Exhibit
10.1


 


COMMON
STOCK PURCHASE AGREEMENT 


 


This
COMMON STOCK PURCHASE AGREEMENT is made and entered into as of March 28, 2022 (this “Agreement”), by
and between CF Principal Investments LLC, a Delaware limited liability company (the “Investor”), and Lucid
Diagnostics Inc., a Delaware corporation (the “Company”).


 


RECITALS



 


WHEREAS,
the parties desire that, upon the terms and subject to the conditions and limitations set forth herein, the Company may issue and sell
to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to the lesser of (i) $50
million in aggregate gross purchase price of newly issued shares of the Company’s common stock, par value $0.001 per share (the
“Common Stock”) and (ii) the Exchange Cap (to the extent applicable under Section 3.3);


 


WHEREAS,
such sales of Common Stock by the Company to the Investor will be made in reliance upon the provisions of Section 4(a)(2) of the Securities
Act (“Section 4(a)(2)”) and/or Rule 506(b) of Regulation D promulgated by the Commission under the Securities
Act (“Regulation D”), and upon such other exemption from the registration requirements of the Securities Act
as may be available with respect to any or all of the issuances and sales of Common Stock by the Company to the Investor to be made hereunder;


 


WHEREAS,
the parties hereto are concurrently entering into a Registration Rights Agreement in the form attached as Exhibit A hereto
(the “Registration Rights Agreement”), pursuant to which the Company shall register the resale of the Registrable
Securities (as defined in the Registration Rights Agreement), upon the terms and subject to the conditions set forth therein; and


 


WHEREAS,
in consideration for the Investor’s execution and delivery of this Agreement, the Company shall pay the Upfront Commitment Fee
to the Investor, by wire transfer of immediately available funds, on the Closing Date, pursuant to and in accordance with Section 10.1(ii);


 


WHEREAS,
the Company acknowledges that the Investor is an Affiliate of the Cantor Fitzgerald group of entities, and its Affiliate, Cantor Fitzgerald
& Co. (“CF&CO”), is acting as Investor’s representative in connection with the transactions contemplated
hereby.


 


NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:


 


ARTICLE
I 


DEFINITIONS



 


Capitalized
terms used in this Agreement shall have the meanings ascribed to such terms in Annex I hereto, and hereby made a part hereof,
or as otherwise set forth in this Agreement.


 




    	 



     


    

 


ARTICLE
II 


PURCHASE
AND SALE OF COMMON STOCK 


 


Section
2.1. Purchase and Sale of Stock. Upon the terms and subject to the conditions of this Agreement, during the Investment Period,
the Company, in its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor
shall purchase from the Company, up to the lesser of (i) $50 million (the “Total Commitment”) in aggregate
gross purchase price of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock and (ii) the Exchange Cap,
to the extent applicable under Section 3.3 (such lesser amount of shares of Common Stock, the “Aggregate Limit”),
by the delivery to the Investor of VWAP Purchase Notices as provided in Article III.



 


Section
2.2. Closing Date; Settlement Dates. This Agreement shall become effective and binding (the “Closing”)
upon (a) the delivery of counterpart signature pages of this Agreement and the Registration Rights Agreement executed by each of the
parties hereto and thereto, and (b) the delivery of all other documents, instruments and writings required to be delivered at the Closing,
in each case as provided in Section 7.1, to the offices of Duane Morris LLP, 1540 Broadway, New York, New York 10036, at 9:00 a.m., New
York City time, on the Closing Date. In consideration of and in express reliance upon the representations, warranties and covenants contained
in, and upon the terms and subject to the conditions of, this Agreement, during the Investment Period, the Company, at its sole option
and discretion, may issue and sell to the Investor, and, if the Company elects to so issue and sell, the Investor shall purchase from
the Company, the Shares in respect of each VWAP Purchase. The delivery of Shares in respect of each VWAP Purchase, and the payment for
such Shares, shall occur in accordance with Section 3.2, provided that all of the conditions precedent in Article VII shall have
been fulfilled at the applicable times set forth in Article VII.


 


Section
2.3. Initial Public Announcements and Required Filings. The Company shall, not later than 9:00 a.m., New York City time, on
the date of this Agreement (if signed prior to 9:00 a.m., New York City time, on a Trading Day) or on the Trading Day immediately following
the date of this Agreement (if signed on a day that is not a Trading Day or after 9:00 a.m., New York City time on a Trading Day), file
with the Commission a Current Report on Form 8-K disclosing the execution of this Agreement and the Registration Rights Agreement by
the Company and the Investor and describing the material terms thereof, including, without limitation, the Upfront Commitment Fee payable
by the Company to the Investor in accordance with Section 10.1(ii), and attaching as exhibits thereto copies of each of this Agreement
and the Registration Rights Agreement (including all exhibits thereto, the “Current Report”). The Company shall
provide the Investor and its legal counsel a reasonable opportunity to comment on a draft of the Current Report prior to filing the Current
Report with the Commission and shall give due consideration to all such comments. From and after the filing of the Current Report with
the Commission, the Company shall have publicly disclosed all material, nonpublic information delivered to the Investor (or the Investor’s
representatives or agents) by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, agents
or representatives (if any) in connection with the transactions contemplated by the Transaction Documents. The Company shall use its
reasonable best efforts to prepare and, as soon as practicable, file with the Commission the Initial Registration Statement and any New
Registration Statement covering only the resale by the Investor of the Registrable Securities in accordance with the Securities Act and
the Registration Rights Agreement. At or before 8:30 a.m. (New York City time) on the second (2nd) Trading Day immediately following
the Effective Date of the Initial Registration Statement and any New Registration Statement (or any post-effective amendment thereto),
the Company shall use its reasonable best efforts to file with the Commission in accordance with Rule 424(b) under the Securities Act
the final Prospectus to be used in connection with sales pursuant to such Registration Statement (or post-effective amendment thereto).


 




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ARTICLE
III 


PURCHASE
TERMS 


 


Subject
to the satisfaction of the conditions set forth in Article VII, the parties agree as follows:


 


Section
3.1. VWAP Purchases. Upon the initial satisfaction of all of the conditions set forth in Section 7.2 (the “Commencement”
and the date of initial satisfaction of all of such conditions, the “Commencement Date”) and from time to time
thereafter, subject to the satisfaction of all of the conditions set forth in Section 7.3, the Company shall have the right, but not
the obligation, to direct the Investor, by its timely delivery to the Investor of a VWAP Purchase Notice, in substantially the form attached
hereto as Exhibit D, after 6:00 a.m., New York City time, but prior to 9:00 a.m., New York City time, to purchase a number of
Shares equal to the applicable VWAP Purchase Share Amount, not to exceed the applicable VWAP Purchase Maximum Amount, at the applicable
VWAP Purchase Price therefor on such VWAP Purchase Date in accordance with this Agreement (each such purchase, a “VWAP Purchase”).
In addition, the Investor may, in its sole discretion, accept a VWAP Purchase Notice after 9:00 a.m., New York City time, on a VWAP Purchase
Date, provided that such acceptance, once provided, shall be irrevocable and binding and the Company’s obligation to deliver the
Shares that are the subject of such VWAP Purchase Notice shall be binding; provided that, if the Investor does not accept a VWAP
Purchase Notice that is delivered after 9:00 a.m., New York City time, such VWAP Purchase Notice shall be deemed to be null and void.
The Investor may also, in its sole discretion, accept additional VWAP Purchase Notices within a Trading Day, in which case any prior
VWAP Purchase Notice accepted by the Investor in such Trading Day shall be null, void, superseded and replaced in its entirety by such
subsequent VWAP Purchase Notice. The Company may timely deliver a VWAP Purchase Notice to the Investor as often as every Trading Day
(and may deliver multiple VWAP Purchase Notices in any given day, it being understood that a subsequent VWAP Purchase Notice will supersede
and replace all earlier VWAP Purchase Notices delivered within the same Trading Day in their entirety), so long as all Shares subject
to all prior VWAP Purchases theretofore required to have been received by the Investor as DWAC Shares under this Agreement have been
delivered to the Investor as DWAC Shares in accordance with this Agreement. The Investor is obligated to accept each VWAP Purchase Notice
prepared and delivered by the Company in accordance with the terms of and subject to the satisfaction of the conditions contained in
this Agreement. If the Company delivers any VWAP Purchase Notice directing the Investor to purchase a number of Shares that is in excess
of the applicable VWAP Purchase Maximum Amount, such VWAP Purchase Notice shall be void ab initio to the extent of the amount
by which the VWAP Purchase Share Amount set forth in such VWAP Purchase Notice exceeds such applicable VWAP Purchase Maximum Amount,
and the Investor shall have no obligation to purchase such excess Shares in respect of such VWAP Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the applicable VWAP Purchase Maximum Amount in such VWAP Purchase. Each VWAP Purchase
Notice must include a VWAP Purchase Share Estimate. Each VWAP Purchase Notice must be accompanied by irrevocable instructions to the
Company’s Transfer Agent to immediately issue and deliver to the Investor an amount of Common Stock equal to the VWAP Purchase
Share Estimate. In no event shall the Investor purchase (or be deemed to have purchased), pursuant to any VWAP Purchase, a number of
Shares constituting the applicable VWAP Purchase Share Amount that exceeds the VWAP Purchase Share Estimate issued on the VWAP Purchase
Date in connection with such VWAP Purchase Notice; however, the Investor will promptly instruct the Transfer Agent to return to the Company
any Shares issued pursuant to the VWAP Purchase Share Estimate that exceeds the number of Shares constituting the applicable VWAP Purchase
Share Amount the Investor actually purchases in connection with such VWAP Purchase (such amount, the “Excess Shares”).
Alternatively, if the Transfer Agent does not return the Excess Shares to the Company on the VWAP Purchase Date in accordance with the
Investor’s instructions, or if otherwise instructed in writing by the Company, Investor may retain such Excess Shares (provided
Investor will not be deemed to have purchased such Excess Shares), and such Excess Shares will be deemed pre-delivered Shares that will
reduce the number of Shares required to be delivered by the Company in accordance with this section on the next VWAP Purchase Date in
connection with the next VWAP Purchase Notice. At or prior to 5:30 p.m., New York City time, on the VWAP Purchase Date for each VWAP
Purchase, the Investor shall provide to the Company a written confirmation for such VWAP Purchase setting forth the applicable VWAP Purchase
Price per Share to be paid by the Investor in such VWAP Purchase, and the total aggregate VWAP Purchase Price to be paid by the Investor
for the total VWAP Purchase Share Amount purchased by the Investor in such VWAP Purchase. Notwithstanding the foregoing, the Company
shall not deliver any VWAP Purchase Notices to the Investor during the Post-Effective Amendment Period.


 


Section
3.2. Settlement. For each VWAP Purchase, the Investor shall pay to the Company an amount in cash equal to the product of (i)
the total number of Shares purchased by the Investor in such VWAP Purchase and (ii) the applicable VWAP Purchase Price for such Shares
(the “VWAP Purchase Amount”), as full payment for such Shares purchased by the Investor in such VWAP Purchase,
via wire transfer of immediately available funds, not later than 5:00 p.m., New York City time, on the second (2nd) Trading Day following
the applicable VWAP Purchase Share Delivery Date for such VWAP Purchase, provided the Investor shall have timely received, as DWAC Shares,
all of such Shares purchased by the Investor in such VWAP Purchase on such VWAP Purchase Share Delivery Date in accordance with the first
sentence of this Section 3.2. If the Investor fails to pay the VWAP Purchase Amount when due, the Investor will return the DWAC Shares
to the Company; provided that the foregoing shall not be construed as excusing the Investor from consummating any VWAP Purchase
in respect of each validly delivered VWAP Purchase Notice. If the Company or the Transfer Agent shall fail for any reason to deliver
to the Investor, as DWAC Shares, any Shares purchased by the Investor in a VWAP Purchase prior to 10:30 a.m., New York City time, on
the Trading Day immediately following the date of the applicable VWAP Purchase Share Notice (the “Share Delivery Deadline”)
for such VWAP Purchase, and if on or after such Trading Day the Investor purchases (in an open market transaction or otherwise) shares
of Common Stock to deliver in satisfaction of a sale by the Investor of such Shares that the Investor anticipated receiving from the
Company on such VWAP Purchase Share Delivery Date in respect of such VWAP Purchase, then the Company shall, within one (1) Trading Day
after the Investor’s request, either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price
(including brokerage commissions, if any) for the shares of Common Stock so purchased (the “Cover Price”),
at which point the Company’s obligation to deliver such Shares as DWAC Shares (and the Investor’s obligation to purchase
such Shares from the Company) shall terminate, offset by any amount of the VWAP Purchase Price for the applicable Shares unpaid by the
Investor, or (ii) promptly honor its obligation to deliver to the Investor such Shares as DWAC Shares and pay cash to the Investor in
an amount equal to the excess (if any) of the Cover Price over the total purchase price paid by the Investor pursuant to this Agreement
for all of the Shares purchased by the Investor in such VWAP Purchase. The Company shall not issue any fraction of a share of Common
Stock to the Investor in connection with any VWAP Purchase effected pursuant to this Agreement. If the issuance would result in the issuance
of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock up or down to the nearest
whole share. All payments to be made by the Investor pursuant to this Agreement shall be made by wire transfer of immediately available
funds to such account as the Company may from time to time designate by written notice to the Investor in accordance with the provisions
of this Agreement.


 




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Section
3.3. Compliance with Rules of Principal Market.


 


(i)
Exchange Cap. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement, and the Investor
shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving effect thereto,
the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby
would exceed 7,482,763 shares of Common Stock (representing 19.99% of the voting power or number of shares of Common Stock, issued and
outstanding immediately prior to the execution of this Agreement), which number of shares shall be reduced, on a share-for-share basis,
by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated
with the transactions contemplated by this Agreement under applicable rules of the Principal Market (such maximum number of shares, the
“Exchange Cap”), unless the Company’s stockholders have approved the issuance of Common Stock pursuant to this Agreement
in excess of the Exchange Cap in accordance with the applicable rules of the Principal Market. For the avoidance of doubt, the Company
may, but shall be under no obligation to, request its stockholders to approve the issuance of Common Stock pursuant to this Agreement;
provided, that if such stockholder approval is not obtained, the Exchange Cap shall be applicable for all purposes of this Agreement
and the transactions contemplated hereby at all times during the term of this Agreement.


 


(ii)
General. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement if such issuance or sale
would reasonably be expected to result in (a) a violation of the Securities Act or (b) a breach of the rules of the Principal Market.
The provisions of this Section 3.3 shall not be implemented in a manner otherwise than in strict conformity with the terms of this Section
3.3 unless necessary to ensure compliance with the Securities Act and the applicable rules of the Principal Market.


 


Section
3.4. Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall
not issue or sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated
with all other shares of Common Stock then beneficially owned by the Investor and its Affiliates (as calculated pursuant to Section 13(d)
of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor and its Affiliates
(on an aggregated basis) of more than 4.99% of the outstanding voting power or shares of Common Stock (the “Beneficial Ownership
Limitation”). Upon the written or oral request of the Investor, the Company shall promptly (but not later than the next
business day on which the Transfer Agent is open for business) confirm orally or in writing to the Investor the number of shares of Common
Stock then outstanding. The Investor and the Company shall each cooperate in good faith in the determinations required under this Section
3.4 and the application of this Section 3.4. The Investor’s written certification to the Company of the applicability of the Beneficial
Ownership Limitation, and the resulting effect thereof hereunder at any time, shall be conclusive with respect to the applicability thereof
and such result absent manifest error. The provisions of this Section 3.4 shall not be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 3.4 unless necessary to properly give effect to the limitations contained in
this Section 3.4.


 




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ARTICLE
IV 


REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE INVESTOR 


 


The
Investor hereby makes the following representations, warranties and covenants to the Company:


 


Section
4.1. Organization and Standing of the Investor. The Investor is a limited liability company duly formed, validly existing
and in good standing under the laws of the State of Delaware.


 


Section
4.2. Authorization and Power. The Investor has the requisite corporate power and authority to enter into and perform its obligations
under this Agreement and the Registration Rights Agreement and to purchase or acquire the Shares in accordance with the terms hereof.
The execution, delivery and performance by the Investor of this Agreement and the Registration Rights Agreement and the consummation
by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action, and no further consent or
authorization of the Investor or its sole member is required. Each of this Agreement and the Registration Rights Agreement has been duly
executed and delivered by the Investor and constitutes a valid and binding obligation of the Investor enforceable against it in accordance
with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership, or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies
or by other equitable principles of general application (including any limitation of equitable remedies).


 


Section
4.3. No Conflicts. The execution, delivery and performance by the Investor of this Agreement and the Registration Rights Agreement
and the consummation by the Investor of the transactions contemplated hereby and thereby do not and shall not (i) result in a violation
of such Investor’s applicable organizational instruments, (ii) conflict with, constitute a default (or an event which, with notice
or lapse of time or both, would become a default) under, or give rise to any rights of termination, amendment, acceleration or cancellation
of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which
the Investor is a party or is bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, or regulation,
or any order, judgment or decree of any court or governmental agency applicable to the Investor or by which any of its properties or
assets are bound or affected, except, in the case of clauses (ii) and (iii), for such conflicts, defaults, terminations, amendments,
acceleration, cancellations and violations as would not, individually or in the aggregate, prohibit or otherwise interfere with, in any
material respect, the ability of the Investor to enter into and perform its obligations under this Agreement and the Registration Rights
Agreement. The Investor is not required under any applicable federal, state or local law, rule or regulation to obtain any consent, authorization
or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform
any of its obligations under this Agreement and the Registration Rights Agreement or to purchase or acquire the Shares in accordance
with the terms hereof, other than as may be required by the Financial Industry Regulatory Authority Inc. (“FINRA”);
provided, however, that for purposes of the representation made in this sentence, the Investor is assuming and relying
upon the accuracy of the relevant representations and warranties and the compliance with the relevant covenants and agreements of the
Company in the Transaction Documents to which it is a party.


 


Section
4.4. Investment Purpose. The Investor is acquiring the Shares for its own account, for investment purposes and not with a
view towards, or for resale in connection with, the public sale or distribution thereof, in violation of the Securities Act or any applicable
state securities laws; provided, however, that by making the representations herein, the Investor does not agree, or make
any representation or warranty, to hold any of the Shares for any minimum or other specific term and reserves the right to dispose of
the Shares at any time in accordance with, or pursuant to, a registration statement filed pursuant to the Registration Rights Agreement
or an applicable exemption under the Securities Act. The Investor is acquiring the Shares hereunder in the ordinary course of its business.


 


Section
4.5. Accredited Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D.


