Exhibit 10.1


 


Execution Version


 


 


 


 


 


 


 


 


COMMON STOCK PURCHASE AGREEMENT


 


Dated as of November 18, 2020


 


by and between


 


ADIAL PHARMACEUTICALS, INC.


 


and


 


KEYSTONE CAPITAL PARTNERS, LLC


 




     


     


    

 


Table
of Contents


 


	 	 	Page
	 	 	 
	Article I DEFINITIONS	1
	 	 
	Article II PURCHASE AND SALE OF COMMON STOCK	1
	Section 2.1.	Purchase and Sale of Stock	1
	Section 2.2.	Closing Date; Settlement Dates	2
	Section 2.3.	Initial Public Announcements and Required Filings	2
	 	 	 
	Article III PURCHASE TERMS	3
	Section 3.1.	Fixed Purchases	3
	Section 3.2.	Settlement	4
	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	6
	Section 4.3.	No Conflicts	6
	Section 4.4.	Investment Purpose	6
	Section 4.5.	Accredited Investor Status	7
	Section 4.6.	No Disqualification Events	7
	Section 4.7.	Reliance on Exemptions	7
	Section 4.8.	Information	7
	Section 4.9.	No Governmental Review	8
	Section 4.10.	No General Solicitation	8
	Section 4.11.	Not an Affiliate	8
	Section 4.12.	No Prior Short Sales	8
	Section 4.13.	Statutory Underwriter Status	8
	Section 4.14.	Resales of Securities	9
	Section 4.15.	Residency	9
	 	 	 
	Article V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY	9
	Section 5.1.	Organization, Good Standing and Power	9
	Section 5.2.	Authorization, Enforcement	9
	Section 5.3.	Capitalization	10
	Section 5.4.	Issuance of Securities	10
	Section 5.5.	No Conflicts	10
	Section 5.6.	Commission Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants	11
	Section 5.7.	Subsidiaries	13
	Section 5.8.	No Material Adverse Effect or Material Adverse Change	14
	Section 5.9.	No Undisclosed Liabilities	14
	Section 5.10.	No Undisclosed Events or Circumstances	14
	Section 5.11.	Indebtedness; Solvency	14


 




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	Section 5.12.	Title To Assets	15
	Section 5.13.	Actions Pending	15
	Section 5.14.	Compliance With Law; Compliance with Continued Listing Standards	15
	Section 5.15.	Certain Fees	16
	Section 5.16.	Disclosure	16
	Section 5.17.	Operation of Business	16
	Section 5.18.	Environmental Compliance	18
	Section 5.19.	Material Agreements	18
	Section 5.20.	Transactions With Affiliates	19
	Section 5.21.	Employees; Labor Laws	19
	Section 5.22.	Use of Proceeds	19
	Section 5.23.	Investment Company Act Status	19
	Section 5.24.	ERISA	19
	Section 5.25.	Taxes	20
	Section 5.26.	Insurance	20
	Section 5.27.	Exemption from Registration	20
	Section 5.28.	No General Solicitation or Advertising	20
	Section 5.29.	No Integrated Offering	20
	Section 5.30.	Dilutive Effect	21
	Section 5.31.	Manipulation of Price	21
	Section 5.32.	Securities Act	21
	Section 5.33.	Listing and Maintenance Requirements; DTC Eligibility	21
	Section 5.34.	Application of Takeover Protections	22
	Section 5.35.	No Unlawful Payments	22
	Section 5.36.	Money Laundering Laws	22
	Section 5.37.	OFAC	23
	Section 5.38.	U.S. Real Property Holding Corporation	23
	Section 5.39.	Bank Holding Company Act	23
	Section 5.40.	Information Technology; Compliance With Data Privacy Laws	23
	Section 5.41.	No Disqualification Events	24
	Section 5.42.	Accuracy of Certain Summaries and Statements	24
	Section 5.43.	Acknowledgement Regarding Investor’s Acquisition of Securities	24
	 	 	 
	Article VI ADDITIONAL COVENANTS	25
	Section 6.1.	Securities Compliance	25
	Section 6.2.	Reservation of Common Stock	25
	Section 6.3.	Registration and Listing	25
	Section 6.4.	Compliance with Laws.	26
	Section 6.5.	Keeping of Records and Books of Account; Due Diligence.	26
	Section 6.6.	No Frustration; No Variable Rate Transactions.	27
	Section 6.7.	Corporate Existence	27
	Section 6.8.	Fundamental Transaction	27
	Section 6.9.	Selling Restrictions.	28
	Section 6.10.	Effective Registration Statement	28
	Section 6.11.	Blue Sky	28
	Section 6.12.	Non-Public Information	29
	Section 6.13.	Broker/Dealer	29


 




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	Section 6.14.	Disclosure Schedule.	29
	Section 6.15.	Delivery of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events	30
	 	 	 
	Article VII CONDITIONS TO CLOSING AND CONDITIONS TO THE SALE AND PURCHASE OF THE SHARES	31
	Section 7.1.	Conditions Precedent to Closing	31
	Section 7.2.	Conditions Precedent to Commencement	32
	Section 7.3.	Conditions Precedent to Fixed Purchases after Commencement Date	35
	 	 	 
	Article VIII TERMINATION	38
	Section 8.1.	Automatic Termination	38
	Section 8.2.	Other Termination	39
	Section 8.3.	Effect of Termination	40
	 	 	 
	Article IX INDEMNIFICATION	40
	Section 9.1.	Indemnification of Investor	40
	Section 9.2.	Indemnification Procedures	41
	 	 	 
	Article X MISCELLANEOUS	42
	Section 10.1.	Certain Fees and Expenses; Commitment Shares; Commencement Irrevocable Transfer Agent Instructions.	42
	Section 10.2.	Specific Enforcement, Consent to Jurisdiction, Waiver of Jury Trial.	44
	Section 10.3.	Entire Agreement	45
	Section 10.4.	Notices	45
	Section 10.5.	Waivers	46
	Section 10.6.	Amendments	47
	Section 10.7.	Headings	47
	Section 10.8.	Construction	47
	Section 10.9.	Binding Effect	47
	Section 10.10.	No Third Party Beneficiaries	47
	Section 10.11.	Governing Law	47
	Section 10.12.	Survival	48
	Section 10.13.	Counterparts	48
	Section 10.14.	Publicity	48
	Section 10.15.	Severability	48
	Section 10.16.	Further Assurances	48


 


Annex I. Definitions


 




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COMMON STOCK
PURCHASE AGREEMENT


 


This COMMON STOCK
PURCHASE AGREEMENT is made and entered into as of November 18, 2020 (this “Agreement”), by and between
Keystone Capital Partners, LLC, a Delaware limited liability company (the “Investor”), and Adial Pharmaceuticals,
Inc., a Delaware corporation (the “Company”).


 


RECiTALS


 


WHEREAS, the
parties desire that, upon the terms and subject to the conditions and limitations set forth herein, the Company may issue and sell
to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to the lesser of (i)
$15,000,000 worth of newly issued shares of the Company’s common stock, par value $0.001 per share (“Common Stock”),
and (ii) the Exchange Cap (to the extent applicable under Section 3.3);


 


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


 


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


 


WHEREAS, in
consideration for the Investor’s execution and delivery of this Agreement, the Company is concurrently causing its transfer
agent to issue to the Investor the 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.


 


Article
II

PURCHASE AND SALE OF COMMON STOCK


 


Section 2.1. 
Purchase and Sale of Stock. Upon the terms and subject to the conditions of this Agreement, during the Investment
Period, the Company, in its sole discretion, shall have the right, but not the obligation (other than as set forth in Section
3.1), to issue and sell to the Investor, and the Investor shall purchase from the Company, up to the lesser of (i) $15,000,000
(the “Total Commitment”) in aggregate gross purchase price of duly authorized, validly issued, fully
paid and non-assessable shares of Common Stock and (ii) the Exchange Cap, to the extent applicable under Section 3.3 (such lesser
amount of shares of Common Stock, the “Aggregate Limit”), by the delivery to the Investor of Fixed Purchase
Notices as provided in Article III.


