Exhibit 10.1


 


COMMON STOCK PURCHASE AGREEMENT


 


Dated as of April 4, 2022


 


by and between


 


KNIGHTSCOPE, INC.


 


and


 


B. RILEY PRINCIPAL CAPITAL, LLC


 









    


     


    

 


Table
of Contents


 


Page





 





	Article I DEFINITIONS	1
	 	 
	Article II PURCHASE AND SALE OF COMMON STOCK	1
	Section 2.1.	Purchase and Sale of Stock	1
	Section 2.2.	Closing Date; Settlement Dates	2
	Section 2.3.	Initial Public Announcements and Required Filings	2
	 	 	 
	Article III PURCHASE TERMS 	3
	Section 3.1.	VWAP Purchases	3
	Section 3.2.	Intraday VWAP Purchases	3
	Section 3.3.	Settlement	4
	Section 3.4.	Compliance with Rules of Trading Market	4
	Section 3.5.	Beneficial Ownership Limitation	5
	 	 	 
	Article IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR 	6
	Section 4.1.	Organization and Standing of the Investor	6
	Section 4.2.	Authorization and Power	6
	Section 4.3.	No Conflicts	6
	Section 4.4.	Investment Purpose	7
	Section 4.5.	Accredited Investor Status	7
	Section 4.6.	Reliance on Exemptions	7
	Section 4.7.	Information	7
	Section 4.8.	No Governmental Review	8
	Section 4.9.	No General Solicitation	8
	Section 4.10.	Not an Affiliate	8
	Section 4.11.	No Prior Short Sales	8
	Section 4.12.	Statutory Underwriter Status	8
	Section 4.13.	Resales of Securities	8



 






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	Article V
    REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
    COMPANY	9
	Section 5.1.	Organization, Good Standing and Power	9
	Section 5.2.	Authorization, Enforcement	9
	Section 5.3.	Capitalization	9
	Section 5.4.	Issuance of Securities	10
	Section 5.5.	No Conflicts	10
	Section 5.6.	Commission Documents, Financial Statements; Disclosure
    Controls and Procedures; Internal Controls Over Financial Reporting; Accountants	11
	Section 5.7.	Subsidiaries	14
	Section 5.8.	No Material Adverse Effect or Material Adverse Change	14
	Section 5.9.	No Undisclosed Liabilities	14
	Section 5.10.	No Material Defaults	14
	Section 5.11.	Solvency	15
	Section 5.12.	Title To Assets	15
	Section 5.13.	Actions Pending	15
	Section 5.14.	Compliance With Laws	15
	Section 5.15.	Certain Fees	16
	Section 5.16.	Disclosure	16
	Section 5.17.	Operation of Business	17
	Section 5.18.	Environmental Compliance	17
	Section 5.19.	Material Agreements	18
	Section 5.20.	Transactions With Affiliates	18
	Section 5.21.	Employees; Labor Laws	18
	Section 5.22.	Use of Proceeds	19
	Section 5.23.	Investment Company Act Status	19
	Section 5.24.	ERISA	19
	Section 5.25.	Taxes	19
	Section 5.26.	Insurance	20
	Section 5.27.	Exemption from Registration	20
	Section 5.28.	No General Solicitation or Advertising	20
	Section 5.29.	No Integrated Offering	20
	Section 5.30.	Dilutive Effect	20
	Section 5.31.	Manipulation of Price	21
	Section 5.32.	Securities Act	21
	Section 5.33.	Listing and Maintenance Requirements; DTC Eligibility	21
	Section 5.34.	Application of Takeover Protections	21
	Section 5.35.	No Unlawful Payments	22
	Section 5.36.	Money Laundering Laws	22
	Section 5.37.	OFAC	22
	Section 5.38.	U.S. Real Property Holding Corporation	23
	Section 5.39.	IT Systems	23
	Section 5.40.	Compliance With Data Security Requirements	23
	Section 5.41.	No Disqualification Events	24
	Section 5.42.	Emerging Growth Company Status	24
	Section 5.43.	Smaller Reporting Company Status	24
	Section 5.44.	Acknowledgement Regarding Investor’s Acquisition
    of Securities	24



 


 






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	Article VI
    ADDITIONAL COVENANTS	25
	Section 6.1.	Securities Compliance	25
	Section 6.2.	Reservation of Common Stock	25
	Section 6.3.	Registration and Listing	25
	Section 6.4.	Compliance with Laws	26
	Section 6.5.	Keeping of Records and Books of Account; Due Diligence	27
	Section 6.6.	No Frustration; No Variable Rate Transactions	27
	Section 6.7.	Corporate Existence	27
	Section 6.8.	Fundamental Transaction	28
	Section 6.9.	Selling Restrictions	28
	Section 6.10.	Effective Registration Statement	28
	Section 6.11.	Blue Sky	29
	Section 6.12.	Non-Public Information	29
	Section 6.13.	Broker-Dealer	29
	Section 6.14.	Disclosure Schedule	29
	Section 6.15.	Delivery of Bring Down Opinions and Compliance Certificates
    Upon Occurrence of Certain Events	30
	 	 	 
	Article VII
    CONDITIONS TO CLOSING, COMMENCEMENT AND PURCHASES	31
	Section 7.1.	Conditions Precedent to Closing	31
	Section 7.2.	Conditions Precedent to Commencement	32
	Section 7.3.	Conditions Precedent to Purchases after Commencement
    Date	35
	 	 	 
	Article VIII
    TERMINATION	39
	Section 8.1.	Automatic Termination	39
	Section 8.2.	Other Termination	40
	Section 8.3.	Effect of Termination	41
	 	 	 
	Article IX
    INDEMNIFICATION	42
	Section 9.1.	Indemnification of Investor	42
	Section 9.2.	Indemnification Procedures	43



 






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	Article X MISCELLANEOUS 	44
	Section 10.1.	Certain Fees and Expenses; Commitment Shares; Commencement Irrevocable Transfer Agent Instructions	44
	Section 10.2.	Specific Enforcement, Consent to Jurisdiction, Waiver of Jury Trial	47
	Section 10.3.	Entire Agreement	48
	Section 10.4.	Notices	48
	Section 10.5.	Waivers	49
	Section 10.6.	Amendments	49
	Section 10.7.	Headings	49
	Section 10.8.	Construction	49
	Section 10.9.	Binding Effect	50
	Section 10.10.	No Third Party Beneficiaries	50
	Section 10.11.	Governing Law	50
	Section 10.12.	Survival	50
	Section 10.13.	Counterparts	50
	Section 10.14.	Publicity	50
	Section 10.15.	Severability	51
	Section 10.16.	Further Assurances	51



 


Annex I. Definitions


 









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COMMON
STOCK PURCHASE AGREEMENT


 


This COMMON STOCK PURCHASE
AGREEMENT is made and entered into as of April 4, 2022 (this “Agreement”), by and between B. Riley
Principal Capital, LLC, a Delaware limited liability company (the “Investor”), and Knightscope, 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) $100,000,000
in aggregate gross purchase price of newly issued shares of the Company’s Class A common stock, par value $0.001 per share
(the “Common Stock”), and (ii) the Exchange Cap (to the extent applicable under Section 3.4);


 


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 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 sales of Common Stock 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 is concurrently causing its transfer agent
to issue to the Investor the Initial Commitment Shares pursuant to and in accordance with Section 10.1(ii)(a);


 


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) $100,000,000 (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 3.4 (such lesser amount of shares of Common Stock, the “Aggregate
Limit”), by the delivery to the Investor of VWAP Purchase Notices and Intraday 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(iv), to the offices
of Dorsey & Whitney LLP, 51 West 52nd Street, New York, NY 10019-6119, at 3:45 p.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 and each Intraday VWAP Purchase (as applicable). The delivery
of Shares in respect of each VWAP Purchase and each Intraday VWAP Purchase, and the payment for such Shares, shall occur in
accordance with Section 3.3.


 


Section 2.3.     Initial
Public Announcements and Required Filings. The Company shall, not later than 8:30 a.m., New
York City time, on the second (2nd) Trading Day immediately after the date of this Agreement, 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 issuance of the Initial Commitment Shares to the Investor
in accordance with Section 10.1(ii)(a), and attaching as exhibits thereto copies of each of this Agreement and the Registration Rights
Agreement and, if applicable, any press release issued by the Company disclosing the execution of this Agreement and the Registration
Rights Agreement by the Company (including all exhibits thereto, the “Current Report”). The Company shall provide
the Investor 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 Investor covenants that until such time as
the transactions contemplated by this Agreement and the Registration Rights Agreement are publicly disclosed by the Company as described
in this Section 2.3, the Investor shall maintain the confidentiality of all disclosures made to it in connection with the transactions
contemplated by the Transaction Documents (including the existence and terms of the transactions contemplated thereby), except that the
Investor may disclose the terms of such transactions to its financial, accounting, legal and other advisors (provided that the Investor
directs such Persons to maintain the confidentiality of such information). Not later than 15 calendar days following the Closing Date,
the Company shall file a Form D with respect to the issuance and sale of the Securities in accordance with Regulation D. The Company
shall use its commercially reasonable efforts to prepare and, as soon as practicable, but in no event later than the applicable Filing
Deadline, 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 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 for a VWAP Purchase on the applicable Purchase Date therefor, to purchase a specified VWAP Purchase Share Amount, which shall not
exceed the applicable VWAP Purchase Maximum Amount, at the applicable VWAP Purchase Price therefor on such Purchase Date in accordance
with this Agreement (each such purchase, a “VWAP Purchase”). The Company may timely deliver to the Investor
a VWAP Purchase Notice for a VWAP Purchase on any Trading Day selected by the Company as the Purchase Date for such VWAP Purchase, so
long as (i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding such Purchase Date is not less than
the Threshold Price, and (ii) all Shares subject to all prior VWAP Purchases and Intraday VWAP Purchases (as applicable) pursuant
to this Agreement have been received by the Investor as DWAC Shares prior to the Company’s delivery to the Investor of such VWAP
Purchase Notice for such VWAP Purchase on such Purchase Date. 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 VWAP Purchase Share Amount in excess of the applicable
VWAP Purchase Maximum Amount that the Company is then permitted to include in such VWAP Purchase Notice, 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, and shall not purchase, such excess
Shares pursuant to such VWAP Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the
applicable VWAP Purchase Maximum Amount pursuant to such VWAP Purchase. At or prior to 5:30 p.m., New York City time, on the Purchase
Date for each VWAP Purchase, the Investor shall provide to the Company a written confirmation for such VWAP Purchase (each, a “VWAP
Purchase Confirmation”) setting forth the applicable VWAP Purchase Price per Share to be paid by the Investor for the Shares
purchased 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 PEA Period.





 


Section 3.2.     Intraday
VWAP Purchases. Upon the initial satisfaction of all of the conditions set forth in Section 7.2
on the Commencement Date and from time to time thereafter, subject to the satisfaction of all of the conditions set forth in Section 7.3,
in addition to VWAP Purchases as described in Section 3.1, the Company shall also have the right, but not the obligation, to direct
the Investor, by its timely delivery to the Investor of an Intraday VWAP Purchase Notice on the applicable Purchase Date therefor, to
purchase a specified Intraday VWAP Purchase Share Amount, which shall not exceed the applicable Intraday VWAP Purchase Maximum Amount,
at the applicable Intraday VWAP Purchase Price therefor on such Purchase Date in accordance with this Agreement (each such purchase, an
 “Intraday VWAP Purchase”). The Company may timely deliver to the Investor an Intraday VWAP Purchase Notice for
an Intraday VWAP Purchase on any Trading Day selected by the Company as the Purchase Date for such Intraday VWAP Purchase, so long as
(i) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding such Purchase Date is not less than the Threshold
Price, and (ii) all Shares subject to all prior VWAP Purchases and Intraday VWAP Purchases (as applicable) have been received by
the Investor as DWAC Shares prior to the Company’s delivery to the Investor of such Intraday VWAP Purchase Notice for such Intraday
VWAP Purchase on such Purchase Date. The Investor is obligated to accept each Intraday 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 Intraday VWAP Purchase Notice directing the Investor to purchase an Intraday VWAP Purchase Share Amount in excess of the
applicable Intraday VWAP Purchase Maximum Amount that the Company is then permitted to include in such Intraday VWAP Purchase Notice,
such Intraday VWAP Purchase Notice shall be void ab initio to the extent of the amount by which the Intraday VWAP Purchase Share
Amount set forth in such Intraday VWAP Purchase Notice exceeds such applicable Intraday VWAP Purchase Maximum Amount, and the Investor
shall have no obligation to purchase, and shall not purchase, such excess Shares pursuant to such Intraday VWAP Purchase Notice; provided,
however, that the Investor shall remain obligated to purchase the applicable Intraday VWAP Purchase Maximum Amount pursuant to
such Intraday VWAP Purchase. At or prior to 5:30 p.m., New York City time, on the Purchase Date for a VWAP Purchase on which one or more
Intraday VWAP Purchases also shall have occurred, the Investor shall provide to the Company, together with the applicable VWAP Purchase
Confirmation for such VWAP Purchase, a written confirmation for each such Intraday VWAP Purchase (each, an “Intraday VWAP
Purchase Confirmation”) setting forth the applicable Intraday VWAP Purchase Price per Share to be paid by the Investor for
the Shares purchased by the Investor in such Intraday VWAP Purchase, and the total aggregate Intraday VWAP Purchase Price to be paid by
the Investor for the total Intraday VWAP Purchase Share Amount purchased by the Investor in such Intraday VWAP Purchase. Notwithstanding
the foregoing, the Company shall not deliver any Intraday VWAP Purchase Notices to the Investor during the PEA Period.


 









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Section 3.3.     Settlement.
The Shares constituting the applicable VWAP Purchase Share Amount purchased by the Investor in each VWAP Purchase, and the Shares constituting
the applicable Intraday VWAP Purchase Share Amount purchased by the Investor in each Intraday VWAP Purchase (as applicable), in each case
shall be delivered to the Investor as DWAC Shares not later than 1:00 p.m., New York City time, on the Trading Day immediately following
the Purchase Date for such VWAP Purchase and for each such Intraday VWAP Purchase (as applicable) (the “Purchase Share Delivery
Date”). For (a) each VWAP Purchase, the Investor shall pay to the Company an amount in cash equal to the product of
(1) the total number of Shares purchased by the Investor in such VWAP Purchase and (2) the applicable VWAP Purchase Price for
such Shares, as full payment for such Shares purchased by the Investor in such VWAP Purchase, and (b) each Intraday VWAP Purchase,
the Investor shall pay to the Company an amount in cash equal to the product of (1) the total number of Shares purchased by the Investor
in such Intraday VWAP Purchase and (2) the applicable Intraday VWAP Purchase Price for such Shares, as full payment for such Shares
purchased by the Investor in such Intraday VWAP Purchase, in each case via wire transfer of immediately available funds, not later than
5:00 p.m., New York City time, on the Trading Day immediately following the applicable Purchase Share Delivery Date for such VWAP Purchase
and for each such Intraday VWAP Purchase (as applicable), provided the Investor shall have timely received, as DWAC Shares, all of such
Shares purchased by the Investor in such VWAP Purchase and Intraday VWAP Purchase (as applicable) on such Purchase Share Delivery Date
in accordance with the first sentence of this Section 3.3, or, if any of such Shares are received by the Investor after 1:00 p.m.,
New York City time, then the Company’s receipt of such funds in its designated account may occur on the Trading Day next following
the Trading Day on which the Investor shall have received all of such Shares as DWAC Shares, but not later than 5:00 p.m., New York City
time, on such next Trading Day. If the Company or its 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 or an Intraday VWAP Purchase prior to 10:30 a.m., New York City time, on the Trading
Day immediately following the applicable Purchase Share Delivery Date for such VWAP Purchase and for each such Intraday VWAP Purchase
(as applicable), 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 Purchase Share Delivery Date in respect of such VWAP Purchase or such Intraday VWAP Purchase (as applicable), 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 shall terminate, 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 or such Intraday VWAP Purchase (as applicable). The Company shall not issue any fraction of a share
of Common Stock to the Investor in connection with any VWAP Purchase or Intraday 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.