 


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


 




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Section
4.7. Information. All materials relating to the business, financial condition, management and operations of the Company
and materials relating to the offer and sale of the Shares which have been requested by the Investor have been furnished or otherwise
made available to the Investor or its advisors, including, without limitation, the Commission Documents. The Investor understands that
its investment in the Shares involves a high degree of risk. The Investor is able to bear the economic risk of an investment in the Shares
and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of a proposed
investment in the Shares. The Investor and its advisors have been afforded the opportunity to ask questions of and receive answers from
representatives of the Company concerning the financial condition and business of the Company and other matters relating to an investment
in the Shares. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its advisors, if any, or
its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations and warranties
contained in this Agreement or in any other Transaction Document to which the Company is a party or the Investor’s right to rely
on any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the transaction
contemplated hereby (including without limitation the opinions of the Company’s counsel delivered pursuant to this Agreement and
the Registration Rights Agreement). The Investor has sought such accounting, legal and tax advice as it has considered necessary to make
an informed investment decision with respect to its acquisition of the Shares. The Investor understands that it (and not the Company)
shall be responsible for its own tax liabilities that may arise as a result of this investment or the transactions contemplated by this
Agreement.


 


Section
4.8. No Governmental Review. The Investor 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 Shares or the fairness or suitability of the investment
in the Shares nor have such authorities passed upon or endorsed the merits of the offering of the Shares.


 


Section
4.9. No General Solicitation. The Investor is not purchasing or acquiring the Shares as a result of any form of general solicitation
or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Shares.


 


Section
4.10. Not an Affiliate. The Investor is not an officer, director or an Affiliate of the Company. During the Investment Period,
the Investor will not acquire for its own account any shares of Common Stock or securities exercisable for or convertible into shares
of Common Stock, other than pursuant to this Agreement; provided, however, that nothing in this Agreement shall prohibit
or be deemed to prohibit the Investor from purchasing, in an open market transaction or otherwise, shares of Common Stock necessary to
make delivery by the Investor in satisfaction of a sale by the Investor of Shares that the Investor anticipated receiving from the Company
in connection with the settlement of a VWAP Purchase if the Company or its Transfer Agent shall have failed for any reason (other than
a failure of Investor or its Broker-Dealer (as defined below) to set up a DWAC and required instructions) to electronically transfer
all of the Shares subject to such VWAP Purchase to the Investor prior to the applicable Share Delivery Deadline by crediting the Investor’s
or its designated Broker-Dealer’s account at DTC through its DWAC delivery system in compliance with Section 3.2 of this Agreement.
For the avoidance of doubt, the foregoing restriction does not apply to any Affiliate of the Investor, provided that any such purchases
do not cause the Investor to violate any applicable Exchange Act requirement, including Regulation M.


 


Section
4.11. No Prior Short Sales. At no time prior to the date of this Agreement has the Investor or any entity managed or controlled
by the Investor, engaged in or effected, in any manner whatsoever, directly or indirectly, for its own principal account, any (i) “short
sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction,
which establishes a net short position with respect to the Common Stock that remains in effect as of the date of this Agreement.


 


Section
4.12. Statutory Underwriter Status. The Investor acknowledges that it will be disclosed as an “underwriter” and
a “selling stockholder” in each Registration Statement and in any Prospectus contained therein to the extent required by
applicable law and to the extent the Prospectus is related to the resale of Registrable Securities.


 


Section
4.13. Resales of Shares. The Investor will resell such Shares only pursuant to the Registration Statement in which the resale
of such Shares is registered under the Securities Act, in a manner described under the caption “Plan of Distribution” in
such Registration Statement, and in a manner in compliance with all applicable U.S. federal and state securities laws, rules and regulations.


 


Section
4.14. Residency. The Investor is a resident of the State of Delaware.


 




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ARTICLE
V 


REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE COMPANY 


 


The
Company hereby makes the following representations, warranties and covenants to the Investor:


 


Section
5.1. Organization, Good Standing and Power. The Company and each of its Subsidiaries are duly organized, validly existing
and in good standing under the laws of their respective jurisdictions of organization. The Company and each of its Subsidiaries are duly
licensed or qualified as a foreign corporation (or other entity, if applicable) for transaction of business and in good standing under
the laws of each other jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses
requires such license or qualification, and have all entity power and authority necessary to own or hold their respective properties
and to conduct their respective businesses as described in the Commission Documents, except where the failure to be so qualified or in
good standing or have such power or authority would not, individually or in the aggregate, (i) have a material adverse effect or would
reasonably be expected to have a material adverse effect on or affecting the assets, business, operations, earnings, properties, condition
(financial or otherwise), prospects, stockholders’ equity or results of operations of the Company and the Subsidiaries taken as
a whole, or (ii) prevent or materially interfere with consummation of the transactions contemplated hereby (a “Material Adverse
Effect”).


 


Section
5.2. Subsidiaries. The subsidiaries set forth on Schedule 1 (collectively, the “Subsidiaries”),
are the Company’s only significant subsidiaries (as such term is defined in Rule 1-02 of Regulation S-X promulgated by the Commission).
Except as set forth in the Commission Documents, the Company owns, directly or indirectly, all of the equity interests of the Subsidiaries
free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity interests
of the Subsidiaries are validly issued and are fully paid, non-assessable and free of preemptive and similar rights. No Subsidiary is
currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s
capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the Company.


 


Section
5.3. Authorization, Enforcement. The Company has the requisite corporate power and authority to enter into and perform its
obligations under each of the Transaction Documents to which it is a party and to issue the Shares in accordance with the terms hereof
and thereof. Except for approvals of the Company’s Board of Directors or a committee thereof as may be required in connection with
any issuance and sale of Shares to the Investor hereunder (which approvals shall be obtained prior to the delivery of any VWAP Purchase
Notice), and except for approval of the Company’s stockholders for issuances of Common Stock pursuant to this Agreement in excess
of the Exchange Cap, the execution, delivery and performance by the Company of each of the Transaction Documents to which it is a party
and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary
corporate action, and no further consent or authorization of the Company, its Board of Directors or its stockholders is required. Each
of the Transaction Documents to which the Company is a party has been duly executed and delivered by the Company and constitutes a valid
and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership or similar laws
relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general
application (including any limitation of equitable remedies).


 


Section
5.4. Capitalization. The authorized capital stock of the Company and the shares thereof issued and outstanding were
as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and non-assessable. Except as set forth in the Commission Documents, this Agreement
and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated to register the sale
of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of Common Stock are entitled to
preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings, or arrangements by which
the Company is or may become bound to issue additional shares of the capital stock of the Company or options, warrants, scrip, rights
to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into or exchangeable
for, any shares of capital stock of the Company other than those issued or granted in the ordinary course of business pursuant to the
Company’s equity incentive, employee stock purchase and/or other compensatory plans or arrangements. Except for customary transfer
restrictions contained in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents,
and except for award agreements under the Company’s equity incentive, employee stock purchase and/or other compensatory plans or
arrangements, the Company is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares
of the capital stock of the Company. Except as set forth in the Commission Documents, there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation
of the transactions described herein or therein. The Company has filed with the Commission true and correct copies of the Company’s
Amended and Restated Certificate of Incorporation as in effect on the Closing Date (the “Charter”), and the
Company’s Amended and Restated Bylaws as in effect on the Closing Date (the “Bylaws”).


 




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Section
5.5. Issuance of Shares. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased
by the Investor pursuant to a particular VWAP Purchase Notice, will be, prior to the delivery to the Investor hereunder of such VWAP
Purchase Notice, duly and validly authorized by all necessary corporate action on the part of the Company. The Shares, if and when issued
and sold against payment therefor in accordance with this Agreement, shall be validly issued and outstanding, fully paid and non-assessable
and free from all liens, charges, taxes, security interests, encumbrances, rights of first refusal, preemptive or similar rights and
other encumbrances with respect to the issue thereof, and the Investor shall be entitled to all rights accorded to a holder of Common
Stock. At or prior to Commencement, the Company shall have duly authorized and reserved a number of shares of Common Stock equal to the
Exchange Cap for issuance and sale as Shares to the Investor pursuant to VWAP Purchases that may be effected by the Company, in its sole
discretion, from time to time from and after the Commencement Date, pursuant to this Agreement.


 


Section
5.6. No Conflicts. The execution, delivery and performance by the Company of each of the Transaction Documents to which it
is a party and the consummation by the Company of the transactions contemplated hereby and thereby do not and shall not (i) result in
a violation of any provision of the Company’s Charter or Bylaws, (ii) result in a violation of 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 rise to any rights of termination,
amendment, acceleration or cancellation of, any Material Contract to which the Company or any of its Subsidiaries is a party or is bound,
(iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree applicable to
the Company or any of its Subsidiaries (including federal and state securities laws and regulations and the rules and regulations of
the Principal Market), except, in the case of clauses (ii) and (iii), for such violations, defaults, terminations, amendments, acceleration,
cancellations, liens, charges, encumbrances and violations as would not, individually or in the aggregate, reasonably be expected to
result in a Material Adverse Effect or that have been waived. Except as specifically contemplated by this Agreement or the Registration
Rights Agreement and as required under the Securities Act and the Exchange Act, any applicable state securities laws and applicable rules
of the Principal Market, the Company is not required under any federal, state or local rule or regulation to obtain any consent, authorization
or order of, or make any filing or registration with, any court or governmental agency in order for it to execute, deliver or perform
any of its obligations under the Transaction Documents to which it is a party, or to issue the Shares to the Investor in accordance with
the terms hereof and thereof (other than such consents, authorizations, orders, filings or registrations as have been obtained or made
prior to the Closing Date); provided, however, that, for purposes of the representation made in this sentence, the Company
is assuming and relying upon the accuracy of the representations and warranties of the Investor in this Agreement and the compliance
by it with its covenants and agreements contained in this Agreement and the Registration Rights Agreement.


 




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Section
5.7. Commission Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants.


 


(i)
Since October 13, 2021, the Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the
Exchange Act) all filings required to be filed with or furnished to the Commission by the Company under the Securities Act or the Exchange
Act, including those required to be filed with or furnished to the Commission under Section 13(a) or Section 15(d) of the Exchange Act.
As of the date of this Agreement, no Subsidiary of the Company is required to file or furnish any report, schedule, registration, form,
statement, information or other document with the Commission. As of its filing date (or, if amended or superseded by a filing prior to
the Closing Date, on the date of such amended or superseded filing), each Commission Document filed with or furnished to the Commission
prior to the Closing Date complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable,
and other federal, state and local laws, rules and regulations applicable to it. Each Registration Statement, on the date it is filed
with the Commission, and on the date it becomes effective and on each VWAP Purchase Date shall comply in all material respects with the
requirements of the Securities Act (including, without limitation, Rule 415 under the Securities Act) and shall not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein not misleading, except that this representation and warranty shall not apply to statements in or omissions from such Registration
Statement made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or
on behalf of the Investor expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed pursuant to this
Agreement or the Registration Rights Agreement after the Closing Date, when taken together, on its date and on each VWAP Purchase Date
shall comply in all material respects with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the
Securities Act) and shall not contain any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
except that this representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement
made in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf
of the Investor expressly for use therein. The statistical, demographic and market-related data included in the Registration Statement
and Prospectus are based on or derived from sources that the Company believes to be reliable and accurate or represent the Company’s
good faith estimates that are made on the basis of data derived from such sources. Each Commission Document (other than the Initial Registration
Statement or any New Registration Statement, or the Prospectus included therein or any Prospectus Supplement thereto) to be filed with
or furnished to the Commission after the Closing Date and incorporated by reference in the Initial Registration Statement or any New
Registration Statement, or the Prospectus included therein or any Prospectus Supplement thereto required to be filed pursuant to this
Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such document is filed with
or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material
respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules
and regulations applicable to it. The Company has delivered or made available to the Investor via EDGAR or otherwise true and complete
copies of all comment letters and substantive correspondence received by the Company from the Commission relating to the Commission Documents
filed with or furnished to the Commission as of the Closing Date, together with all written responses of the Company thereto in the form
such responses were filed via EDGAR. There are no outstanding or unresolved comments or undertakings in such comment letters received
by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of any registration
statement filed by the Company under the Securities Act or the Exchange Act.


 


(ii)
The consolidated financial statements of the Company included or incorporated by reference in the Commission Documents, together with
the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and its
then consolidated subsidiaries as of the dates indicated, and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company and its then consolidated subsidiaries for the periods specified and have been prepared in compliance with the
published requirements of the Securities Act and the Exchange Act, as applicable, and in conformity with generally accepted accounting
principles in the United States (“GAAP”) applied on a consistent basis. Any summary consolidated financial
data included or incorporated by reference in the Commission Documents present fairly the information shown therein and have been compiled
on a basis consistent with that of the financial statements included or incorporated by reference in the Commission Documents, as of
and at the dates indicated. Any pro forma condensed combined financial statements and any pro forma combined financial statements and
any other pro forma financial statements or data included or incorporated by reference in the Commission Documents comply with the requirements
of Regulation S-X of the Securities Act, including, without limitation, Article 11 thereof, and the assumptions used in the preparation
of any such pro forma financial statements and data are reasonable, the pro forma adjustments used therein are appropriate to give effect
to the circumstances referred to therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation
of those statements and data. There are no financial statements (historical or pro forma) that are required to be included or incorporated
by reference in the Commission Documents that are not included or incorporated by reference as required. All disclosures contained or
incorporated by reference in the Commission Documents, if any, regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included
in the Commission Documents fairly presents the information called for in all material respects and has been prepared in accordance with
the Commission’s rules and guidelines applicable thereto.


 




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(iii)
Marcum, LLP (such firm, or a successor independent registered public accounting firm for the Company, the “Accountant”),
whose report on the consolidated financial statements of the Company as of and for the years ended December 31, 2020 and 2019 included
in the Company’s S-1 registration statement, are and, during the periods covered by their report, were an independent public accounting
firm within the meaning of the Securities Act and the rules and regulations of the Public Company Accounting Oversight Board (United
States). To the Company’s Knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley
Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


 


(iv)
There is and has been no failure on the part of the Company or any of the Company’s directors or officers, in their capacities
as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules and regulations promulgated
thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each former principal executive
officer of the Company and each former principal financial officer of the Company as applicable) has made all certifications required
by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements and other documents required
to be filed by it or furnished by it to the Commission. For purposes of the preceding sentence, “principal executive officer”
and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act.


 


Section
5.8. No Material Adverse Effect; Absence of Certain Changes. Subsequent to the respective dates as of which information is
given in the Commission Documents (including any document deemed incorporated by reference therein), there has not been (i) any Material
Adverse Effect or the occurrence of any development that the Company reasonably expects will result in a Material Adverse Effect, (ii)
any transaction which is material to the Company and the Subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or any Subsidiary, which is material to the Company
and the Subsidiaries taken as a whole, (iv) any material change in the capital stock or outstanding long-term indebtedness of the Company
or any of its Subsidiaries, other than the issuance of shares of Common Stock or Common Stock Equivalents pursuant to the Company’s
equity incentive, employee stock purchase and/or other compensatory plans or arrangements, or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company or any Subsidiary, other than in each case above in the ordinary course
of business or as otherwise disclosed in the Commission Documents (including any document deemed incorporated by reference therein).
The Company and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice
in all material respects.


 


Section
5.9. No Material Defaults. Neither the Company nor any of its Subsidiaries has defaulted on any installment on indebtedness
for borrowed money or on any rental on one or more long-term leases, which defaults would, individually or in the aggregate, have a Material
Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act indicating that it (i) has
failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any installment on indebtedness for
borrowed money or on any rental on one or more long-term leases, which defaults would, individually or in the aggregate, have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is (i) in violation of its charter or by-laws or similar organizational
documents; (ii) in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in
the due performance or observance of any term, covenant or condition contained in any Contract to which the Company or any of its Subsidiaries
is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any
of its Subsidiaries are subject; or (iii) in violation of any law or statute or any judgment, order, rule or regulation of any Governmental
Authority, except, in the case of each of clauses (ii) and (iii) above, for any such violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.


 


Section
5.10. No Preferential Rights. Except as set forth in the Commission Documents, (i) no Person, has the right, contractual or
otherwise, to cause the Company to issue or sell to such Person any Common Stock or shares of any other capital stock or other securities
of the Company, except for award agreements under the Company’s equity incentive, employee stock purchase and/or other compensatory
plans or arrangements, (ii) no Person has any preemptive rights, resale rights, rights of first refusal, rights of co-sale, or any other
rights (whether pursuant to a “poison pill” provision or otherwise) to purchase any Common Stock or shares of any other capital
stock or other securities of the Company, (iii) no Person has the right to act as an underwriter or as a financial advisor to the Company
in connection with the offer and sale of the Common Stock, and (iv) no Person has the right, contractual or otherwise, to require the
Company to register under the Securities Act any Common Stock or shares of any other capital stock or other securities of the Company,
or to include any such shares or other securities in the Registration Statement or the offering contemplated thereby, whether as a result
of the filing or effectiveness of the Registration Statement or the sale of the Shares as contemplated thereby or otherwise.


 




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Section
5.11. Material Contracts. Neither the Company nor any of its Subsidiaries is in breach of or default in any respect
under the terms of any Material Contract and, to the Knowledge of the Company, no other party to any Material Contract is in breach of
or default under the terms of any Company Material Contract, except for any such breach or default that would not, individually or in
the aggregate, have a Material Adverse Effect. Each agreement between the Company and a third party is in full force and effect and is
a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the Company,
is a valid and binding obligation of each other party thereto, except for any such failure to be valid and binding that would not, individually
or in the aggregate, have a Material Adverse Effect. The Company has not received any written notice of the intention of any other party
to a Material Contract to terminate for default, convenience or otherwise, or not renew, any Material Contract.


 


Section
5.12. Solvency. The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant
to Title 11 of the United States Code or any similar federal or state bankruptcy law or law for the relief of debtors, nor does the Company
have any Knowledge that its creditors intend to initiate involuntary bankruptcy, insolvency, reorganization or liquidation proceedings
or other proceedings for relief under Title 11 of the United States Code or any other federal or state bankruptcy law or any law for
the relief of debtors. The Company is financially solvent and is generally able to pay its debts as they become due. The Company’s
Quarterly Report on Form 10-Q for its fiscal quarter ended September 30, 2021 sets forth, as of September 30, 2021, all outstanding secured
and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company or any Subsidiary has commitments through such
date. For the purposes of this Agreement, “Indebtedness” shall mean (a) any liabilities for borrowed money or amounts
owed in excess of $100,000 (other than trade accounts payable incurred in the ordinary course of business), (b) all guaranties, endorsements,
indemnities and other contingent obligations in respect of Indebtedness of others in excess of $100,000, whether or not the same are
or should be reflected in the Company’s balance sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of business; and (c) the present value of any lease payments
in excess of $100,000 due under leases required to be capitalized in accordance with GAAP. There is no existing or continuing default
or event of default in respect of any Indebtedness of the Company or any of its Subsidiaries.


 


Section
5.13. Real Property; Intellectual Property.