 




     


     


    

 


Section 2.2. 
Closing Date; Settlement Dates. This Agreement shall become effective and binding (the “Closing”)
upon (a) the delivery of irrevocable instructions to issue the Commitment Shares to the Investor or its designees as provided in
Sections 7.1 and 10.1(ii), (b) the delivery of counterpart signature pages of this Agreement and the Registration Rights Agreement
executed by each of the parties hereto and thereto, and (c) the delivery of all other documents, instruments and writings required
to be delivered at the Closing, in each case as provided in Section 7.1, to the offices of Dorsey & Whitney LLP, 51 West 52nd
Street, New York, NY 10019-6119, at 1:00 p.m., New York City time, on the Closing Date. In consideration of and in express reliance
upon the representations, warranties and covenants contained in, and upon the terms and subject to the conditions of, this Agreement,
during the Investment Period the Company shall issue and sell to the Investor, and the Investor shall purchase from the Company,
the Shares in respect of each Fixed Purchase. The payment for, against simultaneous delivery of, Shares in respect of each Fixed
Purchase 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, within the time period required under the
Exchange Act, file with the Commission a Current Report on Form 8-K describing the material terms of the transactions contemplated
by the Transaction Documents, including, without limitation, the issuance of the Commitment Shares to the Investor, and attaching
as exhibits thereto copies of each of this Agreement, the Registration Rights Agreement and, if applicable, any press release issued
by the Company disclosing the execution of this Agreement by the Company (including all exhibits thereto, the “Current
Report”). The Company shall provide the Investor a reasonable opportunity to comment on a draft of the Current Report
prior to filing the Current Report with the Commission and shall give due consideration to all such comments. From and after the
filing of the Current Report with the Commission, the Company shall have publicly disclosed all material, nonpublic information
delivered to the Investor (or the Investor’s representatives or agents) by the Company, or any of its officers, directors,
employees, agents or representatives (if any) in connection with the transactions contemplated by the Transaction Documents. The
Investor covenants that until such time as the transactions contemplated by this Agreement 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), except that
the Investor may disclose the terms of such transactions to its financial, accounting, legal and other advisors (provided that
the Investor directs such Persons to maintain the confidentiality of such information). Not later than 15 calendar days following
the Closing Date, the Company shall file a Form D with respect to the issuance and sale of the Securities in accordance with Regulation
D and shall provide a copy thereof to the Investor promptly after such filing. The Company shall use its commercially reasonable
efforts to prepare and, as soon as practicable, but in no event later than the applicable Filing Deadline, file with the Commission
the Initial Registration Statement and any New Registration Statement covering only the resale by the Investor of the Registrable
Securities in accordance with the Securities Act and the Registration Rights Agreement. At or before 5:30 p.m. (New York City time)
on the second (2nd) Trading Day immediately following the Effective Date of the Initial Registration Statement and any
New Registration Statement (or any post-effective amendment thereto), the Company shall file with the Commission in accordance
with Rule 424(b) under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration
Statement (or post-effective amendment thereto).


 






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Article
III

PURCHASE TERMS


 


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


 


Section 3.1. 
Fixed Purchases. Upon the initial satisfaction of all of the conditions set forth in set forth in Section 7.2
(the “Commencement” and the date of initial satisfaction of all of such conditions, the “Commencement
Date”) and from time to time thereafter, subject to the satisfaction of all of the conditions set forth in Section
7.3, the Company shall have the right, but not the obligation (other than as set forth below), to direct the Investor, by its delivery
to the Investor of a Fixed Purchase Notice, to purchase a Fixed Purchase Share Amount, at the applicable Fixed Purchase Price therefor
on the applicable Fixed Purchase Date in accordance with this Agreement (each such purchase a “Fixed Purchase”);
provided, however, that the Investor’s committed obligation under any single Fixed Purchase shall not exceed
$500,000 (such maximum amount, the “Fixed Purchase Maximum Amount”). The Investor is obligated to accept
each Fixed Purchase Notice prepared and delivered by the Company in accordance with the terms of and subject to the satisfaction
of the conditions contained in this Agreement. If the Company delivers any Fixed Purchase Notice directing the Investor to purchase
a Fixed Purchase Share Amount for an aggregate Fixed Purchase Price in excess of the Fixed Purchase Maximum Amount (calculated
as of the applicable Fixed Purchase Date), such Fixed Purchase Notice shall be void ab initio to the extent of such excess
amount; provided, however, that the Investor shall remain obligated to purchase such portion of such Fixed Purchase
Shares Amount such that the aggregate Fixed Purchase Price would equal (or most closely approximate without exceeding) the Fixed
Purchase Maximum Amount. The Company may deliver a Fixed Purchase Notice to the Investor on a Trading Day, so long as (i) the applicable
Fixed Purchase Price of the Common Stock on such Trading Day is not less than the Fixed Purchase Threshold Price, (ii) at least
two (2) Trading Days has elapsed since the most recent prior Fixed Purchase Notice was delivered to the Investor, and (iii) all
Shares subject to all prior Fixed Purchases theretofore required to have been received by the Investor as DWAC Shares under this
Agreement have been delivered to the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding the foregoing,
the Company shall not deliver any Fixed Purchase Notices to the Investor during the PEA Period.


 






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Section 3.2. 
Settlement. The payment for, against simultaneous delivery of, Shares in respect of each Fixed Purchase shall
be settled on the Trading Day immediately following the applicable Fixed Purchase Date for such Fixed Purchase. For each Fixed
Purchase, the Investor shall pay to the Company an amount in cash equal to the product of (i) the total number of Shares purchased
by the Investor in such Fixed Purchase and (ii) the applicable Fixed Purchase Price for such Shares, as full payment for such Shares,
via wire transfer of immediately available funds on the same Trading Day that the Investor receives such Shares as DWAC Shares
in accordance with this Agreement, if all of such Shares are so received by the Investor before 1:00 p.m., New York City time,
or, if such Shares are received by the Investor after 1:00 p.m., New York City time, then payment therefor shall be made on the
Trading Day immediately following the Trading Day on which the Investor has received all of such Shares as DWAC Shares. If the
Company or the Transfer Agent shall fail for any reason, other than a failure of the Investor or its Broker-Dealer to set up a
DWAC and required instructions, to electronically transfer any Shares as DWAC Shares in respect of a Fixed Purchase within two
(2) Trading Days following the receipt by the Company of the applicable purchase price therefor in compliance with this Section
3.2, and if on or after such Trading Day the Investor purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Investor of such Shares that the Investor anticipated receiving from the Company in
respect of such Fixed Purchase, then the Company shall, within two (2) Trading Days after the Investor’s request, either
(1) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the Company’s
obligation to deliver such Shares as DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor
such Shares as DWAC Shares and pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total
purchase price paid by the Investor pursuant to this Agreement for all of the Shares to be purchased by the Investor in connection
with such Fixed Purchase. The Company shall not issue any fraction of a share of Common Stock upon any Fixed Purchase. 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 made under this Agreement shall be made in lawful money of the United
States of America or wire transfer of immediately available funds to such account as the Company may from time to time designate
by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the terms of
this Agreement is due on any day that is not a Trading Day, the same shall instead be due on the next succeeding day that is a
Trading Day.


 


Section 3.3. 
Compliance with Rules of Trading Market.


 


(a) 
Exchange Cap. Subject to Section 3.3(b), the Company shall not issue or sell any shares of Common Stock pursuant
to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the
extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement
and the transactions contemplated hereby would exceed 2,842,198 (representing 19.99% of the shares of Common Stock issued and outstanding
immediately prior to the execution of this Agreement), which number of shares shall be reduced, on a share-for-share basis, by
the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated
with the transactions contemplated by this Agreement under applicable rules of the Trading Market (such maximum number of shares,
the “Exchange Cap”), unless the Company’s stockholders have approved the issuance of Common Stock
pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market. For the
avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common
Stock pursuant to this Agreement; provided, that if such stockholder approval is not obtained, the Exchange Cap shall be
applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this Agreement
(except as set forth in Section 3.3(b)).


 






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(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 official closing price of the Common Stock on
the Trading Market (as reflected on Nasdaq.com) on the trading day immediately preceding the date of this Agreement and (ii) the
average official closing price of the Common Stock on the Trading Market (as reflected on Nasdaq.com) for the five (5) consecutive
trading days ending on the Trading Day immediately preceding the date of this Agreement.


 


(c) 
General. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement if such
issuance or sale would reasonably be expected to result in (A) a violation of the Securities Act or (B) a breach of the rules of
the Trading Market. The provisions of this Section 3.3 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 Delaware.