 


Section 3.4.     Compliance
with Rules of Trading Market.


 


(a)            Exchange
Cap. Subject to Section 3.4(b), 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 6,847,787 (such number of shares equal to 19.99% of the sum of (i) the shares of Common Stock and (ii) the shares
of the Company’s Class B common stock, par value $0.001 per share (the “Class B Common Stock”), in each
case 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 Trading 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 Trading 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 (except as set forth in Section 3.4(b)).


 












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(b)            At-Market
Transaction. Notwithstanding Section 3.4(a) above, the Exchange Cap shall not be applicable for any purposes of this
Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal
or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this Agreement
and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval referred
to in Section 3.4(a) is obtained). The parties acknowledge and agree that the Minimum Price used to determine the Base Price
hereunder represents the lower of (i) the Nasdaq official closing price of the Common Stock on the Trading Market (as reflected on
Nasdaq.com) on the Trading Day immediately prior to the date of this Agreement and (ii) the average Nasdaq official closing price
of the Common Stock on the Trading Market (as reflected on Nasdaq.com) for the five (5) consecutive Trading Days ending on the Trading
Day immediately prior to the date of this Agreement.


 


(c)            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 Trading Market. The provisions
of this Section 3.4 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section 3.4
only if necessary to ensure compliance with the Securities Act and the applicable rules of the Trading Market.


 


Section 3.5.     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 of more than 4.99% of the outstanding shares of Common Stock (the “Beneficial Ownership Limitation”).
Upon the written request of the Investor, the Company shall promptly (but not later than the next business day on which the Company’s
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 3.5 and the application
of this Section 3.5. 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 3.5 shall be construed and implemented in a manner otherwise than in strict
conformity with the terms of this Section 3.5 to the extent necessary to properly give effect to the limitations contained in this
Section 3.5.


 












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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 organized,
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 limited liability company power and authority to
enter into and perform its obligations under this Agreement and the Registration Rights Agreement and to purchase or acquire the Securities
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 limited
liability company action, and no further consent or authorization of the Investor, its officers 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 certificate of formation, limited liability company agreement or other
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 Governmental Authority 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 Governmental Authority 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 Securities in accordance with
the terms hereof; 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.


 






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Section 4.4.     Investment
Purpose. The Investor is acquiring the Securities 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 Securities for any minimum or other specific term and reserves
the right to dispose of the Securities at any time in accordance with, or pursuant to, a registration statement filed pursuant to the
Registration Rights Agreement or an applicable exemption under the Securities Act. The Investor does not presently have any agreement
or understanding, directly or indirectly, with any Person to sell or distribute any of the Securities. The Investor is acquiring the Securities
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 Securities 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 Securities.


 


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 Securities 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 Securities
involves a high degree of risk. The Investor is able to bear the economic risk of an investment in the Securities 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
Securities. 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 Securities.
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 .
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 Securities. 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.


 






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Section 4.8.     No
Governmental Review. The Investor understands that no United States federal or state agency
or any other government or Governmental Authority has passed on or made any recommendation or endorsement of the Securities or the fairness
or suitability of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the
Securities.


 


Section 4.9.     No
General Solicitation. The Investor is not purchasing or acquiring the Securities 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 Securities.


 


Section 4.10.     Not
an Affiliate. The Investor is not an officer, director or an Affiliate of the Company. As
of the date of this Agreement, the Investor does not beneficially own any shares of Common Stock or securities exercisable for or convertible
into shares of Common Stock, other than the Initial Commitment Shares. 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 or an Intraday VWAP Purchase (as applicable) if the Company or its transfer agent shall have failed for any reason (other than
a failure of the Investor or its Broker-Dealer to set up a DWAC and required instructions) to electronically transfer all of the Shares
subject to such VWAP Purchase or such Intraday VWAP Purchase (as applicable) to the Investor on the applicable Purchase Share Delivery
Date by crediting the Investor’s or its designated Broker-Dealer’s account at DTC through its DWAC delivery system in compliance
with Section 3.3 of this Agreement.


 


Section 4.11.     No
Prior Short Sales. At no time prior to the date of this Agreement has the Investor, its
sole member, any of their respective officers, or any entity managed or controlled by the Investor or its sole member, engaged in or
effected, in any manner whatsoever, directly or indirectly, for its own account or for the account of any of its Affiliates, 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.


 


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 Securities. The Investor represents, warrants and covenants that it will resell Securities
purchased or acquired by the Investor from the Company pursuant to this Agreement only pursuant to the Registration Statement in which
the resale of such Securities 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 applicable state securities laws,
rules and regulations.


 






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Article V


REPRESENTATIONS,
WARRANTIES AND COVENANTS OF THE COMPANY


 


Except as set forth in the
disclosure schedule delivered by the Company to the Investor (which is hereby incorporated by reference in, and constitutes an integral
part of, this Agreement) (the “Disclosure Schedule”), the Company hereby makes the following representations,
warranties and covenants to the Investor:


 


Section 5.1.     Organization,
Good Standing and Power. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the corporate power and authority to own, lease or operate its assets
and properties and to conduct its business as now being conducted. The Company is duly licensed or qualified and in good standing (or
equivalent status as applicable) in each jurisdiction in which the assets owned or leased by it or the character of its activities require
it to be licensed or qualified or in good standing (or equivalent status as applicable), except where the failure to be so licensed or
qualified, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect.


 


Section 5.2.     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 Securities 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 any Intraday VWAP Purchase Notice), 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 5.3.     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 and/or 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, 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 Bylaws as in effect on the Closing Date (the “Bylaws”).


 






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Section 5.4.     Issuance
of Securities. The Commitment Shares have been, and 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 or pursuant to an
Intraday VWAP Purchase Notice, will be, prior to the delivery to the Investor hereunder of such VWAP Purchase Notice and prior to the
delivery to the Investor hereunder of such Intraday VWAP Purchase Notice (as applicable), duly authorized by all necessary corporate
action on the part of the Company. The Commitment Shares, when issued to the Investor in accordance with this Agreement, and the Shares,
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. An aggregate of 20,000,000 shares of Common Stock have been duly authorized and reserved by the Company for
issuance and sale to the Investor as Shares pursuant to VWAP Purchases and Intraday VWAP Purchases under this Agreement. An aggregate
of at least 98,888 shares of Common Stock have been duly authorized and reserved by the Company for issuance to the Investor as Additional Commitment
Shares pursuant to this Agreement.


 


Section 5.5.     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 breach or violation
of any of the terms or provisions of, or 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 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 or by which any property or asset of the Company or any of its Subsidiaries
are bound or affected (including federal and state securities laws and regulations and the rules and regulations of the Trading
Market or applicable Eligible Market), except, in the case of clauses (ii) and (iii), for such conflicts, defaults, terminations,
amendments, acceleration, cancellations, liens, charges, encumbrances and violations as would not, individually or in the aggregate,
reasonably be expected to results in a Material Adverse Effect. Except as specifically contemplated by this Agreement or the Registration
Rights Agreement and as required under the Securities Act and any applicable state securities laws, the Company is not required under
any federal, state, local or foreign law, rule or regulation to obtain any consent, authorization or order of, or make any filing
or registration with, any Governmental Authority (including, without limitation, the Trading Market) 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 Securities 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 5.6.     Commission
Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants.


 


(a)            Since
January 26, 2022, the Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under
the Exchange Act) all Commission Documents 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. The Company has delivered or made available to the Investor via EDGAR or otherwise true and complete copies of the Commission
Documents filed with or furnished to the Commission prior to the Closing Date. 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, as of 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. Each Registration Statement, on the date it is filed with the Commission, on the date it is declared
effective by the Commission, and on each 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 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 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.
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 filed as part
of or 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. 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.


 






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(b)            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 the Subsidiaries
(as defined below) as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company and the Subsidiaries for the periods specified (subject, in the case of unaudited statements, to normal year-end
audit adjustments which will not be material, either individually or in the aggregate) 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 (except (i) for such adjustments to accounting
standards and practices as are noted therein and (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) during the periods involved. The pro forma financial statements or data included
or incorporated by reference in the Commission Documents, if any, 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 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. The
other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the Commission
Documents, if any, are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and
records of the Company. 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. The Company and the Subsidiaries
do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable
interest entities” as that term is used in Accounting Standards Codification Paragraph 810-10-25-20), not described in Commission
Documents which are required to be described in the Commission Documents. 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.


 






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(c)            Except
as set forth in the Commission Documents, the Company maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting (other than as
set forth in the Commission Documents). Except as set forth in the Commission Documents, since the date of the latest audited financial
statements of the Company included in the 2021 Form 10-K, 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. Except 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) that comply with the requirements of the Exchange Act. The Company’s certifying officers
have evaluated the effectiveness of the Company’s controls and procedures as of a date within 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 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 most recent Evaluation Date and, except as set forth in such Form 10-K
or any Commission Document filed with the Commission for a period subsequent to the period covered by such Form 10-K, the “disclosure
controls and procedures” are effective.


 


(d)            BPM
LLP (the “Accountant”), whose report on the consolidated financial statements of the Company is filed with the
Commission as part of the 2021 Form 10-K, are and, during the periods covered by their report, were independent public accountants
within the meaning of the Securities Act and 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.


 


(e)            Since
January 26, 2022, the Company has timely filed all certifications and statements the Company is required to file under (i) Rule 13a-14
or Rule 15d-14 under the Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act) with
respect to all Commission Documents with respect to which the Company is required to file such certifications and statements thereunder.


 






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Section 5.7.     Subsidiaries.
Each Subsidiary of the Company has been duly formed or organized, is validly existing under the applicable laws of its jurisdiction of
incorporation or organization and has the organizational power and authority to own, lease and operate its assets and properties and
to conduct its business as it is now being conducted. Each of the Company’s Subsidiaries is duly licensed or qualified and in good
standing (or equivalent status as applicable) as a foreign corporation (or other entity, if applicable) in each jurisdiction in which
the assets owned or leased by it or the character of its activities require it to be licensed or qualified or in good standing (or equivalent
status as applicable), except where the failure to be so licensed or qualified, individually or in the aggregate, has not had and would
not be expected to have a Material Adverse Effect.


 


Section 5.8.     No
Material Adverse Effect or Material Adverse Change. Except as otherwise disclosed in any
Commission Documents, since December 31, 2021: (i) the Company has not experienced or suffered any Material Adverse Effect,
and there exists no current state of facts, condition or event which would have a Material Adverse Effect; (ii) there has not occurred
any material adverse change, or any development that would reasonably be expected to result in a prospective material adverse change,
in the condition, financial or otherwise, or in the earnings, business or operations of the Company from that set forth in the Commission
Documents, including, without limitation, as a result of the recent outbreak of COVID-19, or as a result of any measures intended to
contain the outbreak of COVID-19 imposed by any Governmental Authority in any country or region in which the Company, or any of its agents,
consultants, advisors or vendors, has assets or properties or conducts business, including, without limitation, any limitations, curtailments,
suspensions or closures of businesses, business offices or establishments, schools, properties and other public areas due to quarantines,
curfews, travel restrictions, workplace controls, “stay-at-home” orders, social distancing requirements or guidelines or
other public gathering restrictions or limitations, directives or recommendations promulgated by any Governmental Authority, including
the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to
the COVID-19 pandemic; (iii) neither the Company nor any of its Subsidiaries has incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction; (iv) the Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or distribution of any kind on its capital stock other than ordinary and customary
dividends; and (v) there has not been any material change in the capital stock, short-term debt or long-term debt of the Company.


 


Section 5.9.     No
Undisclosed Liabilities. Neither the Company nor any of its Subsidiaries has any liabilities,
obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise)
that would be required to be disclosed on a balance sheet of the Company or any Subsidiary (including the notes thereto) in conformity
with GAAP and are not disclosed in the Commission Documents, other than those incurred in the ordinary course of the Company’s
or its Subsidiaries respective businesses since December 31, 2021 and which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.


 


Section 5.10.     No
Material Defaults. Since December 31, 2021, neither the Company nor any of its
Subsidiaries (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any
installment on Indebtedness or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would
have a Material Adverse Effect, and the Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange
Act disclosing that it or any of its Subsidiaries has failed to make any such payments or has so defaulted.


 






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Section 5.11.     Solvency.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law,
nor does the Company have any Knowledge that its creditors intend to initiate involuntary bankruptcy, insolvency, reorganization or liquidation
proceedings or other proceedings for relief under any Bankruptcy Law. The Company and its Subsidiaries are financially solvent and are
generally able to pay their respective debts as they become due.


 


Section 5.12.     Title
To Assets. The Company and the Subsidiaries have good and valid title in fee simple to all
items of real property and good and valid title to all personal property described in the Commission Documents as being owned by them
that are material to the businesses of the Company or such Subsidiary, in each case free and clear of all liens, encumbrances and claims,
except those that (i) do not materially interfere with the use made and proposed to be made of such property by the Company and
the Subsidiaries or (ii) would not, individually or in the aggregate, have a Material Adverse Effect. Any real property described
in the Commission Documents as being leased by the Company and the Subsidiaries is held by them under valid, existing and enforceable
leases, except those that (A) do not materially interfere with the use made or proposed to be made of such property by the Company
or the Subsidiaries or (B) would not, individually or in the aggregate, have a Material Adverse Effect.


 


Section 5.13.     Actions
Pending. Except as disclosed in the Commission Documents, there are no actions, suits, claims,
investigations or proceedings pending or, to the Company’s Knowledge, threatened to which the Company or any of the Subsidiaries
is or would be a party, or of which any of the respective properties or assets of the Company and the Subsidiaries is or would be subject,
at law or in equity, before any Governmental Authority, which are required to be disclosed in the Commission Documents, or which would
reasonably be expected to result in a judgment, decree or order having, individually or in the aggregate, a Material Adverse Effect.


 


Section 5.14.     Compliance
With Laws. The business of the Company and the Subsidiaries has been and is presently being
conducted in compliance with all applicable federal, state and local governmental laws, rules, regulations and ordinances, except as
set forth in the Commission Documents and except for such non-compliance which, individually or in the aggregate, would not have a Material
Adverse Effect. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or any statute, ordinance,
rule or regulation of any Governmental Authority applicable to the Company or any of its Subsidiaries, and neither the Company nor
any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for any such violations which
could not, individually or in the aggregate, have a Material Adverse Effect. There are no statutes, laws, rules, regulations or ordinances
of any Governmental Authority, self-regulatory organization or body that are applicable to the Company or any of its Subsidiaries or
to their respective businesses, assets or properties that are required to be described in any Commission Document that are not described
therein as required.