 


(i)
Except as set forth in the Commission Documents, the Company and its Subsidiaries have good and marketable title in fee simple to all
items of real property owned by them and good and valid title to all personal property described in the Commission Documents as being
owned by them, in each case free and clear of all liens, encumbrances and claims, except those matters that (a) do not materially interfere
with the use made and proposed to be made of such property by the Company and any of its Subsidiaries or (b) would not, individually
or in the aggregate, have a Material Adverse Effect. Any real or personal property described in the Commission Documents as being leased
by the Company and any of its Subsidiaries is held by them under valid, existing and enforceable leases, except those that (1) do not
materially interfere with the use made or proposed to be made of such property by the Company or any of its Subsidiaries or (2) would
not be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. Each of the properties of the Company
and its Subsidiaries complies with all applicable codes, laws and regulations (including, without limitation, building and zoning codes,
laws and regulations and laws relating to access to such properties), except if and to the extent disclosed in the Commission Documents
or except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to interfere in any material
respect with the use made and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse
Effect. None of the Company or its Subsidiaries has received from any Governmental Authorities any notice of any condemnation of, or
zoning change affecting, the properties of the Company and its Subsidiaries, and the Company knows of no such condemnation or zoning
change which is threatened, except for such that would not reasonably be expected to interfere in any material respect with the use made
and proposed to be made of such property by the Company and its Subsidiaries or otherwise have a Material Adverse Effect, individually
or in the aggregate.


 




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(ii)
Except as disclosed in the Commission Documents, the Company and its Subsidiaries own, possess, license or have other rights to use all
foreign and domestic patents, patent applications, trade and service marks, trade and service mark registrations, trade names, copyrights,
licenses, inventions, trade secrets, technology, Internet domain names, know-how and other intellectual property (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as now conducted except to the extent that the failure
to own, possess, license or otherwise hold adequate rights to use such Intellectual Property would not, individually or in the aggregate,
have a Material Adverse Effect. Except as disclosed in the Commission Documents (a) there are no rights of third parties to any such
Intellectual Property owned by the Company and its Subsidiaries, other than non-exclusive licenses granted in the ordinary course of
business; (b) to the Company’s Knowledge, there is no infringement by third parties of any such Intellectual Property; (c) there
is no pending or, to the Company’s Knowledge, threatened action, suit, proceeding or claim by others challenging the Company’s
and its Subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form
a reasonable basis for any such action, suit, proceeding or claim; (d) there is no pending or, to the Company’s Knowledge, threatened
action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property; (e) there is no pending
or, to the Company’s Knowledge, threatened action, suit, proceeding or claim by others that the Company and its Subsidiaries infringe
or otherwise violate any patent, trademark, copyright, trade secret or other proprietary rights of others; (f) to the Company’s
Knowledge, there is no third-party U.S. patent or published U.S. patent application which contains claims for which an Interference Proceeding
(as defined in 35 U.S.C. § 135) has been commenced against any patent or patent application described in the Commission Documents
as being owned by or licensed to the Company; and (g) the Company and its Subsidiaries have complied with the terms of each agreement
pursuant to which Intellectual Property has been licensed to the Company or such Subsidiary, and all such agreements are in full force
and effect, except, in the case of any of clauses (a)-(g) above, for any such infringement by third parties or any such pending or threatened
suit, action, proceeding or claim as would not, individually or in the aggregate, result in a Material Adverse Effect. The Company and
its Subsidiaries have taken reasonable best efforts to maintain the confidentiality of all material trade secrets and other material
confidential information of the Company and its Subsidiaries and any confidential information owned by any Person to whom the Company
or any of its Subsidiaries has a written confidentiality obligation.


 


Section
5.14. Actions Pending. Except as set forth in the Commission Documents, there are no actions, suits or proceedings by or before
any Governmental Authority pending, nor, to the Company’s Knowledge, any audits or investigations by or before any Governmental
Authority to which the Company or a Subsidiary is a party or to which any property of the Company or any of its Subsidiaries is the subject
that would, individually or in the aggregate, have a Material Adverse Effect and, to the Company’s Knowledge, no such actions,
suits, proceedings, audits or investigations are threatened by any Governmental Authority or by others; and (i) there are no current
or pending audits or investigations, actions, suits or proceedings by or before any Governmental Authority that are required under the
Securities Act to be described in the Commission Documents that are not so described; and (ii) there are no contracts or other documents
that are required under the Securities Act to be filed as exhibits to the Commission Documents that are not so filed.


 


Section
5.15. Compliance with Law. Each of the Company and its Subsidiaries: (A) is and at all times has been in compliance with all
statutes, rules, or regulations applicable to the ownership, testing, development, manufacture, packaging, processing, use, distribution,
marketing, labeling, promotion, sale, offer for sale, storage, import, export or disposal of any product manufactured or distributed
by the Company or its Subsidiaries (“Applicable Laws”), except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; (B) has not received any FDA Form 483, notice of adverse finding, warning
letter, untitled letter or other correspondence or notice from the United States Food and Drug Administration (the “FDA”)
or any other Governmental Authority alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals,
clearances, authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”),
except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect; (C) possesses all
material Authorizations and such Authorizations are valid and in full force and effect and are not in material violation of any term
of any such Authorizations, except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Effect; (D) has not received notice of any material claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration
or other action from any Governmental Authority or third party alleging that any product operation or activity is in violation of any
Applicable Laws or Authorizations in any material respect and has no knowledge that any such Governmental Authority or third party is
considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) has not received notice that any
Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and has
no knowledge that any such Governmental Authority is considering such action, except as would not, individually or in the aggregate,
reasonably be expected to result in a Material Adverse Effect; (F) has filed, obtained, maintained or submitted all material reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws
or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments were complete and correct in all material respects on the date filed (or were corrected or supplemented by a subsequent submission);
and (G) has not, either voluntarily or involuntarily, initiated, conducted, or issued or caused to be initiated, conducted or issued,
any recall, market withdrawal or replacement, safety alert, post sale warning, “dear healthcare provider” letter, or other
notice or action relating to the alleged lack of safety or efficacy of any product or any alleged product defect or violation and, to
the Company’s knowledge, no third party has initiated, conducted or intends to initiate any such notice or action, except as would
not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.


 




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Section
5.16. Certain Fees. Neither the Company nor any of its Subsidiaries has incurred any liability for any finder’s fees,
brokerage commissions or similar payments in connection with the transactions herein contemplated.


 


Section
5.17. Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided the Investor
or any of its agents, advisors or counsel with any information that constitutes or could reasonably be expected to constitute material,
nonpublic information concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by
the Transaction Documents. The Company understands and confirms that the Investor will rely on the foregoing representations in effecting
resales of Shares under the Registration Statement.


 


Section
5.18. Market Capitalization. As of the date hereof, the aggregate market value of the outstanding voting and non-voting common
equity (as defined in Securities Act Rule 405) of the Company held by persons other than Affiliates of the Company (pursuant to Securities
Act Rule 144, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common
control with, the Company) (the “Non-Affiliate Shares”), was equal to $29,285,008 (calculated by multiplying
(i) the highest price at which the common equity of the Company closed on the Principal Market within 60 days of the date of this Agreement
times (ii) the number of Non-Affiliate Shares).


 


Section
5.19. Broker/Dealer Relationships. Neither the Company nor any of the Subsidiaries (i) is required to register as a “broker”
or “dealer” in accordance with the provisions of the Exchange Act or (ii) directly or indirectly through one or more intermediaries,
controls or is a “person associated with a member” or “associated person of a member” (within the meaning set
forth in the FINRA Manual).


 


Section
5.20. Controls. The Company and each of its Subsidiaries maintain systems of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions, including receipts and expenditures, are executed in accordance with management’s general
or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or
specific authorization; (iv) its policies and procedures provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets, including the comparison of the recorded accountability for assets with
the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) its books and records
accurately reflect its assets. The Company’s internal control over financial reporting is effective and the Company is not aware
of any material weaknesses in its internal control over financial reporting (other than as set forth in the Commission Documents). Since
the date of the latest audited financial statements of the Company included in the Commission Documents, there has been no change in
the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect,
the Company’s internal control over financial reporting (other than as set forth in the Commission Documents). The Company has
established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15 and 15d-15) for the Company designed to ensure
that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and forms, and designed such disclosure
controls and procedures to ensure that material information relating to the Company and each of its Subsidiaries is made known to the
certifying officers by others within those entities, particularly during the period in which the Company’s Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, is being prepared. The Company’s certifying officers have evaluated
the effectiveness of the Company’s disclosure controls and procedures as of a date within ninety (90) days prior to the filing
date of the Form 10-K for the fiscal year most recently ended (such date, the “Evaluation Date”). The Company
has presented in its Form 10-K for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date and the disclosure controls and procedures
are effective. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls (as such term
is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to the Company’s Knowledge, in other factors that could
significantly affect the Company’s internal controls.


 




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Section
5.21. Permits. Except as disclosed in the Commission Documents, the Company and its Subsidiaries have made all filings, applications
and submissions required by, possesses and is operating in compliance with, all approvals, licenses, certificates, certifications, clearances,
consents, grants, exemptions, marks, notifications, orders, permits and other authorizations issued by, the appropriate federal, state
or foreign Governmental Authority (including, without limitation, the FDA, the United States Drug Enforcement Administration or any other
foreign, federal, state, provincial, court or local government or regulatory authorities including self-regulatory organizations engaged
in the regulation of clinical trials, pharmaceuticals, biologics or biohazardous substances or materials) necessary for the ownership
or lease of their respective properties or to conduct its businesses as described in the Commission Documents (collectively, “Permits”),
except for such Permits the failure of which to possess, obtain or make the same would not have a Material Adverse Effect; the Company
and its Subsidiaries are in compliance with the terms and conditions of all such Permits, except where the failure to be in compliance
would not have a Material Adverse Effect; all of the Permits are valid and in full force and effect, except where any invalidity, individually
or in the aggregate, would not be reasonably expected to have a Material Adverse Effect; and neither the Company nor any of its Subsidiaries
has received any written notice relating to the limitation, revocation, cancellation, suspension, modification or non-renewal of any
such Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse
Effect, or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary
course, except where any non-renewal would not be reasonably expected to have a Material Adverse Effect. To the extent required by applicable
laws and regulations of the FDA, the Company or the applicable Subsidiary has submitted to the FDA an Investigational New Drug Application
or amendment or supplement thereto for each clinical trial it has conducted or sponsored or is conducting or sponsoring; all such submissions
were in material compliance with applicable laws and rules and regulations when submitted and no material deficiencies have been asserted
by the FDA with respect to any such submissions.


 


Section
5.22. Environmental Compliance. Except as set forth in the Commission Documents, the Company and its Subsidiaries (i) are
in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, decisions and orders relating to
the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (collectively,
“Environmental Laws”); (ii) have received and are in compliance with all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses as described in the Commission Documents;
and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release
of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above,
for any such failure to comply or failure to receive required permits, licenses, other approvals or liability as would not, individually
or in the aggregate, have a Material Adverse Effect.


 




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Section
5.23. No Improper Practices. (i) Neither the Company nor the Subsidiaries, nor any director, officer, or employee of the Company
or any Subsidiary nor, to the Company’s Knowledge, any agent, Affiliate or other person acting on behalf of the Company or any
Subsidiary has, in the past five (5) years, made any unlawful contributions to any candidate for any political office (or failed fully
to disclose any contribution in violation of applicable law) or made any contribution or other payment to any official of, or candidate
for, any federal, state, municipal, or foreign office or other person charged with similar public or quasi-public duty in violation of
any applicable law or of the character required to be disclosed in the Commission Documents; (ii) no relationship, direct or indirect,
exists between or among the Company or any Subsidiary or any Affiliate of any of them, on the one hand, and the directors, officers and
stockholders of the Company or any Subsidiary, on the other hand, that is required by the Securities Act to be described in the Commission
Documents that is not so described; (iii) no relationship, direct or indirect, exists between or among the Company or any Subsidiary
or any Affiliate of them, on the one hand, and the directors, officers, or stockholders of the Company or any Subsidiary, on the other
hand, that is required by the rules of FINRA to be described in the Commission Documents that is not so described; (iv) except as described
in the Commission Documents, there are no material outstanding loans or advances or material guarantees of indebtedness by the Company
or any Subsidiary to or for the benefit of any of their respective executive officers or directors or any of the members of the families
of any of them; (v) the Company has not offered, or caused any placement agent to offer, Common Stock to any person with the intent to
influence unlawfully (a) a customer or supplier of the Company or any Subsidiary to alter the customer’s or supplier’s level
or type of business with the Company or any Subsidiary or (b) a trade journalist or publication to write or publish favorable information
about the Company or any Subsidiary or any of their respective products or services; and (vi) neither the Company nor any Subsidiary
nor any director, officer or employee of the Company or any Subsidiary nor, to the Company’s Knowledge, any agent, Affiliate or
other person acting on behalf of the Company or any Subsidiary has (a) violated or is in violation of any applicable provision of the
U.S. Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law (collectively, “Anti-Corruption
Laws”), (b) promised, offered, provided, attempted to provide or authorized the provision of anything of value, directly
or indirectly, to any person for the purpose of obtaining or retaining business, influencing any act or decision of the recipient, or
securing any improper advantage; or (c) made any payment of funds of the Company or any Subsidiary or received or retained any funds
in violation of any Anti-Corruption Laws.


 


Section
5.24. Operations. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial record keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions to which the Company or its Subsidiaries are subject, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority
(collectively, the “Money Laundering Laws”); and no action, suit or proceeding by or before any Governmental
Authority involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the Knowledge
of the Company, threatened.


 


Section
5.25. Off-Balance Sheet Arrangements. There are no direct or contingent liabilities, obligations, transactions, arrangements
or other relationships between or among the Company, or any of its Affiliates and any unconsolidated entity, including, but not limited
to, any structural finance, special purpose or limited purpose entity (each, an “Off-Balance Sheet Transaction”)
or any “variable interest entities” as that term is used in Accounting Standards Codification Paragraph 810-10-25-20), that
would reasonably be expected to affect materially the Company’s liquidity or the availability of or requirements for its capital
resources, including those Off-Balance Sheet Transactions described in the Commission’s Statement about Management’s Discussion
and Analysis of Financial Conditions and Results of Operations (Release Nos. 33-8056; 34-45321; FR-61), required to be described in the
Commission Documents which have not been described as required.


 


Section
5.26. Transactions With Affiliates. No relationship, direct or indirect, exists between or among the Company or any of its
Subsidiaries on the one hand, and the directors, officers, trustees, managers, stockholders, partners, customers or suppliers of the
Company or any of the Subsidiaries on the other hand, which would be required by the Securities Act or the Exchange Act to be disclosed
in the Commission Documents, which is not so disclosed.


 


Section
5.27. Labor Disputes. None of the Company nor any of its Subsidiaries is bound by or subject to any collective bargaining
or similar agreement with any labor union, and, to the Knowledge of the Company, none of the employees, representatives or agents of
the Company or any of its Subsidiaries is represented by any labor union. The Company and its Subsidiaries have complied with all employment
laws applicable to employees of the Company and its Subsidiaries, except where non-compliance with any such employment laws would not
have a Material Adverse Effect. No labor disturbance by or dispute with employees of the Company or any of its Subsidiaries exists or,
to the Knowledge of the Company, is threatened which would have a Material Adverse Effect.


 




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Section
5.28. Use of Proceeds. The proceeds from the sale of the Shares by the Company to the Investor shall be used by the Company
in the manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment thereto)
and any Prospectus Supplement thereto filed pursuant to the Registration Rights Agreement.


 


Section
5.29. Investment Company Act Status. The Company is not, and as a result of the consummation of the transactions contemplated
by the Transaction Documents and the application of the proceeds from the sale of the Shares as will be set forth in the Prospectus included
in any Registration Statement (and any post-effective amendment thereto) and any Prospectus Supplement thereto filed pursuant to the
Registration Rights Agreement the Company will not be an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.


 


Section
5.30. Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application of the proceeds thereof by the
Company as described in the Commission Documents will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System
or any other regulation of such Board of Governors.


 


Section
5.31. Taxes. The Company and each of its Subsidiaries have filed all federal, state, local and foreign tax returns which have
been required to be filed and paid all taxes shown thereon, to the extent that such taxes have become due and are not being contested
in good faith, except where the failure to so file or pay would not have a Material Adverse Effect. Except as otherwise disclosed in
or contemplated by the Commission Documents, no tax deficiency has been determined adversely to the Company or any of its Subsidiaries
which has had, or would have, individually or in the aggregate, a Material Adverse Effect. The Company has no Knowledge of any federal,
state or other governmental tax deficiency, penalty or assessment which has been or might be asserted or threatened against it which
would have a Material Adverse Effect.


 


Section
5.32. ERISA. To the Knowledge of the Company, each material employee benefit plan, within the meaning of Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), that is maintained, administered or
contributed to by the Company or any of its Affiliates for employees or former employees of the Company and any of its Subsidiaries has
been maintained in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations,
including but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material liability
to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption; and
for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no “accumulated funding
deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived, and the fair market value of the assets
of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the present value of all benefits accrued under
such plan determined using reasonable actuarial assumptions, except as would not have, individually or in the aggregate, a Material Adverse
Effect.


 


Section
5.33. Stock Transfer Taxes. All stock transfer or other taxes (other than income taxes) which are required to be paid in connection
with the sale and transfer of the Shares to be sold 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 fully complied with.


 


Section
5.34. Insurance. The Company and each of its Subsidiaries carry, or are covered by, insurance in such amounts and covering
such risks as the Company and each of its Subsidiaries reasonably believe are adequate for the conduct of their business and as is customary
for companies engaged in similar businesses in similar industries.


 


Section
5.35. Exemption from Registration. Subject to, and in reliance on, the representations, warranties and covenants made herein
by the Investor, the offer and sale of the Shares in accordance with the terms and conditions of this Agreement is exempt from the registration
requirements of the Securities Act pursuant to Section 4(a)(2) and/or Rule 506(b) of Regulation D; provided, however, that
at the request of and with the express agreements of the Investor (including, without limitation, the representations, warranties and
covenants of Investor set forth in Section 4.9 through 4.13), the Shares to be issued from and after Commencement to or for the benefit
of the Investor pursuant to this Agreement shall be issued to the Investor or its designee only as DWAC Shares and will not bear legends
noting restrictions as to resale of such securities under federal or state securities laws, nor will any such securities be subject to
stop transfer instructions.


 




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Section
5.36. No General Solicitation or Advertising. 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 Shares to the Investor.


 


Section
5.37. 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 Shares under the Securities Act, whether through integration with prior
offerings or otherwise, or cause this offering of the Shares to require approval of stockholders of the Company under any applicable
stockholder approval provisions, including, without limitation, under the rules and regulations of the Principal Market. None of the
Company, its Subsidiaries, their Affiliates nor any Person acting on their behalf will take any action or steps referred to in the preceding
sentence that would require registration of the issuance of any of the Shares under the Securities Act or cause the offering of any of
the Shares to be integrated with other offerings.


 


Section
5.38. Dilutive Effect. The Company is aware and acknowledges that issuance of the Shares could cause dilution to existing
stockholders and could significantly increase the outstanding number of shares of Common Stock. The Company further acknowledges that
its obligation to issue the Shares to be purchased by the Investor pursuant to a VWAP Purchase is, upon the Company’s delivery
to the Investor of a VWAP Purchase Notice for a VWAP Purchase in accordance with this Agreement, absolute and unconditional following
the delivery of such VWAP Purchase Notice to the Investor, regardless of the dilutive effect that such issuance may have on the ownership
interests of other stockholders of the Company.