 






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Section 4.2. 
Authorization and Power. The Investor has the requisite limited liability company power and authority to enter
into and perform its obligations under this Agreement and the Registration Rights Agreement and to purchase or acquire the Securities
in accordance with the terms hereof. The execution, delivery and performance by the Investor of this Agreement and the Registration
Rights Agreement and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all
necessary limited liability company action, and no further consent or authorization of the Investor, its Board of Directors 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).


 


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, (iii) create or impose any lien, charge or encumbrance on any property of the Investor under any agreement
or any commitment to which the Investor is party or under which the Investor is bound or under which any of its properties or assets
are bound, or (iv) 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), (iii) and (iv), 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, local or foreign 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 Securities in accordance with the terms hereof; provided, however, that for purposes of the representation
made in this sentence, the Investor is assuming and relying upon the accuracy of the relevant representations and warranties and
the compliance with the relevant covenants and agreements of the Company in the Transaction Documents to which it is a party.


 


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


 






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


 


Section 4.6. 
No Disqualification Events. None of the Investor, any of its predecessors, any affiliated issuer, any director,
executive officer, other officer of the Investor participating in the offering contemplated hereby, any beneficial owner of 20%
or more of the Investor’s outstanding voting equity securities, calculated on the basis of voting power (each, an “Investor
Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i)
to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event
covered by Rule 506(d)(2) or (d)(3) under the Securities Act. The Investor has exercised reasonable care to determine whether any
Investor Covered Person is subject to a Disqualification Event.


 


Section 4.7. 
Reliance on Exemptions. The Investor understands that the Securities are being offered and sold to it in reliance
on specific exemptions from the registration requirements of U.S. federal and state securities laws and that the Company is relying
in part upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Investor set forth herein in order to determine the availability of such exemptions and
the eligibility of the Investor to acquire the Securities. The Investor understands that (i) the Securities may not be offered
for sale, sold, assigned or transferred unless (A) registered pursuant to the Securities Act or (B) an exemption exists permitting
such Securities to be sold, assigned or transferred without such registration; and (ii) any sale of the Securities made in reliance
on Rule 144 may be made only in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of
the  Securities under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be
an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities
Act or the rules and regulations of the Commission thereunder.


 


Section 4.8. 
Information. All materials relating to the business, financial condition, management and operations of
the Company and materials relating to the offer and sale of the Securities which have been requested by the Investor have been
furnished or otherwise made available to the Investor or its advisors, including, without limitation, the Commission Documents.
The Investor understands that its investment in the Securities involves a high degree of risk. The Investor is able to bear the
economic risk of an investment in the Securities and has such knowledge and experience in financial and business matters that it
is capable of evaluating the merits and risks of a proposed investment in the Securities. The Investor and its advisors have been
afforded the opportunity to ask questions of and receive answers from representatives of the Company concerning the financial condition
and business of the Company and other matters relating to an investment in the Securities. Neither such inquiries nor any other
due diligence investigations conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect
the Investor’s right to rely on the Company’s representations and warranties contained in this Agreement or in any
other Transaction Document to which the Company is a party or the Investor’s right to rely on any other document or instrument
executed and/or delivered in connection with this Agreement or the consummation of the transaction contemplated hereby (including,
without limitation, the opinions of the Company’s counsel delivered pursuant to Sections 7.1(iv) and 7.2(xvi)). The Investor
has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment decision with respect
to its acquisition of the Securities. The Investor understands that it (and not the Company) shall be responsible for its own tax
liabilities that may arise as a result of this investment or the transactions contemplated by this Agreement.


 






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Section 4.9. 
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 Securities or the fairness or suitability
of the investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.


 


Section 4.10. 
No General Solicitation. The Investor is not purchasing or acquiring the Securities as a result of any form of
general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Securities.


 


Section 4.11. 
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, and during the Restricted Period, Investor will not acquire beneficial ownership of any shares of
the Company’s capital stock (including shares of Common Stock or securities exercisable for or convertible into shares of
Common Stock) other than pursuant to this Agreement; provided, however, that nothing in this Agreement shall prohibit
or be deemed to prohibit the Investor from purchasing, in an open market transaction or otherwise, shares of Common Stock necessary
to make delivery by the Investor in satisfaction of a sale by the Investor of Shares that the Investor anticipated receiving from
the Company in connection with the settlement of a Fixed Purchase if the Company or its transfer agent shall have failed for any
reason to electronically transfer all of the Shares subject to such Fixed Purchase to the Investor on the applicable Settlement
Date by crediting the Investor’s or its designated Broker-Dealer’s account at DTC through its DWAC delivery system
in compliance with Section 3.2 of this Agreement.


 


Section 4.12. 
No Prior Short Sales. At no time prior to the date of this Agreement has any of the Investor, its agents, representatives
or Affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, 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 4.13. 
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.


 






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Section 4.14. 
Resales of Securities. The Investor represents, warrants and covenants that it will resell such Securities only
pursuant to the Registration Statement in which the resale of such Securities is registered under the Securities Act, in a manner
described under the caption “Plan of Distribution” in such Registration Statement, and in a manner in compliance with
all applicable U.S. federal and state securities laws, rules and regulations, including, without limitation, any applicable prospectus
delivery requirements of the Securities Act.


 


Section 4.15. 
Residency. The Investor is a resident of the State of New York.


 


Article
V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY


 


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


 


Section 5.1. 
Organization, Good Standing and Power. The Company has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct
its business as described in the Commission Documents and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would not have a Material Adverse Effect.


 


Section 5.2. 
Authorization, Enforcement. The Company has the requisite corporate power and authority to enter into and perform
its obligations under each of the Transaction Documents to which it is a party and to issue the Securities in accordance with the
terms hereof and thereof. Except for approvals of the Company’s Board of Directors or a committee thereof as may be required
in connection with any issuance and sale of Shares to the Investor hereunder (which approvals shall be obtained prior to the delivery
of any Fixed 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).


 






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Section 5.3. 
Capitalization. The authorized capital stock of the Company and the shares thereof issued and outstanding
were as set forth in the Commission Documents as of the dates reflected therein. All of the outstanding shares of Common Stock
have been duly authorized and validly issued, and are fully paid and non-assessable. Except as set forth in the Commission Documents,
this Agreement and the Registration Rights Agreement, there are no agreements or arrangements under which the Company is obligated
to register the sale of any securities under the Securities Act. Except as set forth in the Commission Documents, no shares of
Common Stock are entitled to preemptive rights and there are no outstanding debt securities and no contracts, commitments, understandings,
or arrangements by which the Company is or may become bound to issue additional shares of the capital stock of the Company or options,
warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into or exchangeable for, any shares of capital stock of the Company other than those issued or granted in the ordinary
course of business pursuant to the Company’s equity incentive and/or compensatory plans or arrangements. Except as set forth
in the Stockholders’ Agreement filed as an exhibit to the Commission Documents, and for customary transfer restrictions contained
in agreements entered into by the Company to sell restricted securities or as set forth in the Commission Documents, the Company
is not a party to, and it has no Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock
of the Company. Except as set forth in the Commission Documents, there are no securities or instruments containing anti-dilution
or similar provisions that will be triggered by this Agreement or any of the other Transaction Documents or the consummation of
the transactions described herein or therein. The Company has filed with the Commission true and correct copies of the Company’s
Certificate of Incorporation as in effect on the Closing Date (the “Charter”), and the Company’s
Bylaws as in effect on the Closing Date (the “Bylaws”).


 


Section 5.4. 
Issuance of Securities. The Commitment Shares have been, and the Shares to be issued under this Agreement have
been, or with respect to Shares to be purchased by the Investor pursuant to a particular Fixed Purchase Notice, will be, prior
to the delivery to the Investor hereunder of such Fixed Purchase Notice, duly authorized by all necessary corporate action on the
part of the Company. The Commitment Shares, when issued to the Investor in accordance with this Agreement, and the Shares, when
issued and sold against payment therefor in accordance with this Agreement, shall be validly issued and outstanding, fully paid
and non-assessable and free from all liens, charges, taxes, security interests, encumbrances, rights of first refusal, preemptive
or similar rights and other encumbrances with respect to the issue thereof, and the Investor shall be entitled to all rights accorded
to a holder of Common Stock. 15,000,000 shares of Common Stock have been duly authorized and reserved by the Company for issuance
upon purchase under this Agreement as Shares.