 






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Section 5.15.     Certain
Fees. Except as set forth on Schedule 5.15 no brokerage or finder’s fees or
commissions are or will be payable by the Company to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions contemplated by the Transaction Documents. The Investor
shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other Persons for fees of a
type contemplated in this Section 5.15 and Schedule 5.15 incurred by the Company or its Subsidiaries that may be due or payable
in connection with the transactions contemplated by the Transaction Documents.


 


Section 5.16.     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 Securities under the Registration
Statement. All disclosure provided to Investor regarding the Company and its Subsidiaries, their businesses and the transactions contemplated
by the Transaction Documents (including, without limitation, the representations and warranties of the Company contained in the Transaction
Documents to which it is a party (as modified by the Disclosure Schedule)) furnished in writing by or on behalf of the Company or any
of its Subsidiaries for purposes of or in connection with the Transaction Documents (other than forward-looking information and projections
and information of a general economic nature and general information about the Company’s industry), taken together, is true and
correct in all material respects on the date on which such information is dated or certified, and does not contain any untrue statement
of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading at such time. Each press release issued by the Company or any of its Subsidiaries during the
12 months preceding the Closing Date did not at the time of release (or, if amended or superseded by a later dated press release issued
by the Company or any of its Subsidiaries prior to the Closing Date or by a later dated Commission Document filed with or furnished to
the Commission by the Company prior to the Closing Date, at the time of issuance of such later dated press release or filing or furnishing
of such Commission Document, as applicable) 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 are made,
not misleading.


 






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Section 5.17.     Operation
of Business.


 


(a)            Except
as disclosed in the Commission Documents, each of the Company and its Subsidiaries is in possession of all franchises, grants, authorizations,
licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority necessary
for each of the Company and its Subsidiaries to own, lease and operate its properties or to carry on its business as it is now being conducted
as disclosed in the Commission Documents (the “Permits”), except where the failure to have such Permits would
not reasonably be expected to have a Material Adverse Effect. No suspension or cancellation of any of the Permits is pending or, to the
Knowledge of the Company, threatened in writing. Neither the Company nor any of its Subsidiaries is, or has been since December 31,
2021, in conflict with, or in default, breach or violation of (a) any statute, law, ordinance, rule or regulation applicable
to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected,
or (b) any Material Agreement or Permit, except, in each case, for any such conflicts, defaults, breaches or violations that would
not have or would not reasonably be expected to have a Material Adverse Effect. This Section 5.17(a) does not relate to environmental
matters, such items being the subject of Section 5.18.


 


(b)            The
Company and the Subsidiary own or possess adequate enforceable rights to use all patents, patent applications, trademarks (both registered
and unregistered), trade names, trademark registrations, service marks, service mark registrations, Internet domain name registrations,
copyrights, copyright registrations, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures) and any other intellectual property rights (collectively, the “Intellectual
Property”), necessary for the conduct of their respective businesses as conducted as of the date hereof, except to the extent
that the failure to own or possess adequate rights to use such Intellectual Property would not, individually or in the aggregate, reasonably
be expected to result in a material liability to the Company or any of its Subsidiaries. The Company and the Subsidiaries have not received
any written notice of any claim of infringement, misappropriation, or conflict which asserted Intellectual Property rights of others.
To the Company’s knowledge, no Person is infringing, misappropriating, or otherwise conflicting with the Intellectual Property owned
by the Company. There are no pending, or to the Company’s knowledge, threatened judicial or other proceedings challenging the Company’s
or any Subsidiary’s rights in or to or the validity of the scope of any of the Company’s or its Subsidiaries’ Intellectual
Property. No other entity or individual has any right or claim in any of the Company’s or any of its Subsidiary’s Intellectual
Property by virtue of any contract, license or other agreement entered into between such entity or individual and the Company or any Subsidiary
or by any non-contractual obligation, other than by written licenses granted by the Company or any Subsidiary.


 


Section 5.18.     Environmental
Compliance. The Company and the 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 5.19.     Material
Agreements Except as set forth in the Commission Documents, neither the Company nor any
Subsidiary of the Company is a party to any written or oral contract, instrument, agreement commitment, obligation, plan or arrangement,
a copy of which would be required to be filed with the Commission as an exhibit to an annual report on Form 10-K (collectively,
 “Material Agreements”). Each of the Material Agreements described in the Commission Documents conform in all
material respects to the descriptions thereof contained or incorporated by reference therein. Except as set forth in the Commission Documents,
the Company and each of its Subsidiaries have performed in all material respects all the obligations then required to be performed by
them under the Material Agreements, have received no notice of default or an event of default by the Company or any of its Subsidiaries
thereunder and are not aware of any basis for the assertion thereof, and neither the Company or any of its Subsidiaries nor, to the Knowledge
of the Company, any other contracting party thereto are in default under any Material Agreement now in effect, the result of which would
have a Material Adverse Effect. Except as set forth in the Commission Documents, each of the Material Agreements is in full force and
effect, and constitutes a legal, valid and binding obligation enforceable in accordance with its terms against the Company and/or any
of its Subsidiaries and, to the Knowledge of the Company, each other contracting party thereto, 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.


 


Section 5.20.     Transactions
With Affiliates. Except as set forth in the Commission Documents, none of the officers or
directors of the Company and, to the Knowledge of the Company, none of the Company’s stockholders, the officers or directors of
any stockholder of the Company, or any family member or Affiliate of any of the foregoing, has either directly or indirectly any interest
in, or is a party to, any transaction that is required to be disclosed as a related party transaction pursuant to Item 404 of Regulation
S-K promulgated under the Securities Act.


 


Section 5.21.     Employees;
Labor Laws. No material labor dispute with the employees of the Company exists, except as
described in the Commission Documents, or, to the Knowledge of the Company, is imminent; and the Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that would
reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of or has received notice
of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees, nor
any applicable federal or state wage and hour laws, the violation of any of which could reasonably be expected to have a Material Adverse
Effect. No employee of the Company or any of its Subsidiaries is or was represented by a labor union, works council, trade union, industrial
organization, or similar representative of employees with respect to employment with the Company or any of its Subsidiaries, and neither
the Company nor any of its Subsidiaries is or was a party to, subject to, or bound by a collective bargaining agreement, collective agreement,
workplace agreement or any other Material Agreement with a labor union, works council, trade union, industrial organization, or similar
representative of employees. There are no strikes, lockouts or work stoppages existing or, to the Company’s Knowledge, threatened,
against the Company or any of its Subsidiaries with respect to any employees of the Company or any of its Subsidiaries that would reasonably
be expected to have a Material Adverse Effect.


 






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Section 5.22.     Use
of Proceeds. The proceeds from the sale of the Shares by the Company to Investor shall be
used by the Company and its Subsidiaries 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 5.23.     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 5.24.     ERISA.
(i) Each 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 the 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”); and (ii) 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, other than, in the case of (i) and
(ii) above, as would not reasonably be expected to have a Material Adverse Effect. There is no action, claim, suit, proceeding,
demand, investigation, or audit pending, or to the Company’s Knowledge, threatened, with respect to any employee benefit plan described
in the immediately preceding sentence (except for routine claims for benefits, appeals of such claims and domestic relations order proceedings)
or that relates to the Company’s employment practices, which, if decided adversely to the Company would result in a material liability
to the Company. The Company and its Affiliates do not maintain, sponsor, or contribute to, or have any material liability with respect
to, (i) any “defined benefit plan,” as defined in Section 3(35) of ERISA, that is (or was) subject to Section 302
or 303 of ERISA, Title IV of ERISA or Section 412 or 430 of the Code, (ii) any “multiemployer plan,” as defined
in Section 3(37) of ERISA, or (iii) any plan that provides medical insurance or life insurance benefits to terminated employees
or retirees other than as required by applicable Law, including under Section 4980B of the Code..


 


Section 5.25.     Taxes.
The Company and each of its Subsidiaries has filed all federal, state, local and foreign tax returns required to be filed through the
date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect) and have paid all taxes required to be paid thereon (except for cases in which
the failure to file or pay would not reasonably be expected to have a Material Adverse Effect, or, except as currently being contested
in good faith and for which reserves required by GAAP have been created in the financial statements of the Company), and no tax deficiency
has been determined adversely to the Company or any of its Subsidiaries which have had a Material Adverse Effect, nor does the Company
have any notice or Knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or any
of its Subsidiaries and which would reasonably be expected to have a Material Adverse Effect.


 






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Section 5.26.     Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage. The Company has no reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business without a significant increase in cost.


 


Section 5.27.     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 Securities by the Company to the Investor 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 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 Sections 4.10 through 4.13), the Securities
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.


 


Section 5.28.     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 Securities.


 


Section 5.29.     No
Integrated Offering. None of the Company or any of its 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 offer, issuance and sale by the Company to the Investor of any of the Securities
under the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Securities to
require approval of stockholders of the Company under any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of the Trading 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 offer, issuance
and sale by the Company to the Investor of any of the Securities under the Securities Act or cause the offering of any of the Securities
to be integrated with any other offering of securities of the Company.


 


Section 5.30.     Dilutive
Effect. Except as set forth in the Commission Documents, the Company is aware and acknowledges
that issuance of the Securities could cause dilution to existing stockholders and could significantly increase the number of outstanding
shares of Common Stock. The Company further acknowledges that its obligation to issue the Commitment Shares and to issue the Shares pursuant
to the terms of a VWAP Purchase Notice and an Intraday VWAP Purchase Notice (as applicable) in accordance with this Agreement is, in
each case, absolute and unconditional regardless of the dilutive effect that such issuance may have on the ownership interests of other
stockholders of the Company.


 






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Section 5.31.     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 Securities, (ii) sold, bid for, purchased,
or paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation
for soliciting another to purchase any other securities of the Company. 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 5.32.     Securities
Act. The Company has complied and shall comply with all applicable federal and state securities
laws in connection with the offer, issuance and sale of the Securities hereunder, including, without limitation, the applicable requirements
of the Securities Act. Each Registration Statement, upon filing with the Commission and at the time it is declared effective by the Commission,
shall satisfy all of the requirements of the Securities Act to register the resale of the Registrable Securities included therein by the
Investor in accordance with the Registration Rights Agreement on a delayed or continuous basis under Rule 415 under the Securities
Act at then-prevailing market prices, and not fixed prices. The Company is not, and has not previously been at any time, an issuer identified
in, or subject to, Rule 144(i).


 


Section 5.33.     Listing
and Maintenance Requirements; DTC Eligibility. As of the date of this Agreement, 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. As of the date of this Agreement,
the Company has not received notice from the Trading Market (or, if the Common Stock is then listed on an Eligible Market, from such Eligible
Market) to the effect that the Company is not in compliance with the listing or maintenance requirements of the Trading Market (or of
such Eligible Market, as applicable). The Company is in compliance with all applicable listing and maintenance requirements of the Trading
Market. The Common Stock may be issued and transferred 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 5.34.     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 Securities and the Investor’s ownership of the Securities.


 






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Section 5.35.     No
Unlawful Payments. Neither the Company nor any of its Subsidiaries nor any director or officer,
nor, to the Knowledge of the Company, any employee, agent, representative or Affiliate of the Company, has taken within the past five
years any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money,
property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or
employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an
official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office)
to influence official action or secure an improper advantage (to the extent acting on behalf of or providing services to the Company);
and the Company and its Subsidiaries have conducted their businesses within the past five years in compliance with the U.S. Foreign Corrupt
Practices Act of 1977, as amended (the “FCPA”), and other applicable anti-corruption or anti-bribery laws, and
have instituted and maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation
and warranty contained herein.


 


Section 5.36.     Money
Laundering Laws. The operations of the Company are and have been conducted at all times within
the past five years in material compliance with all applicable financial recordkeeping and reporting requirements, including those of
the Currency and Foreign Transactions Reporting Act of 1970, as amended, and the applicable anti-money laundering statutes, including
but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money
laundering, including, without limitation, Title 18 US. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international
anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force
on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or
organization continues to concur, all as amended, and any Executive order, directive, or regulation pursuant to the authority of any of
the foregoing, or any orders or licenses issued thereunder, of jurisdictions where the Company conducts business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively,
the “Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the Money Laundering Laws is pending or, to the Knowledge of
the Company, threatened.


 


Section 5.37.     OFAC.
Neither the Company nor any of its Subsidiaries, nor any director, officer, or employee thereof, 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 U.S. Department of Treasury’s Office of Foreign Assets Control, the United
Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”),
nor (ii) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation,
Crimea, Cuba, Iran, North Korea, Sudan and Syria). Neither the Company nor any of its Subsidiaries will, directly or indirectly,
use the proceeds from the sale of Shares under this Agreement, 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 (b) in any other manner that will
result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor,
investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries have knowingly engaged in, or are now
knowingly 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.


 






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Section 5.38.     U.S.
Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or
has been during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.


 


Section 5.39.     IT
Systems. The Company and its Subsidiaries own or have a valid right to access and use all
material IT Systems used by them in connection with the business as currently conducted. The Company and its Subsidiaries have back-up
and disaster recovery arrangements, procedures and facilities for the continued operation of its businesses in the event of a failure
of the IT Systems that are, in the reasonable determination of the Company, commercially reasonable and in accordance in all material
respects with standard industry practice. In the last twelve (12) months, there has not been any material failure with respect to
any of the IT Systems that has not been remedied, replaced or mitigated in all material respects. To the Knowledge of the Company, the
Company Software and IT Systems are free of any malicious Software including viruses, worms, trojan horses, bugs, faults or other devices,
errors, contaminants or material vulnerabilities, which may be used to gain access to, alter, delete, destroy or disable any of the IT
Systems or Company Software.


 


Section 5.40.     Compliance
With Data Security Requirements. The conduct of the business of the Company and its Subsidiaries
has at all times during the past three (3) years complied in all material respects with (i) all applicable Privacy Laws, (ii) all
of the Company’s policies and notices regarding Personal Information or Data Treatment, and (iii) all of the Company’s
contractual obligations with respect to Data Treatment by or on behalf of the Company or any of its Subsidiaries (collectively, the “Data
Security Requirements”). The Company and its Subsidiaries have in place commercially reasonable policies, procedures and
systems for receiving and appropriately responding to requests from individuals to exercise their rights under Data Security Requirements
concerning their Personal Information. Neither the Company’s nor any of its Subsidiaries’ externally-facing privacy policies
or notices contain any material omissions or are misleading or deceptive in any material respect. The Company and its Subsidiaries have
in place reasonable and appropriate technical and organizational safeguards designed to protect Personal Information against loss, theft,
misuse, or unauthorized access, use, modification, alteration, destruction or disclosure. During the past three (3) years (A) except
as would not reasonably be expected to result in material liability to the Company or any of its Subsidiaries, to the Company’s
Knowledge, there have been no actual or alleged breaches of, security incidents involving, misuse of or unauthorized access to the IT
Systems or the unauthorized acquisition, destruction, damage, loss, corruption, alteration, use or disclosure of any Personal Information
collected, used or processed by or on behalf of the Company or any of its Subsidiaries; and (B) neither the Company nor any of its
Subsidiaries has received in writing any notices of any claims of, or investigations or inquiries related to, or to the Company’s
Knowledge, has been charged with, the violation of, any Data Security Requirements.


