’s officers, directors, persons who were officers or directors at any time
during the previous two (2) years, stockholders who beneficially own 5% or more of the Common Stock, or Affiliates or with any
individual related by blood, marriage or adoption to any such individual or with any entity in which any such entity or individual
owns a 5% or more beneficial interest (each a “Related Party”), except for (i) customary employment arrangements
and benefit programs on reasonable terms, (ii) any agreement, transaction, commitment or arrangement on an arms-length basis on
terms no less favorable than terms which would have been obtainable from a disinterested third party other than such Related Party,
or (iii) any agreement, transaction, commitment or arrangement which is approved by a majority of the disinterested directors
of the Company. For purposes hereof, any director who is also an officer of the Company or any Subsidiary of the Company shall
not be a disinterested director with respect to any such agreement, transaction, commitment or arrangement. “Affiliate”
for purposes hereof means, with respect to any person or entity, another person or entity that, directly or indirectly, (i) has
a 10% or more equity interest in that person or entity, (ii) has 10% or more common ownership with that person or entity, (iii)
controls that person or entity, or (iv) is under common control with that person or entity. “Control” or “Controls”
for purposes hereof means that a person or entity has the power, directly or indirectly, to conduct or govern the policies of
another person or entity.
FILING OF FORM 8-K. On or before the date which is four (4) Trading Days after the Execution Date, the Company shall file
a Current Report on Form 8-K with the SEC describing the terms of the transaction contemplated by the Financing Agreements in
the form required by the 1934 Act, if such filing is required.
CORPORATE EXISTENCE. The Company shall use all commercially reasonable efforts to preserve and continue the corporate existence
of the Company.
5.10 NOTICE OF
CERTAIN EVENTS AFFECTING REGISTRATION; SUSPENSION OF RIGHT TO MAKE A DRAWDOWN. The Company shall promptly notify the Investor
upon the occurrence of any of the following events in respect of a Registration Statement or related prospectus in respect of
an offering of the Securities: (i) receipt of any request for additional information by the SEC or any other federal or state
governmental authority during the period of effectiveness of the Registration Statement for amendments or supplements to the Registration
Statement or related prospectus; (ii) the issuance by the SEC or any other federal or state governmental authority of any stop
order suspending the effectiveness of any Registration Statement or the initiation of any proceedings for that purpose; (iii)
receipt of any notification with respect to the suspension of the qualification or exemption from qualification of any of the
Securities for sale in any jurisdiction or the initiation or notice of any proceeding for such purpose; (iv) the happening of
any event that makes any statement made in such Registration Statement or related prospectus or any document incorporated or deemed
to be incorporated therein by reference untrue in any material respect or that requires the making of any changes in the Registration
Statement, related prospectus or documents so that, in the case of a Registration Statement, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the related prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and (v) the Company’s reasonable determination that a post-effective
amendment or supplement to the Registration Statement would be appropriate, and the Company shall promptly make available to Investor
any such supplement or amendment to the related prospectus. The Company shall not deliver to Investor any Drawdown Notice during
the continuation of any of the foregoing events in this Section 5.10.
AGENT. Upon effectiveness of the Registration Statement, and for so long as the Registration Statement is effective, following
delivery of a Drawdown Notice, the Company shall deliver instructions to its transfer agent to issue Shares to the Investor that
are covered for resale by the Registration Statement free of restrictive legends.
Program. If the Company is eligible for DTC’s “FAST” program, it will, for a period of at least
two (2) years from the Execution Date, use its best efforts to employ as the transfer agent for the Securities a participant in
the DTC’s Automated Securities Transfer Program that is eligible to deliver shares via the DWAC System.
OF TERMS. The Company hereby represents and warrants to the Investor that: (i) it is voluntarily entering into this Agreement
of its own freewill, (ii) it is not entering this Agreement under economic duress, (iii) the terms of this Agreement are reasonable
and fair to the Company, and (iv) the Company has had independent legal counsel of its own choosing review this Agreement, advise
the Company with respect to this Agreement, and represent the Company in connection with this Agreement.