 


Section
5.39. Manipulation of Price. Neither the Company nor any of its officers, directors or Affiliates has, and, to the Knowledge
of the Company, no Person acting on their behalf has, (i) taken, directly or indirectly, any action designed or intended to cause or
to result in the stabilization or manipulation of the price of any security of the Company, or which caused or resulted in, or which
would in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of any security of the
Company, in each case to facilitate the sale or resale of any of the Shares, (ii) sold, bid for, purchased, or paid any compensation
for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company. Neither the Company nor any of its officers, directors or Affiliates will during the
term of this Agreement, and, to the Knowledge of the Company, no Person acting on their behalf will during the term of this Agreement,
take any of the actions referred to in the immediately preceding sentence.


 


Section
5.40. Shell Company Status. The Company is not, and has not previously been at any time, an issuer identified in, or subject
to, Rule 144(i).


 


Section
5.41. Listing and Maintenance Requirements; DTC Eligibility. The Common Stock is registered pursuant to Section 12(b) of the
Exchange Act, and the Company has taken no action designed to, or which to its Knowledge is likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating
terminating such registration. The Company has not received notice from the Principal Market to the effect that the Company is not in
compliance with the listing or maintenance requirements of the Principal Market. The Common Stock is eligible for participation in the
DTC book entry system and has shares on deposit at DTC for transfer electronically to third parties via DTC through its Deposit/Withdrawal
at Custodian (“DWAC”) delivery system. The Company has not received notice from DTC to the effect that a suspension
of, or restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry services by DTC with respect
to the Common Stock is being imposed or is contemplated.


 


Section
5.42. Application of Takeover Protections. The Company and its Board of Directors have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a
rights agreement) or other similar anti-takeover provision under the Company’s Charter or the laws of its state of incorporation
that is or could become applicable to the Investor as a result of the Investor and the Company fulfilling their respective obligations
or exercising their respective rights under the Transaction Documents (as applicable), including, without limitation, as a result of
the Company’s issuance of the Shares and the Investor’s ownership of the Shares.


 




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Section
5.43. OFAC. Neither the Company nor any of its Subsidiaries (collectively, the “Entity”), nor any
director, officer or employee of the Company, nor, to the Company’s Knowledge, any agent, Affiliate or representative of the Company,
is a Person that is, or is owned or controlled by a Person that is (i) the subject of any sanctions administered or enforced by the Office
of Foreign Asset Control (“OFAC”), the United Nations Security Council, the European Union, Her Majesty’s Treasury,
or other relevant sanctions authorities, including, without limitation, designation on OFAC’s Specially Designated Nationals and
Blocked Persons List or OFAC’s Foreign Sanctions Evaders List or other relevant sanctions authority (collectively, “Sanctions”),
nor (ii) located, organized or resident in a country or territory that is the subject of Sanctions that broadly prohibit dealings with
that country or territory (including, without limitation, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria (the
“Sanctioned Countries”)). The Entity will not, directly or indirectly, use the proceeds from the sale of Shares,
or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person (a) to fund or
facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation,
is the subject of Sanctions or is a Sanctioned Country, or (b) in any other manner that will result in a violation of Sanctions by any
Person (including any Person participating in the transactions contemplated by this Agreement, whether as underwriter, advisor, investor
or otherwise). For the past five years, the Entity has not engaged in, and is now not engaged in, any dealings or transactions with any
Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions or was a Sanctioned
Country.


 


Section
5.44. Information Technology; Compliance with Data Privacy Laws.


 


(i)
The Company and its Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software,
websites, applications, and databases (collectively, “IT Systems”) are adequate for, and operate and perform
in all material respects as required in connection with the operation of the business of the Company as currently conducted, free and
clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other corruptants. The Company and its Subsidiaries
have implemented and maintain commercially reasonable physical, technical and administrative controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and data, including all “Personal Data” (defined below) and all sensitive, confidential or regulated data (“Confidential
Data”) used in connection with their businesses. “Personal Data” means (a) a natural person’s
name, street address, telephone number, e-mail address, photograph, social security number or tax identification number, driver’s
license number, passport number, credit card number, bank information, or customer or account number; (b) any information which would
qualify as “personally identifying information” under the Federal Trade Commission Act, as amended; (c) “personal data”
as defined by the European Union General Data Protection Regulation (“GDPR”) (EU 2016/679); (d) any information
which would qualify as “protected health information” under the Health Insurance Portability and Accountability Act of 1996,
as amended by the Health Information Technology for Economic and Clinical Health Act (collectively, “HIPAA”);
(e) any “personal information” as defined by the California Consumer Privacy Act (“CCPA”); and
(f) any other piece of information that allows the identification of such natural person, or his or her family, or permits the collection
or analysis of any data related to an identified person’s health or sexual orientation. There have been no breaches, violations,
outages or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the
duty to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and its
Subsidiaries are presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations
of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy
and security of IT Systems, Confidential Data, and Personal Data and to the protection of such IT Systems, Confidential Data, and Personal
Data from unauthorized use, access, misappropriation or modification.


 


(ii)
The Company and its Subsidiaries are, and at all prior times were, in material compliance with all applicable state and federal data
privacy and security laws and regulations, including without limitation HIPAA, CCPA and the GDPR (collectively, the “Privacy
Laws”). To ensure compliance with the Privacy Laws, the Company has in place policies and procedures relating to data privacy
and security and the collection, storage, use, processing, disclosure, handling, and analysis of Personal Data and Confidential Data
(the “Policies”), and materially complies with, and takes appropriate steps to ensure compliance in all material
respects with, such Policies. The Company has at all times made all disclosures to users or customers required by applicable laws and
regulatory rules or requirements, and none of such disclosures made or contained in any Policy have been inaccurate or in violation of
any applicable laws and regulatory rules or requirements in any material respect. The Company further certifies that neither it nor any
Subsidiary: (a) has received written notice of any actual or potential liability under or relating to, or actual or potential violation
of, any of the Privacy Laws, and has no Knowledge of any event or condition that would reasonably be expected to result in any such notice;
(b) is currently conducting or paying for, in whole or in part, any investigation, remediation, or other corrective action pursuant to
any Privacy Law; or (c) is a party to any order, decree, or agreement that imposes any obligation or liability under any Privacy Law.


 




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Section
5.45. Acknowledgement Regarding Relationship with Investor and CF&CO. The Company acknowledges and agrees, to the fullest
extent permitted by law, that the Investor is acting solely in the capacity of an arm’s-length purchaser with respect to this Agreement
and the transactions contemplated by the Transaction Documents, and CF&CO is acting as a representative of the Investor in connection
with the transactions contemplated by the Transaction Documents, and of no other party, including the Company. The Company further acknowledges
that while the Investor will be deemed to be a statutory “underwriter” with respect to certain of the transactions contemplated
by the Transaction Documents in accordance with interpretive positions of the Staff of the Commission, the Investor is a “trader”
that is not required to register with the Commission as a broker-dealer under Section 15(a) of the Securities Exchange Act of 1934. The
Company further acknowledges that the Investor and its representatives are not acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to this Agreement and the transactions contemplated by the Transaction Documents, and any advice
given by the Investor or any of its representatives (including CF&CO) or agents in connection therewith is merely incidental to the
Investor’s acquisition of the Shares. The Company and Investor understand and acknowledge that employees of CF&CO may discuss
market color, VWAP Purchase Notice timing and parameter considerations and other related capital markets considerations with the Company
in connection with the Transaction Documents and the transactions contemplated thereby, in all cases on behalf of the Investor. The Company
acknowledges and agrees that the Investor has not made and does not make any representations or warranties with respect to the transactions
contemplated by the Transaction Documents other than those specifically set forth in Article IV.


 


Section
5.46. Acknowledgement Regarding Investor’s Affiliate Relationships. Affiliates of the Investor, including CF&CO,
engage in a wide range of activities for their own accounts and the accounts of customers, including corporate finance, mergers and acquisitions,
merchant banking, equity and fixed income sales, trading and research, derivatives, foreign exchange, futures, asset management, custody,
clearance and securities lending. In the course of their respective business, Affiliates of the Investor may, directly or indirectly,
hold long or short positions, trade and otherwise conduct such activities in or with respect to debt or equity securities or bank debt
of, or derivative products relating to, the Company. Any such position will be created, and maintained, independently of the position
the Investor takes in the Company. In addition, at any given time Affiliates of the Investor, including CF&CO, may have been or in
the future may be engaged by one or more entities that may be competitors with, or otherwise adverse to, the Company in matters unrelated
to the transactions contemplated by the Transaction Documents, and Affiliates of the Investor, including CF&CO may have or may in
the future provide investment banking or other services to the Company in matters unrelated to the transactions contemplated by the Transaction
Documents. Activities of any of the Investor’s Affiliates performed on behalf of the Company may give rise to actual or apparent
conflicts of interest given the Investor’s potentially competing interests with those of the Company. The Company expressly acknowledges
the benefits it receives from the Investor’s participation in the transactions contemplated by the Transaction Documents, on the
one hand, and the Investor’s Affiliates’ activities, if any, on behalf of the Company unrelated to the transactions contemplated
by the Transaction Documents, on the other hand, and understands the conflict or potential conflict of interest that may arise in this
regard, and has consulted with such independent advisors as it deems appropriate in order to understand and assess the risks associated
with these potential conflicts of interest. Consistent with applicable legal and regulatory requirements, applicable Affiliates of the
Investor have adopted policies and procedures to establish and maintain the independence of their research departments and personnel
from their investment banking groups and the Investor. As a result, research analysts employed by Affiliates of the Investor may hold
views, make statements or investment recommendations or publish research reports with respect to the Company or the transactions contemplated
by the Transaction Documents that differ from the views of the Investor.


 




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Section
5.47. Regulatory Filings. Except as disclosed in the Commission Documents, neither the Company nor any of its Subsidiaries
has failed to file with the applicable Governmental Authorities (including, without limitation, the FDA, or any foreign, federal, state,
provincial or local Governmental Authority performing functions similar to those performed by the FDA) any required filing, declaration,
listing, registration, report or submission, except for such failures that, individually or in the aggregate, would not have a Material
Adverse Effect; except as disclosed in the Commission Documents, all such filings, declarations, listings, registrations, reports or
submissions were in compliance with applicable laws when filed and no deficiencies have been asserted by any applicable regulatory authority
with respect to any such filings, declarations, listings, registrations, reports or submissions, except for any non-compliance or deficiencies
that, individually or in the aggregate, would not have a Material Adverse Effect. The Company has operated and currently is, in all material
respects, in compliance with the United States Federal Food, Drug, and Cosmetic Act, all applicable rules and regulations of the FDA
and other federal, state, local and foreign Governmental Authority exercising comparable authority.


 


Section
5.48. Clinical Studies. The preclinical studies and tests and clinical trials described in the Commission Documents were,
and, if still pending, are being conducted in all material respects in accordance with the experimental protocols, procedures and controls
pursuant to, where applicable, accepted professional and scientific standards for products or product candidates comparable to those
being developed by the Company; the descriptions of such studies, tests and trials, and the results thereof, contained in the Commission
Documents are accurate and complete in all material respects; the Company is not aware of any tests, studies or trials not described
in the Commission Documents, the results of which reasonably call into question the results of the tests, studies and trials described
in the Commission Documents; and the Company has not received any written notice or correspondence from the FDA or any foreign, state
or local Governmental Authority exercising comparable authority or any institutional review board or comparable authority requiring the
termination, suspension, clinical hold or material modification of any tests, studies or trials.


 


Section
5.49. Emerging Growth Company Status. From the time of the initial filing of the Company’s first registration statement
with the Commission, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities
Act.


 


ARTICLE
VI 


ADDITIONAL
COVENANTS 


 


The
Company covenants with the Investor, and the Investor covenants with the Company, as follows, which covenants of one party are for the
benefit of the other party, during the Investment Period (and with respect to the Company, for the period following the termination of
this Agreement specified in Section 8.3 pursuant to and in accordance with Section 8.3):


 


Section
6.1. Securities Compliance. The Company shall notify the Commission and the Principal Market, if and as applicable, in accordance
with their respective rules and regulations, of the transactions contemplated by the Transaction Documents, and shall take all necessary
action, undertake all proceedings and obtain all registrations, permits, consents and approvals for the legal and valid issuance of the
Shares to the Investor in accordance with the terms of the Transaction Documents, as applicable.


 


Section
6.2. Reservation of Common Stock. The Company has available and the Company shall reserve and keep available at all times,
free of preemptive and other similar rights of stockholders, the requisite aggregate number of authorized but unissued shares of Common
Stock to enable the Company to timely effect the issuance, sale and delivery of all Shares to be issued, sold and delivered in respect
of each VWAP Purchase effected under this Agreement, at least prior to the delivery by the Company to the Investor of the applicable
VWAP Purchase Notice in connection with such VWAP Purchase. Without limiting the generality of the foregoing, as of the Commencement
Date the Company shall have reserved, out of its authorized and unissued Common Stock, a number of shares of Common Stock equal to the
Exchange Cap solely for the purpose of effecting VWAP Purchases under this Agreement. The number of shares of Common Stock so reserved
for the purpose of effecting VWAP Purchases under this Agreement may be increased from time to time by the Company from and after the
Commencement Date, and such number of reserved shares may be reduced from and after the Commencement Date only by the number of Shares
actually issued, sold and delivered to the Investor pursuant to any VWAP Purchase effected from and after the Commencement Date pursuant
to this Agreement.


 




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Section
6.3. Registration and Listing. The Company shall use its reasonable best efforts to cause the Common Stock to continue to
be registered as a class of securities under Section 12(b) of the Exchange Act, and to comply with its reporting and filing obligations
under the Exchange Act, and shall not take any action or file any document (whether or not permitted by the Securities Act or the Exchange
Act) to terminate or suspend such registration or to terminate or suspend its reporting and filing obligations under the Exchange Act
or Securities Act, except as permitted herein. The Company shall use its reasonable best efforts to continue the listing and trading
of its Common Stock and the listing of the Shares purchased by the Investor hereunder on the Principal Market and to comply with the
Company’s reporting, filing and other obligations under the rules and regulations of the Principal Market. The Company shall not
take any action which could be reasonably expected to result in the delisting or suspension of the Common Stock on the Principal Market.
If the Company receives any final and non-appealable notice that the listing or quotation of the Common Stock on the Principal Market
shall be terminated on a date certain, the Company shall promptly (and in any case within 24 hours) notify the Investor of such fact
in writing and shall use its reasonable best efforts to cause the Common Stock to be listed or quoted on another Principal Market.


 


Section
6.4. Compliance with Laws.


 


(i)
During the Investment Period, the Company shall comply with applicable provisions of the Securities Act and the Exchange Act, including
Regulation M thereunder, applicable state securities or “Blue Sky” laws, and applicable listing rules of the Principal Market,
in connection with the transactions contemplated by this Agreement and the Registration Rights Agreement, except as would not, individually
or in the aggregate, prohibit or otherwise interfere with the ability of the Company to enter into and perform its obligations under
this Agreement in any material respect or for the Investor to conduct resales of Shares under the Registration Statement in any material
respect.


 


(ii)
The Investor shall comply with all laws, rules, regulations and orders applicable to the performance by it of its obligations under this
Agreement and its investment in the Shares, except as would not, individually or in the aggregate, prohibit or otherwise interfere with
the ability of the Investor to enter into and perform its obligations under this Agreement in any material respect. Without limiting
the foregoing, the Investor shall comply with all applicable provisions of the Securities Act and the Exchange Act, including Regulation
M thereunder, and all applicable state securities or “Blue Sky” laws, in connection with the transactions contemplated by
this Agreement and the Registration Rights Agreement.


 


Section
6.5. Keeping of Records and Books of Account; Due Diligence.


 


(i)
The Investor and the Company shall each maintain records showing the remaining Total Commitment, the remaining Aggregate Limit and the
dates and VWAP Purchase Share Amount for each VWAP Purchase.


 


(ii)
Subject to the requirements of Section 6.12, from time to time from and after the Closing Date, the Company shall make available for
inspection and review by the Investor during normal business hours and after reasonable notice, customary documentation reasonably requested
by the Investor and/or its appointed counsel or advisors to conduct due diligence.


 


Section
6.6. No Frustration; No Similar Transactions.


 


(i)
No Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the
Company to perform its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation
of the Company to deliver the Shares to the Investor in respect of a VWAP Purchase not later than the Share Delivery Deadline. For the
avoidance of doubt, nothing in this Section 6.6(i) shall in any way limit the Company’s right to terminate this Agreement in accordance
with Section 8.2 (subject in all cases to Section 8.3).


 




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(ii)
No Similar Transactions. The Company shall not effect or enter into an agreement to effect an “equity line of credit,”
“at the market offering,” “equity distribution program” or any similar transaction whereby the Company may issue
or sell Common Stock or Common Stock Equivalents at a future determined price, other than in connection with an Exempt Issuance. The
Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy
shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security
being required.


 


Section
6.7. Corporate Existence. The Company shall take all steps necessary to preserve and continue the corporate existence of the
Company; provided, however, that, except as provided in Section 6.8, nothing in this Agreement shall be deemed to prohibit
the Company from engaging in any Fundamental Transaction with another Person. For the avoidance of doubt, nothing in this Section 6.7
shall in any way limit the Company’s right to terminate this Agreement in accordance with Section 8.2 (subject in all cases to
Section 8.3).


 


Section
6.8. Fundamental Transaction. If a VWAP Purchase Notice has been delivered to the Investor and the transactions contemplated
therein have not yet been fully settled in accordance with the terms and conditions of this Agreement, the Company shall not effect any
Fundamental Transaction until the expiration of five (5) Trading Days following the date of full settlement thereof and the issuance
to the Investor of all of the Shares issuable pursuant to the VWAP Purchase to which such VWAP Purchase Notice relates.


 


Section
6.9. Selling Restrictions.


 


(i)
Except as expressly set forth below, the Investor covenants that from and after the Closing Date through and including the Trading Day
next following the expiration or termination of this Agreement as provided in Article VIII (the “Restricted Period”),
none of the Investor or any entity managed or controlled by the Investor (collectively, the “Restricted Persons”
and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly or indirectly, (a)
engage in any Short Sales of the Common Stock or (b) hedging transaction, which establishes a net short position with respect to the
Common Stock, with respect to each of clauses (a) and (b) hereof, for the principal account of the Investor or any Restricted Person.
Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein shall (without implication that the
contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period from: (x) selling “long” (as
defined under Rule 200 promulgated under Regulation SHO) the Shares; or (y) selling a number of shares of Common Stock equal to the number
of Shares that such Restricted Person is unconditionally obligated to purchase under a pending VWAP Purchase Notice but has not yet received
from the Company or the Transfer Agent pursuant to this Agreement, so long as (1) such Restricted Person (or the Broker-Dealer, as applicable)
delivers the Shares purchased pursuant to such VWAP Purchase Notice to the purchaser thereof or the applicable Broker-Dealer promptly
upon such Restricted Person’s receipt of such Shares from the Company in accordance with Section 3.2 of this Agreement and (2)
neither the Company nor the Transfer Agent shall have failed for any reason to deliver such Shares to the Investor or its Broker-Dealer
so that such Shares are received by the Investor as DWAC Shares prior to the applicable Share Delivery Deadline in accordance with Section
3.2 of this Agreement.