 






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Section 5.41.     No
Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer,
any director, executive officer, other officer of the Company participating in the offering contemplated hereby, any beneficial owner
of 20% or more of the Company's outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that
term is defined in Rule 405 under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer
Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to
(viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered
by Rule 506(d)(2) or (d)(3) under the Securities Act. The Company has exercised reasonable care to determine whether any
Issuer Covered Person is subject to a Disqualification Event.


 


Section 5.42.     Emerging
Growth Company Status. As of the Closing Date the Company was, and as of the Commencement
Date the Company will be, an “emerging growth company” as defined in Section 2(a)(19) of the Securities Act, as modified
by the Jumpstart Our Business Startups Act of 2012.


 


Section 5.43.     Smaller
Reporting Company Status. As of the Closing Date the Company was, and as of the Commencement
Date the Company will be, a “smaller reporting company” as defined in Rule 12b-2 of the Exchange Act.


 


Section 5.44.     Acknowledgement
Regarding Investor’s Acquisition of Securities. The Company acknowledges and agrees
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. The Company further acknowledges that the Investor is not acting as a financial advisor or
fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated by the Transaction
Documents, and any advice given by the Investor or any of its representatives or agents in connection therewith is merely incidental to
the Investor’s acquisition of the Securities. The Company further represents to the Investor that the Company’s decision to
enter into the Transaction Documents to which it is a party has been based solely on the independent evaluation of the transactions contemplated
thereby by the Company and its representatives. 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.


 






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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 Trading 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 Securities 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 (i) the issuance and delivery of all Initial Commitment Shares to be issued
and delivered to the Investor under Section 10.1(ii)(a) hereof within the time period specified in Section 10.1(ii)(a) hereof,
(ii) the issuance and delivery of all Additional Commitment Shares to be issued and delivered to the Investor under Section 10.1(ii)(b) hereof
within the time periods specified in Section 10.1(ii)(b) hereof, (iii) the issuance, sale and delivery of all Shares to
be issued, sold and delivered in respect of each VWAP Purchase effected under this Agreement, in the case of this clause (iii), at least
prior to the delivery by the Company to the Investor of the applicable VWAP Purchase Notice in connection with such VWAP Purchase, and
(iv) the issuance, sale and delivery of all Shares to be issued, sold and delivered in respect of each Intraday VWAP Purchase effected
under this Agreement, in the case of this clause (iv), at least prior to the delivery by the Company to the Investor of the applicable
Intraday VWAP Purchase Notice in connection with such Intraday VWAP Purchase. Without limiting the generality of the foregoing, (a) as
of the date of this Agreement, the Company has reserved, out of its authorized and unissued Common Stock, at least 98,888 shares of Common Stock
solely for the purpose of issuing all of the Initial Commitment Shares under this Agreement to be issued and delivered to the Investor
under Section 10.1(ii)(a) hereof within the time period specified in Section 10.1(ii)(a) hereof, and (b) as of
the date of this Agreement the Company has reserved, and as of the Commencement Date shall have continued to reserve, out of its authorized
and unissued Common Stock, (1) at least 98,888 shares of Common Stock solely for the purpose of issuing Additional Commitment Shares to
be issued and delivered to the Investor under Section 10.1(ii)(b) hereof in such amounts and within the time periods specified
in Section 10.1(ii)(b) hereof, and (2) 20,000,000 shares of Common Stock solely for the purpose of issuing Shares pursuant
to one or more VWAP Purchases and Intraday VWAP Purchases that may be effected by the Company, in its sole discretion, from time to time
from and after the Commencement Date under this Agreement. The number of shares of Common Stock so reserved for the purpose of effecting
VWAP Purchases and Intraday 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 and any Intraday VWAP Purchase (as applicable) effected from and after
the Commencement Date pursuant to this Agreement.


 


Section 6.3.     Registration
and Listing. The Company shall use its commercially reasonable efforts to cause the Common
Stock to continue to be registered as a class of securities under Sections 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 commercially reasonable efforts to continue
the listing and trading of its Common Stock and the listing of the Securities purchased or acquired by the Investor hereunder on the Trading
Market (or another Eligible Market) and to comply with the Company’s reporting, filing and other obligations under the rules and
regulations of the Trading Market (or other Eligible Market, as applicable). 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 Trading Market (or other Eligible Market, as applicable).
If the Company receives any final and non-appealable notice that the listing or quotation of the Common Stock on the Trading Market (or
other Eligible Market, as applicable) 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 commercially reasonable efforts to cause the Common Stock to be listed or
quoted on another Eligible Market.


 






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Section 6.4.     Compliance
with Laws.


 


(i)          During
the Investment Period, the Company (a) shall comply, and cause each Subsidiary to comply, with all laws, rules, regulations and orders
applicable to the business and operations of the Company and its Subsidiaries, except as would not have a Material Adverse Effect and
(b) with applicable provisions of the Securities Act and the Exchange Act, including Regulation M thereunder, applicable state securities
or “Blue Sky” laws (but only to the extent set forth in Section 6.10), and applicable listing rules of the Trading
Market (or Eligible Market, as applicable), 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 Investor to conduct
resales of Securities under the Registration Statement in any material respect. Without limiting the foregoing, neither the Company, nor
any of its Subsidiaries, nor to the Knowledge of the Company, any of their respective directors, officers, agents, employees or any other
Persons acting on their behalf shall, in connection with the operation of the Company’s and its Subsidiaries’ respective businesses,
(1) use any corporate funds for unlawful contributions, payments, gifts or entertainment or to make any unlawful expenditures relating
to political activity to government officials, candidates or members of political parties or organizations, (2) pay, accept or receive
any unlawful contributions, payments, expenditures or gifts, or (3) violate or operate in noncompliance with any export restrictions,
anti-boycott regulations, embargo regulations or other applicable domestic or foreign laws and regulations, including, without limitation,
the FCPA and the Money Laundering Laws.


 


(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 Securities, 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.


 






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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, the dates
and VWAP Purchase Share Amount for each VWAP Purchase, and the dates and Intraday VWAP Purchase Share Amount for each Intraday 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 advance notice, customary documentation reasonably requested
by the Investor and/or its appointed counsel or advisors to conduct due diligence; provided, however, that after the Closing
Date, the Investor’s continued due diligence shall not be a condition precedent to the Commencement or to the Investor’s obligation
to accept each VWAP Purchase Notice and each Intraday VWAP Purchase Notice timely delivered by the Company to the Investor in accordance
with this Agreement.


 


Section 6.6.     No
Frustration; No Variable Rate 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 (i) the Initial Commitment Shares to the Investor not later than 4:00 p.m. (New York time) on the Trading Day immediately
following the Closing Date in accordance with Section 10.1(ii)(a), (ii) the Additional Commitment Shares to be issued and delivered
to the Investor under Section 10.1(ii)(b) hereof in such amounts and within the time periods specified in Section 10.1(ii)(b) hereof,
and (iii) the Shares to the Investor in respect of a VWAP Purchase, and each Intraday VWAP Purchase effected by the Company on the
same Purchase Date for such VWAP Purchase, in each case not later than the applicable Purchase Share Delivery Date with respect to such
VWAP Purchase and each such Intraday VWAP Purchase (as applicable) in accordance with Section 3.3. 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).


 


(ii)         No
Variable Rate Transactions. The Company shall not effect or enter into an agreement to effect any issuance by the Company or any
of its Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction,
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).


 






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Section 6.8.     Fundamental
Transaction. If a VWAP Purchase Notice or an Intraday VWAP Purchase Notice has been delivered
to the Investor and the transactions contemplated therein have not yet been fully settled in accordance with Section 3.3 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 that are issuable to the Investor pursuant to the VWAP
Purchase or Intraday VWAP Purchase (as applicable) to which such VWAP Purchase Notice or Intraday VWAP Purchase Notice (as applicable)
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, its officers, its sole member, or any entity managed or controlled by the Investor or its sole member (collectively,
the “Restricted Persons” and each of the foregoing is referred to herein as a “Restricted Person”)
shall, directly or indirectly, (i) engage in any Short Sales of the Common Stock or (ii) hedging transaction, which establishes
a net short position with respect to the Common Stock, with respect to each of clauses (i) and (ii) hereof, either for its own
account or for the account of any other 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: (1) selling “long” (as defined under Rule 200 promulgated under Regulation SHO) the Securities;
or (2) selling a number of shares of Common Stock equal to the number of Shares that the Investor is unconditionally obligated
to purchase under a pending VWAP Purchase Notice and/or under any pending Intraday VWAP Purchase Notice, but has not yet received
from the Company or its transfer agent pursuant to this Agreement, so long as (X) the Investor (or its Broker-Dealer, as applicable)
delivers the Shares purchased pursuant to such VWAP Purchase Notice and the Shares purchased pursuant to such pending Intraday VWAP Purchase
Notice (as applicable) to the purchaser thereof promptly upon the Investor’s receipt of such Shares from the Company in accordance
with Section 3.3 of this Agreement and (Y) neither the Company or its transfer agent shall have failed for any reason to deliver
such Shares to the Investor or its Broker-Dealer so that such Shares are timely received by the Investor as DWAC Shares on the applicable
Purchase Share Delivery Date for such VWAP Purchase and for such Intraday VWAP Purchases (as applicable) in accordance with Section 3.3
of this Agreement.


 


(ii)         In
addition to the foregoing, in connection with any sale of Securities (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 commercially
reasonable 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.


 






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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 Securities 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.


 


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, 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, upon consultation with counsel), (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 publicly disclose such material, non-public information within two (2) Trading Days following demand
therefor by the Investor, in addition to any other remedy provided herein or in the other Transaction Documents, 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 Securities 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 Company’s 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 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 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.


 






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(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.


 


Section 6.15.     Delivery
of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events. Within
three (3) Trading Days immediately following (i) the end of each PEA Period, if the Company is required under the Securities
Act to file with the Commission (A) a post-effective amendment to the Initial Registration Statement required to be filed by the
Company with the Commission pursuant to Section 2(a) of the Registration Rights Agreement, (B) a New Registration Statement
required to be filed by the Company with the Commission pursuant to Section 2(c) of the Registration Rights Agreement, or (C) a
post-effective amendment to a New Registration Statement required to be filed by the Company with the Commission pursuant to Section 2(c) of
the Registration Rights Agreement, in each case with respect to a fiscal year ending after the Commencement Date, to register the resale
of Securities by the Investor under the Securities Act pursuant to this Agreement and the Registration Rights Agreement, and (ii) the
date the Company files with the Commission (A) a Prospectus Supplement to the Prospectus contained in the Initial Registration Statement
or any New Registration Statement under the Securities Act, (B) an annual report on Form 10-K under the Exchange Act with respect
to a fiscal year ending after the Commencement Date, (C) an amendment on Form 10-K/A to an annual report on Form 10-K under
the Exchange Act with respect to a fiscal year ending after the Commencement Date, which contains amended material financial information
(or a restatement of material financial information) or an amendment to other material information contained in a previously filed Form 10-K,
and (D) a Commission Document under the Exchange Act (other than those referred to in clauses (ii)(A) and (ii)(B) of this
Section 6.15), which contains amended material financial information (or a restatement of material financial information) or an amendment
to other material information contained or incorporated by reference in the Initial Registration Statement, any New Registration Statement,
or the Prospectus or any Prospectus Supplement contained in the Initial Registration Statement or any New Registration Statement (it being
hereby acknowledged and agreed that the filing by the Company with the Commission of a quarterly report on Form 10-Q that includes
only updated financial information as of the end of the Company’s most recent fiscal quarter shall not, in and of itself, constitute
an “amendment” or “restatement” for purposes of clause (ii) of this Section 6.15), in each case of this
clause (ii) if the Company is not also then required under the Securities Act to file a post-effective amendment to the Initial Registration
Statement, any New Registration Statement or a post-effective amendment to any New Registration Statement, in each case with respect to
a fiscal year ending after the Commencement Date, to register the resale of Securities by the Investor under the Securities Act pursuant
to this Agreement and the Registration Rights Agreement, and in any case of this clause (ii), not more than once per calendar quarter,
the Company shall (I) deliver to the Investor a Compliance Certificate, dated such date, and (II) cause to be furnished to the
Investor an opinion “bring down” from outside counsel to the Company substantially in the form mutually agreed to by the Company
and the Investor prior to the date of this Agreement, modified, as necessary, to 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 (each such
opinion, a “Bring Down Opinion”).


 






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Article VII

CONDITIONS TO CLOSING, COMMENCEMENT AND PURCHASES


 


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
of Document Preparation Fee; Issuance of Initial Commitment Shares. 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 (or the Investor’s counsel) on or prior
to the date hereof, the Document Preparation Fee in accordance with Section 10.1(i), all of which Document Preparation Fee shall
be fully earned and non-refundable as of the Closing Date, regardless of whether the Commencement occurs or whether any VWAP Purchases
or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement. On the Closing Date, the Company
shall deliver irrevocable instructions to its transfer agent to issue to the Investor, not later than 4:00 p.m. (New York City time)
on the Trading Day immediately following the Closing Date, a certificate or book-entry statement representing the Initial Commitment Shares
in the name of the Investor or its designee (in which case such designee name shall have been provided to the Company prior to the Closing
Date), in consideration for the Investor’s execution and delivery of this Agreement. Such certificate or book-entry statement shall
be delivered to the Investor by overnight courier at its address set forth in Section 10.4 hereof. For the avoidance of doubt, all
of the Initial Commitment Shares shall be fully earned as of the Closing Date, regardless of whether the Commencement occurs or whether
any VWAP Purchases or Intraday 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,
(b) the closing certificate from the Company, dated the Closing Date, in the form of Exhibit B hereto, and (c) a
copy of the irrevocable instructions to the Company’s transfer agent regarding the issuance to the Investor or its designee of the
certificate(s) or book-entry statement(s) representing the Initial Commitment Shares pursuant to and in accordance with Section 10.1(ii) hereof.


 


Section 7.2.     Conditions
Precedent to Commencement. The right of the Company to commence delivering VWAP Purchase
Notices and Intraday VWAP Purchase Notices under this Agreement, and the obligation of the Investor to accept VWAP Purchase Notices and
Intraday VWAP Purchase Notices timely 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 been declared effective under the Securities Act by the Commission, and the Investor shall be permitted to utilize
the Prospectus therein to resell (i) all of the Initial Commitment Shares, (ii) all of the Additional Commitment Shares and
(iii) all of the Shares included in such Prospectus.


 






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(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 Securities for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding
for such purpose; or (c) 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 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.


 


(v)         Other
Commission Filings. The Current Report and the Form D 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 Trading Market or the 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 Trading Market shall be terminated on a date certain (unless, prior to such date
certain, the Common Stock is listed or quoted on any other Eligible 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).