CONDITIONS OF THE COMPANY’S OBLIGATION TO SELL
The obligation hereunder of the Company to issue and sell
the Securities to the Investor is further subject to the satisfaction, at or before each Closing Date, of each of the following
conditions set forth below. These conditions are for the Company’s sole benefit and may be waived by the Company at any
time in its sole discretion.
The Investor shall have executed the Financing Agreements and delivered the same to the Company.
The Investor shall have delivered to the Company the Purchase Price for the Securities being purchased by the Investor between
the end of the Pricing Period and the Closing Date via a Drawdown Settlement Sheet (hereto attached as Exhibit D). After
receipt of confirmation of delivery of such Securities to the Investor, the Investor, by wire transfer of immediately available
funds pursuant to the wire instructions provided by the Company will disburse the funds constituting the Purchase Amount. The
Investor shall have no obligation to disburse the Purchase Amount until the Company delivers the Securities pursuant to a Drawdown
No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated
by this Agreement.
FURTHER CONDITIONS OF THE INVESTOR’S OBLIGATION TO PURCHASE
The obligation of the Investor hereunder to purchase Securities
is subject to the satisfaction, on or before each Closing Date, of each of the following conditions set forth below.
The Company shall have executed the Financing Agreements and delivered the same to the Investor.
The Common Stock shall be authorized for quotation on the Principal Market and trading in the Common Stock shall not have been
suspended by the Principal Market or the SEC, at any time beginning on the date hereof and through and including the respective
Closing Date (excluding suspensions of not more than two (2) Trading Days resulting from business announcements by the Company,
provided that such suspensions occur prior to the Company’s delivery of the Drawdown Notice related to such Closing).
The representations and warranties of the Company shall be true and correct in all material respects as of the date when made
and as of the applicable Closing Date as though made at that time and the Company shall have performed, satisfied and complied
in all material respects with the covenants, agreements and conditions required by the Financing Agreements to be performed, satisfied
or complied with by the Company on or before such Closing Date. The Investor may request an update as of such Closing Date regarding
the representation contained in Section 4.3.
The Company shall have executed and delivered to the Investor the certificates representing, or have executed electronic book-entry
transfer of, the Securities (in such denominations as the Investor shall request) being purchased by the Investor at such Closing.
The Board of Directors of the Company shall have adopted resolutions consistent with Section 4.2(ii) (the “Resolutions”)
and such Resolutions shall not have been amended or rescinded prior to such Closing Date.
No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed
by any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated
by this Agreement.
The Registration Statement shall be effective on each Closing Date and no stop order suspending the effectiveness of the Registration
statement shall be in effect or to the Company’s knowledge shall be pending or threatened. Furthermore, on each Closing
Date (I) neither the Company nor the Investor shall have received notice that the SEC has issued or intends to issue a stop order
with respect to such Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of such Registration
Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC’s concerns have been
addressed), and (II) no other suspension of the use or withdrawal of the effectiveness of such Registration Statement or related
prospectus shall exist.
At the time of each Closing, the Registration Statement (including information or documents incorporated by reference therein)
and any amendments or supplements thereto shall not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading or which would require public disclosure
or an update supplement to the prospectus.
If applicable, the stockholders of the Company shall have approved the issuance of any Shares in excess of the Maximum Common
Stock Issuance in accordance with Section 2.6 or the Company shall have obtained appropriate approval pursuant to the requirements
of Delaware law and the Company’s Certificate of Incorporation and By-laws.
The conditions to such Closing set forth in Section 2.4 shall have been satisfied on or before such Closing Date.
The Company shall have certified to the Investor the number of Shares of Common Stock outstanding when a Drawdown Notice is given
to the Investor. The Company’s delivery of a Drawdown Notice to the Investor constitutes the Company’s certification
of the existence of the necessary number of Shares reserved for issuance.
