Exhibit 10.1


 


 


 


COMMON STOCK PURCHASE AGREEMENT


 


Dated as of October 17, 2022


 


by and between


 


HNR Acquisition Corp.


 


and


 


WHITE LION CAPITAL
LLC


 


 


 


 


 


 




     


     


    

 


TABLE OF CONTENTS


 





	Article I
    DEFINITIONS	1
	 	 
	Article II
    PURCHASE AND SALE OF COMMON STOCK	2
	 	Section 2.1	 Purchase
    and Sale of Stock	2
	 	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 	Purchases	3
	 	Section 3.2	 Settlement	3
	 	Section 3.3	 Compliance with
    Rules of Trading Market	4
	 	Section 3.4 	Beneficial Ownership
    Limitation	5
	Article IV
    REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR	5
	 	Section 4.1 	Organization and Standing
    of the Investor	5
	 	Section 4.2 	Authorization and Power	5
	 	Section 4.3 	No Conflicts	6
	 	Section 4.4 	Investment Purpose	6
	 	Section 4.5 	Accredited Investor
    Status	6
	 	Section 4.6 	Reliance on Exemptions	7
	 	Section 4.7 	Information	7
	 	Section 4.8 	No Governmental Review	7
	 	Section 4.9 	No General Solicitation	7
	 	Section 4.10	 Not an Affiliate	7
	 	Section 4.11 	No Prior Short Sales	8
	 	Section 4.12 	Statutory Underwriter
    Status	8
	 	Section 4.13 	Resales of Shares	8
	 	Section 4.14 	Primary Place of Business	8
	Article V
    REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY	8
	 	Section 5.1 	Organization, Good Standing
    and Power	8
	 	Section 5.2 	Authorization, Enforcement	8
	 	Section 5.3 	Capitalization	9
	 	Section 5.4 	Issuance of Shares	9
	 	Section 5.5 	No Conflicts	9
	 	Section 5.6 	SEC Documents, Financial
    Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants	10
	 	Section 5.7 	Subsidiaries	11
	 	Section 5.8 	No Material Adverse
    Effect; Absence of Certain Changes	11
	 	Section 5.9 	No Material Defaults	11
	 	Section 5.10 	Material Contracts	11
	 	Section 5.11 	Solvency	12
	 	Section 5.12 	Real Property; Other
    Property	12
	 	Section 5.13 	Actions Pending	12
	 	Section 5.14 	Compliance with Law	12
	 	Section 5.15 	Certain Fees	12


 




    i


     


    

 





	 	Section 5.16 	Disclosure	12
	 	Section 5.17 	Operation of Business	13
	 	Section 5.18 	Environmental Compliance	13
	 	Section 5.19 	No Improper Practices	14
	 	Section 5.20 	Transactions With Affiliates	14
	 	Section 5.21 	Labor Disputes	14
	 	Section 5.22 	Use of Proceeds	14
	 	Section 5.23 	Investment Company Act
    Status	14
	 	Section 5.24 	Reserved	14
	 	Section 5.25 	Taxes	15
	 	Section 5.26 	Insurance	15
	 	Section 5.27 	Exemption from Registration	15
	 	Section 5.28 	No General Solicitation
    or Advertising	15
	 	Section 5.29 	No Integrated Offering	15
	 	Section 5.30 	Dilutive Effect	16
	 	Section 5.31 	Manipulation of Price	16
	 	Section 5.32 	Listing and Maintenance
    Requirements; DTC Eligibility	16
	 	Section 5.33 	OFAC	16
	 	Section 5.34 	Information Technology;
    Compliance with Data Privacy Laws	17
	 	Section 5.35 	Acknowledgement Regarding
    Investor’s Acquisition of Shares	17
	Article VI
    ADDITIONAL COVENANTS	17
	 	Section 6.1 	Securities Compliance	18
	 	Section 6.2 	Reservation of Common
    Stock	18
	 	Section 6.3 	Registration and Listing	18
	 	Section 6.4 	Compliance with Laws	19
	 	Section 6.5 	Keeping of Records and
    Books of Account; Due Diligence	19
	 	Section 6.6 	No Frustration; No Variable
    Rate Transactions	19
	 	Section 6.7 	Corporate Existence	20
	 	Section 6.8 	Fundamental Transaction	20
	 	Section 6.9 	Selling Restrictions	20
	 	Section 6.10	 Effective Registration
    Statement	21
	 	Section 6.11 	Blue Sky	21
	 	Section 6.12 	Non-Public Information	21
	 	Section 6.13 	Broker/Dealer	21
	 	Section 6.14 	Disclosure Schedule	22
	 	Section 6.15	 Delivery of Bring
    Down Opinions and Compliance Certificates Upon Occurrence of Certain Events	23
	Article VII
    CONDITIONS TO CLOSING AND CONDITIONS TO THE SALE AND PURCHASE OF THE SHARES	23
	 	Section 7.1 	Conditions Precedent
    to Closing	23
	 	Section 7.2 	Conditions Precedent
    to Commencement	24
	 	Section 7.3 	Conditions Precedent
    to Purchases after Commencement Date	27


 






    ii


     


    

 





	Article VIII
    TERMINATION	30
	 	Section 8.1 	Automatic Termination	30
	 	Section 8.2 	Other Termination	31
	 	Section 8.3 	Effect of Termination	32
	Article IX
    INDEMNIFICATION	32
	 	Section 9.1 	Indemnification of Investor	32
	 	Section 9.2 	Indemnification Procedures	33
	Article X
    MISCELLANEOUS	34
	 	Section 10.1 	Certain Fees and Expenses;
    Commitment Shares; Commencement Irrevocable Transfer Agent Instructions	34
	 	Section 10.2 	Specific Enforcement,
    Consent to Jurisdiction, Waiver of Jury Trial	36
	 	Section 10.3 	Entire Agreement	37
	 	Section 10.4	 Notices	37
	 	Section 10.5 	Waivers	38
	 	Section 10.6 	Amendments	38
	 	Section 10.7 	Headings	38
	 	Section 10.8 	Construction	38
	 	Section 10.9 	Binding Effect	38
	 	Section 10.10	 No Third Party
    Beneficiaries	38
	 	Section 10.11 	Governing Law	38
	 	Section 10.12 	Survival	38
	 	Section 10.13 	Counterparts	38
	 	Section 10.14	 Publicity	38
	 	Section 10.15 	Severability	39
	 	Section 10.16 	Further Assurances	39


 






    iii


     


    

 


COMMON STOCK PURCHASE
AGREEMENT


 


This COMMON STOCK
PURCHASE AGREEMENT (this “Agreement”) is made and entered into as of October 17, 2022 (the “Execution
Date”), by and between White Lion Capital, LLC, a Nevada limited liability company (the “Investor”),
and HNR Acquisition Corp., a Delaware corporation (the “Company”).


 


RECITALS 


 


WHEREAS, following
the consummation of the transactions contemplated by a business combination agreement (the “BCA Closing”), the
Company shall continue to have its common stock (the “Common Stock”) registered under Section 12(b) of
the Exchange Act;


 


 


WHEREAS, the parties
desire that, upon the terms and subject to the conditions and limitations set forth herein, during the Commitment Period, 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) $150,000,000 in aggregate gross purchase price of newly issued Common Stock;


 


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


 


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


 


WHEREAS, in consideration
for the Investor’s execution and delivery of this Agreement, the Company shall issue to the Investor the Commitment Shares, pursuant
to and in accordance with Section 10.1(ii);


 


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.


 






    1


     


    

 


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 Commitment 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 subject to the terms of this Agreement, up to $150,000,000 (the “Total Commitment”)
in aggregate gross purchase price of duly authorized, validly issued, fully paid and non-assessable Shares by the delivery to
the Investor of Purchase Notices as provided in Article III.


 


Section 2.2
Closing Date; Settlement Dates. This Agreement shall become effective and binding (the “Closing”)
upon the delivery of counterpart signature pages of this Agreement and the Registration Rights Agreement executed by each of the parties
hereto and thereto. 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 Commitment 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 Purchase. The delivery of Shares in respect of each Purchase, and the payment for such Shares, shall occur in
accordance with Section 3.2, provided that all of the conditions precedent in Article VII shall
have been fulfilled at the applicable times set forth in Article VII.


 


Section 2.3 Initial
Public Announcements and Required Filings. The Company shall timely 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 Commitment Shares issuable by the Company to the
Investor in accordance with Section 10.1(ii), and attaching as exhibits thereto copies of each of this Agreement and the
Registration Rights Agreement (including all exhibits thereto, the “Current Report”). The Company shall
provide the Investor 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 such material nonpublic information delivered to Investor and 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
hereby and 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). The Company
shall file with the Commission the Initial Registration no later than thirty (30) days of the BCA Closing and use its commercially
reasonable efforts to prepare any new Registration Statements. At or before 8:30 a.m. (New York City time) on the forth
(4th) Trading Day immediately following the Effective Date of the Initial Registration Statement and any New Registration
Statement (or any post-effective amendment thereto), the Company shall use its commercially reasonable efforts to file with the
Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to be used in connection with sales pursuant
to such Registration Statement (or post-effective amendment thereto).