 






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(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 Securities 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 Securities. All of the Securities that have been and may be issued pursuant to this Agreement shall have been approved for
listing or quotation on the Trading Market (or on an Eligible 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 (I) is for relief against
the Company in an involuntary case, (II) appoints a Custodian of the Company or for all or substantially all of its property, or
(III) orders the liquidation of the Company or any of its Subsidiaries.


 






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(xiii)       Initial
Commitment Shares Issued as DWAC Shares. The Company shall have caused the Company’s transfer agent to credit the Investor’s
or its designee’s account at DTC as DWAC Shares such number of shares of Common Stock equal to the number of Initial Commitment
Shares issued to the Investor pursuant to Section 10.1(ii)(a) hereof, in accordance with Section 10.1(iv) hereof.


 


(xiv)      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 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 Company’s transfer agent, in each case directing such transfer agent to issue to the Investor or its designated
Broker-Dealer all of the Initial Commitment Shares, all of the Additional Commitment Shares and all of the Shares included in the Initial
Registration Statement as DWAC Shares in accordance with this Agreement and the Registration Rights Agreement.


 


(xv)       Reservation
of Securities. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock,
(i) 98,888 shares of Common Stock solely for the purpose of issuing Additional Commitment Shares to be issued and
delivered to the Investor under Section 10.1(ii)(b) hereof in such amounts and within the time periods specified in
Section 10.1(ii)(b) hereof, and (ii) 20,000,000 shares of Common Stock solely for the purpose of issuing Shares
pursuant to VWAP Purchases and Intraday VWAP Purchases that may be effected by the Company, in its sole discretion, from and after
the Commencement Date under this Agreement.


 


(xvi)      Opinions
and Bring-Down Opinions of Company Counsel. On the Commencement Date, the Investor shall have received the opinions, bring-down
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.


 


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


 






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(i)            Satisfaction
of Certain Prior Conditions. Each of the conditions set forth in subsections (i), (ii), and (vii) through (xiv) set
forth in Section 7.2 shall be satisfied at the applicable 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 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(x).


 


(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 Purchase Date pursuant to the Registration Rights Agreement, in each case shall have been declared effective under the
Securities Act by the Commission and shall remain effective for the applicable Registration Period (as defined in the Registration Rights
Agreement), and the Investor shall be permitted to utilize the Prospectus therein, and any Prospectus Supplement thereto, to resell (a) all
of the Initial Commitment Shares, (b) all of the Additional Commitment Shares and (c) 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 and Intraday VWAP Purchase Notices (as applicable) delivered by the Company to the Investor prior to such applicable
Purchase Date and (c) 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 or Intraday VWAP Purchase Notice (as applicable) delivered by the Company
to the Investor with respect to a VWAP Purchase or an Intraday VWAP Purchase (as applicable) to be effected hereunder on such applicable
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 Purchase Date for such VWAP Purchase or Intraday
VWAP Purchase (as applicable), in each case shall have been declared effective under the Securities Act by the Commission 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 Initial Commitment Shares (if any) included in such New Registration Statement, and
any post-effective amendment thereto, (b) all of the Additional Commitment Shares included in such New Registration Statement, and
any post-effective amendment thereto, (c) 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 and Intraday VWAP Purchase Notices
(as applicable) delivered by the Company to the Investor prior to such applicable Purchase Date and (d) 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 or Intraday VWAP Purchase Notice (as applicable) delivered by the Company to the Investor with respect to a VWAP Purchase or an
Intraday VWAP Purchase (as applicable) to be effected hereunder on such applicable Purchase Date.


 






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(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 declared effective by the Commission after the Commencement Date, the Company shall have delivered or caused to be delivered
to the Company’s 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 its 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 Securities for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose;
or (c) 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 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, or the applicable Intraday VWAP
Purchase Notice delivered by the Company to the Investor with respect to an Intraday VWAP Purchase (as applicable) to be effected hereunder
on such applicable 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 Purchase Date for such VWAP Purchase or such Intraday VWAP Purchase
(as applicable), 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 Purchase Date for such VWAP Purchase or such Intraday VWAP Purchase (as applicable),
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 Purchase Date for such VWAP Purchase or such Intraday
VWAP Purchase (as applicable), shall have been filed with the Commission and, if any Registrable Securities are covered by a Registration
Statement on Form S-3, such filings shall have been made within the applicable time period prescribed for such filing under the Exchange
Act.


 


(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 Trading Market (or Eligible Market, as applicable) 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 Purchase Date for such VWAP Purchase or such Intraday
VWAP Purchase (as applicable)), the Company shall not have received any final and non-appealable notice that the listing or quotation
of the Common Stock on the Trading Market (or Eligible Market, as applicable) shall be terminated on a date certain (unless, prior to
such date certain, the Common Stock is listed or quoted on any other Eligible 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).


 






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(viii)            Certain
Limitations. The issuance and sale of the Shares issuable pursuant to the applicable VWAP Purchase Notice or the applicable Intraday
VWAP Purchase Notice (as applicable) shall not (a) exceed, in the case of a VWAP Purchase Notice, the VWAP Purchase Maximum Amount
applicable to such VWAP Purchase Notice or, in the case of an Intraday VWAP Purchase Notice, the Intraday VWAP Purchase Maximum Amount
applicable to such Intraday VWAP Purchase Notice, (b) cause the aggregate number of shares of Common Stock issued pursuant to this
Agreement to exceed the Aggregate Limit, (c) cause the Investor to beneficially own (under Section 13(d) of the Exchange
Act and Rule 13d-3 promulgated thereunder) shares of Common Stock in excess of the Beneficial Ownership Limitation, or (d) if
and to the extent the Exchange Cap is then applicable under Section 3.4, cause the aggregate number of shares of Common Stock issued
pursuant to this Agreement to exceed the Exchange Cap, unless in the case of this clause (d), the Company’s stockholders have theretofore
approved the issuance of such shares of Common Stock in excess of the Exchange Cap in accordance with the applicable rules of the
Trading Market.


 


(ix)            Shares
and Additional Commitment Shares Authorized and Delivered. All of the Shares issuable pursuant to the applicable VWAP Purchase
Notice or Intraday VWAP Purchase Notice (as applicable) shall have been duly authorized by all necessary corporate action of the Company.
All Shares relating to all prior VWAP Purchase Notices and all prior Intraday VWAP Purchase Notices, and all Additional Commitment Shares
to be issued to the Investor at such time and in such amounts as set forth in Section 10.1(ii)(b) of this Agreement, required
to have been received by the Investor as DWAC Shares under this Agreement prior to the applicable Purchase Condition Satisfaction Time
for the applicable VWAP Purchase or Intraday VWAP Purchase (as applicable) shall have been delivered to the Investor as DWAC Shares in
accordance with this Agreement.


 


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


 


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 day of the month next following the 24-month anniversary of the Commencement
Date, (ii) the date on which the Investor shall have purchased from the Company, pursuant to all VWAP Purchases and Intraday VWAP
Purchases that have occurred and fully settled pursuant to this Agreement, an aggregate number of Shares for a total aggregate gross purchase
price to the Company equal to the Total Commitment, (iii) the date on which the Common Stock shall have failed to be listed or quoted
on the Trading Market or any Eligible Market for a period of one (1) Trading Day, (iv) the thirtieth (30th) Trading
Day next following 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, in each case that is not discharged or dismissed prior to such thirtieth (30th)
Trading Day, and (v) the date on which, pursuant to or within the meaning of any Bankruptcy Law, 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.


 






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Section 8.2.     Other
Termination. Subject to Section 8.3, the Company may terminate this Agreement after
the Commencement Date effective upon five (5) Trading Days’ prior written notice to the Investor in accordance with Section 10.4;
provided, however, that (i) the Company shall have issued all of the Initial Commitment Shares required to be issued
to the Investor pursuant to Section 10.1(ii)(a) of this Agreement and such number of Additional Commitment Shares required
to be issued to the Investor at or prior to such termination pursuant to Section 10.1(ii)(b) of this Agreement, and shall have
paid the Document Preparation Fee required to be paid to the Investor or its counsel pursuant to Section 10.1(i) of this Agreement,
in each case 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 five (5) Trading Days’ prior
written notice to the Company in accordance with Section 10.4, 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 Initial
Registration Statement and any New Registration Statement is not filed by the applicable Filing Deadline therefor or declared effective
by the Commission by the applicable Effectiveness Deadline (as defined in the Registration Rights Agreement) therefor, or the Company
is otherwise in breach or default in any material respect under any of the other provisions of the Registration Rights Agreement, and,
if such failure, breach or default is capable of being cured, such failure, breach or default is not cured within ten (10) Trading
Days after notice of such failure, breach or default is delivered to the Company pursuant to Section 10.4; (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 twenty (20) consecutive Trading Days or for
more than an aggregate of sixty (60) Trading Days in any 365-day period, other than due to acts of the Investor; (e) trading in
the Common Stock on the Trading Market (or if the Common Stock is then listed on an Eligible Market, trading in the Common Stock on such
Eligible Market) shall have been suspended and such suspension continues for a period of three (3) consecutive Trading Days; or
(f) the Company is in material breach or default of this Agreement, and, if such breach or default is capable of being cured, such
breach or default is not cured within ten (10) Trading Days after notice of such breach or default is delivered to the Company pursuant
to Section 10.4. 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 Trading Market (or Eligible Market, as applicable), the Company shall publicly disclose such information
in accordance with Regulation FD and the applicable rules and regulations of the Trading Market (or Eligible Market, as applicable))
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 Securities, 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 six (6) months
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 third (3rd) Trading Day immediately following the settlement date related to any
pending VWAP Purchase Notice or any pending Intraday VWAP Purchase Notice (as applicable) that has not been fully settled in accordance
with the terms and conditions 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 and any pending Intraday VWAP Purchase Notice (as applicable), and that the parties
shall fully perform their respective obligations with respect to any such pending VWAP Purchase and any pending Intraday 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, (iii) affect any
Initial Commitment Shares issued or issuable to the Investor pursuant to Section 10.1(ii)(a), all of which Initial Commitment Shares
shall be fully earned as of the Closing Date, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or
Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement, (iv) affect any Additional
Commitment Shares that have been issued or are issuable to the Investor at or prior to such termination pursuant to Section 10.1(ii)(b),
all of which Additional Commitment Shares shall be fully earned as of the time issued or issuable to the Investor under Section 10.1(ii)(b),
regardless of whether any Intraday VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination
of this Agreement, or (v) affect the Document Preparation Fee payable or paid to the Investor (or to its counsel directly), all of
which Document Preparation Fee shall be non-refundable when paid on the Closing Date pursuant to Section 10.1(i), regardless of whether
the Commencement shall have occurred, whether any VWAP Purchases or Intraday 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 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 the Transaction Documents to
which it is a party.


 






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Article IX

INDEMNIFICATION


 


Section 9.1.     Indemnification
of Investor. In consideration of the Investor’s execution and delivery of this Agreement
and acquiring the Securities 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,
each of its directors, officers, stockholders, members, partners, employees, representatives, agents and advisors (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, stockholders, members, partners, employees, representatives, agents and advisors (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”), 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 as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the
Company in this Agreement, the Registration Rights Agreement or in the other Transaction Documents to which it is a party or (b) any
action, suit, claim or proceeding (including for these purposes a derivative action brought on behalf of the Company) instituted against
such Investor Party arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction Documents,
other than claims for indemnification within the scope of Section 6 of the Registration Rights Agreement; provided, however,
that (x) the foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted
directly and primarily from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in
this Agreement or the Registration Rights Agreement, and (y) the Company shall not be liable under subsection (b) of this Section 9.1
to the extent, but only to the extent, that a court of competent jurisdiction shall have determined by a final judgment (from which no
further appeals are available) that such Damages resulted directly and primarily from any acts or failures to act, undertaken or omitted
to be taken by such Investor Party through its fraud, bad faith, gross negligence, or willful or reckless misconduct.


 


The Company shall reimburse
any Investor Party promptly upon demand (with accompanying presentation of sufficiently detailed 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; provided that the Investor shall promptly reimburse the Company for all such legal and other costs and expenses
to the extent a court of competent jurisdiction determines that any Investor Party was not entitled to such reimbursement.


 






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An Investor Party’s
right to indemnification or other remedies based upon the representations, warranties, covenants and agreements of the Company set forth
in the Transaction Documents shall not in any way be affected by any investigation or knowledge of such Investor Party. Such representations,
warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that an Investor Party knew or should
have known that any representation or warranty might be inaccurate or that the Company failed to comply with any agreement or covenant.
Any investigation by such Investor Party shall be for its own protection only and shall not affect or impair any right or remedy hereunder.


 


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.


 


Section 9.2.     Indemnification
Procedures. 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, except to the extent it has been materially prejudiced by
the failure to give notice. 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 it. 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 except that if, in the opinion of counsel to the Investor
Party, it would be inappropriate under the applicable rules of professional responsibility for the same counsel to represent both
the Company and such Investor Party. In such event, the Company will pay the reasonable fees and expenses of no more than one separate
counsel for all such Investor Parties promptly as such fees and expenses are incurred. Each Investor Party, as a condition to receiving
indemnification as provided in Section 9.1, will cooperate in all reasonable respects with the Company in the defense of any action
or claim as to which indemnification is sought. 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 will not, without the prior written
consent of the Investor Party, effect any settlement of a pending or threatened action with respect to which an Investor Party is, or
is informed that it may be, made a party and for which it would be entitled to indemnification, unless the settlement includes an unconditional
release of the Investor Party from all liability and claims which are the subject matter of the pending or threatened action.


 


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; Commitment Shares; 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;
provided, however, that the Company, prior to the Closing Date, has paid to the Investor, by wire transfer of immediately
available funds to an account designated by the Investor prior to the date of this Agreement, a non-accountable and non-refundable document
preparation fee of $75,000 (the “Document Preparation Fee”), in connection with the preparation, negotiation,
execution and delivery of the Transaction Documents and legal due diligence of the Company. For the avoidance of doubt, the Document Preparation
Fee shall be non-refundable when paid on or prior to the Closing Date, regardless of whether the Commencement shall have occurred, any
VWAP Purchases or Intraday VWAP Purchases are effected by the Company or settled hereunder or any subsequent termination of this Agreement.
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 Securities pursuant hereto.


 


(ii)            Commitment
Shares.


 


(a)            Initial
Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, concurrently with the execution
and delivery of this Agreement on the Closing Date, the Company shall deliver irrevocable instructions to its transfer agent to issue
to the Investor, not later than 4:00 p.m. (New York City time) on the Trading Day immediately following the Closing Date, one or
more certificate(s) or book-entry statement(s) representing the Initial Commitment Shares in the name of the Investor or its
designee (in which case such designee name shall have been provided to the Company prior to the Closing Date). Such certificate or book-entry
statement shall be delivered to the Investor by overnight courier at its address set forth in Section 10.4. For the avoidance of
doubt, all of the Initial Commitment Shares shall be fully earned as of the Closing Date, regardless of whether the Commencement shall
have occurred, any VWAP Purchases or Intraday VWAP Purchases are effected by the Company or settled hereunder or any subsequent termination
of this Agreement. Upon issuance pursuant to this Section 10.1(ii)(a), the Initial Commitment Shares shall constitute “restricted
securities” as such term is defined in Rule 144(a)(3) under the Securities Act and, subject to the provisions of subsection
(iv) of this Section 10.1, the certificate or book-entry statement representing the Initial Commitment Shares shall bear the
restrictive legend set forth below in subsection (iii) of this Section 10.1. The Initial Commitment Shares shall constitute
Registrable Securities and shall be included in the Initial Registration Statement and any post-effective amendment thereto, and the Prospectus
included therein, and, if necessary to register the resale thereof by the Investor under the Securities Act, in any New Registration Statement
and any post-effective amendment thereto, and the Prospectus included therein, in each case in accordance with this Agreement and the
Registration Rights Agreement.