This Agreement shall terminate upon any of the following
when the Investor has purchased an aggregate of Ten Million Dollars ($10,000,000) in the Common Stock of the Company pursuant
to this Agreement; or
on the date which is thirty-six (36) months after the Effective Date; or
at such time that the Registration Statement is no longer in effect, not including such periods as the effectiveness may be temporarily
suspended in order to amend or update the Registration Statement or as otherwise permitted under the terms of the Registration
Any and all Shares, or penalties, if any, due under this
Agreement shall be immediately payable and due upon termination of this Agreement.
This Agreement shall be suspended upon any of the following
events, and shall remain suspended until such event is rectified:
i. The trading of the Common Stock is suspended by the SEC, the Principal Market
or FINRA for a period of two (2) consecutive Trading Days during the Open Period; or
ii. The Common Stock ceases to be registered under the 1934 Act or listed or traded
on the Principal Market or the Registration Statement is no longer effective (except as permitted hereunder). Immediately upon
the occurrence of one of the above-described events, the Company shall send written notice of such event to the Investor.
In consideration of the parties mutual obligations set forth
in the Financing Documents, each of the parties (in such capacity, an “Indemnitor”) shall defend, protect,
indemnify and hold harmless the other and all of the other party’s stockholders, officers, directors, employees, counsel,
and direct or indirect investors and any of the foregoing person’s agents or other representatives (including, without limitation,
those retained in connection with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”)
from and against any and all actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages,
and reasonable 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 (I) any misrepresentation
or breach of any representation or warranty made by the Indemnitor or any other certificate, instrument or document contemplated
hereby or thereby; (II) any breach of any covenant, agreement or obligation of the Indemnitor contained in the Financing Agreements
or any other certificate, instrument or document contemplated hereby or thereby; or (III) any cause of action, suit or claim brought
or made against such Indemnitee by a third party and arising out of or resulting from the execution, delivery, performance or
enforcement of the Financing Agreements or any other certificate, instrument or document contemplated hereby or thereby, except
insofar as any such misrepresentation, breach or any untrue statement, alleged untrue statement, omission or alleged omission
is made in reliance upon and in conformity with information furnished to Indemnitor which is specifically intended for use in
the preparation of any such Registration Statement, preliminary prospectus, prospectus or amendments to the prospectus. To the
extent that the foregoing undertaking by the Indemnitor may be unenforceable for any reason, the Indemnitor shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law.
The indemnity provisions contained herein shall be in addition to any cause of action or similar rights Indemnitor may have, and
any liabilities the Indemnitor or the Indemnitees may be subject to.
Governing this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York without regard to principles of conflicts of laws. Any action brought by either party against the other concerning
the transactions contemplated by this Agreement shall be brought only in the state courts of New York or in the federal courts
located in the state and county of New York. The parties to this Agreement hereby irrevocably waive any objection to jurisdiction
and venue of any action instituted hereunder and shall not assert any defense based on lack of jurisdiction or venue or based
upon forum non conveniens. The parties executing this Agreement and other agreements referred to herein or delivered
in connection herewith on behalf of the Company agree to submit to the in personam jurisdiction of such courts and hereby irrevocably
waive trial by jury. The prevailing party shall be entitled to recover from the other party its reasonable attorney’s
fees and costs. In the event that any provision of this Agreement or any other agreement delivered in connection herewith is invalid
or unenforceable under any applicable statute or rule of law, then such provision shall be deemed inoperative to the extent that
it may conflict therewith and shall be deemed modified to conform with such statute or rule of law. Any such provision which may
prove invalid or unenforceable under any law shall not affect the validity or enforceability of any other provision of any agreement.