 


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 result in a breach or
violation of any of the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both,
would become a default) under, or give rise to any rights of termination, amendment, acceleration or cancellation of, any material
agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company
is a party or is bound, (iii) create or impose a lien, charge or encumbrance on any property or assets of the Company under any
agreement or any commitment to which the Company is a party or by which the Company is bound or to which any of their respective
properties or assets is subject, or (iv) result in a violation of any federal, state, local or foreign statute, rule, regulation,
order, judgment or decree applicable to the Company or by which any property or asset of the Company are bound or affected (including
federal and state securities laws and regulations and the rules and regulations of the Trading Market or applicable Eligible Market),
except, in the case of clauses (ii), (iii) and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations,
liens, charges, encumbrances and violations as would not, individually or in the aggregate, have a Material Adverse Effect. Except
as specifically contemplated by this Agreement or the Registration Rights Agreement and as required under the Securities Act and
any applicable state securities laws, the Company is not required under any federal, state, local or foreign law, rule or regulation
to obtain any consent, authorization or order of, or make any filing or registration with, any court or governmental agency (including,
without limitation, the Trading Market) in order for it to execute, deliver or perform any of its obligations under the Transaction
Documents to which it is a party, or to issue the Securities to the Investor in accordance with the terms hereof and thereof (other
than such consents, authorizations, orders, filings or registrations as have been obtained or made prior to the Closing Date);
provided, however, that, for purposes of the representation made in this sentence, the Company is assuming and relying
upon the accuracy of the representations and warranties of the Investor in this Agreement and the compliance by it with its covenants
and agreements contained in this Agreement and the Registration Rights Agreement.


 






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


 


(a) 
The Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange
Act) all Commission Documents for the twelve months preceding the date of this Agreement. The Company has delivered or made available
to the Investor via EDGAR or otherwise true and complete copies of the Commission Documents filed with or furnished to the Commission
prior to the Closing Date (including, without limitation, the 2019 Form 10-K). As of its filing date, each Commission Document
filed with or furnished to the Commission prior to the Closing Date (including, without limitation, the 2019 Form 10-K) 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, on each Fixed 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, on each Fixed Purchase Exercise Date and on each Settlement Date, shall comply in all material respects
with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that this
representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made
in reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf
of the Investor expressly for use therein. Each Commission Document (other than the Initial Registration Statement or any New Registration
Statement, or the Prospectus included therein or any Prospectus Supplement thereto) to be filed with or furnished to the Commission
after the Closing Date and incorporated by reference in the Initial Registration Statement or any New Registration Statement, or
the Prospectus included therein or any Prospectus Supplement thereto required to be filed pursuant to this Agreement or the Registration
Rights Agreement (including, without limitation, the Current Report), when such document is filed with or furnished to the Commission
and, if applicable, when such document becomes effective, as the case may be, shall comply in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable
to it. The Company has delivered or made available to the Investor via EDGAR or otherwise true and complete copies of all comment
letters and substantive correspondence received by the Company from the Commission relating to the Commission Documents filed with
or furnished to the Commission as of the Closing Date, together with all written responses of the Company thereto in the form such
responses were filed via EDGAR. There are no outstanding or unresolved comments or undertakings in such comment letters received
by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness of
any registration statement filed by the Company under the Securities Act or the Exchange Act.


 






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(b) 
The financial statements of the Company included or incorporated by reference in the Commission Documents, together with
the related notes and schedules, comply in all material respects with the requirements of the Securities Act and the Exchange Act
and fairly present the financial condition of the Company as of the dates indicated and the results of operations and changes in
cash flows for the periods therein specified in conformity with generally accepted accounting principles in the United States (“GAAP”)
consistently applied throughout the periods involved; all non-GAAP financial information included or incorporated by reference
in the Commission Documents complies with the requirements of Regulation G and Item 10 of Regulation S-K under the Securities Act,
to the extent applicable; and, except as disclosed in the Commission Documents, there are no material off-balance sheet arrangements
(as defined in Regulation S-K under the Act, Item 303(a)(4)(ii)) or any other relationships with unconsolidated entities or other
persons, that may have a material current or, to the Company’s Knowledge, material future effect on the Company’s financial
condition, results of operations, liquidity, capital expenditures, capital resources or significant components of revenue or expenses.
No other financial statements or schedules are required to be included in the Commission Documents.


 


(c) 
Except as indicated in the Commission documents, the Company maintains a system of internal accounting controls over financial
reporting sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s
general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements
in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; (iv) the interactive data in eXtensible Business Reporting Language
included or incorporated by reference in the Commission Documents fairly presents the information called for in all material respects
and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto; and (v) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect
to any differences. Except as described in the Commission Documents, since the end of the Company’s most recent audited fiscal
year, (i) the Company has no reason to believe that there has been any material weakness in the Company’s internal control
over financial reporting (whether or not remediated) and (ii) there has been no change in the Company’s internal control
over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.


 






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(d) 
Except as described in the Commission Documents, the Company maintains a system of “disclosure controls and procedures”
(as defined in Rule 13a-15(e) of the Exchange Act) that complies with the requirements of the Exchange Act and that has been designed
to ensure that information required to be disclosed by the Company in reports that it files or submits under the Exchange Act is
recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including
controls and procedures designed to ensure that such information is accumulated and communicated to the Company’s management
as appropriate to allow timely decisions regarding required disclosure and such disclosure controls and procedures are effective
in all material respects to perform the functions for which they were established. The Company has carried out evaluations of the
effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.


 


(e) 
To the Company’s Knowledge, Friedman LLP, which has expressed its opinion with respect to the consolidated financial
statements and schedule as of December 31, 2019 and 2018, and for each of the two years in the period ended December 31, 2019,
to be filed as a part of the Initial Registration Statement and incorporated by reference in the Initial Registration Statement
and the Prospectus included therein, is (x) an independent public accounting firm within the meaning of the Act and the Rules and
Regulations, (y) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”)) and (z) not in violation of the auditor independence requirements of the Sarbanes-Oxley Act.


 


(f)  
The section entitled “Critical Accounting Policies” to be included or incorporated by reference in the Initial
Registration Statement and any New Registration Statement (and any post-effective amendment thereto) shall accurately describe
in all material respects (i) the accounting policies that the Company believes are the most important in the portrayal of the Company’s
financial condition and results of operations and that require management’s most difficult, subjective or complex judgments
(“Critical Accounting Policies”); (ii) the judgments and uncertainties affecting the application of Critical
Accounting Policies; and (iii) the likelihood that materially different amounts would be reported under different conditions or
using different assumptions, and an explanation thereof.


 


(g) 
There is no failure on the part of the Company or, to the Knowledge of the Company, any of the Company’s directors
or officers, in their capacities as such, to comply in all material respects with any provision of the Sarbanes-Oxley Act and the
rules and regulations promulgated in connection therewith that are applicable to the Company or its directors or officers in their
capacities as directors or officers of the Company.


 


Section 5.7. 
Subsidiaries. As of the date of this Agreement, the Company does not have any subsidiaries.


 






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


 


Section 5.9. 
No Undisclosed Liabilities. The Company does not have any liabilities, obligations, claims or losses (whether
liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required to be disclosed
on a balance sheet of the Company (including the notes thereto) in conformity with GAAP and are not disclosed in the Commission
Documents, other than those incurred in the ordinary course of the Company’s businesses since December 31, 2019 and which,
individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


Section 5.10. 
No Undisclosed Events or Circumstances. No event or circumstance has occurred or information exists with
respect to the Company or its business, properties, liabilities, operations (including results thereof) or conditions (financial
or otherwise), which, under applicable law, rule or regulation, requires public disclosure or announcement by the Company at or
before the Closing but which has not been so publicly announced or disclosed, except for events or circumstances which, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


Section 5.11. 
Indebtedness; Solvency. The Company’s Quarterly Report on Form 10-Q for its fiscal quarter ended September
30, 2020 sets forth, as of September 30, 2020, all outstanding secured and unsecured Indebtedness of the Company, or for which
the Company has commitments through such date. For the purposes of this Agreement, “Indebtedness” shall
mean (a) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in
the ordinary course of business), (b) all guaranties, endorsements, indemnities and other contingent obligations in respect of
Indebtedness of others in excess of $100,000, whether or not the same are or should be reflected in the Company’s balance
sheet (or the notes thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions
in the ordinary course of business; and (c) the present value of any lease payments in excess of $100,000 due under leases required
to be capitalized in accordance with GAAP. There is no existing or continuing default or event of default in respect of any Indebtedness
of the Company . 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.