 






    2


     


    

 


Article III

PURCHASE TERMS


 


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


 


Section 3.1
Purchases. The Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the
Investor of a Purchase Notice, to purchase the applicable Purchase Notice Shares, not to exceed the applicable Purchase Notice Limit,
at the applicable Purchase Price in accordance with this Agreement (each such purchase, a “Purchase”). The wire
for the applicable Purchase Notice shall occur one (1) Trading Day following the end of the applicable Valuation Period (the “Purchase
Settlement Date”). The Investor is obligated to accept each 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. The Company may not deliver a Purchase
Notice if the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Purchase Notice Date is less than the
Floor Price. If the Company delivers any Purchase Notice directing the Investor to purchase Purchase Notice Shares in excess of the applicable
Purchase Notice Limit, such Purchase Notice shall be void ab initio to the extent of the amount by which the Purchase Notice
Shares set forth in such Purchase Notice exceeds such applicable Purchase Notice Limit, and the Investor shall have no obligation to purchase
such excess Shares in respect of such Purchase Notice; provided, however, that the Investor shall remain obligated
to purchase the applicable Purchase Notice Limit in such Purchase, subject to adjustments provided herein. Notwithstanding the foregoing,
the Company shall not deliver any Purchase Notices to the Investor during the PEA Period.


 


Section 3.2 Settlement.
The Shares constituting the applicable Purchase Notice Shares in each Purchase Notice shall be delivered to the Investor as DWAC
Shares alongside the delivery of a Purchase Notice. For each Purchase, the Investor shall pay to the Company an amount in cash equal
to the product of (a) the total applicable number of Purchase Notice Shares in such applicable Purchase Notice and (b) the
applicable Purchase Price for such Shares (the “Purchase Amount”), as full payment for such Shares
purchased by the Investor in such Purchase, via wire transfer of immediately available funds, not later than 5:00 p.m., New York
City time, on the Purchase Settlement Date (it being acknowledged and agreed that the Company may not deliver any additional
Purchase Notice to the Investor until all such Shares subject to such Purchase, and all Shares subject to all prior Purchase
Notices, have been received by the Investor as DWAC Shares in accordance with this Agreement, and the Company has received all
Purchase Amounts, via wire transfer of immediately available funds, in respect of each Purchase). The Company shall not issue any
fraction of a share of Common Stock to the Investor in connection with any 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.


 






    3


     


    

 


Section 3.3
Compliance with Rules of Trading Market.


 


(a)
Exchange Cap. The Company shall not issue or sell any Common Stock pursuant to this Agreement, and the Investor shall
not purchase or acquire any Common Stock pursuant to this Agreement, to the extent that after giving effect thereto, the aggregate number
of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated hereby would exceed the maximum number
of shares of Common Stock permitted under applicable rules of the Principal Market to be issued without a vote of the Company’s
shareholders, which number of Common Stock shall be reduced, on a share-for-share basis, by the number of Common Stock issued or issuable
pursuant to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under
applicable rules of the Principal Market (such maximum number of Common Stock, the “Exchange Cap”), unless
the Company’s shareholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in
accordance with the applicable rules of the Principal Market. For the avoidance of doubt, the Company may, but shall be under no
obligation to, request its shareholders to approve the issuance of Common Stock pursuant to this Agreement; provided, that
if such shareholder 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.


 


(b) At-Market
Transaction. Notwithstanding Section 3.3(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 3.3(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 NYSE American official closing price of the
Common Stock on the Trading Market on the Trading Day immediately prior to the date of this Agreement and (ii) the average NYSE
American official closing price of the Common Stock on the Trading Market for the five (5) consecutive Trading Days ending on the
Trading Day immediately prior to the date of this Agreement. “Average Price”
means, as of any date of determination, such 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 as of
such date, by (ii) the aggregate number of Shares issued pursuant to this Agreement as of such date. “Base
Price” means a price per Share equal to the sum of (i) the Minimum Price and (ii) $___
(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). “Minimum Price”
means $____, representing the NYSE American official closing price of the Common Stock on the Trading Market 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).


 






    4


     


    

 


(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 3.3 shall be implemented in a manner otherwise than in strict conformity with
the terms of this Section 3.3 only if necessary to ensure compliance with the Securities Act and the applicable rules of the
Trading Market.


 


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


 


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 Nevada.


 





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 Shares in accordance with the terms hereof.
The execution, delivery and performance by the Investor of this Agreement and the Registration Rights Agreement and the consummation
by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary limited liability company action,
and no further consent or authorization of the Investor, its managers or its members 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).


 






    5


     


    

 


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 court or
governmental agency applicable to the Investor or by which any of its properties or assets are bound or affected, except, in the case
of clauses (ii) and (iii), for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as
would not, individually or in the aggregate, prohibit or otherwise interfere with, in any material respect, the ability of the Investor
to enter into and perform its obligations under this Agreement and the Registration Rights Agreement. The Investor is not required under
any applicable federal, state or local law, rule or regulation to obtain any consent, authorization or order of, or make any filing or
registration with, any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement
and the Registration Rights Agreement or to purchase or acquire the Shares in accordance with the terms hereof; provided, however,
that for purposes of the representation made in this sentence, the Investor is assuming and relying upon the accuracy of the relevant
representations and warranties and the compliance with the relevant covenants and agreements of the Company in the Transaction Documents
to which it is a party.


 


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


 


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


 






    6


     


    

 


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


 


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


 


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


 


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


 


Section 4.10 Not an
Affiliate. The Investor is not an officer, director or an Affiliate of the Company. 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. During the Commitment 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.


 






    7


     


    

 


Section 4.11
No Prior Short Sales. At no time prior to the Execution Date 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 principal account, any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO
of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position with respect to the
Common Stock.


 


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


 


Section 4.13
Resales of Shares. The Investor represents, warrants and covenants that it will resell such Shares only pursuant to
the Registration Statement in which the resale of such Shares is registered under the Securities Act, in a manner described under the
caption “Plan of Distribution” in such Registration Statement, and in a manner in compliance with all applicable U.S. federal
and state securities laws, rules and regulations. For the purposes hereof, and in accordance with Regulation SHO, the sale after delivery
of the Purchase Notice of such number of shares of Common Stock expected to be purchased under each Purchase Notice shall not be deemed
a Short Sale.


 


Section 4.14
Primary Place of Business. The Investor’s primary place of business is in the State of California.


 


Article V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY


 


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


 


Section 5.1
Organization, Good Standing and Power. The Company 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 Shares in accordance with the terms hereof and thereof. Except for approvals of the Company’s
Board of Directors or a committee thereof as may be required in connection with any issuance and sale of Shares to the Investor hereunder
(which approvals shall be obtained prior to the delivery of any 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).


 






    8


     


    

 


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. 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 after the BCA Closing.
Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions
that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein
or therein. The Company has filed with the Commission true and correct copies of the Company’s Amended and Restated Certificate
of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s Amended and Restated
Bylaws as in effect on the Closing Date (the “Bylaws”).


 


Section 5.4 Issuance
of Shares. The Commitment Shares 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 Purchase Notice, will be, prior to the delivery to the Investor hereunder of such
Purchase Notice, duly authorized by all necessary corporate action on the part of the Company. The Commitment Shares and the Shares,
if and when issued in accordance with this Agreement, shall be validly issued and outstanding, fully paid
and non-assessable and free from all liens, charges, taxes, security interests, encumbrances, rights of first refusal,
preemptive or similar rights and other encumbrances with respect to the issue thereof, and the Investor shall be entitled to all
rights accorded to a holder of Common Stock. At or prior to Commencement, the Company shall have duly authorized and reserved a
number of shares of Common Stock equal to the Exchange Cap for issuance and sale as Shares to the Investor pursuant to Purchases
that may be effected by the Company, in its sole discretion, from time to time from and after the Commencement Date, pursuant to
this Agreement.


 


Section 5.5
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) conflict with or constitute a material default (or
an event which, with notice or lapse of time or both, would become a material default) under, or give 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
(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 result in a Material
Adverse Effect. Except as specifically contemplated by this Agreement or the Registration Rights Agreement and as required under the Securities
Act, any applicable state securities laws and applicable rules of the Trading Market, the Company is not required under any federal, state
or local rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental
agency in order for it to execute, deliver or perform any of its obligations under the Transaction Documents to which it is a party, or
to issue the Shares to the Investor in accordance with the terms hereof and thereof (other than such consents, authorizations, orders,
filings or registrations as have been obtained or made prior to the Closing Date); provided, however, that, for
purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the representations and
warranties of the Investor in this Agreement and the compliance by it with its covenants and agreements contained in this Agreement and
the Registration Rights Agreement.