Each party hereby irrevocably waives personal service of process and consents to process being served in any suit, action or proceeding
in connection with this Agreement or any other Financing Agreements by mailing a copy thereof via registered or certified mail
or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement
and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
11.2 LEGAL FEES;
AND MISCELLANEOUS FEES. Except as otherwise set forth in the Financing Agreements (including but not limited to Section V
of the Registration Rights Agreement), each party shall pay the fees and expenses of its advisers, counsel, the accountants and
other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery
and performance of this Agreement. Any attorneys’ fees and expenses incurred by either the Company or the Investor in connection
with the preparation, negotiation, execution and delivery of any amendments to this Agreement or relating to the enforcement of
the rights of any party, after the occurrence of any breach of the terms of this Agreement by another party or any default by
another party in respect of the transactions contemplated hereunder, shall be paid on demand by the party which breached the Agreement
and/or defaulted, as the case may be. The Company shall pay all stamp and other taxes and duties levied in connection with the
issuance of any Securities.
This Agreement may be executed in any number of counterparts and by the different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same
instrument. This Agreement may be executed by facsimile transmission, PDF, electronic signature or other similar electronic means
with the same force and effect as if such signature page were an original thereof.
SINGULAR/PLURAL. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the
interpretation of, this Agreement. Whenever required by the context of this Agreement, the singular shall include the plural and
masculine shall include the feminine.
If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
11.6 ENTIRE AGREEMENT;
AMENDMENTS. This Agreement is the FINAL AGREEMENT between the Company and the Investor with respect to the terms and conditions
set forth herein, and, the terms of this Agreement may not be contradicted by evidence of prior, contemporaneous, or subsequent
oral agreements of the parties. No provision of this Agreement may be amended other than by an instrument in writing signed by
the Company and the Investor, and no provision hereof may be waived other than by an instrument in writing signed by the party
against whom enforcement is sought. The execution and delivery of the Financing Agreements shall not alter the force and effect
of any other agreements between the parties, and the obligations under those agreements.
Any notices 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) day after deposit with a nationally recognized overnight delivery service, 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:
NCM Financial Inc
0000 Xxxxx Xxxxxxx Xxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxx, CEO
|If to the Investor:
NorthBridge Funding Inc.
0000 Xxxxxxx Xxxx #000
Xxxxxxxxxx, XX 00000
|With a copy to:
Szaferman Xxxxxx Xxxxxxxxx & Blader, PC
000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Each party shall provide five (5) days prior written notice to the other party of any change in address or email.
11.8 NO ASSIGNMENT.
This Agreement may not be assigned.
11.9 NO THIRD
PARTY BENEFICIARIES. This Agreement is intended for the benefit of the parties hereto and is not for the benefit of, nor may
any provision hereof be enforced by, any other person, except that the Company acknowledges that the rights of the Investor may
be enforced by its general partner.
11.10 SURVIVAL. The representations
and warranties of the Company and the Investor contained in Sections 3 and 4, the agreements and covenants set forth in Sections
5 and 6, and the indemnification provisions set forth in Section 10, shall survive until the termination of the Agreement.
11.11 PUBLICITY. The Company
and the Investor shall consult with each other in issuing any press releases or otherwise making public statements with respect
to the transactions contemplated hereby and no party shall issue any such press release or otherwise make any such public statement
without the prior consent of the other party, which consent shall not be unreasonably withheld or delayed, except that no prior
consent shall be required if such disclosure is required by law, in which such case the disclosing party shall provide the other
party with prior notice of such public statement. Notwithstanding the foregoing, the Company shall not publicly disclose the name
of the Investor without the prior consent of the Investor, except to the extent required by law. The Investor acknowledges that
this Agreement and all or part of the Financing Agreements may be deemed to be “material contracts” as that term is
defined by Item 601(b)(10) of Regulation S-K, and that the Company may therefore be required to file such documents as exhibits
to reports or registration statements filed under the 1933 Act or the 1934 Act. The Investor further agrees that the status of
such documents and materials as material contracts shall be determined solely by the Company, in consultation with its counsel.