 






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Section 5.12. 
Title To Assets. The Company has good and marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business of the Company, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Commission Documents or such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be made of such property by the Company; and any
real property and buildings held under lease by the Company are held by it under valid, subsisting and enforceable leases with
such exceptions as are not material and do not interfere in any material respect with the use made and proposed to be made of such
property and buildings by the Company, in each case except as described in the Commission Documents.


 


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 are a party or to which any of the properties of the Company is subject (i) other than proceedings
accurately described in all material respects in the Commission Documents and proceedings that, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect, or on the power or ability of the Company to perform its obligations
under this Agreement and the Registration Rights Agreement or to consummate the transactions contemplated by the Transaction 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 the Commission Documents or to be filed as exhibits
to the Commission Documents that are not described or filed as required.


 


Section 5.14. 
Compliance With Law; Compliance with Continued Listing Standards. The business of the Company has been and is
presently being conducted in compliance with all applicable federal, state, local and foreign governmental laws, rules, regulations
and ordinances, except as set forth in the Commission Documents and except for such non-compliance which, individually or in the
aggregate, would not have a Material Adverse Effect. The Company is not in violation of any judgment, decree or order or any statute,
ordinance, rule or regulation applicable to the Company, and the Company will not conduct its business in violation of any of the
foregoing, except in all cases for any such violations which could not, individually or in the aggregate, have a Material Adverse
Effect. The Company has not received any notice of any continuing failure to maintain requirements for continued listing or quotation
of its Common Stock on an applicable Trading Market or in violation of any of the rules, regulations or requirements of any applicable
Trading Market, other than as disclosed to the Investor (including any intended changes with respect to another applicable Trading
Market in connection with any failure to maintain such requirements).


 






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


 


Section 5.16. 
Disclosure. The Company confirms that, from and after the date hereof, neither it nor any other Person acting
on its behalf will provide the Investor or any of its agents, advisors or counsel with any new information that constitutes or
could reasonably be expected to constitute material, nonpublic information concerning the Company, other than the existence of
the transactions contemplated by the Transaction Documents. The Company understands and confirms that the Investor will rely on
the foregoing representations in effecting resales of Securities under the Registration Statement. All new disclosure provided
to Investor regarding the Company, their businesses and the transactions contemplated by the Transaction Documents (including,
without limitation, the representations and warranties of the Company contained in the Transaction Documents to which it is a party
(as modified by the Disclosure Schedule)) furnished in writing by or on behalf of the Company for purposes of or in connection
with the Transaction Documents (other than forward-looking information and projections and information of a general economic nature
and general information about the Company’s industry), taken together, is true and correct in all material respects on the
date on which such information is dated or certified, and does not contain any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were
made, not misleading at such time. Each press release issued by the Company during the 12 months preceding the Closing Date did
not at the time of release (or, if amended or superseded by a later dated press release issued by the Company prior to the Closing
Date or by a later dated Commission Document filed with or furnished to the Commission by the Company prior to the Closing Date,
at the time of issuance of such later dated press release or filing or furnishing of such Commission Document, as applicable) contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they are made, not misleading.


 


Section 5.17. 
Operation of Business.


 


(a) 
The Company possesses such permits, licenses, approvals, consents and other authorizations (including licenses, accreditation
and other similar documentation or approvals of any local health departments) issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies as are necessary to conduct the business now operated by it (collectively, “Governmental
Licenses”), except where the failure to possess such Governmental Licenses, individually or in the aggregate, would
not have a Material Adverse Effect. All of the Governmental Licenses are valid and in full force and effect, except where the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect, individually or in the
aggregate, would not have a Material Adverse Effect or except as otherwise disclosed in the Commission Documents. This Section
5.17(a) does not relate to environmental matters, such items being the subject of Section 5.18.


 






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(b) 
As to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”)
under the Federal Food, Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that
is manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by the Company (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or
marketed by the Company in compliance with all applicable requirements under FDCA and similar laws, rules and regulations relating
to registration, investigational use, premarket clearance, licensure, or application approval, good manufacturing practices, good
laboratory practices, good clinical practices, product listing, quotas, labeling, advertising, record keeping and filing of reports,
except where the failure to be in compliance would not have a Material Adverse Effect. There is no pending, completed or, to the
Company’s knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding,
charge, complaint, or investigation) against the Company , and the Company has not received any notice, warning letter or other
communication from the FDA or any other governmental entity, which (i) contests the premarket clearance, licensure, registration,
or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale of, or the labeling
and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or seizure of, or
withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii)
imposes a clinical hold on any clinical investigation by the Company, (iv) enjoins production at any facility of the Company, (v)
enters or proposes to enter into a consent decree of permanent injunction with the Company, or (vi) otherwise alleges any violation
of any laws, rules or regulations by the Company, and which, either individually or in the aggregate, would have a Material Adverse
Effect. The properties, business and operations of the Company have been and are being conducted in all material respects in accordance
with all applicable laws, rules and regulations of the FDA.  The Company has not been informed by the FDA that the FDA will
prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed
by the Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed
to be developed by the Company.


 


(c) 
The Company or one or more of its Subsidiaries owns or possesses adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names, trade dress, logos, copyrights and other intellectual property,
including, without limitation, all of the intellectual property described in the Commission Documents as being owned or licensed
by the Company (collectively, “Intellectual Property”), necessary to carry on the business now operated
by it. Except as set forth in the Commission Documents, there are no actions, suits or judicial proceedings pending, or to the
Company’s Knowledge threatened, relating to patents or proprietary information to which the Company is a party or of which
any property of the Company is subject, and the Company has not received any notice or is otherwise aware of any infringement of
or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which could
render any Intellectual Property invalid or inadequate to protect the interest of the Company therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate,
would have a Material Adverse Effect.


 






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Section 5.18. 
Environmental Compliance. The Company (i) is in compliance with any and all applicable federal, state and
local laws and regulations relating to the protection of human health and safety (to the extent such health and safety relates
to exposure to hazardous or toxic substances or wastes, pollutants or contaminants), the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received all permits, licenses
or other approvals required of them under applicable Environmental Laws to conduct their respective businesses as they are currently
being conducted and (iii) is in compliance with all terms and conditions of any such permit, license or approval, except where
such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. There are no proceedings that are pending, or to the Company’s Knowledge, threatened,
against the Company under Environmental Laws in which a governmental authority is also a party, other than such proceedings regarding
which it is reasonably believed no monetary sanctions of $100,000 or more will be imposed. There are no costs or liabilities associated
with Environmental Laws with respect to the operations or properties of the Company (including, without limitation, any capital
or operating expenditures required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license
or approval, or any related constraints on operating activities and any potential liabilities to third parties) that would, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


Section
5.19.  Material Agreements.
Except as set forth in the Commission Documents, neither the Company nor any Subsidiary of the Company is a party to any written
or oral contract, instrument, agreement commitment, obligation, plan or arrangement, a copy of which would be required to be filed
with the Commission as an exhibit to an annual report on Form 10-K (collectively, “Material Agreements”).
Each of the Material Agreements described in the Commission Documents conform in all material respects to the descriptions thereof
contained or incorporated by reference therein. Except as set forth in the Commission Documents, the Company has performed in all
material respects all the obligations then required to be performed by them under the Material Agreements, have received no notice
of default or an event of default by the Company thereunder and are not aware of any basis for the assertion thereof, and neither
the Company nor, to the Knowledge of the Company, any other contracting party thereto are in default under any Material Agreement
now in effect, the result of which would have a Material Adverse Effect. Except as set forth in the Commission Documents, each
of the Material Agreements is in full force and effect, and constitutes a legal, valid and binding obligation enforceable in accordance
with its terms against the Company and/ and, to the Knowledge of the Company, each other contracting party thereto, except as such
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership
or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other equitable
principles of general application.