 






    9


     


    

 


Section 5.6
SEC Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants.


 


(a) At all times after the
BCA Closing, the Company shall have timely filed (giving effect to permissible extensions in accordance with
Rule 12b-25 under the Exchange Act) all filings required to be filed with or furnished to the Commission by the Company
under the Securities Act or the Exchange Act, including those required to be filed with or furnished to the Commission under
Section 13(a) or Section 15(d) of the Exchange Act (the “SEC Documents”). As of the Execution
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, each SEC Document filed with or furnished to the Commission prior to
the Closing Date complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable,
and other federal, state and local laws, rules and regulations applicable to it, and, as of its filing date (or, if amended or
superseded by a filing prior to the Closing Date, on the date of such amended or superseded filing). Each 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 the light of the circumstances under which they were made, not misleading, except that this representation
and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon
and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor
expressly for use therein. Each SEC Document (other than the Initial Registration Statement or any New Registration Statement, or
the Prospectus included therein or any Prospectus Supplement thereto) to be filed with or furnished to the Commission after the
Closing Date and incorporated by reference in the Initial Registration Statement or any New Registration Statement, or the
Prospectus included therein or any Prospectus Supplement thereto required to be filed pursuant to this Agreement or the Registration
Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the
Commission and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with
the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and
regulations applicable to it. The 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.


 


(b) The 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 financial position of the Company as of the dates indicated, and the
results of operations, cash flows and changes in stockholders’ equity of the Company 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 summary consolidated financial data included or
incorporated by reference in the SEC Documents present fairly the information shown therein and have been compiled on a basis
consistent with that of the financial statements included or incorporated by reference in the Commission Documents, as of and at the
dates indicated. The pro forma condensed combined financial statements and the pro forma combined financial statements and any other
pro forma financial statements or data included or incorporated by reference in the Commission Documents comply with the
requirements of Regulation S-X of the Securities Act, including, without limitation, Article 11 thereof, and the
assumptions used in the preparation of such pro forma financial statements and data are reasonable, the pro forma adjustments used
therein are appropriate to give effect to the circumstances referred to therein and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements and data. There are no financial statements (historical or
pro forma) that are required to be included or incorporated by reference in the Commission Documents that are not included or
incorporated by reference as required. 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.


 






    10


     


    

 


(c)
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 of 2002) with respect to all Commission
Documents with respect to which the Company is required to file such certifications and statements thereunder.


 


Section 5.7
Subsidiaries.


 


(a)
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.








 


(b)
 Except as set forth in the Commission Documents, as of the Closing Date and as of the Commencement Date, (i) the Company
owns and will own, directly or indirectly, the equity interests in its Subsidiaries as set forth in the Commission Documents, in each
case, free and clear of any lien, charge, security interest, encumbrance, right of first refusal or other restriction, other than restrictions
imposed by applicable securities laws; and (ii) all equity interests in the Subsidiaries owned by the Company, directly or indirectly,
have been duly authorized, validly issued, fully paid and non-assessable.


 


Section 5.8
No Material Adverse Effect; Absence of Certain Changes. Except as disclosed in the Commission Documents, since the date
of the most recent audited financial statements of the Company included or incorporated by reference in the Commission Documents, (a) there
has not occurred any Material Adverse Effect, or any development that would result in a Material Adverse Effect, and (b) the Company
and its Subsidiaries have conducted their respective businesses in the ordinary course of business consistent with past practice in all
material respects.


 


Section 5.9
No Material Defaults. Except as set forth in the Commission Documents, neither the Company nor any Subsidiary has defaulted
on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or
in the aggregate, would have a Material Adverse Effect. The Company has not filed a report pursuant to Section 13(a) or 15(d) of
the Exchange Act indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has
defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually
or in the aggregate, would have a Material Adverse Effect.


 


Section 5.10
Material Contracts. Neither the Company nor any of its Subsidiaries is in material breach of or default in any respect
under the terms of any Material Contract and, to the Knowledge of the Company, as of the Execution Date, no other party to any Material
Contract is in material breach of or default under the terms of any Material Contract. Each Material Contract is in full force and effect
and is a valid and binding obligation of the Company or the Subsidiary of the Company that is party thereto and, to the Knowledge of the
Company, is a valid and binding obligation of each other party thereto. The Company has not received any written notice of the intention
of any other party to a Material Contract to terminate for default, convenience or otherwise, or not renew, any Material Contract.


 






    11


     


    

 


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 Title 11 of the United States Code or any similar federal or state bankruptcy law or law for the relief of debtors, nor does the Company
have any Knowledge that its creditors intend to initiate involuntary bankruptcy, insolvency, reorganization or liquidation proceedings
or other proceedings for relief under Title 11 of the United States Code or any other federal or state bankruptcy law or any law for the
relief of debtors. The Company is financially solvent and is generally able to pay its debts as they become due.


 


Section 5.12
Real Property; Other Property.


 


(a) Except as set forth in
the Commission Documents, the Company and its Subsidiaries own, lease or otherwise have a valid right to use, all real property that
is material to its business, good and marketable title in fee simple to all real property owned by them that is material to its
business and good and marketable title in all personal property and equipment owned by them that is material to its business, in
each case free and clear of all Encumbrances, except for Permitted Encumbrances. The Company has not received written notice of any
proposed condemnation proceeding and, to the Knowledge of the Company, there is no condemnation proceeding threatened with respect
to any of its property or facilities that are material to the business of the Company and its Subsidiaries.


 


Section 5.13
Actions Pending. There are no legal or governmental proceedings pending or, to the Knowledge of the Company, threatened
to which the Company or any Subsidiary is a party or to which any of the properties of the Company or any Subsidiary is subject (i) other
than proceedings accurately described in all material respects in the Commission Documents and proceedings that would not have a Material
Adverse Effect on the Company and its Subsidiaries, taken as a whole, or on the power or ability of the Company to perform its obligations
under this Agreement or to consummate the transactions contemplated by the Commission Documents or (ii) that are required to be described
in the Commission Documents and are not so described; and there are no statutes, regulations, contracts or other documents that are required
to be described in any of the Commission Documents or to be filed as exhibits to any of the Commission Documents that are not described
or filed as required.


 


Section 5.14
Compliance with Law. The Company has not received written notice from any Person that it, or any of its Subsidiaries,
is not conducting its business in compliance with all laws, rules and regulations of the jurisdictions in which the Company or any of
its Subsidiaries is conducting business that are applicable to the Company or any of its Subsidiaries, or any of their respective businesses
or properties, except where such non-compliance with such laws, rules and regulations would not result in a Material Adverse
Effect.


 


Section 5.15
Certain Fees. Neither the Company nor any Subsidiary has incurred any liability for any finder’s fees, brokerage
commissions or similar payments in connection with the transactions herein contemplated.


 


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 Shares under the Registration Statement.


 






    12


     


    

 


Section 5.17
Operation of Business.


 


(a) The Company and the
Subsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals, permits and other authorizations
issued by, and have made all declarations and filings with, the appropriate federal, state or local governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective
businesses as currently conducted (the “Permits”), except where the failure to possess, obtain or make the
same would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in the Commission Documents,
neither the Company nor any Subsidiary has received written notice of any proceeding relating to revocation or modification of any
such Permit or has any reason to believe that such Permit will not be renewed in the ordinary course, except where the failure to
obtain any such renewal would not, individually or in the aggregate, 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 owns or possesses or has the right to use all Intellectual Property owned by the Company or any of its Subsidiaries
or used by the Company or any of its Subsidiaries in the conduct of their respective businesses as currently conducted, without any known
infringement or other violation of the Intellectual Property rights of any Person. To the Knowledge of the Company, no product or service
marketed or sold (or proposed to be marketed or sold) by the Company infringes, misappropriates or otherwise violates any Intellectual
Property rights of any other Person. Neither the Company nor any of its Subsidiaries has received any written communications alleging
that the Company or any of its Subsidiaries has infringed, misappropriated or otherwise violated, or by conducting its business, would
infringe, misappropriate or otherwise violate any Intellectual Property of any other Person.


 


(c)
The Company and its Subsidiaries have taken commercially reasonable efforts to maintain the confidentiality of all material Trade
Secrets and other material confidential information of the Company and its Subsidiaries and any confidential information owned by any
Person to whom the Company or any of its Subsidiaries has a written confidentiality obligation.