 


(ii)
In addition to the foregoing, in connection with any sale of Shares (including any sale permitted by paragraph (i) above), the Investor
shall comply in all respects with all applicable laws, rules, regulations and orders, including, without limitation, the requirements
of the Securities Act and the Exchange Act.


 


Section
6.10. Effective Registration Statement. During the Investment Period, the Company shall use its reasonable best efforts to
maintain the continuous effectiveness of the Initial Registration Statement and each New Registration Statement filed with the Commission
under the Securities Act for the applicable Registration Period pursuant to and in accordance with the Registration Rights Agreement.


 


Section
6.11. Blue Sky. The Company shall take such action, if any, as is necessary by the Company in order to obtain an exemption
for or to qualify the Shares for sale by the Company to the Investor pursuant to the Transaction Documents, and at the request of the
Investor, the subsequent resale of Registrable Securities by the Investor, in each case, under applicable state securities or “Blue
Sky” laws and shall provide evidence of any such action so taken to the Investor from time to time following the Closing Date;
provided, however, that the Company shall not be required in connection therewith or as a condition thereto to (x) qualify
to do business in any jurisdiction where it would not otherwise be required to qualify but for this Section 6.11, (y) subject itself
to general taxation in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.


 




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Section
6.12. Non-Public Information. Neither the Company or any of its Subsidiaries, nor any of their respective directors, officers,
employees or agents shall disclose any material non-public information about the Company to the Investor during any VWAP Purchase Period,
unless a simultaneous public announcement thereof is made by the Company in the manner contemplated by Regulation FD. In the event of
a breach of the foregoing covenant by the Company or any of its Subsidiaries, or any of their respective directors, officers, employees
and agents (as determined in the reasonable good faith judgment of the Investor), (i) the Investor shall promptly provide written notice
of such breach to the Company and (ii) after such notice has been provided to the Company and, provided that the Company shall have failed
to demonstrate to the Investor in writing within 24 hours that such information does not constitute material, non-public information
or the Company shall have failed to publicly disclose such material, non-public information within 24 hours following demand therefor
by the Investor, in addition to any other remedy provided herein or in the other Transaction Documents, if the Investor is holding any
Shares at the time of the disclosure of material, non-public information, the Investor shall have the right to make a public disclosure,
in the form of a press release, public advertisement or otherwise, of such material, non-public information without the prior approval
by the Company, any of its Subsidiaries, or any of their respective directors, officers, employees or agents. The Investor shall not
have any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders or
agents, for any such disclosure.


 


Section
6.13. Broker/Dealer. The Investor shall use one or more broker-dealers to effectuate all sales, if any, of the Shares that
it may purchase or otherwise acquire from the Company pursuant to the Transaction Documents, as applicable, which (or whom) shall be
a DTC participant (collectively, the “Broker-Dealer”). The Investor shall, from time to time, provide the Company
and the Transfer Agent with all information regarding the Broker-Dealer reasonably requested by the Company. The Investor shall be solely
responsible for all fees and commissions of the Broker-Dealer (if any), which shall not exceed customary brokerage fees and commissions
and shall be responsible for designating only a DTC participant eligible to receive DWAC Shares.


 


Section
6.14. Disclosure Schedule. 


 


(i)
The Company may, from time to time, update a disclosure schedule (the “Disclosure Schedule”) as may be required
to satisfy the conditions set forth in Section 7.2(i) and Section 7.3(i) (to the extent such condition set forth in Section 7.3(i) relates
to the condition in Section 7.2(i) as of a specific VWAP Purchase Condition Satisfaction Time). For purposes of this Section 6.14, any
disclosure made in a schedule to the Compliance Certificate shall be deemed to be an update of the Disclosure Schedule. Notwithstanding
anything in this Agreement to the contrary, no update to the Disclosure Schedule pursuant to this Section 6.14 shall cure any breach
of a representation or warranty of the Company contained in this Agreement and made prior to the update and shall not affect any of the
Investor’s rights or remedies with respect thereto.


 


(ii)
Notwithstanding anything to the contrary contained in the Disclosure Schedule or in this Agreement, the information and disclosure contained
in any Schedule of the Disclosure Schedule shall be deemed to be disclosed and incorporated by reference in any other Schedule of the
Disclosure Schedule as though fully set forth in such Schedule for which applicability of such information and disclosure is readily
apparent on its face. The fact that any item of information is disclosed in the Disclosure Schedule shall not be construed to mean that
such information is required to be disclosed by this Agreement. Except as expressly set forth in this Agreement, such information and
the thresholds (whether based on quantity, qualitative characterization, dollar amounts or otherwise) set forth herein shall not be used
as a basis for interpreting the terms “material” or “Material Adverse Effect” or other similar terms in this
Agreement.


 




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Section
6.15. Delivery of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events. Within three (3) Trading
Days immediately following each time the Company files (i) an annual report on Form 10-K under the Exchange Act (including any Form 10-K/A
containing amended financial information or a material amendment to the previously filed Form 10-K); (ii) a quarterly report on Form
10-Q under the Exchange Act; (iii) a current report on Form 8-K containing amended financial information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange
Act; or (iv) the Initial Registration Statement, any New Registration Statement, or any supplement or post-effective amendment thereto,
and in any case (each, a “Representation Date”), the Company shall (a) deliver to the Investor a Compliance
Certificate in the form attached hereto as Exhibit C, dated such date, (b) cause to be furnished to the Investor (1) an opinion
from outside counsel to the Company and (2) a negative assurance letter from outside counsel to the Company, in ease case substantially
in the form mutually agreed to by the Company and the Investor prior to the date of this Agreement (each such opinion, a “Bring-Down
Opinion”) and (c) cause to be furnished to the Investor a comfort letter from the Accountant in a form and substance satisfactory
to the Investor and its counsel (in the case of a post-effective amendment, only if such amendment contains amended or new financial
information), modified, as necessary, to address such new financial information or relate to such Registration Statement or post-effective
amendment, or the Prospectus contained therein as then amended or supplemented by such Prospectus Supplement, as applicable (a “Bring-Down
Comfort Letter”). The requirement to provide the documents identified in clauses (a), (b) and (c) of this Section 6.15
shall be waived for any Representation Date if the Company or the Investor has given notice to the other party in writing (including
by email correspondence to the individual(s) of the other party set forth in Section 10.4 hereto, if receipt of such correspondence is
actually acknowledged by any individual to whom the notice is sent, other than via auto-reply) or by telephone (confirmed immediately
by verifiable facsimile transmission or email correspondence to the individual(s) of the other party set forth in Section 10.4 hereto)
of the suspension of VWAP Purchases (a “Suspension”), which waiver shall continue until the earlier to occur
of the date the Company delivers a VWAP Purchase Notice hereunder (which for such calendar quarter shall be considered a Representation
Date) and the next occurring Representation Date (which also shall be waived if a Suspension is then in effect). Notwithstanding the
foregoing, if the Company subsequently decides to deliver a VWAP Purchase Notice following a Representation Date when a Suspension was
in effect and did not provide the Investor with the documents identified in clauses (a), (b) and (c) of this Section 6.15, then before
the Investor accepts such VWAP Purchase Notice, the Company shall provide the Investor with the documents identified in clauses (a),
(b) and (c) of this Section 6.15, dated as of the date that the VWAP Purchase Notice is accepted by the Investor. For the avoidance of
doubt, at the end of any waiver under this Section 6.15, the Company shall not be required to deliver the documents identified in clauses
(a), (b) and (c) of this Section 6.15 for any Representation Date that has been waived, other than the most recently occurring Representation
Date.


 


ARTICLE
VII 


CONDITIONS
TO CLOSING AND CONDITIONS TO THE SALE AND 


PURCHASE
OF THE SHARES 


 


Section
7.1. Conditions Precedent to Closing. The Closing is subject to the satisfaction of each of the conditions set forth in this
Section 7.1 on the Closing Date.


 


(i)
Accuracy of the Investor’s Representations and Warranties. The representations and warranties of the Investor contained
in this Agreement (a) that are not qualified by “materiality” shall be true and correct in all material respects as of the
Closing Date, except to the extent such representations and warranties are as of another date, in which case, such representations and
warranties shall be true and correct in all material respects as of such other date and (b) that are qualified by “materiality”
shall be true and correct as of the Closing Date, except to the extent such representations and warranties are as of another date, in
which case, such representations and warranties shall be true and correct as of such other date.


 


(ii)
Accuracy of the Company’s Representations and Warranties. The representations and warranties of the Company contained
in this Agreement (a) that are not qualified by “materiality” or “Material Adverse Effect” shall be true and
correct in all material respects as of the Closing Date, except to the extent such representations and warranties are as of another date,
in which case, such representations and warranties shall be true and correct in all material respects as of such other date and (b) that
are qualified by “materiality” or “Material Adverse Effect” shall be true and correct as of the Closing Date,
except to the extent such representations and warranties are as of another date, in which case, such representations and warranties shall
be true and correct as of such other date.


 


(iii)
Payment or Issuance of Upfront Commitment Fee. On or prior to the Closing Date, the Company shall have paid by wire transfer
of immediately available funds to an account designated by the Investor on or prior to the date hereof, the Upfront Commitment Fee in
accordance with Section 10.1(ii), all of which Upfront Commitment Fee shall be fully earned and non-refundable as of the Closing Date,
regardless of whether any VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.


 




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(iv)
Closing Deliverables. At the Closing, counterpart signature pages of this Agreement and the Registration Rights Agreement
executed by each of the parties hereto shall be delivered as provided in Section 2.2. Simultaneously with the execution and delivery
of this Agreement and the Registration Rights Agreement, the Investor’s counsel shall have received (a) the opinions of outside
counsel to the Company, dated the Closing Date, in the forms mutually agreed to by the Company and the Investor prior to the date of
this Agreement and (b) the closing certificate from the Company, dated the Closing Date, in the form of Exhibit B hereto.


 


Section
7.2. Conditions Precedent to Commencement. The right of the Company to commence delivering VWAP Purchase Notices under this
Agreement, and the obligation of the Investor to accept VWAP Purchase Notices delivered to the Investor by the Company under this Agreement,
are subject to the initial satisfaction, at Commencement, of each of the conditions set forth in this Section 7.2.


 


(i)
Accuracy of the Company’s Representations and Warranties. The representations and warranties of the Company contained
in this Agreement (a) that are not qualified by “materiality” or “Material Adverse Effect” shall have been true
and correct in all material respects when made and shall be true and correct in all material respects as of the Commencement Date with
the same force and effect as if made on such date, except to the extent such representations and warranties are as of another date, in
which case, such representations and warranties shall be true and correct in all material respects as of such other date and (b) that
are qualified by “materiality” or “Material Adverse Effect” shall have been true and correct when made and shall
be true and correct as of the Commencement Date with the same force and effect as if made on such date, except to the extent such representations
and warranties are as of another date, in which case, such representations and warranties shall be true and correct as of such other
date.


 


(ii)
Performance of the Company. The Company shall have performed, satisfied and complied in all material respects with all
covenants, agreements and conditions required by this Agreement and the Registration Rights Agreement to be performed, satisfied or complied
with by the Company at or prior to the Commencement. The Company shall deliver to the Investor on the Commencement Date the compliance
certificate substantially in the form attached hereto as Exhibit C (the “Compliance Certificate”).


 


(iii)
Initial Registration Statement Effective. The Initial Registration Statement covering the resale by the Investor of the
Registrable Securities included therein required to be filed by the Company with the Commission pursuant to Section 2(a) of the Registration
Rights Agreement shall have become effective under the Securities Act, and the Investor shall be permitted to utilize the Prospectus
therein to resell all of the Shares included in such Prospectus.


 


(iv)
No Material Notices. None of the following events shall have occurred and be continuing: (a) receipt of any request by
the Commission or any other federal or state governmental authority for any additional information relating to the Initial Registration
Statement, the Prospectus contained therein or any Prospectus Supplement thereto, or for any amendment of or supplement to the Initial
Registration Statement, the Prospectus contained therein or any Prospectus Supplement thereto; (b) the issuance by the Commission or
any other federal or state governmental authority of any stop order suspending the effectiveness of the Initial Registration Statement
or prohibiting or suspending the use of the Prospectus contained therein or any Prospectus Supplement thereto, or of the suspension of
qualification or exemption from qualification of the Shares for offering or sale in any jurisdiction, or the initiation or contemplated
initiation of any proceeding for such purpose; (c) the objection of FINRA to the terms of the transactions contemplated by the Transaction
Documents or (d) the occurrence of any event or the existence of any condition or state of facts, which makes any statement of a material
fact made in the Initial Registration Statement, the Prospectus contained therein or any Prospectus Supplement thereto untrue or which
requires the making of any additions to or changes to the statements then made in the Initial Registration Statement, the Prospectus
contained therein or any Prospectus Supplement thereto in order to state a material fact required by the Securities Act to be stated
therein or necessary in order to make the statements then made therein (in the case of the Prospectus or any Prospectus Supplement, in
the light of the circumstances under which they were made) not misleading, or which requires an amendment to the Initial Registration
Statement or a supplement to the Prospectus contained therein or any Prospectus Supplement thereto to comply with the Securities Act
or any other law. The Company shall have no Knowledge of any event that could reasonably be expected to have the effect of causing the
suspension of the effectiveness of the Initial Registration Statement or the prohibition or suspension of the use of the Prospectus contained
therein or any Prospectus Supplement thereto in connection with the resale of the Registrable Securities by the Investor.


 




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(v)
Other Commission Filings. The Current Report shall have been filed with the Commission as required pursuant to Section
2.3. The final Prospectus included in the Initial Registration Statement shall have been filed with the Commission prior to Commencement
in accordance with Section 2.3 and the Registration Rights Agreement. All reports, schedules, registrations, forms, statements, information
and other documents required to have been filed by the Company with the Commission pursuant to the reporting requirements of the Exchange
Act, including all material required to have been filed pursuant to Section 13(a) or 15(d) of the Exchange Act, prior to Commencement
shall have been filed with the Commission.


 


(vi)
No Suspension of Trading in or Notice of Delisting of Common Stock. Trading in the Common Stock shall not have been suspended
by the Commission, the Principal Market or FINRA (except for any suspension of trading of limited duration agreed to by the Company,
which suspension shall be terminated prior to the Commencement Date), the Company shall not have received any final and non-appealable
notice that the listing or quotation of the Common Stock on the Principal Market shall be terminated on a date certain (unless, prior
to such date certain, the Common Stock is listed or quoted on any Alternative Market), nor shall there have been imposed any suspension
of, or restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry services by DTC with respect
to the Common Stock that is continuing, the Company shall not have received any notice from DTC to the effect that a suspension of, or
restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry services by DTC with respect to the
Common Stock is being imposed or is contemplated (unless, prior to such suspension or restriction, DTC shall have notified the Company
in writing that DTC has determined not to impose any such suspension or restriction).


 


(vii)
Compliance with Laws. The Company shall have complied with all applicable federal, state and local governmental laws, rules,
regulations and ordinances in connection with the execution, delivery and performance of this Agreement and the other Transaction Documents
to which it is a party and the consummation of the transactions contemplated hereby and thereby, including, without limitation, the Company
shall have obtained all permits and qualifications required by any applicable state securities or “Blue Sky” laws for the
offer and sale of the Shares by the Company to the Investor and the subsequent resale of the Registrable Securities by the Investor (or
shall have the availability of exemptions therefrom).


 


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


 


(ix)
No Proceedings or Litigation. No action, suit or proceeding before any arbitrator or any court or governmental authority
shall have been commenced, and no inquiry or investigation by any governmental authority shall have been commenced, against the Company
or any Subsidiary, or any of the officers, directors or Affiliates of the Company or any Subsidiary, seeking to restrain, prevent or
change the transactions contemplated by the Transaction Documents, or seeking material damages in connection with such transactions.


 


(x)
Listing of Shares. All of the Shares that have been and may be issued pursuant to this Agreement shall have been approved
for listing or quotation on the Principal Market as of the Commencement Date, subject only to notice of issuance.


 


(xi)
No Material Adverse Effect. No condition, occurrence, state of facts or event constituting a Material Adverse Effect shall
have occurred and be continuing.


 


(xii)
No Bankruptcy Proceedings. No Person shall have commenced a proceeding against the Company pursuant to or within the meaning
of any Bankruptcy Law. The Company shall not have, pursuant to or within the meaning of any Bankruptcy Law, (a) commenced a voluntary
case, (b) consented to the entry of an order for relief against it in an involuntary case, (c) consented to the appointment of a Custodian
of the Company or for all or substantially all of its property, or (d) made a general assignment for the benefit of its creditors. A
court of competent jurisdiction shall not have entered an order or decree under any Bankruptcy Law that (1) is for relief against the
Company in an involuntary case, (2) appoints a Custodian of the Company or for all or substantially all of its property or (3) orders
the liquidation of the Company or any of its Subsidiaries.


 




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(xiii)
Delivery of Commencement Irrevocable Transfer Agent Instructions and Notice of Effectiveness. The Commencement Irrevocable
Transfer Agent Instructions shall have been executed by the Company and delivered to and acknowledged in writing by the Company’s
Transfer Agent, and the Notice of Effectiveness relating to the Initial Registration Statement shall have been executed by the Company’s
outside counsel and delivered to the Transfer Agent, in each case directing the Transfer Agent to issue to the Investor or its designated
Broker-Dealer all of the Shares included in the Initial Registration Statement as DWAC Shares in accordance with this Agreement and the
Registration Rights Agreement.


 


(xiv)
Reservation of Shares. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued
Common Stock a number of shares of Common Stock equal to the Exchange Cap solely for the purpose of effecting VWAP Purchases under this
Agreement.


 


(xv)
Opinions and Negative Assurance of Company Counsel. On the Commencement Date, the Investor shall have received the opinions
and negative assurances from outside counsel to the Company, dated the Commencement Date, in the forms mutually agreed to by the Company
and the Investor prior to the date of this Agreement.


 


(xvi)
Comfort Letter of Accountant. On the Commencement Date, the Investor shall have received from the Accountant a letter dated
the Commencement Date addressed to the Investor, in form and substance reasonably satisfactory to the Investor with respect to the audited
and unaudited financial statements and certain financial information contained in the Registration Statement and the Prospectus, and
any Prospectus Supplement, except that the specific date referred to therein for the carrying out of procedures shall be no more than
three (3) business days prior to the Commencement Date.


 


(xvii)
Research. Neither the Investor nor any Affiliate of the Investor shall have, in the prior thirty (30) days, published or
distributed any research report (as such term is defined in Rule 500 of Regulation AC) concerning the Company.