 






    44


     


    

 


(b)            Additional
Commitment Shares. In addition to the issuance of the Initial Commitment Shares pursuant to 10.1(ii)(a) above:
(i) not later than 4:00 p.m. (New York City time) on the Trading Day on which the Company shall have received from the
Investor total aggregate cash proceeds equal to $25,000,000 as payment for all VWAP Purchase Share Amounts and Intraday VWAP
Purchase Share Amounts purchased by the Investor in all VWAP Purchases and Intraday VWAP Purchases (as applicable) effected pursuant
to this Agreement, the Company shall deliver irrevocable instructions to its transfer agent to electronically issue and deliver to
the Investor or its designee(s) (in which case such designee(s) name shall have been provided to the Company prior to such
Trading Day) 59,333 Additional Commitment Shares, so that such Additional Commitment Shares are received by the Investor as DWAC
Shares not later than 10:00 a.m. (New York City time) on the next Trading Day; and (ii) not later than 4:00 p.m. (New
York City time) on the Trading Day on which the Company shall have received from the Investor total aggregate cash proceeds equal to
$50,000,000 as payment for all VWAP Purchase Share Amounts and Intraday VWAP Purchase Share Amounts purchased by the Investor in all
VWAP Purchases and Intraday VWAP Purchases (as applicable) effected pursuant to this Agreement, the Company shall deliver
irrevocable instructions to its transfer agent to electronically issue and deliver to the Investor or its designee(s) (in which
case such designee(s) name shall have been provided to the Company prior to such Trading Day) 39,555 Additional Commitment
Shares, so that such Additional Commitment Shares are received by the Investor as DWAC Shares not later than 10:00 a.m. (New
York City time) on the next Trading Day. For the avoidance of doubt, such Additional Commitment Shares shall be fully earned as of
the date on which they are issuable pursuant to this Section 10.1(ii)(b), regardless of whether any further VWAP Purchases or
Intraday VWAP Purchases are effected by the Company or settled hereunder or any subsequent termination of this Agreement. All of the
Additional Commitment Shares shall constitute Registrable Securities and shall be included in the Initial Registration Statement and
any post-effective amendment thereto, and the Prospectus included therein, and, if necessary to register the resale thereof by the
Investor under the Securities Act, in any New Registration Statement and any post-effective amendment thereto, and the Prospectus
included therein, in each case in accordance with this Agreement and the Registration Rights Agreement.


  


(iii)            Legends.
The certificate(s) or book-entry statement(s) representing the Initial Commitment Shares issued prior to the Effective Date
of the Initial Registration Statement, except as set forth below, shall bear a restrictive legend in substantially the following form
(and stop transfer instructions may be placed against transfer of the Initial Commitment Shares):


 


THE SECURITIES REPRESENTED HEREBY HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED
FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS, UNLESS SOLD PURSUANT TO: (1) RULE
144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF COUNSEL, IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.


 






    45


     


    

 


Notwithstanding the foregoing
and for the avoidance of doubt, (i) all Shares to be issued in respect of each VWAP Purchase Notice and all Shares to be issued in
respect of each Intraday VWAP Purchase Notice delivered to the Investor pursuant to this Agreement, in each case shall be issued to the
Investor in accordance with Section 3.3 by crediting the Investor’s or its designees’ account at DTC as DWAC Shares,
and (ii) all Additional Commitment Shares to be issued to the Investor pursuant to Section 10.1(ii)(b) of this Agreement
shall be issued to the Investor in accordance with Section 10.1(ii)(b) by crediting the Investor’s or its designees’
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.


 


(iv)            Irrevocable
Transfer Agent Instructions; Notice of Effectiveness. On the earlier of (a) the Commencement Date and (b) such time
that the Investor shall request, provided all conditions of Rule 144 are met, the Company shall, no later than one (1) Trading
Day following the delivery by the Investor to the Company or its transfer agent of one or more legended certificates or book-entry statements
representing the Initial Commitment Shares issued to the Investor pursuant to Section 10.1(ii)(a) (which certificates or book-entry
statements the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses (a) and (b) of
this sentence), cause the Company’s transfer agent to credit the Investor’s or its designee’s account at DTC as DWAC
Shares such number of shares of Common Stock equal to the number of Initial Commitment Shares issued to the Investor pursuant to Section 10.1(ii)(a).
The Company shall take all actions to carry out the intent and accomplish the purposes of the immediately preceding sentence, including,
without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to its transfer agent, and
any successor transfer agent of the Company, as may be requested from time to time by the Investor or necessary or desirable to carry
out the intent and accomplish the purposes of the immediately preceding sentence. 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 (and thereafter, shall deliver or
cause to be delivered to any subsequent transfer agent of the Company), (i) irrevocable instructions executed by the Company and
acknowledged in writing by the Company’s transfer agent (the “Commencement Irrevocable Transfer Agent Instructions”)
and (ii) 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 Company’s transfer agent to issue to the Investor or its designee all of the Initial Commitment Shares, the Additional
Commitment Shares and the Shares included in the Initial Registration Statement as DWAC Shares 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 declared effective by the Commission after the
Commencement Date, the Company shall deliver or cause to be delivered to its transfer agent (and thereafter, shall deliver or cause to
be delivered to any subsequent transfer agent of the Company) (i) irrevocable instructions in the form substantially similar to the
Commencement Irrevocable Transfer Agent Instructions executed by the Company and acknowledged in writing by the Company’s transfer
agent and (ii) 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, Initial Commitment
Shares and Additional Commitment Shares to be issued and delivered from and after Commencement to or for the benefit of the Investor pursuant
to this Agreement shall be issued and delivered to the Investor or its designee only as DWAC Shares. 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(iv) will
be given by the Company to its transfer agent, or any successor transfer agent of the Company, with respect to the Shares, the Initial
Commitment Shares and the Additional Commitment Shares from and after Commencement, and the Shares, the Initial Commitment Shares and
the Additional Commitment Shares 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(iv) within three (3) Trading Days after the date on which the Investor
has provided the deliverables referred to above that the Investor is required to provide to the Company or its transfer agent, the Company
shall, at the Investor’s written instruction, purchase from the Investor all shares of Common Stock acquired by the Investor pursuant
to this Agreement that contain the restrictive legend referred to in Section 10.1(iii) hereof (or any similar 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 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.


 






    46


     


    

 


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.


 






    47


     


    

 


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 supersedes 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. The Disclosure Schedule and 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 business day following such delivery (if delivered
other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day
following the date of 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:


 


Knightscope, Inc. 


1070 Terra Bella Avenue

Mountain View, CA 94043 


Telephone Number: (650) 924-1025 


Email: wsl@knightscope.com 


Attention: William Santana Li 


   Chairman and Chief Executive Officer


 


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


 


Perkins Coie LLP 


505 Howard Street, Suite 1000 


San Francisco, CA 94105-3204

Telephone Number: (415) 344-7051 


Email: ddedyo@perkinscoie.com and nprusse@perkinscoie.com 


Attention: David Dedyo and Ned A. Prusse


 






    48


     


    

 


If to the Investor:


 


B. Riley Principal Capital, LLC 


11100 Santa Monica Blvd., Suite 800 


Los Angeles, CA 90025

Telephone Number: (310) 966-1444 


Email: legal@brileyfin.com 


Attention: General Counsel


 


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


 


Dorsey &
Whitney LLP 


51 West 52nd
Street 


New York, New York
10019-6119 


Telephone Number:
(212) 415-9214 


Email: marsico.anthony@dorsey.com 


Attention: Anthony J. Marsico, Esq.


 


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 date on which the Initial Registration Statement is initially filed 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 date on which the Initial Registration Statement is initially filed 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.


 


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 (including
the Threshold Price) 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.


 






    49


     


    

 


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 any laws or rules 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 V (Representations, Warranties and Covenants of the Company), 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 Securities, 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 six months 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 with 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.


 






    50


     


    

 



 


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.


 


[Signature Pages Follow]


 






    51


     


    

 


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.


 


	 	KNIGHTSCOPE, INC.
	 	 
	 	By:	/s/ William Santana Li
	 	Name: William Santana Li
	 	Title: Chairman and Chief Executive Officer
	 	 
	 	B. RILEY PRINCIPAL CAPITAL, LLC
	 	 
	 	By:	/s/ Daniel Shribman
	 	Name: Daniel Shribman
	 	Title: CIO




 






     


     


    

 


ANNEX
I TO THE

COMMON STOCK PURCHASE AGREEMENT

DEFINITIONS


 


“Accountant”
shall have the meaning assigned to such term in Section 5.6(d).


 


“Additional Commitment
Shares” means an aggregate of 98,888 shares of duly authorized, validly issued, fully paid and non-assessable shares
of Common Stock, which the Company shall cause its transfer agent to issue and deliver to the Investor as DWAC Shares in such amounts
and at such times as set forth in Section 10.1(ii)(b) of this Agreement.


 


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


 


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


 


“Agreement”
shall have the meaning assigned to such term in the preamble of this Agreement.


 


“Average Price”
means a price per Share (rounded to the nearest tenth of a cent) equal to the quotient obtained by dividing (i) the aggregate gross
purchase price paid by the Investor for all Shares purchased pursuant to this Agreement, by (ii) the aggregate number of Shares
issued pursuant to this Agreement.


 


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


 


“Base
Price” means a price per Share equal to the sum of (i) the Minimum Price and (ii) $0.1352 (subject to
adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction that occurs on or after the date of this Agreement).


 


“Beneficial Ownership
Limitation” shall have the meaning assigned to such term in Section 3.5.


 


“Bloomberg”
means Bloomberg, L.P.


 


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


 


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


 


“Bylaws”
shall have the meaning assigned to such term in Section 5.3.


 


“Charter”
shall have the meaning assigned to such term in Section 5.3.


 


“Class B Common
Stock” shall have the meaning assigned to such term in Section 3.4(a).


 


“Closing”
shall have the meaning assigned to such term in Section 2.2.


 


“Closing Date”
means the date of this Agreement.


 






    I-1 


     


    

 


“Closing Sale
Price” means, for the Common Stock as of any date, the last closing trade price for the Common Stock on the Trading Market
(or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market), as reported by Bloomberg, or, if the Trading
Market (or such Eligible Market, as applicable) 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 5.24.


 


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


 


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


 


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


 


“Commission”
means 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 the reporting requirements of the Exchange Act, including all material filed with or furnished
to the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, since January 26, 2022, including,
without limitation, the Annual Report on Form 10-K filed by the Company for its fiscal year ended December 31, 2021 (the “2021
Form 10-K”), and which hereafter shall be filed with or furnished to the Commission by the Company, 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 and heretofore shall be incorporated by reference therein.


 


“Commitment Shares”
means, collectively, the Initial Commitment Shares and the Additional Commitment Shares.


 


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


 


“Common Stock
Equivalents” means 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 preamble of this Agreement.


 






    I-2 


     


    

 


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


 


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


 


“Cover Price”
shall have the meaning assigned to such term in Section 3.3.


 


“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions thereof or any other related or associated epidemics, pandemics or disease outbreaks.


 


“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.


 


“Data Security
Requirements” has the meaning assigned to such term in Section 5.40.


 


“Data Treatment”
means the analysis, receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security (both technical and physical),
disposal, destruction, disclosure or transfer (including cross-border) of Personal Information.


 


“Disclosure Schedule”
shall have the meaning assigned to such term in the preamble to Article V.


 


“Disqualification
Event” shall have the meaning assigned to such term in Section 5.41.


 


“Document Preparation
Fee” shall have the meaning assigned to such term in Section 10.1(i).


 


“DTC”
means 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 5.33.


 


“DWAC Shares”
means 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’s transfer agent to the Investor’s (or its designee’s) 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”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.


 


“Effective Date”
means, 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) is declared effective by
the Commission.


 






    I-3 


     


    

 


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


 


“Eligible Market”
means the New York Stock Exchange, The Nasdaq Capital Market, The Nasdaq Global Select Market, or the NYSE American (or any nationally
recognized successor to any of the foregoing).


 


“Environmental
Laws” shall have the meaning assigned to such term in Section 5.18.


 


“ERISA”
shall have the meaning assigned to such term in Section 5.24.


 


“Evaluation Date”
shall have the meaning assigned to such term in Section 5.6(c).


 


“Exchange Act”
means 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 3.4(a).


 


“Exempt Issuance”
means the issuance of (a) Common Stock, options or other equity incentive awards to employees, officers, directors or vendors of
the Company pursuant to any equity incentive plan 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, (b) (1) any Securities issued to the
Investor (or its designee) pursuant to the Transaction Documents, (2) 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 (3) 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 (3) 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, (c) 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, which acquisitions, divestitures,
licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, 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, (d) shares of Common Stock issued
by the Company to the Investor (or its designee) in connection with any “equity line of credit” or other continuous offering
or similar offering of Common Stock (other than the transactions contemplated by the Transaction Documents) pursuant to one or more written
agreements between the Company and the Investor or an Affiliate of the Investor executed after the date of this Agreement (if any), whereby
the Company may sell shares of Common Stock to the Investor or an Affiliate of the Investor at a future determined price, or (e) shares
of Common Stock issued by the Company in any “at the market offering” or “equity distribution program” or similar
offering of Common Stock exclusively to or through B. Riley Securities, Inc. pursuant to one or more written agreements between
the Company and B. Riley Securities, Inc.


 






    I-4 


     


    

 


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


 


“FINRA”
means the Financial Industry Regulatory Authority, Inc.


 


“Fundamental
Transaction” means that (i) the Company shall, directly or indirectly, in one or more related transactions,
(1) 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, or (2) 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, or (3) 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), or (4) 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 (5) 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 5.6(b).


 


“Governmental
Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory
or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, arbitral body (public
or private) or tribunal.


 


“HIPAA”
means the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, including as amended by the Health
Information Technology for Clinical Health Act provisions of the American Recovery and Reinvestment Act of 2009, Pub. Law No. 111-5
and its implementing regulations.


 


“Indebtedness”
means, with respect to any Person as of any time, without duplication, (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. Notwithstanding anything to the contrary contained
herein, “Indebtedness” of any Person shall not include any item that would otherwise constitute “Indebtedness”
of such Person that is an obligation between such Person and any wholly owned Subsidiary of such Person or between any two or more wholly
owned Subsidiaries of such Person.


 






    I-5 


     


    

 


“Initial Commitment
Shares” means 98,888 shares of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock
which, concurrently with the execution and delivery of this Agreement on the Closing Date, the Company has caused its transfer agent
to issue and deliver to the Investor not later than 4:00 p.m. (New York City time) on the Trading Day immediately following the
Closing Date pursuant to Section 10.1(ii)(a).