 


Section 5.18 Environmental
Compliance. Except as set forth in the Commission Documents and as would not reasonably be expected to result in a Material
Adverse Effect (a) the Company and each of its Subsidiaries is and at all times has been in compliance with all Environmental
Laws; (b) the Company and each of its Subsidiaries holds and is in compliance with all Environmental Permits required for the
operation of their respective business; (c) there has been no Release on, upon, into or from any site currently or, to the
Knowledge of the Company, heretofore owned, leased or otherwise operated by the Company or any of its Subsidiaries that requires any
Remedial Action pursuant to Environmental Law; (d) to the Knowledge of the Company, there have been no Hazardous Materials
generated by the Company or any of its Subsidiaries that have been disposed of by or on behalf of the Company or any Subsidiary at
any site that has been included in any published U.S. federal or state “Superfund” site list; (e) none of the
Company or any of its Subsidiaries has received any request for information arising under Environmental Laws regarding a property to
which Hazardous Materials generated by the Company or any of its Subsidiaries have been transported for disposal; (f) none of
the Company or any of its Subsidiaries is a party to, nor has received written notice of, any pending or threatened action, claim,
suit, arbitration, litigation, proceeding or investigation (whether civil, criminal or administrative) by or before any court or
grand jury, any governmental authority or any arbitration or mediation tribunal arising under Environmental Laws; and (h) none
of the Company or any of its Subsidiaries is a party to any material judgment, order, decree, settlement agreement, or similar
arrangement imposing on it any liability or obligation, including the obligation to perform Remedial Action, under any applicable
Environmental Laws that remain unfulfilled, and has not assumed, by contract or operation of law, the liabilities under
Environmental Laws of any other Person.


 






    13


     


    

 


Section 5.19
No Improper Practices. (i) Neither the Company nor, to the Company’s Knowledge, the Subsidiaries, nor to
the Company’s Knowledge, any of their respective executive officers has, in the past five years, made any unlawful contributions
to any candidate for any political office (or failed fully to disclose any contribution in violation of law) or made any contribution
or other payment to any official of, or candidate for, any federal, state, municipal, or foreign office or other person charged with similar
public or quasi-public duty in violation of any law or of the character required to be disclosed in the Commission Documents; (ii) no
relationship, direct or indirect, exists between or among the Company or, to the Company’s Knowledge, the Subsidiaries or any Affiliate
of any of them, on the one hand, and the directors, officers and stockholders of the Company or, to the Company’s Knowledge, the
Subsidiaries, on the other hand, that is required by the Securities Act to be described in the Commission Documents that is not so described;
(iii) no relationship, direct or indirect, exists between or among the Company or the Subsidiaries or any Affiliate of them, on the
one hand, and the directors, officers, stockholders or directors of the Company or, to the Company’s Knowledge, any of its Subsidiaries,
on the other hand, that is required by the rules of FINRA to be described in the Commission Documents that is not so described; (iv) except
as disclosed in the Commission Documents, there are no material outstanding loans or advances or material guarantees of indebtedness by
the Company or, to the Company’s Knowledge, any of its Subsidiaries to or for the benefit of any of their respective officers or
directors or any of the members of the families of any of them; and (v) neither the Company nor any of its Subsidiaries nor, to the
Company’s Knowledge, any employee or agent of the Company or any of its Subsidiaries has made any payment of funds of the Company
or any of its Subsidiaries or received or retained any funds in violation of any law, rule or regulation (including, without limitation,
the U.S. Foreign Corrupt Practices Act of 1977), which payment, receipt or retention of funds is of a character required to be disclosed
in the Commission Documents.


 


Section 5.20
Transactions With Affiliates. No relationship, direct or indirect, exists between or among the Company or any of its
Subsidiaries on the one hand, and the directors, officers, trustees, managers, stockholders, partners, customers or suppliers of the Company
or any of the Subsidiaries on the other hand, which would be required by the Securities Act or the Exchange Act to be disclosed in the
Commission Documents, which is not so disclosed.


 


Section 5.21
Labor Disputes. None of the Company nor any of its Subsidiaries is bound by or subject to any collective bargaining
or similar agreement with any labor union, and, to the Knowledge of the Company, none of the employees, representatives or agents of the
Company or any of its Subsidiaries is represented by any labor union. The Company and its Subsidiaries have complied with all employment
laws applicable to employees of the Company and its Subsidiaries, except where non-compliance with any such employment laws
would not have a Material Adverse Effect.


 






 





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 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
Reserved.


 






    14


     


    

 


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 Execution Date 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.


 


Section 5.26
Insurance. Except as would not be material to the Company and its Subsidiaries taken as whole, the Company and its Subsidiaries
maintain insurance with insurers in such amounts and against such risks as the management of the Company has in good faith determined
to be prudent and appropriate, and all material insurance policies maintained by or for the benefit of the Company or any of its Subsidiaries
are in full force and effect.


 


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


 


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 Shares.


 


Section 5.29
No Integrated Offering. None of the Company, its Subsidiaries or any of their Affiliates, nor any Person acting on their
behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances
that would require registration of the issuance of any of the Shares under the Securities Act, whether through integration with prior
offerings or otherwise, or cause this offering of the Shares to require approval of stockholders of the Company under any applicable stockholder
approval provisions, including, without limitation, under the rules and regulations of the 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 issuance of any of the Shares under the Securities Act or cause the offering of any of the Shares to be integrated
with other offerings.


 






    15


     


    

 


Section 5.30
Dilutive Effect. The Company is aware and acknowledges that issuance of the Shares could cause dilution to existing
stockholders and could significantly increase the outstanding number of shares of Common Stock. The Company further acknowledges that
its obligation to issue the Shares to be purchased by the Investor pursuant to a Purchase is, upon the Company’s delivery to the
Investor of a Purchase Notice for a Purchase in accordance with this Agreement, absolute and unconditional following the delivery of such
Purchase Notice to the Investor, regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders
of the Company.


 


Section 5.31
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 Shares, (ii) sold, bid for, purchased, or paid any compensation
for soliciting purchases of, any of the Shares, or (iii) paid or agreed to pay to any Person any compensation for soliciting another
to purchase any other securities of the Company. Neither the Company nor any of its officers, directors or Affiliates will during the
term of this Agreement, and, to the Knowledge of the Company, no Person acting on their behalf will during the term of this Agreement,
take any of the actions referred to in the immediately preceding sentence.


 


Section 5.32 Listing
and Maintenance Requirements; DTC Eligibility. The Common Stock is registered pursuant to Section 12(b) of the Exchange
Act, and the Company has taken no action designed to, or which to its Knowledge is likely to have the effect of, terminating the registration
of the Common Stock under the Exchange Act, nor has the Company received any notification that the Commission is contemplating terminating
such registration. The Company has not received notice from the Trading Market to the effect that the Company is not in compliance with
the listing or maintenance requirements of the Trading Market. The Common Stock is eligible for participation in the DTC book entry system
and has shares on deposit at DTC for 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 5.33
OFAC. Neither the Company nor any of its Subsidiaries, nor to the Company’s Knowledge, any director, officer,
employee, 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 knowingly, 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.


 






    16


     


    

 


Section 5.34
Information Technology; Compliance with Data Privacy Laws. (i)(x) To the knowledge of Company, there has been no security
breach or other compromise of any Company’s information technology and computer systems, networks, hardware, Software, data, equipment
or technology (collectively, “IT Systems and Data”) that would result in a Material Adverse Effect and (y) the
Company has not been notified of, and have no knowledge of any event or condition that would reasonably be expected to result in, any
security breach or other compromise to their IT Systems and Data that would result in a Material Adverse Effect; (ii) the Company
is presently in material compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification,
except as would not, in the case of this clause (ii), individually or in the aggregate, have a Material Adverse Effect; and (iii) the
Company has implemented backup and disaster recovery technology consistent with industry standards and practices.


 


Section 5.35 Acknowledgement
Regarding Investor’s Acquisition of Shares. The Company acknowledges and agrees that the Investor is acting solely in the
capacity of an arm’s-length purchaser with respect to 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 Shares. 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.


 


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 Commitment 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):


 






    17


     


    

 


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
Shares to the Investor in accordance with the terms of the Transaction Documents, as applicable.


 


Section 6.2
Reservation of Common Stock. The Company has available and the Company shall reserve and keep available at all times,
free of preemptive and other similar rights of stockholders, the requisite aggregate number of authorized but unissued shares of Common
Stock to enable the Company to timely effect the issuance, sale and delivery of all Shares to be issued, sold and delivered in respect
of each Purchase effected under this Agreement, at least prior to the delivery by the Company to the Investor of the applicable Purchase
Notice in connection with such Purchase. Without limiting the generality of the foregoing, as of the Commencement Date the Company shall
have reserved, out of its authorized and unissued Common Stock, a number of shares of Common Stock equal to the Exchange Cap solely for
the purpose of effecting Purchases under this Agreement. The number of shares of Common Stock so reserved for the purpose of effecting
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 Purchase 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 Shares purchased by the Investor hereunder on the Trading Market (or such Eligible Market, as applicable)
and to comply with the Company’s reporting, filing and other obligations under the rules and regulations of the Trading Market
(or such 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 such 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 such 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.