 






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Section 5.20. 
Transactions With Affiliates. Except as set forth in the Commission Documents, there are no loans, leases, agreements,
contracts, royalty agreements, management contracts, service arrangements or other continuing transactions exceeding $120,000 between
(a) the Company or any Subsidiary, on the one hand, and (b) any person or entity who would be covered by Item 404(a) of Regulation
S-K, on the other hand. Except as disclosed in the Commission Documents, there are no outstanding amounts payable to or receivable
from, or advances by the Company to, and neither the Company n is otherwise a creditor of or debtor to, any beneficial owner of
more than 5% of the outstanding shares of Common Stock, or any director, employee or affiliate of the Company, other than (i) reimbursement
for reasonable expenses incurred on behalf of the Company or (ii) as part of the normal and customary terms of such person’s
employment or service as a director with the Company.


 


Section 5.21. 
Employees; Labor Laws. No material labor dispute with the employees of the Company exists, except as described
in the Commission Documents, or, to the Knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened
or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that would reasonably
be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary is in violation of or has received notice
of any violation with respect to any federal or state law relating to discrimination in the hiring, promotion or pay of employees,
nor any applicable federal or state wage and hour laws, nor any state law precluding the denial of credit due to the neighborhood
in which a property is situated, the violation of any of which could reasonably be expected to 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
and its Subsidiaries in the manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective
amendment thereto) and any Prospectus Supplement thereto filed pursuant to the Registration Rights Agreement.


 


Section 5.23. 
Investment Company Act Status. The Company is not, and as a result of the consummation of the transactions contemplated
by the Transaction Documents and the application of the proceeds from the sale of the Shares as will be set forth in the Prospectus
included in any Registration Statement (and any post-effective amendment thereto) and any Prospectus Supplement thereto filed pursuant
to the Registration Rights Agreement the Company will not be an “investment company” within the meaning of the Investment
Company Act of 1940, as amended.


 


Section 5.24. 
ERISA. No liability to the Pension Benefit Guaranty Corporation has been incurred with respect to any Plan by
the Company which has had or would have a Material Adverse Effect. No “prohibited transaction” (as defined in Section
406 of ERISA or Section 4975 of the Code) or “accumulated funding deficiency” (as defined in Section 302 of ERISA)
or any of the events set forth in Section 4043(b) of ERISA has occurred with respect to any Plan which has had or would have a
Material Adverse Effect, and the execution and delivery of this Agreement and the issuance and sale of the Securities hereunder
shall not result in any of the foregoing events. Each Plan is in compliance in all material respects with applicable law, including
ERISA and the Code; the Company has not incurred and does not expect to incur liability under Title IV of ERISA with respect to
the termination of, or withdrawal from, any Plan; and each Plan for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Code is so qualified in all material respects and nothing has occurred, whether by
action or failure to act, which would cause the loss of such qualifications. As used in this Section 5.24, the term “Plan”
shall mean an “employee pension benefit plan” (as defined in Section 3 of ERISA) which is or has been established or
maintained, or to which contributions are or have been made, by the Company or any Subsidiary or by any trade or business, whether
or not incorporated, which, together with the Company or any Subsidiary, is under common control, as described in Section 414(b)
or (c) of the Code.


 






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Section 5.25. 
Taxes. The Company has filed all federal, state, local and foreign tax returns required to be filed through the
date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect) and have paid all taxes required to be paid thereon (except
for cases in which the failure to file or pay would not reasonably be expected to have a Material Adverse Effect, or, except as
currently being contested in good faith and for which reserves required by GAAP have been created in the financial statements of
the Company), and no tax deficiency has been determined adversely to the Company 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 and which would reasonably be expected to have a Material Adverse Effect.


 


Section 5.26. 
Insurance. The Company is insured by insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses in which it is engaged; neither the Company have been
refused any insurance coverage sought or applied for; and neither the Company n have any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not have a Material Adverse Effect, except as described in the
Commission Documents.


 


Section 5.27. 
Exemption from Registration. Subject to, and in reliance on, the representations, warranties and covenants made
herein by the Investor, the offer and sale of the Securities in accordance with the terms and conditions of this Agreement is exempt
from the registration requirements of the Securities Act pursuant to Section 4(a)(2) and Rule 506(b) of Regulation D; provided,
however, that at the request of and with the express agreements of the Investor (including, without limitation, the representations,
warranties and covenants of Investor set forth in Section 4.9 through 4.13), the Securities to be issued from and after Commencement
to or for the benefit of the Investor pursuant to this Agreement shall be issued to the Investor or its designee only as DWAC Shares
and will not bear legends noting restrictions as to resale of such securities under federal or state securities laws, nor will
any such securities be subject to stop transfer instructions.


 


Section 5.28. 
No General Solicitation or Advertising. Neither the Company, nor any of its Affiliates, nor any Person acting
on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation
D) in connection with the offer or sale of the Securities.


 


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


 






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Section 5.30. 
Dilutive Effect. The Company is aware and acknowledges that issuance of the Securities 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 Commitment Shares and to issue the Shares pursuant to the terms of a Fixed Purchase in accordance
with this Agreement is, in each case, absolute and unconditional regardless of the dilutive effect that such issuance may have
on the ownership interests of other stockholders of the Company.


 


Section 5.31. 
Manipulation of Price. Neither the Company nor any of its officers, directors or Affiliates has, and, to the
Knowledge of the Company, no Person acting on their behalf has, (i) taken, directly or indirectly, any action designed or intended
to cause or to result in the stabilization or manipulation of the price of any security of the Company, or which caused or resulted
in, or which would in the future reasonably be expected to cause or result in, the stabilization or manipulation of the price of
any security of the Company, in each case to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased,
or paid any compensation for soliciting purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation
for soliciting another to purchase any other securities of the Company. Neither the Company nor any of its officers, directors
or Affiliates will during the term of this Agreement, and, to the Knowledge of the Company, no Person acting on their behalf will
during the term of this Agreement, take any of the actions referred to in the immediately preceding sentence.


 


Section 5.32. 
Securities Act. Except as set forth in the Disclosure Schedule, the Company has complied and shall comply with
all applicable federal and state securities laws in connection with the offer, issuance and sale of the Securities hereunder, including,
without limitation, the applicable requirements of the Securities Act. Each Registration Statement, upon filing with the Commission
and at the time it is declared effective by the Commission, shall satisfy all of the requirements of the Securities Act to register
the resale of the Registrable Securities included therein by the Investor in accordance with the Registration Rights Agreement
on a delayed or continuous basis under Rule 415 under the Securities Act at then-prevailing market prices, and not fixed prices.
The Company is not, and has not previously been at any time, an issuer identified in, or subject to, Rule 144(i).


 


Section 5.33. 
Listing and Maintenance Requirements; DTC Eligibility. As of the date of this Agreement and the Closing Date,
the Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to,
or which to its Knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange
Act, nor has the Company received any notification that the Commission is contemplating terminating such registration. As of the
date of this Agreement and the Closing Date, the Company has not received notice from the Trading Market or any Eligible Market
on which the Common Stock is or has been listed or quoted to the effect that the Company is not in compliance with the listing
or maintenance requirements of such Trading Market or Eligible Market, as applicable. As of the Closing Date, the Company is in
compliance with all such listing and maintenance requirements. 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.


 






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Section 5.34. 
Application of Takeover Protections. The Company and its Board of Directors have taken all necessary action,
if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Company’s Charter or the laws of its state of
incorporation that is or could become applicable to the Investor as a result of the Investor and the Company fulfilling their respective
obligations or exercising their respective rights under the Transaction Documents (as applicable), including, without limitation,
as a result of the Company’s issuance of the Securities and the Investor’s ownership of the Securities.


 


Section 5.35. 
No Unlawful Payments. Neither the Company nor any director or officer, nor, to the Knowledge of the Company,
any employee, agent, representative or Affiliate of the Company, has taken within the past five years any action in furtherance
of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything
else of value, directly or indirectly, to any “government official” (including any officer or employee of a government
or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity
for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to influence
official action or secure an improper advantage (to the extent acting on behalf of or providing services to the Company); and the
Company has conducted their businesses within the past five years in compliance with the U.S. Foreign Corrupt Practices Act of
1977, as amended (the “FCPA”), any applicable law or regulation implementing the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, the U.K. Bribery Act 2010
and other applicable anti-corruption, anti-money laundering and anti-bribery laws, and have instituted and maintain policies and
procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.