 


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


 


“Intraday VWAP
Purchase” shall have the meaning assigned to such term in Section 3.2.


 


“Intraday VWAP
Purchase Commencement Time” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the time
that is thirty (30) minutes after the latest of: (i) the VWAP Purchase Ending Time of the VWAP Purchase Period for the VWAP
Purchase preceding the Intraday VWAP Purchase Period for such Intraday VWAP Purchase occurring on the same Purchase Date as such earlier
VWAP Purchase, if the Company has timely delivered a VWAP Purchase Notice to the Investor for a VWAP Purchase on such Purchase Date,
(ii) the Intraday VWAP Purchase Ending Time of the Intraday VWAP Purchase Period for the most recent prior Intraday VWAP Purchase,
if any, occurring on the same Purchase Date as such Intraday VWAP Purchase, and (iii) the Investor’s timely receipt from the
Company of the applicable Intraday VWAP Purchase Notice for such Intraday VWAP Purchase on the applicable Purchase Date therefor (such
receipt to be acknowledged by email correspondence from the Investor to each of the individual notice recipients set forth in the applicable
Intraday VWAP Purchase Notice, other than via auto-reply).


 


“Intraday VWAP
Purchase Confirmation” shall have the meaning assigned to such term in Section 3.2.


 


“Intraday VWAP
Purchase Ending Time” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the time that
is the earlier of: (i) 4:00 p.m., New York City time, on the applicable Purchase Date for such Intraday VWAP Purchase, or
such earlier time publicly announced by the Trading Market (or, if the Common Stock is then listed on an Eligible Market, by such Eligible
Market) as the official close of the primary (or “regular”) trading session on the Trading Market (or on such Eligible Market,
as applicable) on such Purchase Date, and (ii) immediately at such time following the Intraday VWAP Purchase Commencement Time of
the Intraday VWAP Purchase Period for such Intraday VWAP Purchase that the total number (or volume) of shares of Common Stock traded
on the Trading Market (or on such Eligible Market, as applicable), to be calculated commencing at the applicable Intraday VWAP Purchase
Commencement Time for such Intraday VWAP Purchase, has exceeded the applicable Intraday VWAP Purchase Share Volume Maximum for such Intraday
VWAP Purchase; provided, however, that the calculation of the total number (or volume) of shares of Common Stock traded
on the Trading Market (or on such Eligible Market, as applicable) shall exclude from such calculation (A) the opening or first purchase
of Common Stock at or following the official open of such primary (or “regular) trading session that is reported in the consolidated
system on such Purchase Date and (B) the last or closing sale of Common Stock at or prior to the official close of such primary
(or “regular”) trading session that is reported in the consolidated system on such Purchase Date (as applicable).


 






    I-6 


     


    

 


“Intraday VWAP
Purchase Maximum Amount” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, such number
of shares of Common Stock equal to the product of (i) the Purchase Share Percentage, multiplied by (ii) the Purchase Volume
Reference Amount applicable to such Intraday VWAP Purchase (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).


 


“Intraday VWAP
Purchase Notice” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, an irrevocable written
notice from the Company to the Investor directing the Investor to purchase a specified Intraday VWAP Purchase Share Amount (such specified
Intraday VWAP Purchase Share Amount subject to adjustment as set forth in Section 3.2 as necessary to give effect to the Intraday
VWAP Purchase Maximum Amount), at the applicable Intraday VWAP Purchase Price therefor on the Purchase Date for such Intraday VWAP Purchase
in accordance with this Agreement, that is delivered by the Company to the Investor and received by the Investor (i) after the latest
of (X) 10:00 a.m., New York City time, on such Purchase Date, if the Company has not timely delivered a VWAP Purchase Notice
to the Investor for a VWAP Purchase on such Purchase Date, (Y) the VWAP Purchase Ending Time of the VWAP Purchase Period for the
VWAP Purchase preceding the Intraday VWAP Purchase Period for such Intraday VWAP Purchase occurring on the same Purchase Date as such
earlier VWAP Purchase, if the Company has timely delivered a VWAP Purchase Notice to the Investor for a VWAP Purchase on such Purchase
Date, and (Z) the Intraday VWAP Purchase Ending Time of the Intraday VWAP Purchase Period for the most recent prior Intraday VWAP
Purchase, if any, occurring on the same Purchase Date as such Intraday VWAP Purchase, and (ii) prior to the earlier of (X) 1:30
p.m., New York City time, on such Purchase Date and (Y) such time that is exactly two-and-a-half (2-1⁄2) hours (or 150 minutes)
immediately prior to the official close of the primary (or “regular”) trading session on the Trading Market (or, if the Common
Stock is then listed on an Eligible Market, on such Eligible Market) on such Purchase Date, if the Trading Market (or such Eligible Market,
as applicable) has theretofore publicly announced that the official close of the primary (or “regular”) trading session on
the Trading Market (or on such Eligible Market, as applicable) on such Purchase Date shall be earlier than 4:00 p.m., New York City time,
on such Purchase Date.


 


“Intraday VWAP
Purchase Period” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the period on the
Purchase Date for such Intraday VWAP Purchase, beginning at the applicable Intraday VWAP Purchase Commencement Time and ending at the
applicable Intraday VWAP Purchase Ending Time on such Purchase Date for such Intraday VWAP Purchase.


 






    I-7 


     


    

 


“Intraday VWAP
Purchase Price” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the purchase price
per Share to be purchased by the Investor in such Intraday VWAP Purchase, equal to the product of (i) 0.97, multiplied by (ii) the
VWAP of the Common Stock for the applicable Intraday VWAP Purchase Period on the applicable Purchase Date for such Intraday VWAP Purchase;
provided, that the calculation of the VWAP for the Common Stock for the Intraday VWAP Purchase Period for an Intraday VWAP Purchase,
(A) during which Intraday VWAP Purchase Period the opening or first purchase of Common Stock at or following the official open of
the primary (or “regular) trading session on the Trading Market (or, if the Common Stock is then listed on an Eligible Market,
on such Eligible Market) on the Purchase Date for such Intraday VWAP Purchase has occurred, shall exclude from such calculation such
opening or first purchase of Common Stock at or following the official open of such primary (or “regular) trading session that
is reported in the consolidated system on such Purchase Date, and (B) during which Intraday VWAP Purchase Period the last or closing
sale of Common Stock at or prior to the official close of the primary (or “regular”) trading session on the Trading Market
(or on such Eligible Market, as applicable) on the Purchase Date for such Intraday VWAP Purchase has occurred (as applicable), shall
exclude from such calculation such last or closing sale of Common Stock at or prior to the official close of such primary (or “regular”)
trading session that is reported in the consolidated system on such Purchase Date. All such calculations shall be appropriately adjusted
for any stock dividend, stock split, stock combination, recapitalization or other similar transaction.


 


“Intraday VWAP
Purchase Share Amount” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the total number
of Shares to be purchased by the Investor in such Intraday VWAP Purchase as specified by the Company in the applicable Intraday VWAP Purchase
Notice for such Intraday VWAP Purchase, which total number of Shares shall not exceed the Intraday VWAP Purchase Maximum Amount applicable
to such Intraday VWAP Purchase.


 


“Intraday VWAP
Purchase Share Volume Maximum” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, a number
of shares of Common Stock equal to the quotient obtained by dividing (i) the Intraday VWAP Purchase Share Amount to be purchased
by the Investor in such Intraday VWAP Purchase, by (ii) the Purchase Share Percentage (to be appropriately adjusted for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).


 


“Investment Period”
means the period commencing on the Commencement Date and expiring on the date this Agreement is subsequently terminated pursuant to Article VIII.


 


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


 


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


 


“Issuer Covered
Person” shall have the meaning assigned to such term in Section 5.41.


 


“IT Systems”
means all Software, computer and information technology systems and infrastructure, servers, networks, databases, websites, computer hardware
and equipment, interfaces, platforms, and peripherals that are owned, licensed, or leased by the Company or any of its Subsidiaries in
the conduct of its business.


 






    I-8 


     


    

 


“Knowledge”
means the actual knowledge of any of (i) the Company’s Chairman and Chief Executive Officer, (ii) the Company’s
Chief Client Officer, (iii) the Company’s Chief Financial Officer, (iv) the Company’s Chief Intelligence Officer,
(v) the Company’s Chief Design Officer and (iv) the Company’s General Counsel, in each case after reasonable inquiry
of all officers, directors and employees of the Company and its Subsidiaries under such Person’s direct supervision who would reasonably
be expected to have knowledge or information with respect to the matter in question.


 


“Material Adverse
Effect” means (i) any condition, occurrence, state of facts or event having, or insofar as reasonably can be foreseen
would likely have, any effect on the business, operations, properties or financial condition of the Company that is material and adverse
to the Company and its Subsidiaries, taken as a whole, excluding any facts, circumstances, changes or effects, individually or in the
aggregate, exclusively and directly resulting from, relating to or arising out of any of the following: (a) changes in conditions
in the U.S. or global capital, credit or financial markets generally, including changes in the availability of capital or currency exchange
rates, provided such changes shall not have affected the Company in a materially disproportionate manner as compared to other similarly
situated companies, (b) changes generally affecting the industries in which the Company and its Subsidiaries operate, provided such
changes shall not have affected the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner as compared
to other similarly situated companies, (c) any effect of the announcement of, or the consummation of the transactions contemplated
by, this Agreement and the Registration Rights Agreement on the Company’s relationships, contractual or otherwise, with customers,
suppliers, vendors, bank lenders, strategic venture partners or employees, (d) changes arising in connection with earthquakes, hostilities,
acts of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage
or terrorism or military actions existing as of the date hereof, (e) any action taken by the Investor, any of its officers, its sole
member or the Investor’s Broker-Dealer, or any of such Person’s successors with respect to the transactions contemplated by
this Agreement and the Registration Rights Agreement, and (f) the effect of any changes in applicable laws or accounting rules, provided
such changes shall not have affected the Company in a materially disproportionate manner as compared to other similarly situated companies;
(ii) any condition, occurrence, state of facts or event having, or insofar as reasonably can be foreseen would likely have, any material
adverse effect on the legality, validity or enforceability of any of the Transaction Documents or the transactions contemplated thereby;
or (iii) any condition, occurrence, state of facts or event that would, or insofar as reasonably can be foreseen would likely, prohibit
or otherwise materially interfere with or delay the ability of the Company to perform any of its obligations under any of the Transaction
Documents to which it is a party.


 


“Material Agreements”
shall have the meaning assigned to such term in Section 5.19.


 


“Minimum
Price” means $4.545, representing the Nasdaq official closing price of the Common Stock on the Trading Market (as
reflected on Nasdaq.com) on the Trading Day immediately preceding the date of this Agreement (subject to adjustment for any
reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction that occurs on or
after the date of this Agreement).


 






    I-9 


     


    

 


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


 


“Notice of Effectiveness”
shall have the meaning assigned to such term in Section 10.1(iv).


 


“PEA Period”
means 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.


 


“Permits”
shall have the meaning assigned to such term in Section 5.17(a).


 


“Person”
means 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 Authority.


 


“Personal Information”
means, in addition to any definition for any similar term (e.g., “personal data” or “personally identifiable
information”) provided by applicable statute, law, rule or regulation, or by the Company in any of its privacy policies, notices
or contracts, all information that identifies, could be used to identify or is otherwise associated with an individual natural person.


 


“Privacy Laws”
means any and all applicable statutes, laws, rules, regulations, legal requirements and any self-regulatory guidelines to which the Company
is legally or contractually bound (including of any applicable foreign jurisdiction) relating to Data Treatment or otherwise relating
to privacy or security of Personal Information, including to the extent applicable to the Company, HIPAA, California Consumer Privacy
Act (CCPA), and the General Data Protection Regulation (GDPR) (EU) 2016/679), and any and all applicable statutes, laws, rules or
regulations relating to breach notification in connection with Personal Information.


 


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


 


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


 


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


 


“Purchase
Date” means, (i) with respect to a VWAP Purchase made pursuant to Section 3.1, the Trading Day on which the
Investor timely receives (A) after 6:00 a.m., New York City time, and (B) prior to 9:00 a.m., New York City time, on
such Trading Day, a valid VWAP Purchase Notice for such VWAP Purchase in accordance with this Agreement, and (ii) with respect
to an Intraday VWAP Purchase made pursuant to Section 3.2, the Trading Day on which the Investor timely receives a valid Intraday VWAP Purchase Notice for such Intraday VWAP Purchase in accordance with this Agreement,
(A) after the latest of (X) 10:00 a.m., New York City time, on such Trading Day, if the Company has not timely
delivered a valid VWAP Purchase Notice to the Investor for a VWAP Purchase on such Trading Day, (Y) the VWAP Purchase Ending
Time of the VWAP Purchase Period for the VWAP Purchase preceding the applicable Intraday VWAP Purchase Period for such Intraday VWAP
Purchase occurring on the same Trading Day as such earlier VWAP Purchase, if the Company has timely delivered a valid VWAP Purchase
Notice to the Investor for a VWAP Purchase on such Trading Day, and (Z) the Intraday VWAP Purchase Ending Time of the Intraday
VWAP Purchase Period for the most recent prior Intraday VWAP Purchase, if any, occurring on the same Trading Day as such Intraday
VWAP Purchase, and (B) prior to the earlier of (X) 1:30 p.m., New York City time, on such Trading Day for such
Intraday VWAP Purchase and (Y) such time that is exactly two-and-a-half (2-1⁄2) hours (or 150 minutes) immediately prior
to the official close of the primary (or “regular”) trading session on the Trading Market (or, if the Common Stock is
then listed on an Eligible Market, on such Eligible Market) on such Trading Day, if the Trading Market (or such Eligible Market, as
applicable) has publicly announced that the official close of the primary (or “regular”) trading session shall be
earlier than 4:00 p.m., New York City time, on such Trading Day.


 






    I-10 


     


    

 


“Purchase Share
Delivery Date” shall have the meaning assigned to such term in Section 3.3.


 


“Purchase Share
Percentage” means, with respect to a VWAP Purchase made pursuant to Section 3.1 and with respect to an Intraday VWAP
Purchase made pursuant to Section 3.2, thirty-three percent (33.0%).


 


“Purchase Volume
Reference Amount” means, with respect to a VWAP Purchase made pursuant to Section 3.1 and with respect to an Intraday
VWAP Purchase made pursuant to Section 3.2, such number of shares of Common Stock equal to the quotient obtained by dividing (i) the
total aggregate number (or volume) of shares of Common Stock traded during the full primary (or “regular”) trading sessions
on the Trading Market (or on such Eligible Market, as applicable) during the ten (10) consecutive Trading Day period ending on (and
including) the Trading Day immediately preceding the Purchase Date for such VWAP Purchase and/or for such Intraday VWAP Purchase (as applicable),
by (ii) ten (10). All such calculations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or other similar transaction.


 


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


 


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


 


“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.


 






    I-11 


     


    

 


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


 


“Restricted Person”
shall have the meaning assigned to such term in Section 6.9(i).


 


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


 


“Rule 144”
means 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.


 


“Sarbanes-Oxley
Act” shall have the meaning assigned to such term in Section 5.6(d).


 


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


 


“Securities”
means, collectively, the Shares and the Commitment Shares.