 






    18


     


    

 


Section 6.4
Compliance with Laws.


 


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


 


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


 


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


 


(i)
The Investor and the Company shall each maintain records showing the remaining Total Commitment, and the dates and Purchase Notice
for each Purchase.


 


(ii) Subject to the requirements
of Section 6.12, from time to time from and after the Closing Date, the Company shall make available for inspection and review
by the Investor during normal business hours and after reasonable notice, customary documentation reasonably requested by the Investor
and/or its appointed counsel or advisors to conduct due diligence; provided, however, that after the Closing Date, the Investor’s
continued due diligence shall not be a condition precedent to the Company’s right to deliver to the Investor any Purchase Notice
or the settlement thereof. Each party hereto agrees not to disclose any Confidential Information of the other party to any third party
without the prior written consent of the other party. Each party hereto acknowledges that the Confidential Information shall remain the
property of the disclosing party and agrees that it shall take all reasonable measures to protect the secrecy of any Confidential Information
disclosed by the other party.


 


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 the Shares to the Investor in respect of a Purchase. 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).


 






    19


     


    

 


(ii)
No Equity Line Transactions1.
Until the termination of this agreement, the Company shall not enter into any transactions, including, but not limited to, an “equity
line of credit” whereby the Company may sell Common Stock or Common Stock Equivalents at a future determined price, other than in
connection with an Exempt Issuance. The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries
to preclude any such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic
loss and without any bond or other security being required.


 


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


 


Section 6.8
Fundamental Transaction. If a Purchase Notice has been delivered to the Investor and the transactions contemplated therein
have not yet been fully settled in accordance with the terms and conditions of this Agreement, the Company shall not effect any Fundamental
Transaction until the expiration of five (5) Trading Days following the Valuation Period for the applicable Purchase Notice.


 


Section 6.9 Selling
Restrictions.


 


(i)
Except as expressly set forth below, the Investor covenants that from and after the Execution Date up to and including the Trading
Day immediately following the expiration or termination of this Agreement as provided in Article VIII (the “Restricted
Period”), none of the Investor, any of their respective officers, 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 principal account or for the principal 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 Shares; or (2) selling a number of shares of Common Stock equal to the number
of Shares that such Restricted Person is unconditionally obligated to purchase under a pending Purchase Notice.


 


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


 





 






	1	To be discussed in detail.



 






    20


     


    

 


Section 6.10
Effective Registration Statement. During the Commitment 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.


 


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


 


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), (i) the Investor shall promptly provide written notice of such breach to the Company and (ii) after such notice
has been provided to the Company and, provided that the Company shall have failed to demonstrate to the Investor in writing within 24
hours that such information does not constitute material, non-public information or the Company shall have failed to publicly
disclose such material, non-public information within 24 hours following demand therefor by the Investor, in addition to any
other remedy provided herein or in the other Transaction Documents, if the Investor is holding any Shares at the time of the disclosure
of material, non-public information, the Investor shall have the right to make a public disclosure, in the form of a press
release, public advertisement or otherwise, of such material, non-public information without the prior approval by the Company,
any of its Subsidiaries, or any of their respective directors, officers, employees or agents. The Investor shall not have any liability
to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders or agents, for any such
disclosure.


 


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


 






    21


     


    

 


Section 6.14
Disclosure Schedule.


 


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


 


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


 






    22


     


    

 


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 Shares 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 Shares 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
deliver to the Investor a Compliance Certificate, dated such date, and (II) cause to be furnished to the Investor a negative assurance
letter “bring-down” from outside counsel to the Company substantially in the form mutually agreed to by the Company and the
Investor prior to the Execution Date, 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
Letter”).


 


Article VII

CONDITIONS TO CLOSING AND CONDITIONS TO THE SALE AND PURCHASE OF THE SHARES


 


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


 


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


 


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


 






    23


     


    

 


(iii)
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
Execution Date, and (b) the closing certificate from the Company, dated the Closing Date, in the form of Exhibit B hereto.


 


Section 7.2
Conditions Precedent to Commencement. The right of the Company to commence delivering Purchase Notices under this Agreement,
and the obligation of the Investor to accept Purchase Notices delivered to the Investor by the Company under this Agreement (collectively,
“Commencement”), are subject to the initial satisfaction of each of the conditions set forth in this Section 7.2,
with date upon which all such conditions have been satisfied referred to herein as the “Commencement Date.”


 





(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 all of the Shares included in such Prospectus.


 






    24


     


    

 


(iv) No Material Notices.
None of the following events shall have occurred and be continuing: (a) receipt of any request by the Commission or any other federal
or state governmental authority for any additional information relating to the Initial Registration Statement, the Prospectus contained
therein or any Prospectus Supplement thereto, or for any amendment of or supplement to the Initial Registration Statement, the Prospectus
contained therein or any Prospectus Supplement thereto; (b) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Initial Registration Statement or prohibiting or suspending the use of
the Prospectus contained therein or any Prospectus Supplement thereto, or of the suspension of qualification or exemption from qualification
of the Shares for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose;
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
the light of the circumstances under which they were made) not misleading, or which requires an amendment to the Initial Registration
Statement or a supplement to the Prospectus contained therein or any Prospectus Supplement thereto to comply with the Securities Act
or any other law. The Company shall have no Knowledge of any event that could reasonably be expected to have the effect of causing the
suspension of the effectiveness of the Initial Registration Statement or the prohibition or suspension of the use of the Prospectus contained
therein or any Prospectus Supplement thereto in connection with the resale of the Registrable Shares by the Investor.


 


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


 


(vi)
No Suspension of Trading in or Notice of Delisting of Common Stock. Trading in the Common Stock shall not have been
suspended by the Commission, the 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).


 






    25


     


    

 


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


 


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


 


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


 


(x)
Listing of Shares. All of the Shares that have been and may be issued pursuant to this Agreement shall have been
approved for listing or quotation on the 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.


 






    26


     


    

 


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


 


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


 


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


 


(xvi)
[Intentionally Omitted]


 


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


 


(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(v).


 


(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 eligible to and permitted to utilize such registration statement and the Prospectus therein,
and any Prospectus Supplement thereto, to resell (a) the Commitment Shares and all of the Shares included in the Initial Registration
Statement, and any post-effective amendment thereto, which such registered shares shall include the Commitment Shares and all Shares that
have been issued and sold to the Investor hereunder pursuant to all Purchase Notices delivered by the Company to the Investor prior to
such applicable Purchase Date and (b) all Shares, that are issuable pursuant to the applicable Purchase Notice delivered by the Company
to the Investor with respect to a Purchase to be effected hereunder on such applicable Purchase Date.


 






    27


     


    

 


(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, 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
eligible to and permitted to utilize such registration statement the Prospectus therein, and any Prospectus Supplement thereto, to resell
(a) all of the Shares included in such New Registration Statement, and any post-effective amendment thereto, which such registered
shares shall include all Shares that have been issued and sold to the Investor hereunder pursuant to all Purchase Notices delivered by
the Company to the Investor prior to such applicable Purchase Date and (b) all of the Shares, that are issuable pursuant to the
applicable Purchase Notice delivered by the Company to the Investor with respect to a Purchase to be effected hereunder on such applicable
Purchase Date.


 


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


 


(v) No Material Notices.
None of the following events shall have occurred and be continuing: (a) receipt of any request by the Commission or any other federal
or state governmental authority for any additional information relating to the Initial Registration Statement or any post-effective amendment
thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the foregoing
or any Prospectus Supplement thereto, or for any amendment of or supplement to the Initial Registration Statement or any post-effective
amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the
foregoing or any Prospectus Supplement thereto; (b) the issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment thereto, any New
Registration Statement or any post-effective amendment thereto, or prohibiting or suspending the use of the Prospectus contained in any
of the foregoing or any Prospectus Supplement thereto, or of the suspension of qualification or exemption from qualification of the Shares
for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose; 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 the light of the circumstances under
which they were made) not misleading, or which requires an amendment to the Initial Registration Statement or any post-effective amendment
thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the foregoing
or any Prospectus Supplement thereto to comply with the Securities Act or any other law (other than the transactions contemplated by
the applicable Purchase Notice delivered by the Company to the Investor with respect to a Purchase 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.


 






    28


     


    

 


(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, 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, 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, shall have been filed with the Commission.


 


(vii) No Suspension of
Trading in or Notice of Delisting of Common Stock. Trading in the Common Stock shall not have been suspended by the Commission,
the 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 applicable Purchase Date), the Company shall not have received any final and non-appealable notice
that the listing or quotation of the Common Stock on the 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).