 


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


 






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Section 5.37. 
OFAC. Neither the Company, nor any director, officer, or employee thereof, nor, to the Company’s Knowledge,
any agent, affiliate or representative of the Company, is a Person that is, or is owned or controlled by a Person that is (i) the
subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control,
the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively,
“Sanctions”), nor (ii) located, organized or resident in a country or territory that is the subject of
Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria). Neither the Company n will, directly
or indirectly, use the proceeds from the sale of Shares under this Agreement, or lend, contribute or otherwise make available such
proceeds to any Subsidiary, joint venture partner or other Person (a) to fund or facilitate any activities or business of or with
any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions, or (b)
in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise). For the past five years, neither the Company 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.


 


Section 5.38. 
U.S. Real Property Holding Corporation. The Company is not, nor has ever been, and so long as any of the Securities
are held by the Investor, shall become a U.S. real property holding corporation within the meaning of Section 897 of the Code.


 


Section 5.39. 
Bank Holding Company Act. Neither the Company nor any of its Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve
System (the “Federal Reserve”). Neither the Company nor any of its Affiliates owns or controls, directly
or indirectly, five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or
more of the total equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither
the Company nor any of its Affiliates exercises a controlling influence over the management or policies of a bank or any entity
that is subject to the BHCA and to regulation by the Federal Reserve.


 


Section 5.40. 
Information Technology; Compliance With Data Privacy Laws. Except as would
not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company’s information
technology equipment, computers, systems, networks, hardware, software, websites, and databases (collectively, “IT
Systems”) are adequate for, and operate and perform as reasonably required to operate the business of the Company
as currently conducted, free and clear of all material bugs, errors, defects, Trojan horses, time bombs, malware and other malicious
code. Except as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect, the Company has implemented and maintained commercially reasonable physical, technical and administrative
controls, policies, procedures, and safeguards designed to protect their material confidential information and the integrity, continuous
operation, and security of all IT Systems and Personal Data used in connection with their businesses. “Personal Data”
means any information about an individual person that would enable the Company, either alone or in combination with other information,
to identify a natural person. Within the past five years, the Company has not experienced a material information security incident
except for those that have been remedied without causing a Material Adverse Effect or a legal obligation to notify any other Person.
The Company is in material compliance with all applicable state and federal data privacy and security laws of jurisdictions where
the Company conducts business.


 






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


 


Section 5.42. 
Accuracy of Certain Summaries and Statements. The statements to be set forth or incorporated by reference, as
applicable, in each Registration Statement (and each post-effective amendment thereto) and the Prospectus included therein under
the captions “Description of Capital Stock,” and in the 2019 Form 10-K under the caption “Certain Relationships
and Related Transactions, and Director Independence”, insofar as they purport to summarize the provisions of the laws and
documents referred to therein, are accurate summaries in all material respects.


 


Section 5.43. 
Acknowledgement Regarding Investor’s Acquisition of Securities. The Company acknowledges and agrees that
the Investor is acting solely in the capacity of an arm’s-length purchaser with respect to this Agreement and the transactions
contemplated by the Transaction Documents. The Company further acknowledges that the Investor is not acting as a financial advisor
or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated by the
Transaction Documents, and any advice given by the Investor or any of its representatives or agents in connection therewith is
merely incidental to the Investor’s acquisition of the Securities. The Company further represents to the Investor that the
Company’s decision to enter into the Transaction Documents to which it is a party has been based solely on the independent
evaluation of the transactions contemplated thereby by the Company and its representatives. The Company acknowledges and agrees
that the Investor has not made and does not make any representations or warranties with respect to the transactions contemplated
by the Transaction Documents other than those specifically set forth in Article IV.


 






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Article
VI

ADDITIONAL COVENANTS


 


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


 


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


 


Section 6.2. 
Reservation of Common Stock. The Company has available and the Company shall reserve and keep available at all
times, free of preemptive and other similar rights of stockholders, the requisite aggregate number of authorized but unissued shares
of Common Stock to enable the Company to timely effect (i) the issuance and delivery of all Commitment Shares to be issued and
delivered to the Investor under Section 10.1(ii) hereof within the time period specified in Section 10.1(ii) hereof, and (ii) the
issuance, sale and delivery of all Shares to be issued, sold and delivered in respect of each Fixed Purchase effected under this
Agreement, in the case of this clause (ii), at least prior to the delivery by the Company to the Investor of the applicable Fixed
Purchase Notice in connection with such Fixed Purchase. Without limiting the generality of the foregoing, (a) as of the date of
this Agreement, the Company has reserved, out of its authorized and unissued Common Stock, 175,000 shares of Common Stock solely
for the purpose of issuing all of the Commitment Shares under this Agreement to be issued and delivered to the Investor under Section
10.1(ii) hereof within the time period specified in Section 10.1(ii) hereof, and (b) as of the date of this Agreement the Company
has reserved, and as of the Commencement Date shall have continued to reserve, out of its authorized and unissued Common Stock,
15,000,000 shares of Common Stock solely for the purpose of effecting Fixed Purchases under this Agreement. The number of shares
of Common Stock so reserved for the purpose of effecting Fixed 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 Fixed Purchase effected from
and after the Commencement Date pursuant to this Agreement.


 


Section 6.3. 
Registration and Listing. During the Investment Period, 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) or 12(g) of the Exchange Act,
and to comply with its reporting and filing obligations under the Exchange Act, and shall not take any action or file any document
(whether or not permitted by the Securities Act or the Exchange Act) to terminate or suspend such registration or to terminate
or suspend its reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. The Company
shall use its commercially reasonable efforts to continue the listing and trading of its Common Stock and the listing of the Securities
purchased by the Investor hereunder on the Trading Market and to comply with the Company’s reporting, filing and other obligations
under the b rules and regulations of the Trading Market. The Company shall not take any action which could be reasonably expected
to result in the delisting or suspension of the Common Stock on the Trading Market. If the Company receives 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, the Company
shall promptly (and in any case within 24 hours) notify the Investor of such fact in writing and shall use its commercially reasonable
efforts to cause the Common Stock to be listed or quoted on another Eligible Market.


 






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Section 6.4. 
Compliance with Laws.


 


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


 


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


 


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


 


(i) During the Investment Period, (a) the Company shall keep and cause each Subsidiary (if any) to keep adequate records and
books of account, in which complete entries shall be made in accordance with GAAP consistently applied, reflecting all financial
transactions of the Company and its Subsidiaries, and in which, for each fiscal year, all proper reserves for depreciation, depletion,
obsolescence, amortization, taxes, bad debts and other purposes in connection with its business shall be made; and (b) the Company
shall maintain a system of internal accounting controls that (x) pertain to the maintenance of records that in reasonable detail
accurately and fairly reflect the transactions and dispositions of the assets of the Company; (y) provide reasonable assurance
that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the Company are being made only in accordance with authorizations
of management and directors of the Company; and (z) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use or disposition of the Company’s assets that could have a material effect on the Company’s financial
statements (it being acknowledged and agreed that the identification by the Company and/or its independent registered public accounting
firm of any “significant deficiencies” or “material weaknesses” (each as defined by the Public Company
Accounting Oversight Board) in the Company’s internal controls over its financial reporting shall not, in and of itself,
constitute a breach of this Section 6.5(i)).


 


(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 Fixed Purchase Notice or the settlement thereof.


 






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Section
6.6. No Frustration; No Variable Rate Transactions.


 


(i)
No Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan,
arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability
or right of the Company to perform its obligations under the Transaction Documents to which it is a party, including, without
limitation, the obligation of the Company to deliver (i) the Commitment Shares to the Investor not later than 4:00 p.m. (New York
time) on the Trading Day immediately following the Closing Date, and (ii) the Shares to the Investor in respect of a Fixed Purchase
on the Trading Day immediately following the applicable Fixed Purchase Date. For the avoidance of doubt, nothing in this Section
6.6(i) shall in any way limit the Company’s right to terminate this Agreement in accordance with Section 8.2 (subject in
all cases to Section 8.3).


 


(ii)
No Variable Rate Transactions. The Company shall not effect or enter into an agreement to effect any issuance by
the Company of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction,
other than in connection with an Exempt Issuance. The Investor shall be entitled to seek injunctive relief against the Company
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 Fixed Purchase Notice has been delivered
to the Investor and the transactions contemplated therein have not yet been fully settled in accordance with the terms and conditions
of this Agreement, the Company shall not effect any Fundamental Transaction until the expiration of five (5) Trading Days following
the date of full settlement thereof and the issuance to the Investor of all of the Shares issuable pursuant to the Fixed Purchase
to which such Fixed Purchase Notice relates.