11.12 FURTHER ASSURANCES. Each
party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry
out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
11.13 NO STRICT CONSTRUCTION.
The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and
no rules of strict construction will be applied against any party, as the parties mutually agree that each has had a full and
fair opportunity to review this Agreement and seek the advice of counsel on it.
11.14 REMEDIES. The Investor
shall have all rights and remedies set forth in this Agreement and the Registration Rights Agreement 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 the Investor
has by 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 default or breach of any provision of this Agreement,
including the recovery of reasonable attorney’s fees and costs, and to exercise all other rights granted by law.
11.15 PAYMENT SET ASIDE. To
the extent that the Company makes a payment or payments to the Investor hereunder or under the Registration Rights Agreement or
the Investor enforces or exercises its 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, 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.
11.16 PRICING OF COMMON STOCK.
For purposes of this Agreement, the price of the Common Stock shall be as reported on Bloomberg, L.P or OTC Markets.
NON-DISCLOSURE OF NON-PUBLIC INFORMATION
The Company shall not disclose non-public information to the Investor,
its advisors, or its representatives.
Nothing herein shall require the Company to disclose non-public
information to the Investor or its advisors or representatives, and the Company represents that it does not disseminate non-public
information to any investors who purchase stock in the Company in a public offering, to money managers or to securities analysts,
provided, however, that notwithstanding anything herein to the contrary, the Company will, as hereinabove provided, immediately
notify the advisors and representatives of the Investor and, if any, underwriters, of any event or the existence of any circumstance
(without any obligation to disclose the specific event or circumstance) of which it becomes aware, constituting non-public information
(whether or not requested of the Company specifically or generally during the course of due diligence by such persons or entities),
which, if not disclosed in the prospectus included in the Registration Statement would cause such prospectus to include a material
misstatement or to omit a material fact required to be stated therein in order to make the statements, therein, in light of the
circumstances in which they were made, not misleading. Nothing contained in this Section 12 shall be construed to mean
that such persons or entities other than the Investor (without the written consent of the Investor prior to disclosure of such
information) may not obtain non-public information in the course of conducting due diligence in accordance with the terms of this
Agreement and nothing herein shall prevent any such persons or entities from notifying the Company of their opinion that based
on such due diligence by such persons or entities, that the Registration Statement contains an untrue statement of material fact
or omits a material fact required to be stated in the Registration Statement or necessary to make the statements contained therein,
in light of the circumstances in which they were made, not misleading.
ACKNOWLEDGEMENTS OF THE PARTIES
Notwithstanding anything in this Agreement to the contrary,
the parties hereto hereby acknowledge and agree to the following: (i) the Investor makes no representations or covenants that
it will not engage in trading in the securities of the Company, other than the Investor will not short or engage in hedging transactions
with regard to, the Company’s Common Stock at any time during this Agreement; (ii) the Company shall, by 8:30 a.m. EST on
the second Trading Day following the date hereof, file a current report on Form 8-K disclosing the material terms of the transactions
contemplated hereby and in the other Financing Agreements; (iii) the Company has not and shall not provide material non-public
information to the Investor unless prior thereto the Investor shall have executed a written agreement regarding the confidentiality
and use of such information; and (iv) the Company understands and confirms that the Investor will be relying on the acknowledgements
set forth in clauses (i) through (iii) above if the Investor effects any transactions in the securities of the Company.
[Signature page follows]
Your signature on this
signature page evidences your agreement to be bound by the terms and conditions of this Agreement as of the date first written
above. The undersigned signatory hereby certifies that he has read and understands this Agreement, and the representations made
by the undersigned in this Agreement are true and accurate, and agrees to be bound by its terms.
||NorthBridge Funding Inc.|
||/s/ Giangi Xxxxx|
||NCM Financial Inc.|
||/s/ Xxxxxxx Xxxx|
||Chief Executive Officer and Director|
[SIGNATURE PAGE OF INVESTMENT AGREEMENT]