 






    29


     


    

 


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


 


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


 


(x)
Bring-Down Letter of Company Counsel and Compliance Certificates. The Investor shall have received (a) all Bring-Down
Letter 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 Purchase 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 Purchase, 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) December 31, 2025 (ii) the date on which the Investor shall have purchased the Total Commitment
worth of Shares pursuant to this Agreement, (iii)  the date on which, pursuant to or within the meaning of any Bankruptcy Law, the
Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed for the Company
or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors.


 






    30


     


    

 


Section 8.2 Other
Termination. Subject to Section 8.3, the Company may terminate this Agreement after the Commencement Date effective
upon three (3) Trading Days’ prior written notice to the Investor in accordance with Section 10.4; provided, however,
that (i) the Company shall have paid the Commitment Shares to the Investor prior to such termination, and (ii) prior to issuing
any press release, or making any public statement or announcement, with respect to such termination, the Company shall consult with the
Investor and its counsel on the form and substance of such press release or other disclosure. Subject to Section 8.3, this
Agreement may be terminated at any time by the mutual written consent of the parties, effective as of the date of such mutual written
consent unless otherwise provided in such written consent. Subject to Section 8.3, the Investor shall have the right to terminate
this Agreement effective upon three (3) Trading Days’ prior written notice to the Company 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 Company is in breach or default in any material respect of any of
its covenants and agreements the Registration Rights Agreement, and, if such breach or default is capable of being cured, such breach
or default is not cured within 15 Trading Days after notice of such breach or default is delivered to the Company pursuant to Section 10.4
of this Agreement; (d) while a Registration Statement, or any post-effective amendment thereto, is required to be maintained
effective pursuant to the terms of the Registration Rights Agreement and the Investor holds any Registrable Securities, the effectiveness
of such Registration Statement, or any post-effective amendment thereto, lapses for any reason (including, without limitation, the issuance
of a stop order by the Commission) or such Registration Statement or any post-effective amendment thereto, the Prospectus contained therein
or any Prospectus Supplement thereto otherwise becomes unavailable to the Investor for the resale of all of the Registrable Securities
included therein in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues for a
period of 45 consecutive Trading Days or for more than an aggregate of 90 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
five (5) consecutive Trading Days; or (f) the Company is in material breach or default of any of its covenants and agreements
contained in this Agreement, and, if such breach or default is capable of being cured, such breach or default is not cured within 15
Trading Days after notice of such breach or default is delivered to the Company pursuant to Section 10.4 of this Agreement.
Unless notification thereof is required elsewhere in this Agreement (in which case such notification shall be provided in accordance
with such other provision), the Company shall promptly (but in no event later than 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 if the Common Stock is then listed on an Eligible Market, under the applicable rules and regulations of such
Eligible Market), the Company shall publicly disclose such information in accordance with Regulation FD and the applicable rules and
regulations of the Trading Market (or such Eligible Market, as applicable)) upon becoming aware of any of the events set forth in the
immediately preceding sentence.


 






    31


     


    

 


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


 


Article IX

INDEMNIFICATION


 


Section 9.1 Indemnification
of Investor. In consideration of the Investor’s execution and delivery of this Agreement and acquiring the Shares hereunder
and in addition to all of the Company’s other obligations under the Transaction Documents to which it is a party, subject to the
provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor, each of its directors, officers,
shareholders, members, partners, employees, representatives and agents (and any other Persons with a functionally equivalent role of
a Person holding such titles notwithstanding the lack of such title or any other title), each Person, if any, who controls the Investor
(within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the respective directors,
officers, shareholders, members, partners, employees, attorneys, representatives and agents (and any other Persons with a functionally
equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such controlling Persons
(each, an “Investor Party”), 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
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.


 






    32


     


    

 


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


 


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.


 






    33


     


    

 


The remedies provided for
in this Article X 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.


 


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. The Company shall pay all U.S. federal, state and local stamp and other similar transfer and other taxes and duties levied
in connection with issuance of the Shares pursuant hereto.


 


(ii) Commitment Shares.
In consideration for the Investor’s execution and delivery of this Agreement, the Company shall issue the Commitment Shares to
the Investor or its designee (in which case such designee name shall have been provided by the Investor to the Company in writing prior
to the Closing Date) on the Commitment Shares Determination Date, which issuance shall be evidenced by one or more book-entry statement(s) reflecting
the Commitment Shares in the name of the Investor or its designee. Such book-entry statement(s) 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 Commitment Shares shall
be fully earned by the Investor and shall be non-refundable as of the Execution Date, regardless of whether any Purchases are made or
settled hereunder or any subsequent termination of this Agreement. Upon issuance pursuant to this Section 10.1(ii), the 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 Section 10.1(iii), the book-entry statement(s) reflecting the Commitment Shares shall
bear the restrictive legend set forth below in Section 10.1(iii). The 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.


 






    34


     


    

 


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


 






    35


     


    

 


 

 


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 California 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.


 






    36


     


    

 


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. 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:


 


HNR Acquisition Corp

3730 Kirby Drive, Suite 1200


Houston, Texas 77098

Telephone Number: (713) 252-6600

Email: dg@HNRA-NYSE.com

Attention: Donald Gorée, CEO


 


With a copy to:


 


K&L Gates LLP


599 Lexington Avenue


New York, New York 10022


Attention: Matthew Ogurick, Esq.


Email: Matthew.ogurick@klgates.com


Telephone: (212) 536-4085


 


If to the Investor:


 


White Lion Capital, LLC

17631 Ventura Blvd., Suite 1008

Encino, CA 91316

Telephone Number: (818) 217-1706

Email: team@whitelioncapital.com


 








With a copy to:


 


Greenburg Traurig, P.A. 333 S.E. 2nd Avenue Miami, FL 33131


Attention: John D. Owens III, Esq.


Email: owensjohn@gtlaw.com


 


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.


 






    37


     


    

 


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


 


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


 


Section 10.7
Headings. The article, section and subsection headings in this Agreement are for convenience only and shall not constitute
a part of this Agreement for any other purpose and shall not be deemed to limit or affect any of the provisions hereof. Unless the context
clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms
thereof. The terms “including,” “includes,” “include” and words of like import shall be construed
broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof”
and words of like import refer to this entire Agreement instead of just the provision in which they are found.


 


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 Floor 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 Execution Date. Any reference in this Agreement to “Dollars” or “$” shall mean the
lawful currency of the United States of America. Any references to “Section” or “Article” in this Agreement shall,
unless otherwise expressly stated herein, refer to the applicable Section or Article of this Agreement.


 


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


 


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


 


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


 


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


 


Section 10.13
Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided that
a facsimile signature or signature delivered by e-mail in a “.pdf” format data file, including any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com, etc., shall be considered due execution
and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.


 


Section 10.14 Publicity.
The Company shall afford the Investor and its counsel 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.


 






    38


     


    

 


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.


 




    39


     


    

 


IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly executed by their respective authorized officer as of the Execution Date.


 





	 	HNR Acquisition Corp
	 	 	 
	 	By:	/s/ Donald H. Goree
	 	Name: 	Donald H. Goree
	 	Title:	Chief Executive Officer
	 	 	 
	 	WHITE LION CAPITAL, LLC
	 	 	 
	 	By:	/s/ Nathan Yee
	 	Name:	Nathan Yee
	 	Title:	Managing Member


 




    40


     


    

 


ANNEX I TO THE


 


COMMON STOCK PURCHASE
AGREEMENT


 


DEFINITIONS


 


 


“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.


 


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


 


“Average Daily
Trading Volume” shall mean the median daily trading volume of the Company’s Common Stock over the most recent five
(5) Trading Days prior to the respective Purchase Notice Date, as reported by Bloomberg.


 


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


 


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


 


“Bloomberg”
means Bloomberg, L.P.


 


“Bring-Down Letter”
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.


 


“Business Day”
means any Trading Day.


 


“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.


 


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


 


“Closing Date”
means the Execution Date.


 


“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,
as reported by Bloomberg, or, if the Trading Market begins to operate on an extended hours basis and does not designate the closing trade
price for the Common Stock, then the last traded 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.


 






    Annex I-1


     


    

 


“Commencement”
shall have the meaning assigned to such term in Section 7.2.


 


“Commencement
Date” shall have the meaning assigned to such term in Section 7.2.


 


“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 (i) with respect to any date prior to the Commencement Date, all filings made to the Commission by the Company under the
Securities Act or the Exchange Act and (ii) with respect to the Commencement Date and any date thereafter, each effective Registration
Statement, as amended, the Prospectus contained therein and each Prospectus Supplement thereto and all information contained in such filings
and all documents and disclosures that have been or are deemed to be incorporated by reference therein.


 


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


 


“Commitment Shares”
means a number of duly authorized, validly issued, fully paid and non-assessable Shares equal to the quotient obtained by dividing (i) $1,500,000
and (ii) the Closing Sale Price of the Common Stock on the Commitment Shares Determination Date.