 


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


 


“Shares”
shall mean the shares of Common Stock that may be purchased by the Investor under this Agreement pursuant to one or more VWAP Purchase
Notices and pursuant to one or more Intraday VWAP Purchase Notices, but not including the Commitment Shares.


 


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


 


“Software”
means any and all (i) computer programs, including any and all software implementation of algorithms, models and methodologies, whether
in source code, object code, human readable form or other form, (ii) databases and compilations, including any and all data and collections
of data, whether machine readable or otherwise, (iii) descriptions, flow charts and other work products used to design, plan, organize
and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and
icons and (iv) all documentation including user manuals and other training documentation relating to any of the foregoing.


 


“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.


 


“Threshold Price”
means $1.00, which shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar
transaction and, effective upon the consummation of any such reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction, the “Threshold Price” shall mean the lower of (i) such adjusted price and (ii) $1.00.


 


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


 






    I-12 


     


    

 


“Trading Day”
shall mean any day on which the Trading Market or, if the Common Stock is then listed on an Eligible Market, such Eligible Market is open
for “regular” trading, including any day on which the Trading Market (or such Eligible Market, as applicable) is open for
 “regular” trading for a period of time less than the customary “regular” trading period.


 


“Trading Market”
means The Nasdaq Global Market (or any nationally recognized successor thereto).


 


“Transaction Documents”
means, collectively, this Agreement (as qualified by the Disclosure Schedule) 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.


 


“Variable Rate
Transaction” means a transaction in which the Company (i) issues or sells any equity or debt securities that are convertible
into, exchangeable or exercisable for, or include the right to receive additional shares of Common Stock or Common Stock Equivalents either
(A) at a conversion price, exercise price, exchange rate or other price that is based upon and/or varies with the trading prices
of or quotations for the Common Stock at any time after the initial issuance of such equity or debt securities, or (B) with a conversion,
exercise or exchange price that is subject to being reset at some future date after the initial issuance of such equity or debt security
or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company or the market for
the Common Stock (including, without limitation, any “full ratchet” or “weighted average” anti-dilution provisions,
but not including any standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction), (ii) issues or sells any equity or debt securities, including without limitation, Common Stock or Common Stock
Equivalents, either (A) at a price that is subject to being reset at some future date after the initial issuance of such debt or
equity security or upon the occurrence of specified or contingent events directly or indirectly related to the business of the Company
or the market for the Common Stock (other than standard anti-dilution protection for any reorganization, recapitalization, non-cash dividend,
stock split or other similar transaction), or (B) that are subject to or contain any put, call, redemption, buy-back, price-reset
or other similar provision or mechanism (including, without limitation, a “Black-Scholes” put or call right, other than in
connection with a “fundamental transaction”) that provides for the issuance of additional equity securities of the Company
or the payment of cash by the Company, or (iii) enters into any agreement, including, but not limited to, an “equity line of
credit” or “at the market offering” or other continuous offering or similar offering of Common Stock or Common Stock
Equivalents, whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price.


 


“VWAP”
means, for the Common Stock for a specified period, the dollar volume-weighted average price for the Common Stock on the Trading Market
(or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market), for such period, as reported by Bloomberg through
its “AQR” function; provided, however, that (i) the calculation of the dollar volume-weighted average price
for the Common Stock for the VWAP Purchase Period for each VWAP Purchase, (A) during which VWAP Purchase Period the opening or first
purchase of Common Stock at or following the official open of the primary (or “regular) trading session on the Trading Market (or,
if the Common Stock is then listed on an Eligible Market, on such Eligible Market) on the Purchase Date for such VWAP Purchase has occurred,
shall exclude from such calculation such opening or first purchase of Common Stock at or following the official open of such primary (or
 “regular) trading session that is reported in the consolidated system on such Purchase Date, and (B) during which VWAP Purchase
Period the last or closing sale of Common Stock at or prior to the official close of the primary (or “regular”) trading session
on the Trading Market (or on such Eligible Market, as applicable) on the Purchase Date for such VWAP Purchase has occurred (as applicable),
shall exclude from such calculation such last or closing sale of Common Stock at or prior to the official close of such primary (or “regular”)
trading session that is reported in the consolidated system on such Purchase Date; and (ii) the calculation of the dollar volume-weighted
average price for the Common Stock for the Intraday VWAP Purchase Period for each Intraday VWAP Purchase, (A) during which Intraday
VWAP Purchase Period the opening or first purchase of Common Stock at or following the official open of the primary (or “regular)
trading session on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) on the Purchase
Date for such Intraday VWAP Purchase has occurred, shall exclude from such calculation such opening or first purchase of Common Stock
at or following the official open of such primary (or “regular) trading session that is reported in the consolidated system on such
Purchase Date, and (B) during which Intraday VWAP Purchase Period the last or closing sale of Common Stock at or prior to the official
close of the primary (or “regular”) trading session on the Trading Market (or on such Eligible Market, as applicable) on the
Purchase Date for such Intraday VWAP Purchase has occurred (as applicable), shall exclude from such calculation such last or closing sale
of Common Stock at or prior to the official close of such primary (or “regular”) trading session that is reported in the consolidated
system on such Purchase Date. All such calculations shall be appropriately adjusted for any stock dividend, stock split, stock combination,
recapitalization or other similar transaction.






    I-13 


     


    









 


“VWAP Purchase”
shall have the meaning assigned to such term in Section 3.1.


 


“VWAP Purchase
Confirmation” shall have the meaning assigned to such term in Section 3.1.


 


“VWAP Purchase
Commencement Time” means, with respect to a VWAP Purchase made pursuant to Section 3.1, 9:30:01 a.m., New York City
time, on the Purchase Date for such VWAP Purchase, or such later time on such Purchase Date publicly announced by the Trading Market
(or, if the Common Stock is then listed on an Eligible Market, by such Eligible Market) as the official open of the primary (or “regular)
trading session on the Trading Market (or on such Eligible Market, as applicable) on such Purchase Date.


 


“VWAP
Purchase Ending Time” means, with respect to a VWAP Purchase made pursuant to Section 3.1, the time that is the earlier
of: (i) 4:00 p.m., New York City time, on the Purchase Date for such VWAP Purchase, or such earlier time publicly 
announced by the Trading Market (or, if the Common Stock is then listed on an Eligible Market, by such Eligible Market) as the
official close of the primary (or “regular”) trading session on the Trading Market (or on such Eligible Market, as applicable)
on such Purchase Date, and (ii) immediately at such time following the VWAP Purchase Commencement Time of the VWAP Purchase Period for
such VWAP Purchase that the total number (or volume) of shares of Common Stock traded on the Trading Market (or on such Eligible Market,
as applicable), to be calculated commencing at the applicable VWAP Purchase Commencement Time for such VWAP Purchase, has exceeded the
applicable VWAP Purchase Share Volume Maximum for such VWAP Purchase; provided, however, that the calculation of the total number
(or volume) of shares of Common Stock traded on the Trading Market (or on such Eligible Market, as applicable) shall exclude from such
calculation (A) the opening or first purchase of Common Stock at or following the official open of such primary (or “regular) trading
session that is reported in the consolidated system on such Purchase Date and (B) the last or closing sale of Common Stock at or prior
to the official close of such primary (or “regular”) trading session that is reported in the consolidated system on such
Purchase Date (as applicable).




 



    I-14


     


    

 


“VWAP Purchase
Maximum Amount” means, with respect to a VWAP Purchase made pursuant to Section 3.1, such number of shares of Common
Stock equal to the product of (i) the Purchase Share Percentage, multiplied by (ii) the Purchase Volume Reference Amount applicable
to such VWAP Purchase (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse
stock split or other similar transaction).


 


“VWAP Purchase
Notice” means, with respect to a VWAP Purchase made pursuant to Section 3.1, an irrevocable written notice delivered
by the Company to the Investor, and received by the Investor, after 6:00 a.m., New York City time, and prior to 9:00 a.m., New York City
time, on the Purchase Date for such VWAP Purchase, directing the Investor to purchase a specified 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 such Purchase Date for such VWAP Purchase in accordance with this Agreement.


 


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


 


“VWAP Purchase
Price” means, with respect to a VWAP Purchase made pursuant to Section 3.1, the purchase price per Share to be purchased
by the Investor in such VWAP Purchase, equal to the product of (i) 0.97, multiplied by (ii) the VWAP of the Common Stock for
the applicable VWAP Purchase Period on the applicable Purchase Date for such VWAP Purchase; provided, that the calculation of
the VWAP for the Common Stock for the VWAP Purchase Period for each VWAP Purchase, (A) during which VWAP Purchase Period the opening
or first purchase of Common Stock at or following the official open of the primary (or “regular) trading session on the Trading
Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) on the Purchase Date for such VWAP Purchase
has occurred, shall exclude from such calculation such opening or first purchase of Common Stock at or following the official open of
such primary (or “regular) trading session that is reported in the consolidated system on such Purchase Date, and (B) during
which VWAP Purchase Period the last or closing sale of Common Stock at or prior to the official close of the primary (or “regular”)
trading session on the Trading Market (or on such Eligible Market, as applicable) on the Purchase Date for such VWAP Purchase has occurred
(as applicable), shall exclude from such calculation such last or closing sale of Common Stock at or prior to the official close of such
primary (or “regular”) trading session that is reported in the consolidated system on such Purchase Date. All such calculations
shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction.


 


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


 


“VWAP Purchase
Share Volume Maximum” means, with respect to an VWAP Purchase made pursuant to Section 3.1, a number of shares of Common
Stock equal to the quotient obtained by dividing (i) the VWAP Purchase Share Amount to be purchased by the Investor in such VWAP
Purchase, by (ii) the Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction).


 






    I-15


     


    

 


EXHIBIT A


 


FORM OF
REGISTRATION RIGHTS AGREEMENT


 


[TO BE FURNISHED SEPARATELY]


 






    A-1


     


    

 


EXHIBIT B


 


CLOSING
CERTIFICATE


 


April 4,
2022


 


The undersigned, the
Chairman and Chief Executive Officer of Knightscope, Inc., a Delaware corporation (the “Company”),
delivers this certificate in connection with the Common Stock Purchase Agreement, dated as of April 4, 2022 (the
 “Agreement”), by and between the Company and B. Riley Principal Capital, LLC, a Delaware limited liability
company (the “Investor”), and hereby certifies on the date hereof that (capitalized terms used herein
without definition have the meanings assigned to them in the Agreement):


 


1.            Attached
hereto as Exhibit A is a true, complete and correct copy of the Certificate of Incorporation of the Company, as amended through
the date hereof, as filed with the Secretary of State of the State of Delaware. The Certificate of Incorporation of the Company has not
been further amended or restated, and no document with respect to any amendment to the Certificate of Incorporation of the Company has
been filed in the office of the Secretary of State of the State of Delaware since the date shown on the face of the state certification
relating to the Company’s Certificate of Incorporation, which is in full force and effect on the date hereof, and no action has
been taken by the Company in contemplation of any such amendment or the dissolution, merger or consolidation of the Company.


 


2.            Attached
hereto as Exhibit B is a true and complete copy of the Bylaws of the Company, as amended and restated through, and as in full
force and effect on, the date hereof, and no proposal for any amendment, repeal or other modification to the Bylaws of the Company has
been taken or is currently pending before the Board of Directors or stockholders of the Company.


 


3.            The
Board of Directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has not
been amended, rescinded or modified and remains in full force and effect as of the date hereof. Attached hereto as Exhibit C
are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company on March 30,
2022.


 


4.            Each
person who, as an officer of the Company, or as attorney-in-fact of an officer of the Company, signed the Transaction Documents to which
the Company is a party, was duly elected, qualified and acting as such officer or duly appointed and acting as such attorney-in-fact,
and the signature of each such person appearing on any such document is his genuine signature.


 


IN
WITNESS WHEREOF, I have signed my name as of the date first above written.


 


	 	 
	 	Name: William Santana Li
	 	Title: Chairman and Chief Executive Officer




 



    B-1


     


    

 


EXHIBIT C


 


COMPLIANCE
CERTIFICATE


 


The undersigned, the [●]
of Knightscope, Inc., a Delaware corporation (the “Company”), delivers this certificate in connection with
the Common Stock Purchase Agreement, dated as of April 4, 2022 (the “Agreement”), by and between the
Company and B. Riley Principal Capital, LLC, a Delaware limited liability company (the “Investor”), and hereby
certifies on the date hereof that, to the best of his knowledge after reasonable investigation, on behalf of the Company (capitalized
terms used herein without definition have the meanings assigned to them in the Agreement):


 


1.            The
undersigned is the duly appointed [●] of the Company.


 


2.            Except
as set forth in the attached Disclosure Schedule, the representations and warranties of the Company set forth in Article V of the
Agreement (i) that are not qualified by “materiality” or “Material Adverse Effect” are true and correct in
all material respects as of [the Commencement Date] [the date hereof] with the same force and effect as if made on [the Commencement Date]
[the date hereof], except to the extent such representations and warranties are as of another date, in which case, such representations
and warranties are true and correct in all material respects as of such other date and (ii) that are qualified by “materiality”
or “Material Adverse Effect” are true and correct as of [the Commencement Date] [the date hereof] with the same force and
effect as if made on [the Commencement Date] [the date hereof], except to the extent such representations and warranties are as of another
date, in which case, such representations and warranties are true and correct as of such other date.


 


3.            The
Company has performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by the Agreement
and the Registration Rights Agreement to be performed, satisfied or complied with by the Company [at or prior to Commencement][on or prior
to the date hereof].


 


4.            The Shares issuable in respect of each VWAP Purchase Notice and each
Intraday VWAP Purchase Notice effected pursuant to the Agreement shall be delivered to the Investor electronically as DWAC Shares, and
shall be freely tradable and transferable and without restriction on resale and without any stop transfer instructions maintained against
such Shares. In accordance with Section 10.1(iv) of the Agreement, the Initial Commitment Shares have been delivered to the Investor electronically
as DWAC Shares, and the Initial Commitment Shares are freely tradable and transferable and without restriction on resale and without any
stop transfer instructions maintained against the Commitment Shares.


 


5.            As
of [the Commencement Date][the date hereof], the Company does not possess any material non-public information.


 


6.            As
of [the Commencement Date][the date hereof], the Company has reserved out of its authorized and unissued Common Stock,
(i) 98,888 shares of Common Stock for the purpose of issuing Additional Commitment Shares pursuant to
Section 10.1(ii)(b) under the Agreement and (ii) 20,000,000 shares of Common Stock solely for the purpose of issuing
Shares pursuant to VWAP Purchases and Intraday VWAP Purchases effected under the Agreement.


 


7.            No
stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus under the Securities Act has been issued
and no proceedings for such purpose or pursuant to Section 8A of the Securities Act are pending before or, to the Knowledge of the
Company, threatened by the Commission.


 






    C-1


     


    

 


Perkins Coie LLP shall be
entitled to rely on the representations and warranties set forth herein for purposes of rendering its opinion and negative assurance letter.


 





The undersigned has executed
this Certificate this [●] day of [●], 202[●].


 


	 	By:	                
	 	 	 
	 	Name:	 
	 	 	 
	 	Title:	 


 






    C-2