 


(xviii)
Qualified Independent Underwriter. If the Investor reasonably determines that a Qualified Independent Underwriter must
participate in the transactions contemplated by the Transaction Documents in order for such transactions to be in full compliance with
FINRA’s rules, the Company and the Investor shall have executed such documentation as may reasonably be required to engage a Qualified
Independent Underwriter to participate in such transactions.


 


(xix)
FINRA. On or prior to the Closing Date, FINRA shall have confirmed in writing that it has no objection with respect to
the fairness and reasonableness of the terms and arrangements of the transactions contemplated by the Transaction Documents.


 


Section
7.3. Conditions Precedent to VWAP Purchases after Commencement Date. The right of the Company to deliver VWAP Purchase Notices
under this Agreement after the Commencement Date, and the obligation of the Investor to accept VWAP Purchase Notices under this Agreement
after the Commencement Date, are subject to the satisfaction of each of the conditions set forth in this Section 7.3 at the applicable
VWAP Purchase Commencement Time for the VWAP Purchase to be effected pursuant to the applicable VWAP Purchase Notice timely delivered
by the Company to the Investor in accordance with this Agreement (each such time, a “VWAP Purchase Condition Satisfaction
Time”).


 


(i)
Satisfaction of Certain Prior Conditions. Each of the conditions set forth in subsections (i), (ii), (vii) through (xiv),
(xvii) through (xix) set forth in Section 7.2 shall be satisfied at the applicable VWAP Purchase Condition Satisfaction Time after the
Commencement Date (with the terms “Commencement” and “Commencement Date” in the conditions set forth in subsections
(i) and (ii) of Section 7.2 replaced with “applicable VWAP Purchase Condition Satisfaction Time”); provided, however,
that the Company shall not be required to deliver the Compliance Certificate after the Commencement Date, except as provided in Section
6.15 and Section 7.3(v).


 




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(ii)
Initial Registration Statement Effective. The Initial Registration Statement covering the resale by the Investor of the
Registrable Securities included therein filed by the Company with the Commission pursuant to Section 2(a) of the Registration Rights
Agreement, and any post-effective amendment thereto required to be filed by the Company with the Commission after the Commencement Date
and prior to the applicable VWAP Purchase Date pursuant to the Registration Rights Agreement, in each case shall have become effective
under the Securities Act and shall remain effective for the applicable Registration Period, and the Investor shall be permitted to utilize
the Prospectus therein, and any Prospectus Supplement thereto, to resell all of the Shares included in the Initial Registration Statement,
and any post-effective amendment thereto, that have been issued and sold to the Investor hereunder pursuant to all VWAP Purchase Notices
delivered by the Company to the Investor prior to such applicable VWAP Purchase Date and all of the Shares included in the Initial Registration
Statement, and any post-effective amendment thereto, that are issuable pursuant to the applicable VWAP Purchase Notice delivered by the
Company to the Investor with respect to a VWAP Purchase to be effected hereunder on such applicable VWAP Purchase Date.


 


(iii)
Any Required New Registration Statement Effective. Any New Registration Statement covering the resale by the Investor of
the Registrable Securities included therein, and any post-effective amendment thereto, required to be filed by the Company with the Commission
pursuant to the Registration Rights Agreement after the Commencement Date and prior to the applicable VWAP Purchase Date, in each case
shall have become effective under the Securities Act and shall remain effective for the applicable Registration Period, and the Investor
shall be permitted to utilize the Prospectus therein, and any Prospectus Supplement thereto, to resell (a) all of the Shares included
in such New Registration Statement, and any post-effective amendment thereto, that have been issued and sold to the Investor hereunder
pursuant to all VWAP Purchase Notices delivered by the Company to the Investor prior to such applicable VWAP Purchase Date and (b) all
of the Shares included in such new Registration Statement, and any post-effective amendment thereto, that are issuable pursuant to the
applicable VWAP Purchase Notice delivered by the Company to the Investor with respect to a VWAP Purchase to be effected hereunder on
such applicable VWAP Purchase Date.


 


(iv)
Delivery of Subsequent Irrevocable Transfer Agent Instructions and Notice of Effectiveness. With respect to any post-effective
amendment to the Initial Registration Statement, any New Registration Statement or any post-effective amendment to any New Registration
Statement, in each case becoming effective after the Commencement Date, the Company shall have delivered or caused to be delivered to
the Transfer Agent (a) irrevocable instructions in the form substantially similar to the Commencement Irrevocable Transfer Agent Instructions
executed by the Company and acknowledged in writing by the Transfer Agent and (b) the Notice of Effectiveness, in each case modified
as necessary to refer to such Registration Statement or post-effective amendment and the Registrable Securities included therein, to
issue the Registrable Securities included therein as DWAC Shares in accordance with the terms of this Agreement and the Registration
Rights Agreement.


 


(v)
No Material Notices. None of the following events shall have occurred and be continuing: (a) receipt of any request by
the Commission or any other federal or state governmental authority for any additional information relating to the Initial Registration
Statement or any post-effective amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus
contained in any of the foregoing or any Prospectus Supplement thereto, or for any amendment of or supplement to the Initial Registration
Statement or any post-effective amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus
contained in any of the foregoing or any Prospectus Supplement thereto; (b) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment
thereto, any New Registration Statement or any post-effective amendment thereto, or prohibiting or suspending the use of the Prospectus
contained in any of the foregoing or any Prospectus Supplement thereto, or of the suspension of qualification or exemption from qualification
of the Shares for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose;
(c) the objection of FINRA to the terms of the transactions contemplated by the Transaction Documents or (d) the occurrence of any event
or the existence of any condition or state of facts, which makes any statement of a material fact made in the Initial Registration Statement
or any post-effective amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained
in any of the foregoing or any Prospectus Supplement thereto untrue or which requires the making of any additions to or changes to the
statements then made in the Initial Registration Statement or any post-effective amendment thereto, any New Registration Statement or
any post-effective amendment thereto, or the Prospectus contained in any of the foregoing or any Prospectus Supplement thereto in order
to state a material fact required by the Securities Act to be stated therein or necessary in order to make the statements then made therein
(in the case of the Prospectus or any Prospectus Supplement, in the light of the circumstances under which they were made) not misleading,
or which requires an amendment to the Initial Registration Statement or any post-effective amendment thereto, any New Registration Statement
or any post-effective amendment thereto, or the Prospectus contained in any of the foregoing or any Prospectus Supplement thereto to
comply with the Securities Act or any other law (other than the transactions contemplated by the applicable VWAP Purchase Notice delivered
by the Company to the Investor with respect to a VWAP Purchase to be effected hereunder on such applicable VWAP Purchase Date and the
settlement thereof). The Company shall have no Knowledge of any event that could reasonably be expected to have the effect of causing
the suspension of the effectiveness of the Initial Registration Statement or any post-effective amendment thereto, any New Registration
Statement or any post-effective amendment thereto, or the prohibition or suspension of the use of the Prospectus contained in any of
the foregoing or any Prospectus Supplement thereto in connection with the resale of the Registrable Securities by the Investor.


 




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(vi)
Other Commission Filings. The final Prospectus included in any post-effective amendment to the Initial Registration Statement,
and any Prospectus Supplement thereto, required to be filed by the Company with the Commission pursuant to Section 2.3 and the Registration
Rights Agreement after the Commencement Date and prior to the applicable VWAP Purchase Date, shall have been filed with the Commission
in accordance with Section 2.3 and the Registration Rights Agreement. The final Prospectus included in any New Registration Statement
and in any post-effective amendment thereto, and any Prospectus Supplement thereto, required to be filed by the Company with the Commission
pursuant to Section 2.3 and the Registration Rights Agreement after the Commencement Date and prior to the applicable VWAP Purchase Date,
shall have been filed with the Commission in accordance with Section 2.3 and the Registration Rights Agreement. All reports, schedules,
registrations, forms, statements, information and other documents required to have been filed by the Company with the Commission pursuant
to the reporting requirements of the Exchange Act, including all material required to have been filed pursuant to Section 13(a) or 15(d)
of the Exchange Act, after the Commencement Date and prior to the applicable VWAP Purchase Date, shall have been filed with the Commission.


 


(vii)
No Suspension of Trading in or Notice of Delisting of Common Stock. Trading in the Common Stock shall not have been suspended
by the Commission, the Principal Market or FINRA (except for any suspension of trading of limited duration agreed to by the Company,
which suspension shall be terminated prior to the applicable VWAP Purchase Date), the Company shall not have received any final and non-appealable
notice that the listing or quotation of the Common Stock on the Principal Market shall be terminated on a date certain (unless, prior
to such date certain, the Common Stock is listed or quoted on any Alternative Market), nor shall there have been imposed any suspension
of, or restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry services by DTC with respect
to the Common Stock that is continuing, the Company shall not have received any notice from DTC to the effect that a suspension of, or
restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry services by DTC with respect to the
Common Stock is being imposed or is contemplated (unless, prior to such suspension or restriction, DTC shall have notified the Company
in writing that DTC has determined not to impose any such suspension or restriction).


 


(viii)
Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable VWAP Purchase Notice shall
not (a) exceed the applicable VWAP Purchase Maximum Amount, (b) cause the Aggregate Limit or the Beneficial Ownership Limitation to be
exceeded, or (c) cause the Exchange Cap (to the extent applicable under Section 3.3) to be exceeded, unless in the case of this clause
(c), unless the Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement in excess of
the Exchange Cap in accordance with the applicable rules of the Principal Market.


 


(ix)
Shares Authorized and Delivered. All of the Shares issuable pursuant to the applicable VWAP Purchase Notice shall have
been duly authorized by all necessary corporate action of the Company. All Shares relating to all prior VWAP Purchase Notices required
to have been received by the Investor as DWAC Shares under this Agreement prior to the applicable VWAP Purchase Condition Satisfaction
Time for the applicable VWAP Purchase shall have been delivered to the Investor as DWAC Shares in accordance with this Agreement.


 


(x)
Bring-Down Opinions of Company Counsel, Bring-Down Comfort Letters and Compliance Certificates. The Investor shall have
received (a) all Bring-Down Opinions which the Company was obligated to instruct its outside counsel to deliver prior to the applicable
VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase, (b) all Bring-Down Comfort Letters which the Company was
obligated to instruct its Accountant to deliver prior to the applicable VWAP Purchase Condition Satisfaction Time for the applicable
VWAP Purchase and (c) all Compliance Certificates which the Company was obligated to deliver prior to the applicable VWAP Purchase Condition
Satisfaction Time for the applicable VWAP Purchase, in each case in accordance with Section 6.15.


 


(xi)
Material Non-Public Information. Neither the Company nor, in the Investor’s sole discretion, the Investor, shall
be in possession of any material non-public information concerning the Company.


 




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ARTICLE
VIII 


TERMINATION



 


Section
8.1. Automatic Termination. Unless earlier terminated as provided hereunder, this Agreement shall terminate automatically
on the earliest to occur of (i) the first (1st) day of the month next following the 36-month anniversary of the Effective Date of the
Initial Registration Statement (it being hereby acknowledged and agreed that such term may not be extended by the parties hereto), (ii)
the date on which the Investor shall have purchased the Total Commitment worth of Shares pursuant to this Agreement, (iii) the date on
which the Common Stock shall have failed to be listed or quoted on the Principal Market or any Alternative Market, and (iv) the date
on which, pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company, a Custodian is appointed for the Company or for all or substantially all of its property, or the Company makes a
general assignment for the benefit of its creditors.


 


Section
8.2. Other Termination. Subject to Section 8.3, the Company may terminate this Agreement after the Commencement Date effective
upon three (3) Trading Days’ prior written notice to the Investor in accordance with Section 10.4; provided, however,
that (i) the Company shall have paid the Upfront Commitment Fee to the Investor required to be paid pursuant to Section 10.1(ii) of this
Agreement prior to such termination, and (ii) prior to issuing any press release, or making any public statement or announcement, with
respect to such termination, the Company shall consult with the Investor and its counsel on the form and substance of such press release
or other disclosure. Subject to Section 8.3, this Agreement may be terminated at any time by the mutual written consent of the parties,
effective as of the date of such mutual written consent unless otherwise provided in such written consent. Subject to Section 8.3, the
Investor shall have the right to terminate this Agreement effective upon three (3) Trading Days’ prior written notice to the Company,
which notice shall be made in accordance with Section 10.4 of this Agreement, if: (a) any condition, occurrence, state of facts or event
constituting a Material Adverse Effect has occurred and is continuing; (b) a Fundamental Transaction shall have occurred; (c) the Company
is in breach or default in any material respect of any of its covenants and agreements in the Registration Rights Agreement, and, if
such breach or default is capable of being cured, such breach or default is not cured within fifteen (15) Trading Days after notice of
such breach or default is delivered to the Company pursuant to Section 10.4 of this Agreement; (d) while a Registration Statement, or
any post-effective amendment thereto, is required to be maintained effective pursuant to the terms of the Registration Rights Agreement
and the Investor holds any Registrable Securities, the effectiveness of such Registration Statement, or any post-effective amendment
thereto, lapses for any reason (including, without limitation, the issuance of a stop order by the Commission) or such Registration Statement
or any post-effective amendment thereto, the Prospectus contained therein or any Prospectus Supplement thereto otherwise becomes unavailable
to the Investor for the resale of all of the Registrable Securities included therein in accordance with the terms of the Registration
Rights Agreement, and such lapse or unavailability continues for a period of forty-five (45) consecutive Trading Days or for more than
an aggregate of ninety (90) Trading Days in any three-hundred-and-sixty-five (365)-day period, other than due to acts of the Investor;
(e) trading in the Common Stock on the Principal Market shall have been suspended and such suspension continues for a period of five
(5) consecutive Trading Days; or (f) the Company is in material breach or default of any of its covenants and agreements contained in
this Agreement, and, if such breach or default is capable of being cured, such breach or default is not cured within fifteen (15) Trading
Days after notice of such breach or default is delivered to the Company pursuant to Section 10.4 of this Agreement. Unless notification
thereof is required elsewhere in this Agreement (in which case such notification shall be provided in accordance with such other provision),
the Company shall promptly (but in no event later than twenty-four (24) hours) notify the Investor (and, if required under applicable
law, including, without limitation, Regulation FD promulgated by the Commission, or under the applicable rules and regulations of the
Principal Market the Company shall publicly disclose such information in accordance with Regulation FD and the applicable rules and regulations
of the Principal Market) upon becoming aware of any of the events set forth in the immediately preceding sentence.


 




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Section
8.3. Effect of Termination. In the event of termination by the Company or the Investor (other than by mutual termination)
pursuant to Section 8.2, written notice thereof shall forthwith be given to the other party as provided in Section 10.4 and the transactions
contemplated by this Agreement shall be terminated without further action by either party. If this Agreement is terminated as provided
in Section 8.1 or Section 8.2, this Agreement shall become void and of no further force and effect, except that (i) the provisions of
Article V (Representations, Warranties and Covenants of the Company), Article IX (Indemnification), Article X (Miscellaneous) and this
Article VIII (Termination) shall remain in full force and effect indefinitely notwithstanding such termination, and, (ii) so long as
the Investor owns any Shares, the covenants and agreements of the Company contained in Article VI (Additional Covenants) shall remain
in full force and notwithstanding such termination for a period of thirty (30) days following such termination. Notwithstanding anything
in this Agreement to the contrary, no termination of this Agreement by any party shall (i) become effective prior to the second (2nd)
Trading Day immediately following the date on which the purchase of Shares by the Investor pursuant to any pending VWAP Purchase has
been fully settled, including, without limitation, the delivery by the Company to the Investor of all Shares purchased by the Investor
pursuant to such pending VWAP Purchase as DWAC Shares on the applicable VWAP Purchase Share Delivery Date therefor, and the delivery
by the Investor to the Company of the aggregate VWAP Purchase Price payable by the Investor for such Shares, in each case in accordance
with the settlement procedures set forth in Section 3.2 of this Agreement (it being hereby acknowledged and agreed that no termination
of this Agreement shall limit, alter, modify, change or otherwise affect any of the Company’s or the Investor’s rights or
obligations under the Transaction Documents with respect to any pending VWAP Purchase that has not fully settled, and that the parties
shall fully perform their respective obligations with respect to any such pending VWAP Purchase under the Transaction Documents), (ii)
limit, alter, modify, change or otherwise affect the Company’s or the Investor’s rights or obligations under the Registration
Rights Agreement, all of which shall survive any such termination, or (iii) affect the Upfront Commitment Fee payable to the Investor
pursuant to Section 10.1(ii), it being hereby acknowledged and agreed that the entire amount of the Upfront Commitment Fee shall be fully
earned by the Investor and shall be non-refundable as of the Closing Date, regardless of whether any VWAP Purchases are made or settled
hereunder or any subsequent termination of this Agreement. Nothing in this Section 8.3 shall be deemed to release the Company or the
Investor from any liability for any breach or default under this Agreement, the Registration Rights Agreement or any of the other Transaction
Documents to which it is a party, or to impair the rights of the Company and the Investor to compel specific performance by the other
party of its obligations under this Agreement, the Registration Rights Agreement or any of the other Transaction Documents to which it
is a party.


 


ARTICLE
IX 


INDEMNIFICATION



 


Section
9.1. Indemnification of Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring
the Shares hereunder and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a
party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor, its Affiliates, each
of their respective directors, officers, shareholders, members, partners, employees, representatives and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each
Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act),
and the respective directors, officers, shareholders, members, partners, employees, representatives and agents (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such
controlling Persons (each, an “Investor Party”), each of which shall be an express third-party beneficiary
of this Article IX, from and against all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses (including
all judgments, amounts paid in settlement, court costs, reasonable attorneys’ fees and costs of defense and investigation) (collectively,
“Damages”) that any Investor Party may suffer or incur (a) as a result of, relating to or arising out of or
based upon any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements
therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact included in any other Commission
Document, or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided, however, that this indemnity in (a) shall
not apply to any loss, liability, claim, damage or expense to the extent arising out of an untrue statement or omission, or alleged untrue
statement or omission in a Commission Document, made in reliance upon and in conformity with information furnished in writing to the
Company by the Investor expressly for use in connection with the preparation of the Registration Statement, Prospectus or Prospectus
Supplement or any such amendment thereof or supplement thereto (it being hereby acknowledged and agreed that the written information
set forth on Exhibit C to the Registration Rights Agreement is the only written information furnished to the Company by or on
behalf of the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement), (b) to the extent of the
aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any Governmental Authority, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission;
provided that any such settlement is effected with the written consent of the Company, which consent shall not unreasonably be
delayed, conditioned or withheld, (c) in investigating, preparing or defending against any litigation, or any investigation or proceeding
by any Governmental Authority, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission (whether or not a party), to the extent that any such expense is not paid under (a) or
(b) above, (d) as a result of, relating to or arising out of any breach by the Company of its representations, warranties, covenants
or agreements under this Agreement, or (e) as a result of, relating to or arising out of any other action, suit, claim or proceeding
against an Investor Party arising out of or otherwise in connection with the Transaction Documents (except solely to the extent in the
case of this subsection (e), to the extent any Damage is determined by a court of competent jurisdiction, not subject to further appeal,
to have resulted primarily and directly from the bad faith, willful misconduct or gross negligence of such Investor Party).