 


“Commitment Shares
Determination Date” means the earlier to occur of (i) two Trading Days prior to the filing of the Initial Registration
Statement and (ii) after the BCA Closing, the Trading Day prior to the Investor sending a written request to the Company for the
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.


 




    Annex I-2


     


    

 


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


 


“Confidential
Information” means non-public proprietary and confidential information and materials a party, which proprietary and confidential
information and material is not generally known or available to the public or other third parties on a nonconfidential basis.


 


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


 


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


 


“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.


 


“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 5.32.


 


“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 to the Investor’s or its designated Broker-Dealer at which the account or accounts to
be credited with the Shares being purchased by Investor are maintained specified DWAC account with DTC under its Fast Automated Securities
Transfer (FAST) Program, or any similar program hereafter adopted by DTC performing substantially the same function.


 


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


 


“Effective Daily
Trading Volume” shall mean the median daily trading volume of the Company’s Common Stock over the most recent five
(5) Trading Days prior to the respective Effective Date, as reported by Bloomberg.


 


“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.


 






    Annex I-3


     


    

 


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


 


“Encumbrance”
means any security interest, pledge, hypothecation, mortgage, lien or encumbrance, covenant, condition, restriction, easement, charge,
right of first refusal or first offer, or other restriction on title or transfer of any nature whatsoever.


 


“Environmental
Law” means any statute, law, ordinance, regulation, rule or code concerning or relating to: (i) the protection of the
environment or natural resources or, as such relates to exposure to Hazardous Materials, human health and safety (including workplace
and industrial hygiene); (ii) the presence, Release, generation, use, management, handling, transportation, treatment, storage or disposal
of Hazardous Materials; (iii) noise or odor including, without limitation, in the United States, the Comprehensive Environmental
Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976, 42 U.S.C. 6901, et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601, et seq.; the Federal Water Pollution
Control Act, 33 U.S.C. 1251, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. 5101; the Safe Drinking Water Act, 42 U.S.C.
300f, et seq.; as it relates to exposure to Hazardous Materials, the Occupational Safety and Health Act, 29 U.S.C. 651, et seq.; the Emergency
Planning and Community Right to Know Act of 1986, 42 U.S.C. 11001, et seq.; the Atomic Energy Act, 42 U.S.C. 2014, et seq.; the Endangered
Species Act, 16 U.S.C. 1531, et seq.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136, et seq.; the Clean Air Act,
42 U.S.C. 7401, et seq.; and the state and local analogues of each of the foregoing federal statutes.


 


“Environmental
Permit” means any Permit, approval, identification number, registration, exemption or license required pursuant to any applicable
Environmental Law.


 


“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 3.3(a) hereof.


 


“Exempt
Issuance” means the issuance by the Company of (a) (1) any Securities to the Investor (or its designee) pursuant to
the Transaction Documents or (2) any securities 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, (b) shares of Common Stock 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 Common
Stock to the Investor or an Affiliate of the Investor at a future determined price, (c) shares of Common Stock in any
“at-the-market offering” or “equity distribution program” exclusively to or through Investor pursuant to one
or more written agreements between the Company and Investor, or (d) shares of Common Stock or Common Stock Equivalents pursuant to
any employee benefit, purchase, or incentive plan of the Company adopted by the Company’s board of directors or a majority of
the members of a committee of the Company’s board of directors established for such purpose.


 






    Annex I-4


     


    

 


“FINRA”
means the Financial Industry Regulatory Authority.


 


“Floor 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 “Floor Price” shall mean the lower of (i) such adjusted price and (ii)
$1.00.


 


“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).


 


“Hazardous Material”
means any substance, material, or other matter regulated as toxic or hazardous, or as a contaminant or for which standards are imposed,
by any governmental authority because of its deleterious impact on the environment including but not limited to petroleum and petroleum
byproduct and distillates, asbestos and asbestos-containing materials, urea formaldehyde, polychlorinated biphenyls, mold, radon gas,
radioactive substances, and poly- and perfluoroalkyl substances.


 




    Annex I-5


     


    

 


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


 


“Intellectual
Property” means all intellectual property and intellectual property rights of every kind and description throughout the
world, including all U.S. and non-U.S.: (a) trademarks, trade dress, service marks, certification marks, logos, slogans, design rights,
names, corporate names, trade names, Internet domain names, URLs, social media accounts and addresses and other similar designations of
source or origin, together with the goodwill symbolized by any of the foregoing (collectively, “Marks”); (b)
patents and patent applications, and any and all related national or international counterparts thereto, including any divisionals, continuations, continuations-in-part, reissues,
reexaminations, substitutions and extensions thereof (collectively, “Patents”); (c) copyrights and copyrightable
subject matter, including databases, data collections (including knowledge databases, customers lists and customer databases) and rights
therein, web site content, rights to compilations, collective works and derivative works, and the right to create collective and derivative
works (collectively, “Copyrights”); (d) rights in Software; (e) rights under applicable trade secret law
and any and all other confidential or proprietary information, know-how, inventions, processes, formulae, models, and methodologies
including research in progress, algorithms, data, databases, data collections, designs, processes, formulae, drawings, schematics, blueprints,
flow charts, models, strategies, prototypes, techniques, source code, source code documentation, beta testing procedures and beta testing
results (collectively, “Trade Secrets”); (f) all applications and registrations, renewals and extensions for
the foregoing; and (g) all rights and remedies against past, present, and future infringement, misappropriation or other violation
thereof.


 


“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.


 


“IT Systems and
Data” shall have the meaning assigned to such term in Section 5.34.


 


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


 






    Annex I-6


     


    

 


“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 material adverse effect on the legality, validity or enforceability of the Transaction Documents
or the transactions contemplated thereby, (ii) 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, and/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; provided, however, that with respect to clause (ii), in no event would any of the
following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in
determining whether there has been or will be, a “Material Adverse Effect” (except in the case of clause
(a), (b), (d) and (f), in each case, to the extent that such event, change, circumstance or development disproportionately affects
the Company and its Subsidiaries, taken as a whole, as compared to other Persons operating in any of the industries in which the
Company or any of its Subsidiaries operates): (a) any change or development after the Execution Date in applicable laws or GAAP or
any official interpretation thereof, (b) any change or development after the Execution Date in interest rates or economic,
political, legislative, regulatory, financial, commodity, currency, bitcoin mining, cryptocurrency, electricity or natural gas
conditions or other market conditions generally affecting any of the foregoing, the economy or the industry in which the Company or
any of its Subsidiaries operates, (c) the announcement or the execution of this Agreement and the initial Rights Agreement, or
the performance of the Company’s obligations under the Transaction Documents, including the impact thereof on relationships,
contractual or otherwise, with customers, suppliers, licensors, distributors, regulatory agencies, partners, providers and employees
(provided, that the exceptions in this clause (c) shall not be deemed to apply to references to “Material Adverse
Effect” in the representations and warranties set forth in Section 5.5 and, to the extent related thereto, the
conditions in Section 7.1(ii) and Section 7.2(i)), (d) any change or development generally affecting any of
the industries or markets in which the Company or any of its Subsidiaries operates, (e) any earthquake, hurricane, tsunami,
tornado, flood, mudslide, wildfire or other natural disaster, epidemic, disease outbreak, pandemic (including
the COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof or related health condition)), weather
condition, explosion, fire, act of God or other force majeure event (other than any such event resulting in material destruction or
permanent damage to the Company powerplant and/or a material portion of the equipment located therein, all of which may be taken
into account for purposes of determining whether a Material Adverse Effect has occurred or is reasonably likely to occur), or
(f) any national or international political or social conditions in countries in which, or in the proximate geographic region
of which, the Company operates, including the engagement by the United States or such other countries in hostilities or the
escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation
of any military or terrorist attack (including any internet or “cyber” attack or hacking) upon the United States or such
other country, or any territories, possessions, or diplomatic or consular offices of the United States or such other countries or
upon any United States or such other country military installation, equipment or personnel.


 


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


 


“BCA Closing Date”
shall mean the date in which the Company announces the closing of a business combination.


 




    Annex I-7


     


    

 


“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(iii).


 


“Opening Sale
Price” means, for the Common Stock as of any date, the first opening trade price for the Common Stock on the Trading Market,
as reported by Bloomberg.


 


“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.