 




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The
Company shall reimburse any Investor Party promptly upon demand (with accompanying presentation of documentary evidence) for all legal
and other costs and expenses reasonably incurred by such Investor Party in connection with (i) any action, suit, claim or proceeding,
whether at law or in equity, to enforce compliance by the Company with any provision of the Transaction Documents or (ii) any other any
action, suit, claim or proceeding, whether at law or in equity, with respect to which it is entitled to indemnification under this Section
9.1.


 


To
the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any reason, the Company
shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under applicable law,
provided that in no event shall the Investor be obligated to contribute any amount in excess of the fees it actually receives pursuant
to this Agreement.


 


Section
9.2. Indemnification Procedures.


 


(i)
Promptly after an Investor Party receives notice of a claim or the commencement of an action for which the Investor Party intends to
seek indemnification under Section 9.1, the Investor Party will notify the Company in writing of the claim or commencement of the action,
suit or proceeding; provided, however, that failure to notify the Company will not relieve the Company from liability under
Section 9.1, unless and solely to the extent it has been materially prejudiced by the failure to give such notice as evidenced by the
forfeiture of by the Company of substantive rights or defenses. The Company will be entitled to participate in the defense of any claim,
action, suit or proceeding as to which indemnification is being sought, and if the Company acknowledges in writing the obligation to
indemnify the Investor Party against whom the claim or action is brought, the Company may (but will not be required to) assume the defense
against the claim, action, suit or proceeding with counsel satisfactory to the Investor Party. After the Company notifies the Investor
Party that the Company wishes to assume the defense of a claim, action, suit or proceeding, the Company will not be liable for any further
legal or other expenses incurred by the Investor Party in connection with the defense against the claim, action, suit or proceeding unless
(a) the employment of counsel by the Investor Party has been authorized in writing by the Company, (b) the Investor Party has reasonably
concluded (based on advice of counsel) that there may be legal defenses available to it or another Investor Party that are different
from or in addition to those available to the Company, (c) a conflict or potential conflict exists (based on advice of counsel to the
Investor Party) between an Investor Party and the Company (in which case the Company will not have the right to direct the defense of
such action on behalf of the indemnified party) or (d) the Company has not in fact employed counsel to assume the defense of such action
or counsel reasonably satisfactory to the indemnified party, in each case, within a reasonable time after receiving notice of the commencement
of the action; in each of which cases the reasonable fees, disbursements and other charges of counsel will be at the expense of the Company.
It is understood that the Company shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one separate firm (plus one local counsel in each relevant jurisdiction)
admitted to practice in such jurisdiction at any one time for all such similarly situated Investor Parties. The Investor will reasonably
cooperate with the Company in the defense of any such action for which the Company assumes the defense. The Company will not be liable
for any settlement of any action effected without its prior written consent, which consent shall not be unreasonably withheld, delayed
or conditioned. The Company shall not, without the prior written consent of each indemnified party, settle or compromise or consent to
the entry of any judgment in any pending or threatened claim, action or proceeding relating to the matters contemplated by this section
(whether or not any indemnified party is a party thereto), unless such settlement, compromise or consent (x) includes an express and
unconditional release of each indemnified party, in form and substance reasonably satisfactory to such indemnified party, from all liability
arising out of such litigation, investigation, proceeding or claim and (y) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.


 




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(ii)
In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in the foregoing paragraphs
of this Article IX for any reason is held to be unavailable or insufficient to hold an Investor Party harmless, the Company and the Investor
Party will contribute to the total losses, claims, liabilities, expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of, any action, suit or proceeding or any claim asserted) to
which the Company and the Investor Party may be subject in such proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Investor on the other hand. The relative benefits received by the Company on the one hand and
the Investor Party on the other hand shall be deemed to be in the same proportion as the total net proceeds from the aggregate of all
VWAP Purchase Amounts (before deducting expenses) received by the Company bear to the total proceeds received by the Indemnified Party
for the sale of Shares to bona fide third parties net of the aggregate VWAP Purchase Price paid to the Indemnifying Party under this
Agreement (the “Discount”). If, but only if, the allocation provided by the foregoing sentence is not permitted by
applicable law, the allocation of contribution shall be made in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Company, on the one hand, and the Investor Party, on the other
hand, with respect to the statements or omission that resulted in such loss, claim, liability, expense or damage, or action in respect
thereof, as well as any other relevant equitable considerations with respect to such offering. Such relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or the Investor Party, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investor agree
that it would not be just and equitable if contributions pursuant to this Section 9.2(ii) were to be determined by pro rata allocation
or by any other method of allocation that does not take into account the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss, claim, liability, expense, or damage, or action in respect thereof, referred
to above in this Section 9.2(ii) shall be deemed to include, for the purpose of this Section 9.2(ii), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending any such action or claim to the extent consistent with
Section 9.2(i) hereof. Notwithstanding the foregoing provisions of this Section 9.2(ii), the Investor shall not be required to contribute
any amount in excess of the aggregate Discount and no person found guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) will be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 9.2(ii), any person who controls a party to this Agreement within the meaning of the Securities Act, any
Affiliates of the Investor Party and any officers, directors, partners, employees or agents of the Investor Party or any of its Affiliates,
will have the same rights to contribution as that party, and each director of the Company and each officer of the Company who signed
the Registration Statement will have the same rights to contribution as the Company, subject in each case to the provisions hereof. Any
party entitled to contribution, promptly after receipt of notice of commencement of any action against such party in respect of which
a claim for contribution may be made under this Section 9.2(ii), will notify any such party or parties from whom contribution may be
sought, but the omission to so notify will not relieve that party or parties from whom contribution may be sought from any other obligation
it or they may have under this Section 9.2(ii) except to the extent that the failure to so notify such other party materially prejudiced
the substantive rights or defenses of the party from whom contribution is sought. No party will be liable for contribution with respect
to any action or claim settled without its written consent if such consent is required pursuant to Section 9.2(i) hereof.


 


The
remedies provided for in this Article IX are not exclusive and shall not limit any rights or remedies which may otherwise be available
to any Investor Party at law or in equity.


 




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ARTICLE
X 


MISCELLANEOUS



 


Section
10.1. Certain Fees and Expenses; Upfront Commitment Fee; Commencement Irrevocable Transfer Agent Instructions. 


 


(i)
Certain Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated by
this Agreement except that the Company will reimburse the fees and disbursements of legal counsel to the Investor in an amount not to
exceed $75,000 in connection with the entry into this Agreement and $25,000 per fiscal quarter in connection with the Investor’s
ongoing due diligence and review of deliverables subject to Section 6.15, except to the extent the applicable Representation Date has
been waived. The Company shall pay all U.S. federal, state and local stamp and other similar transfer and other taxes and duties levied
in connection with issuance of the Shares pursuant hereto.


 


(ii)
Upfront Commitment Fee. In consideration for the Investor’s execution and delivery of this Agreement on the Closing
Date, the Company shall pay to the Investor the Upfront Commitment Fee on or prior to the Commencement Date, by wire transfer of immediately
available funds to an account designated by the Investor on or prior to the date of this Agreement. For the avoidance of doubt, the entire
amount of the Upfront Commitment Fee shall be fully earned by the Investor and shall be non-refundable as of the Closing Date, regardless
of whether any VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.


 


(iii)
Irrevocable Transfer Agent Instructions; Notice of Effectiveness. On the Effective Date of the Initial Registration Statement
and prior to Commencement, the Company shall deliver or cause to be delivered to its Transfer Agent, (a) irrevocable instructions executed
by the Company to be acknowledged in writing by the Company’s Transfer Agent (the “Commencement Irrevocable Transfer
Agent Instructions”) and (b) the notice of effectiveness in the form attached as an exhibit to the Registration Rights
Agreement (the “Notice of Effectiveness”) relating to the Initial Registration Statement executed by the Company’s
outside counsel, in each case directing the Transfer Agent to issue to the Investor or its designated Broker-Dealer at which the account
or accounts to be credited with the Shares being purchased by the Investor are maintained any Registrable Securities included in the
Initial Registration Statement as DWAC Shares, if and when such Registrable Securities are issued in accordance with this Agreement and
the Registration Rights Agreement. With respect to any post-effective amendment to the Initial Registration Statement, any New Registration
Statement or any post-effective amendment to any New Registration Statement, in each case becoming effective after the Commencement Date,
the Company shall deliver or cause to be delivered to its Transfer Agent (x) irrevocable instructions in the form substantially similar
to the Commencement Irrevocable Transfer Agent Instructions executed by the Company and to be acknowledged in writing by the Transfer
Agent and (y) the Notice of Effectiveness, in each case modified as necessary to refer to such Registration Statement or post-effective
amendment and the Registrable Securities included therein, to issue the Registrable Securities included therein as DWAC Shares in accordance
with the terms of this Agreement and the Registration Rights Agreement. For the avoidance of doubt, all Shares to be issued in respect
of any VWAP Purchase Notice delivered to the Investor pursuant to this Agreement shall be issued to the Investor in accordance with Section
3.2 by crediting the Investor’s account at DTC as DWAC Shares, and the Company shall not take any action or give instructions to
any Transfer Agent of the Company otherwise. The Company represents and warrants to the Investor that, while this Agreement is effective,
no instruction other than those referred to in this Section 10.1(iii) will be given by the Company to its Transfer Agent with respect
to the Shares from and after Commencement, and the Registrable Securities covered by the Initial Registration Statement or any post-effective
amendment thereof, or any New Registration Statement or post-effective amendment thereof, as applicable, shall otherwise be freely transferable
on the books and records of the Company and no stop transfer instructions shall be maintained against the transfer thereof. The Company
agrees that if the Company fails to fully comply with the provisions of this Section 10.1(iii) within three (3) Trading Days after the
date on which the Investor has provided any deliverables that the Investor may be required to provide to the Company or its Transfer
Agent (if any), the Company shall, at the Investor’s written instruction, purchase from the Investor all shares of Common Stock
purchased or acquired by the Investor pursuant to this Agreement that contain any restrictive legend or that have any stop transfer orders
maintained that prohibit or impede the transfer thereof in any respect at the greater of (i) the purchase price paid by the Investor
for such shares of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s
written instruction.


 




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Section
10.2. Specific Enforcement; Consent to Jurisdiction; Waiver of Jury Trial.


 


(i)
The Company and the Investor acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that either
party shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Agreement by the other
party and to enforce specifically the terms and provisions hereof (without the necessity of showing economic loss and without any bond
or other security being required), this being in addition to any other remedy to which either party may be entitled by law or equity.


 


(ii)
Each of the Company and the Investor (a) hereby irrevocably submits to the jurisdiction of the U.S. District Court and other courts of
the United States sitting in the State of New York for the purposes of any suit, action or proceeding arising out of or relating to this
Agreement, and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum or that the venue
of the suit, action or proceeding is improper. Each of the Company and the Investor consents to process being served in any such suit,
action or proceeding by mailing a copy thereof 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 in this Section 10.2 shall affect
or limit any right to serve process in any other manner permitted by law.


 


(iii)
EACH OF THE COMPANY AND THE INVESTOR HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR DISPUTES RELATING HERETO. EACH OF THE COMPANY AND THE INVESTOR (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.2.


 


Section
10.3. Entire Agreement. The Transaction Documents set forth the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersede all prior and contemporaneous agreements, negotiations and understandings between the parties,
both oral and written, with respect to such matters. There are no promises, undertakings, representations or warranties by either party
relative to subject matter hereof not expressly set forth in the Transaction Documents. All exhibits to this Agreement are hereby incorporated
by reference in, and made a part of, this Agreement as if set forth in full herein.


 


Section
10.4. Notices. Any notice, demand, request, waiver or other communication required or permitted to be given hereunder shall
be in writing and shall be effective (a) upon hand delivery or electronic mail delivery at the address or number designated below (if
delivered on a business day during normal business hours where such notice is to be received), or the first (1st) business day following
such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on
the second (2nd) business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or
upon actual receipt of such mailing, whichever shall first occur. The address for such communications shall be:


 


If
to the Company:


Lucid
Diagnostics Inc.


One
Grand Central Place, Suite 4600


New
York, NY 10165


Telephone
Number: (212) 949-4319


Email:
LA@PAVmed.com


Attention:
Lishan Aklog, M.D., Chairman & CEO


 




    	35



     


    

 


With
a copy (which shall not constitute notice) to:


 


Graubard
Miller


405
Lexington Avenue, 11th Floor


New
York, NY 10174


Telephone
Number: (212) 818-8602


Email:
eschwartz@graubard.com


Attention:
Eric T. Schwartz


If
to the Investor:


 


CF
Principal Investments LLC


499
Park Avenue


New
York, NY 10022


Attention:
COO


Email:
CFPINotices@cantor.com


 


and:


 


CF
Principal Investments LLC 499 Park Avenue


New
York, NY 10022


Attention:
General Counsel


Facsimile:
(212) 829-4708


Email:
#legal-IBD@cantor.com


 


With
a copy (which shall not constitute notice) to:


 


Duane
Morris LLP


1540
Broadway


New
York, NY 10036


Telephone
Number: (973) 424-2088


Email:
jtseery@duanemorris.com


Attention:
James T. Seery


 


Either
party hereto may from time to time change its address for notices by giving at least five (5) days’ advance written notice of such
changed address to the other party hereto.


 


Section
10.5. Waivers. No provision of this Agreement may be waived by the parties from and after the date that is one (1) Trading
Day immediately preceding the filing of the Initial Registration Statement with the Commission. Subject to the immediately preceding
sentence, no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement
of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercises thereof or of any
other right, power or privilege.


 


Section
10.6. Amendments. No provision of this Agreement may be amended by the parties from and after the date that is one (1) Trading
Day immediately preceding the filing of the Initial Registration Statement with the Commission. Subject to the immediately preceding
sentence, no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto.


 


Section
10.7. Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute
a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof. 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.


 




    	36



     


    

 


Section
10.8. Construction. The parties agree that each of them and their respective counsel has reviewed and had an opportunity to
revise the Transaction Documents and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of the Transaction Documents. In addition, each and every reference
to share prices and number of shares of Common Stock in any Transaction Document shall, in all cases, be subject to adjustment for any
stock splits, stock combinations, stock dividends, recapitalizations, reorganizations and other similar transactions that occur on or
after the date of this Agreement. Any reference in this Agreement to “Dollars” or “$” shall mean the lawful currency
of the United States of America. Any references to “Section” or “Article” in this Agreement shall, unless otherwise
expressly stated herein, refer to the applicable Section or Article of this Agreement.


 


Section
10.9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors. Neither the Company nor the Investor may assign this Agreement or any of their respective rights or obligations hereunder
to any Person.


 


Section
10.10. No Third Party Beneficiaries. Except as expressly provided in Article IX, this Agreement is intended only for the benefit
of the parties hereto and their respective successors, and is not for the benefit of, nor may any provision hereof be enforced by, any
other Person.


 


Section
10.11. Governing Law. This Agreement shall be governed by and construed in accordance with the internal procedural and substantive
laws of the State of New York, without giving effect to the choice of law provisions of such state that would cause the application of
the laws of any other jurisdiction.


 


Section
10.12. Survival. The representations, warranties, covenants and agreements of the Company and the Investor contained in this
Agreement shall survive the execution and delivery hereof until the termination of this Agreement; provided, however, that
(i) the provisions of Article VIII (Termination), Article IX (Indemnification) and this Article X (Miscellaneous) shall remain in full
force and effect indefinitely notwithstanding such termination, and, (ii) so long as the Investor owns any Shares, the covenants and
agreements of the Company and the Investor contained in Article VI (Additional Covenants), shall remain in full force and effect notwithstanding
such termination for a period of thirty (30) days following such termination.


 


Section
10.13. 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.


 


Section
10.14. Publicity. The Company shall afford the Investor and its counsel a reasonable opportunity to review and comment upon,
shall consult with the Investor and its counsel on the form and substance of, and shall give due consideration to all such comments from
the Investor or its counsel on, any press release, Commission filing or any other public disclosure made by or on behalf of the Company
relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby,
prior to the issuance, filing or public disclosure thereof. For the avoidance of doubt, the Company shall not be required to submit for
review any such disclosure (i) contained in periodic reports filed with the Commission under the Exchange Act if it shall have previously
provided the same disclosure to the Investor or its counsel for review in connection with a previous filing or (ii) any Prospectus Supplement
if it contains disclosure that does not reference the Investor, its purchases hereunder or any aspect of the Transaction Documents or
the transactions contemplated thereby.


 


Section
10.15. Severability. The provisions of this Agreement are severable and, in the event that any court of competent jurisdiction
shall determine that any one or more of the provisions or part of the provisions contained in this Agreement shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement, and this Agreement shall be reformed and construed as if such invalid or illegal
or unenforceable provision, or part of such provision, had never been contained herein, so that such provisions would be valid, legal
and enforceable to the maximum extent possible.


 


Section
10.16. Further Assurances. From and after the Closing Date, upon the request of the Investor or the Company, each of the Company
and the Investor shall execute and deliver such instrument, documents and other writings as may be reasonably necessary or desirable
to confirm and carry out and to effectuate fully the intent and purposes of this Agreement.


 




    	37



     


    

 


IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officer as of the
date first above written.


 


	 	LUCID
    DIAGNOSTICS INC.
	 	 	 
	 	By:	/s/
    Lishan Aklog, M.D.
	 	Name:	Lishan
    Aklog, M.D.
	 	Title:	Chairman
    & CEO
	 	 	 
	 	CF
    Principal Investments LLC 
	 	 	 
	 	By:	/s/
    Mark Kaplan
	 	Name:	Mark
    Kaplan
	 	Title:	Global
    Chief Operating Officer


 


[Signature
Page to Equity Line Agreement]


 




    	 



     


    

 


ANNEX
I TO THE 


COMMON
STOCK PURCHASE AGREEMENT 


DEFINITIONS



 


“Accountant”
shall have the meaning assigned to such term in Section 5.7(iii) of this Agreement.


 


“Affiliate”
shall mean any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common
control with a Person, as such terms are used in and construed under Rule 144.


 


“Aggregate
Limit” shall have the meaning assigned to such term in Section 2.1 of this Agreement.


 


“Agreement”
shall have the meaning assigned to such term in the introductory paragraph hereto.


 


“Alternative
Market” shall mean the New York Stock Exchange, the NYSE American, Nasdaq Global Select Market or the Nasdaq Global Market.


 


“Anti-Corruption
Laws” shall have the meaning assigned to such term in Section 5.23 of this Agreement.


 


“Applicable
Laws” shall have the meaning assigned to such term in Section 5.15 of this Agreement.


 


“Authorizations”
shall have the meaning assigned to such term in Section 5.15 of this Agreement.


 


“Bankruptcy
Law” shall mean Title 11, U.S. Code, or any similar U.S. federal or state law for the relief of debtors.


 


“Beneficial
Ownership Limitation” shall have the meaning assigned to such term in Section 3.4 of this Agreement.


 


“Block”
shall mean any trade in excess of 100,000 Shares on a single Trading Day to a single purchaser, as reported on Bloomberg through
its “VWAP” function.