 


“Percentage Limit”
shall mean 30%


 


“Permitted Encumbrances”
means (a) liens for taxes not yet due or delinquent or the validity or amount of which is being contested in good faith by appropriate
proceedings and for which adequate accruals or reserves have been established in accordance with GAAP on the applicable financial statements;
(b) mechanics’, materialmens’, carriers’, workers’, repairers’ and other similar Encumbrances or security
obligations incurred in the ordinary course of business and arising by operation of law or the validity or amount of which is being contested
in good faith by appropriate proceedings; (c) pledges, deposits or other Encumbrances securing the performance of bids, trade Contracts,
leases or statutory obligations (including workers’ compensation, unemployment insurance or other social security legislation);
(d) Encumbrances and other imperfections of title that do not materially impair the use or occupancy of the property to which they relate
in the conduct of the business of the Company and its Subsidiaries as currently conducted; (e) Encumbrances arising under conditional
sales Contracts and equipment leases with third parties and other Encumbrances arising on assets and products sold in the ordinary course
of business consistent with past practice and non-exclusive licenses of Intellectual Property entered into in the ordinary course
of business consistent with past practice; (f) landlords’ liens and Encumbrances on leases, subleases, easements, licenses,
rights of use, rights to access and rights of way arising therefrom or benefiting or created by any superior estate, right or interest;
(g) any zoning, entitlement, conservation restriction and other land use and environmental regulations by governmental authorities;
(h) all covenants, conditions, restrictions, easements, charges, rights-of-way and other similar matters of record or that
would be disclosed by an accurate survey or inspection of the real property, in each case that do not materially impair the use or occupancy
of the property to which they relate in the conduct of the business of the Company and its Subsidiaries as currently conducted; (i) Encumbrances
identified in the financial statements included or incorporated by reference in the Commission Documents; (j) Encumbrances created
or incurred under the equipment financing arrangements or equipment loans; and (k) Encumbrances on equity or debt securities resulting
from applicable securities laws.


 


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


 




    Annex I-8


     


    

 


“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 agency or authority.


 


“Principal Market”
shall mean any of the national exchanges (i.e. NYSE, AMEX, Nasdaq), or principal quotation systems (i.e. OTCQX, OTCQB, OTC Pink, the OTC
Bulletin Board), or other principal exchange or recognized quotation system which is at the time the principal trading platform or market
for the Common Stock.


 


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


 


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


 


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


 


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


 


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


 


“Purchase Commencement
Time” means, with respect to a Purchase made pursuant to Section 3.1, 9:30:01 a.m., New York City time, on the
applicable Purchase Date.


 


“Purchase Date”
means, with respect to a Purchase made pursuant to Section 3.1, the Trading Day on which the Investor receives the Purchase
Notice Shares pursuant to each valid Purchase Notice as DWAC Shares in its brokerage account, unless waived by Investor. If the Purchase
Notice Shares are received after 10:00 a.m. New York City Time, the next Trading Day shall be the Purchase Date.


 


“Purchase Limit”
the lower of (i) Purchase Notice Fixed Limit and (ii) the Purchase Notice Variable Limit.


 


“Purchase Notice”
means, with respect to a Purchase made pursuant to Section 3.1, an irrevocable written notice, substantially in the form Exhibit
D hereto, delivered by the Company to the Investor directing the Investor to purchase Purchase Notice Shares (such specified Purchase
Notice Shares subject to adjustment as set forth in Section 3.1 as necessary to give effect to the Purchase Notice Limit),
at the applicable Purchase Price therefor on the applicable Purchase Settlement Date for such Purchase in accordance with this Agreement.


 




    Annex I-9


     


    

 


“Purchase Notice
Date” means, with respect to a Purchase made pursuant to Section 3.1, the Trading Day that a Purchase Notice
shall be deemed delivered on (i) the Trading Day it is received by email by the Investor if such notice is received on or prior to 4:00
p.m. New York time or (ii) the next Business Day if it is received by email after 4:00 p.m. New York time on a Trading Day or at any time
on a day which is not a Trading Day.


 


“Purchase Notice
Fixed Limit” shall mean $2,000,000.


 


“Purchase Notice
Limit” means, with respect to a Purchase made pursuant to Section 3.1, a number of shares of Common Stock equal
to the lesser of (i) a number of shares of Common Stock which, when aggregated with all other shares of Common Stock then beneficially
owned by the Investor and its affiliates (as calculated pursuant to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated
thereunder), would result in the beneficial ownership by the Investor of more than the Beneficial Ownership Limitation,
(ii) a number of shares of Common Stock equal to the product of A) the Average Daily Trading Volume and B) the Percentage Limit,
and (iii) number of shares of Common Stock equal to quotient obtained by dividing A) Purchase Limit with B) Closing Sale Price of the
Common Stock on the day prior to the Purchase Notice Date.


 


“Purchase Notice
Shares” means, with respect to a Purchase made pursuant to Section 3.1, the number of Shares to be purchased
by the Investor in such Purchase as specified by the Company in the applicable Purchase Notice, which number of Shares shall not exceed
the applicable Purchase Notice Limit, subject to adjustment provided herein.


 


“Purchase Notice
Variable Limit” shall mean the dollar amount equal to the product of (i) the Effective Daily Trading Volume (ii) the closing
price of Common Stock on the Effective Date (iii) 400% and (iv) the Percentage Limit.


 


“Purchase Price”
shall equal to ninety-six percent (96%) multiplied by the lowest daily VWAP that occurs during the applicable Valuation Period.


 


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


 


“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.


 




    Annex I-10


     


    

 


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


 


“Release”
means disposing, discharging, injecting, spilling, leaking, pumping, pouring, leaching, dumping, emitting, escaping or emptying into or
upon, from, or migrating through of Hazardous Materials, within or into, the air or any soil, sediment, subsurface strata, surface water
or groundwater, natural resources or structure.


 


“Remedial Action”
means any action required to investigate, clean up, remove or remediate, or conduct remedial, responsive, monitoring or corrective actions
with respect to, any presence or Release of Hazardous Materials.


 


“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.


 


“Sanctions”
shall have the meaning assigned to such term in Section 5.33.


 


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


 


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


 


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


 


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


 


“Software”
means any computer programs (whether in source code, object code or other form, and including software-as-a-service), algorithms,
databases, compilations and data technology supporting the foregoing, and all documentation, including user manuals and training materials,
related to any of the foregoing.


 


“Subsidiary”
shall mean any corporation or other entity, other than Support.com, Inc., 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.


 






    Annex I-11


     


    

 


“Suspension of
Trading” shall mean trading of the Common Stock have been suspended by the SEC or
the Principal Market, or otherwise halted for any reason, and the Common Stock shall have been approved for listing or quotation on and
shall not have been delisted from or no longer quoted on the Principal Market. A Suspension of Trading shall be deemed to have occurred
on a given day if an event of a suspension, delisting, or halting happens for any reason and for any length of time.


 


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


 


“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 trading (regular way), including any day on which the Trading Market (or such Eligible Market, as applicable) is open for trading
(regular way).


 


“Trading Market”
means NYSE American (or any nationally recognized successor thereto).


 


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


 


“Transfer Agent”
means Continental Stock Transfer & Trust Company, or any successor transfer agent of the Company.


 


“Valuation Period”
shall mean the two (2) consecutive Trading Days commencing on the Purchase Date. For avoidance of doubt, the Purchase Date shall be the
first Trading Day in the Valuation Period. In the event of a Suspension of Trading occurring during the Valuation Period, the Valuation
Period shall increase by the number of Trading Days in which a Suspension of Trading has occurred.


 


“VWAP”
means, for any security as of any date, the dollar volume-weighted average price for such security on the Principal Market (or, if the
Principal Market is not the principal trading market for such security, then on the principal securities exchange or securities market
on which such security is then traded), during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York time,
as reported by E*TRADE Securities LLC or Bloomberg through its “VAP” function (set to 09:30 start time and 16:00 end time)
or, if the foregoing does not apply, the dollar volume-weighted average price of such security in the over-the-counter market on the
electronic bulletin board for such security during the period beginning at 9:30 a.m., New York time, and ending at 4:00 p.m., New York
time, as reported by Bloomberg, or, if no dollar volume-weighted average price is reported for such security by Bloomberg for such hours,
the average of the highest closing bid price and the lowest closing ask price of any of the market makers for such security as reported
in the “pink sheets” by OTC Markets Group Inc. (formerly Pink Sheets LLC). If the VWAP cannot be calculated for such security
on such date on any of the foregoing bases, the VWAP of such security on such date shall be the fair market value as mutually determined
by the Company and the Investor. If the Company and the Investor are unable to agree upon the fair market value of such security, then
such dispute shall be resolved in accordance with the procedures in Section 10.16. All such determinations shall be appropriately
adjusted for any share dividend, share split, share combination, recapitalization or other similar transaction during such period.


 




    Annex I-12


     


    

 


EXHIBIT A TO THE

COMMON STOCK PURCHASE AGREEMENT


REGISTRATION RIGHTS AGREEMENT


 




     


     


    

 


EXHIBIT B TO THE

COMMON STOCK PURCHASE AGREEMENT

CERTIFICATE OF THE COMPANY


 


CLOSING CERTIFICATE


 




     


     


    

 


EXHIBIT C TO THE

COMMON STOCK PURCHASE AGREEMENT

COMPLIANCE CERTIFICATE


 




     


     


    

 


EXHIBIT D

FORM OF PURCHASE NOTICE

TO: WHITE LION CAPITAL LLC