 


“Bloomberg”
shall mean Bloomberg, L.P.


 


“Bring-Down
Opinion” shall have the meaning assigned to such term in Section 6.15 of this Agreement.


 


“Broker-Dealer”
shall have the meaning assigned to such term in Section 6.13 of this Agreement.


 


“CCPA”
shall have the meaning assigned to such term in Section 5.44(i) of this Agreement.


 


“CF&CO”
shall have the meaning assigned to such term in the recitals of this Agreement.


 


“Closing
Date” shall be the date of this Agreement.


 


“Closing
Sale Price” shall mean, for the Common Stock as of any date, the last closing trade price for the Common Stock on the Principal
Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an extended hours basis and does not designate the
closing trade price for the Common Stock, then the last trade price for the Common Stock prior to 4:00 p.m., New York City time, as reported
by Bloomberg. All such determinations shall be appropriately adjusted for any stock splits, stock dividends, stock combinations, recapitalizations
or other similar transactions during such period.


 


“Code”
shall have the meaning assigned to such term in Section 5.32 of this Agreement.


 


“Commencement”
shall have the meaning assigned to such term in Section 3.1 of this Agreement.


 


“Commencement
Date” shall have the meaning assigned to such term in Section 3.1 of this Agreement.


 




    	 



     


    

 


“Commencement
Irrevocable Transfer Agent Instructions” shall have the meaning assigned to such term in Section 10.1(iv).


 


“Commission”
shall mean the U.S. Securities and Exchange Commission or any successor entity.


 


“Commission
Documents” shall mean (1) all reports, schedules, registrations, forms, statements, information and other documents filed
with or furnished to the Commission by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act since October 13,
2021, including, without limitation, the Current Report, (2) each Registration Statement, as the same may be amended from time to time,
the Prospectus contained therein and each Prospectus Supplement thereto and (3) all information contained in such filings and all documents
and disclosures that have been or may in the future be incorporated by reference therein.


 


“Common
Stock Equivalents” shall mean any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that
is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.


 


“Company”
shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Compliance
Certificate” shall have the meaning assigned to such term in Section 7.2(ii) of this Agreement.


 


“Confidential
Data” shall have the meaning assigned to such term in Section 5.44(i) of this Agreement.


 


“Contract”
shall mean any written or oral legally binding contract, agreement, understanding, arrangement, subcontract, loan or credit agreement,
note, bond, indenture, mortgage, purchase order, deed of trust, lease, sublease, instrument, or other legally binding commitment, obligation
or undertaking.


 


“Current
Report” shall have the meaning assigned to such term in Section 2.3 of this Agreement.


 


“Custodian”
shall mean any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


“Damages”
shall have the meaning assigned to such term in Section 9.1 of this Agreement.


 


“DTC”
shall mean The Depository Trust Company, a subsidiary of The Depository Trust & Clearing Corporation, or any successor thereto.


 


“DWAC”
shall have the meaning assigned to such term in Section 5.41 of this Agreement.


 


“DWAC
Shares” shall mean shares of Common Stock issued pursuant to this Agreement that are (i) issued in electronic form, (ii)
freely tradable and transferable and without restriction on resale and without stop transfer instructions maintained against the transfer
thereof and (iii) timely credited by the Company to the Investor’s or its designated Broker-Dealer at which the account or accounts
to be credited with the Shares being purchased by Investor are maintained specified DWAC account with DTC under its Fast Automated Securities
Transfer (FAST) Program, or any similar program hereafter adopted by DTC performing substantially the same function.


 


“EDGAR”
shall mean the Commission’s Electronic Data Gathering, Analysis and Retrieval System.


 


“Effective
Date” shall mean, with respect to the Initial Registration Statement filed pursuant to Section 2(a) of the Registration
Rights Agreement (or any post-effective amendment thereto) or any New Registration Statement filed pursuant to Section 2(c) of the Registration
Rights Agreement (or any post-effective amendment thereto), as applicable, the date on which the Initial Registration Statement (or any
post-effective amendment thereto) or any New Registration Statement (or any post-effective amendment thereto) becomes effective.


 




    	 



     


    

 


“Entity”
shall have the meaning assigned to such term in Section 5.43 of this Agreement.


 


“Environmental
Laws” shall have the meaning assigned to such term in Section 5.22 of this Agreement.


 


“Excess
Shares” shall having the meaning assigned to such term in Section 3.1 of this Agreement.


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.


 


“Exchange
Cap” shall have the meaning assigned to such term in Section 3.3(a) of this Agreement.


 


“Exempt
Issuance” shall mean the issuance of (i) Common Stock, options or other equity incentive awards to employees, officers,
directors or vendors of the Company pursuant to any equity incentive plan, employee stock purchase plan or other compensatory plan or
arrangement duly adopted for such purpose, by the Company’s Board of Directors or a majority of the members of a committee of the
Board of Directors established for such purpose, (ii) (a) any Shares issued to the Investor pursuant to this Agreement, (b) any securities
issued upon the exercise or exchange of or conversion of any shares of Common Stock or Common Stock Equivalents held by the Investor
at any time, or (c) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding
on the date of this Agreement, provided that such securities referred to in this clause (c) have not been amended since the date of this
Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities
(which, for the avoidance of doubt, shall not include any adjustment pursuant to the terms thereof as in effect on the date hereof),
(iii) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved
by the Company’s Board of Directors or a majority of the members of a committee of directors established for such purpose, provided
that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries,
an operating company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional
benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily
for the purpose of raising capital or to an entity whose primary business is investing in securities, (iv) Common Stock issued by the
Company to the Investor or an Affiliate of the Investor in connection with any “equity line of credit” or other continuous
offering or similar offering of Common Stock pursuant to a written agreement between the Company and the Investor or an Affiliate of
the Investor, whereby the Company may sell Common Stock to the Investor or an Affiliate of the Investor at a future determined price,
or (v) Common Stock issued by the Company by any method deemed to be an “at the market offering” as defined in Rule 415(a)(4)
under the Securities Act, exclusively to or through CF&CO, as the Company’s sales agent, pursuant to one or more written agreements
between the Company and CF&CO.


 


“FDA”
shall have the meaning assigned to such term in Section 5.21 of this Agreement.


 


“FINRA”
shall have the meaning assigned to such term in Section 4.3 of this Agreement.


 


“Fundamental
Transaction” shall mean that (i) the Company shall, directly or indirectly, in one or more related transactions, (a) consolidate
or merge with or into (whether or not the Company is the surviving corporation) another Person, with the result that the holders of the
Company’s capital stock immediately prior to such consolidation or merger together beneficially own less than 50% of the outstanding
voting power of the surviving or resulting corporation, (b) sell, lease, license, assign, transfer, convey or otherwise dispose of all
or substantially all of the properties or assets of the Company to another Person, (c) take action to facilitate a purchase, tender or
exchange offer by another Person that is accepted by the holders of more than 50% of the outstanding shares of Common Stock (excluding
any shares of Common Stock held by the Person or Persons making or party to, or associated or affiliated with the Persons making or party
to, such purchase, tender or exchange offer), (d) consummate a stock or share purchase agreement or other business combination (including,
without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with another Person whereby such other Person
acquires more than 50% of the outstanding shares of Common Stock (not including any shares of Common Stock held by the other Person or
other Persons making or party to, or associated or affiliated with the other Persons making or party to, such stock or share purchase
agreement or other business combination), or (e) reorganize, recapitalize or reclassify its Common Stock, or (ii) any “person”
or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) is or shall become the
“beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate ordinary
voting power represented by issued and outstanding Common Stock.


 




    	 



     


    

 


“GAAP”
shall have the meaning assigned to such term in Section 5.7(ii) of this Agreement.


 


“GDPR”
shall have the meaning assigned to such term in Section 5.44(ii) of this Agreement.


 


“Governmental
Authority” shall mean (i) any federal, provincial, state, local, municipal, national or international government or governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court,
tribunal, arbitrator or arbitral body (public or private); (ii) any self-regulatory organization; or (iii) any political subdivision
of any of the foregoing.


 


“HIPAA”
shall have the meaning assigned to such term in Section 5.44(i) of this Agreement.


 


“Indebtedness”
shall have the meaning assigned to such term in Section 5.12 of this Agreement.


 


“Initial
Registration Statement” shall have the meaning assigned to such term in the Registration Rights Agreement.


 


“Investment
Period” shall mean the period commencing on the Effective Date of the Initial Registration Statement and expiring on the
date this Agreement is terminated pursuant to Article VIII.


 


“Investor”
shall have the meaning assigned to such term in the introductory paragraph of this Agreement.


 


“Investor
Party” shall have the meaning assigned to such term in Section 9.1 of this Agreement.


 


“IT
Systems” shall have the meaning assigned to such term in Section 5.44(i) of this Agreement.


 


“Knowledge”
shall mean the actual knowledge of the Company’s Chief Executive Officer, the Company’s President, and the Company’s
Chief Financial Officer, in each case after reasonable inquiry of all officers, directors and employees of the Company and its Subsidiaries
who would reasonably be expected to have knowledge or information with respect to the matter in question.


 


“Material
Contracts” shall mean any other Contract that is expressly referred to in or filed or incorporated by reference as an exhibit
to a Commission Document or that, if terminated or subject to default by a party thereto would, individually or in the aggregate, have
a Material Adverse Effect.


 


“Money
Laundering Laws” shall have the meaning assigned to such term in Section 5.24 of this Agreement.


 


“New
Registration Statement” shall have the meaning assigned to such term in the Registration Rights Agreement.


 


“OFAC”
shall have the meaning assigned to such term in Section 5.43 of this Agreement.


 


“Permits”
shall have the meaning assigned to such term in Section 5.21 of this Agreement.


 


“Person”
shall mean any person or entity, whether a natural person, trustee, corporation, partnership, limited partnership, limited liability
company, trust, unincorporated organization, business association, firm, joint venture, governmental agency or authority.


 


“Personal
Data” shall have the meaning assigned to such term in Section 5.44(i) of this Agreement.


 


“Policies”
shall have the meaning assigned to such term in Section 5.44(ii) of this Agreement.


 


“Post-Effective
Amendment Period” shall mean the period commencing at 9:30 a.m., New York City time, on the fifth (5th) Trading Day immediately
prior to the filing of any post-effective amendment to the Initial Registration Statement or any New Registration Statement, and ending
at 9:30 a.m., New York City time, on the Trading Day immediately following, the Effective Date of such post-effective amendment.


 




    	 



     


    

 


“Principal
Market” shall mean the Nasdaq Global Market; provided, however, that in the event the Company’s Common
Stock is ever listed or traded on an Alternative Market, then the “Principal Market” shall mean such Alternative Market on
which the Company’s Common Stock is then listed or traded.


 


“Privacy
Laws” shall have the meaning assigned to such term in Section 5.44(ii) of this Agreement.


 


“Prospectus”
shall mean the prospectus in the form included in a Registration Statement, as supplemented from time to time by any Prospectus Supplement,
including the documents incorporated by reference therein.


 


“Prospectus
Supplement” shall mean any prospectus supplement to the Prospectus filed with the Commission from time to time pursuant
to Rule 424(b) under the Securities Act, including the documents incorporated by reference therein.


 


“Qualified
Independent Underwriter” shall have the meaning assigned to such term in FINRA Rule 5121(f)(12).


 


“Registrable
Securities” shall have the meaning assigned to such term in the Registration Rights Agreement.


 


“Registration
Period” shall have the meaning assigned to such term in the Registration Rights Agreement.


 


“Registration
Statement” shall have the meaning assigned to such term in the Registration Rights Agreement.


 


“Regulation
D” shall have the meaning assigned to such term in the recitals of this Agreement.


 


“Restricted
Period” shall have the meaning assigned to such term in Section 6.9(i) of this Agreement.


 


“Restricted
Persons” shall have the meaning assigned to such term in Section 6.9(i) of this Agreement.


 


“Rule
144” shall mean Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect.


 


“Sale
Price” shall mean any trade price for the shares of Common Stock on the Principal Market during normal trading hours, as
reported by the Principal Market.


 


“Sanctioned
Countries” shall have the meaning assigned to such term in Section 5.43 of this Agreement.


 


“Sanctions”
shall have the meaning assigned to such term in Section 5.43 of this Agreement.


 


“Sarbanes-Oxley
Act” shall have the meaning assigned to such term in Section 5.7(iii) of this Agreement.


 


“Section
4(a)(2)” shall have the meaning assigned to such term in the recitals of this Agreement.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.


 


“Share
Delivery Deadline” shall have the meaning set forth in Section 3.2 of this Agreement.


 


“Shares”
shall mean the shares of Common Stock that are and/or may be purchased by the Investor under this Agreement pursuant to one or more VWAP
Purchase Notices.


 


“Short
Sales” shall mean “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange
Act.


 




    	 



     


    

 


“Subsidiary”
shall mean any corporation or other entity, of which at least a majority of the securities or other ownership interest having ordinary
voting power for the election of directors or other persons performing similar functions are at the time owned directly or indirectly
by the Company and/or any of its other Subsidiaries.


 


“Total
Commitment” shall have the meaning assigned to such term in Section 2.1.


 


“Trading
Day” shall mean any day on which the Principal Market is open for trading (regular way), including any day on which the
Principal Market is open for trading (regular way) for a period of time less than the customary time.


 


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


 


“Transfer
Agent” shall mean Continental Stock Transfer & Trust Company or any successor thereof as the Company’s transfer
agent.


 


“Upfront
Commitment Fee” shall mean an amount in cash equal to two (2) percent of the Total Commitment.


 


“VWAP”
shall mean, for the Common Stock for a specified period, the dollar volume-weighted average price for the Common Stock on the Principal
Market, for such period, as reported by Bloomberg through its “AQR” function. All such determinations shall be appropriately
adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.


 


“VWAP
Purchase Amount” shall have the meaning assigned to such term in Section 3.2 of this Agreement.


 


“VWAP
Purchase Commencement Time” shall mean, with respect to a VWAP Purchase made pursuant to Section 3.1, 9:30:01 a.m., New
York City time, on the applicable VWAP Purchase Date, or such later time on such VWAP Purchase Date publicly announced by the Principal
Market as the official open (or commencement) of trading (regular way) on the Principal Market on such VWAP Purchase Date; provided,
however, that if a VWAP Purchase Notice is delivered after 9:00 a.m., New York City time, on a VWAP Purchase Date, then the VWAP
Purchase Commencement Time shall start only upon receipt by the Company of written confirmation (which may be by email) of acceptance
by the Investor, and which confirmation shall specify the VWAP Purchase Commencement Time.


 


“VWAP
Purchase Condition Satisfaction Time” shall have the meaning assigned to such term in Section 7.3 of this Agreement.


 


“VWAP
Purchase Date” shall mean, with respect to a VWAP Purchase made pursuant to Section 3.1, the Trading Day on which the Investor
receives, on such Trading Day, a valid VWAP Purchase Notice for such VWAP Purchase in accordance with this Agreement.


 


“VWAP
Purchase Maximum Amount” shall mean, with respect to a VWAP Purchase made pursuant to Section 3.1, a number of shares of
Common Stock equal to the lesser of (i) a number of shares of Common Stock which, when aggregated with all other shares of Common Stock
then beneficially owned by the Investor and its Affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3
promulgated thereunder), would result in the beneficial ownership by the Investor of more than the Beneficial Ownership Limitation and
(ii) a number of Shares equal to (a) the VWAP Purchase Share Percentage multiplied by (b) the total number (or volume) of shares of Common
Stock traded on the Principal Market (or, if the Common Stock is then listed on an Alternate Market, on such Alternate Market) during
the applicable VWAP Purchase Period on the applicable VWAP Purchase Date for such VWAP Purchase and (iii) the VWAP Purchase Share Estimate.


 




    	 



     


    

 


“VWAP
Purchase Notice” shall mean, with respect to a VWAP Purchase made pursuant to Section 3.1, an irrevocable written notice
delivered by the Company to the Investor directing the Investor to purchase a VWAP Purchase Share Amount (such specified VWAP Purchase
Share Amount subject to adjustment as set forth in Section 3.1 as necessary to give effect to the VWAP Purchase Maximum Amount), at the
applicable VWAP Purchase Price therefor on the applicable VWAP Purchase Date for such VWAP Purchase in accordance with this Agreement.


 


“VWAP
Purchase Period” shall mean, with respect to a VWAP Purchase made pursuant to Section 3.1, the period on the applicable
VWAP Purchase Date for such VWAP Purchase beginning at the applicable VWAP Purchase Commencement Time and ending at the applicable VWAP
Purchase Termination Time.


 


“VWAP
Purchase Price” shall mean the purchase price per Share to be purchased by the Investor in such VWAP Purchase on such VWAP
Purchase Date equal to ninety-six percent (96.0%) of the VWAP over the applicable VWAP Purchase Period on such VWAP Purchase Date for
such VWAP Purchase. Notwithstanding anything in this Agreement to the contrary, on any Trading Day on which the Company delivers, and
the Investor accepts, a VWAP Purchase Notice for a VWAP Purchase Share Request Percentage in excess of the VWAP Purchase Share Percentage,
the VWAP Purchase Price shall be calculated using the lower of (i) the VWAP over the applicable VWAP Purchase Period on such VWAP Purchase
Date for such VWAP Purchase; and (ii) the lowest Sale Price in any Block sold on such Trading Day following the delivery and acceptance
of such VWAP Purchase Notice for a VWAP Purchase Share Request Percentage in excess of the VWAP Purchase Share Percentage.


 


“VWAP
Purchase Share Amount” means, with respect to a VWAP Purchase made pursuant to Section 3.1, the number of Shares to be
purchased by the Investor in such VWAP Purchase as specified by the Company in the applicable VWAP Purchase Notice, which number of Shares
shall not exceed the applicable VWAP Purchase Maximum Amount.


 


“VWAP
Purchase Share Delivery Date” shall mean the date of the VWAP Purchase Notice, or such later date on which the Shares are
actually delivered to the Investor (it being acknowledged and agreed that the Company may not deliver any additional VWAP Purchase Notice
to the Investor until all such Shares subject to such VWAP Purchase, and all Shares subject to all prior VWAP Purchase Notices, have
been received by the Investor as DWAC Shares in accordance with this Agreement).


 


“VWAP
Purchase Share Estimate” means the number of shares of Common Stock constituting a good faith estimate by the Company of
the number of Shares that the Investor shall have the obligation to buy pursuant to the VWAP Purchase Notice.


 


“VWAP
Purchase Share Percentage” means, with respect to a VWAP Purchase made pursuant to Section 3.1, twenty percent (20%).


 


“VWAP
Purchase Share Request Percentage” shall mean the percentage set forth in any VWAP Purchase Notice.


 


“VWAP
Purchase Termination Time” means, with respect to a VWAP Purchase made pursuant to Section 3.1, 4:00 p.m., New York City
time, on the applicable VWAP Purchase Date, or such earlier time publicly announced by the Principal Market as the official close of
trading (regular way) on the Principal Market on such applicable VWAP Purchase Date.