 



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Section
6.9. Selling Restrictions.


 


(i)
Except as expressly set forth below, the Investor covenants that from and after the Closing Date through and including the Trading
Day next following the expiration or termination of this Agreement (the “Restricted Period”), neither
the Investor nor any of its Affiliates nor any entity managed or controlled by the Investor (collectively, the “Restricted
Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall,
directly or indirectly, (x) engage in any Short Sales involving the Company’s securities or (y) grant any option to purchase,
or acquire any right to dispose of or otherwise dispose for value of, any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for any shares of Common Stock, or enter into any swap, hedge or other similar agreement that
transfers, in whole or in part, the economic risk of ownership of the Common Stock. Notwithstanding the foregoing, it is expressly
understood and agreed that nothing contained herein shall (without implication that the contrary would otherwise be true)
prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated
under Regulation SHO) the Securities; or (2) selling a number of shares of Common Stock equal to the number of Shares that
such Restricted Person is or may be obligated to purchase under a pending Fixed Purchase Notice but has not yet taken possession
of so long as such Restricted Person (or the Broker-Dealer, as applicable) delivers the Shares purchased pursuant to such Fixed
Purchase Notice to the purchaser thereof or the applicable Broker-Dealer upon such Restricted Person’s receipt of such shares
of Common Stock from the Company pursuant to this Agreement.


 


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


 


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


 


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


 






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Section
6.12.   Non-Public Information. From and after the date hereof, neither the Company, nor any
of its directors, officers, employees or agents shall disclose any new 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 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 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, 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, or any of its directors, officers, employees or agents. The Investor shall not have any liability
to the Company, or any of its 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 unaffiliated with the Investor and not then currently engaged or used by the Company, and a DTC participant
(collectively, the “Broker-Dealer”). The Investor shall, from time to time, provide the Company and
its 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, which shall not exceed customary brokerage fees and commissions
and shall be responsible for designating only a DTC participant eligible to receive DWAC Shares.


 


Section
6.14.   Disclosure Schedule.


 


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


 


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


 






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


 






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Article
VII

CONDITIONS TO CLOSING AND CONDITIONS TO THE SALE AND

PURCHASE OF THE SHARES


 


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


 


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


 


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


 


(iii) Issuance
of Commitment Shares. On the Closing Date, the Company shall deliver irrevocable instructions to its transfer agent
to issue to the Investor, not later than 4:00 p.m. (New York City time) on the Trading Day immediately following the Closing
Date, a certificate or book-entry statement representing the Commitment Shares in the name of the Investor or its designee
(in which case such designee name shall have been provided to the Company prior to the Closing Date), in consideration for
the Investor’s execution and delivery of this Agreement. Such certificate or book-entry statement shall be delivered to
the Investor by overnight courier at its address set forth in Section 10.4 hereof. For the avoidance of doubt, all of the
Commitment Shares shall be fully earned as of the Closing Date regardless of whether any Fixed Purchases are made hereunder
or any subsequent termination of this Agreement.


 


(iv)
Closing Deliverables. At the Closing, counterpart signature pages of this Agreement and the Registration Rights
Agreement executed by each of the parties hereto shall be delivered as provided in Section 2.2. Simultaneously with the execution
and delivery of this Agreement and the Registration Rights Agreement, the Investor’s counsel shall have received (a) the
closing certificate from the Company, dated the Closing Date, in the form of Exhibit B hereto, and (b) a copy of the irrevocable
instructions to the Company’s transfer agent regarding the issuance to the Investor or its designee of the certificate(s)
or book-entry statement(s) representing the Commitment Shares pursuant to and in accordance with Section 10.1(ii) hereof.


 






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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 






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


 


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


 


(x)
Listing of Securities. A listing application covering the Securities that have been and may be issued pursuant to
this Agreement shall have been submitted to the Trading Market as of the Commencement Date, and no objection to the issuance shall
have been received from the Trading Market.


 


(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 Significant Subsidiaries.


 


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


 


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


 



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(xv)
Reservation of Shares. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued
Common Stock, 15,000,000 shares of Common Stock solely for the purpose of effecting Fixed Purchases under this Agreement.


 


(xvi)
Opinions and Bring-Down 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 date of this Agreement.


 


Section
7.3. Conditions Precedent to Fixed Purchases after Commencement Date.
The right of the Company to deliver Fixed Purchase Notices under this Agreement after the Commencement Date, and the obligation
of the Investor to accept Fixed 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 each Fixed Purchase Date after the Commencement Date.


 


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


 






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(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 Fixed
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 permitted to utilize the Prospectus therein, and any Prospectus
Supplement thereto, to resell (a) all of the Commitment Shares (if any) included in such New Registration Statement, and any post-effective
amendment thereto, (b) all of the Shares included in such New Registration Statement, and any post-effective amendment thereto,
that have been issued and sold to the Investor hereunder pursuant to all Fixed Purchase Notices delivered by the Company to the
Investor prior to such applicable Fixed Purchase Date, and (c) all of the Shares included in such new Registration Statement,
and any post-effective amendment thereto, that are issuable pursuant to the applicable Fixed Purchase Notice delivered by the
Company to the Investor with respect to a Fixed Purchase to be effected hereunder on such applicable Fixed 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 its 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 Company’s
transfer agent and (b) the Notice of Effectiveness, in each case modified as necessary to refer to such Registration Statement
or post-effective amendment and the Registrable Securities included therein, to issue the Registrable Securities included therein
as DWAC Shares in accordance with the terms of this Agreement and the Registration Rights Agreement.


 


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


 






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(vi)
Other Commission Filings. The final Prospectus included in any post-effective amendment to the Initial Registration
Statement, and any Prospectus Supplement thereto, required to be filed by the Company with the Commission pursuant to Section
2.3 and the Registration Rights Agreement after the Commencement Date and prior to the applicable Fixed 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 Fixed 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 Fixed Purchase Date, shall have been filed with the Commission and, if any Registrable Securities are
covered by a Registration Statement on Form S-3, such filings shall have been made within the applicable time period prescribed
for such filing under the Exchange Act.


 


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


 






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


 


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


 


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


 


Article
VIII

TERMINATION


 


Section
8.1. Automatic Termination. Unless earlier terminated as provided hereunder,
this Agreement shall terminate automatically on the earliest to occur of (i) the first day of the month next following the 24-month
anniversary of the Effective Date of the Initial Registration Statement (it being hereby acknowledged and agreed that such term
may not be extended by the parties hereto), (ii) the date on which the Investor shall have purchased the Total Commitment worth
of Shares pursuant to this Agreement, (iii) the date on which the Common Stock shall have failed to be listed or quoted on the
Trading Market or any other Eligible Market, and (iv) the date on which, pursuant to or within the meaning of any Bankruptcy Law,
the Company commences a voluntary case or any Person commences a proceeding against the Company, a Custodian is appointed for
the Company or for all or substantially all of its property, or the Company makes a general assignment for the benefit of its
creditors.


 






    38


     


    

 


Section
8.2. Other Termination. Subject to Section 8.3, the Company may terminate
this Agreement after the Commencement Date effective upon five (5) Trading Days’ prior written notice to the Investor in
accordance with Section 10.4; provided, however, that (i) the Company shall have issued all Commitment Shares to
the Investor and paid all fees and amounts to the Investor’s counsel required to be paid pursuant to Section 10.1 of this
Agreement prior to such termination, and (ii) prior to issuing any press release, or making any public statement or announcement,
with respect to such termination, the Company shall consult with the Investor and its counsel on the form and substance of such
press release or other disclosure. Subject to Section 8.3, this Agreement may be terminated at any time by the mutual written
consent of the parties, effective as of the date of such mutual written consent unless otherwise provided in such written consent.
Subject to Section 8.3, the Investor shall have the right to terminate this Agreement effective upon ten (10) Trading Days’
prior written notice to the Company in accordance with Section 10.4, if: (a) any condition, occurrence, state of facts or event
constituting a Material Adverse Effect has occurred and is continuing; (b) a Fundamental Transaction shall have occurred; (c)
the Initial Registration Statement and any New Registration Statement is not filed by the applicable Filing Deadline therefor
or declared effective by the Commission by the applicable Effectiveness Deadline (as defined in the Registration Rights Agreement)
therefor, or the Company is otherwise in breach or default in any material respect under any of the other provisions of the Registration
Rights Agreement, and, if such failure, breach or default is capable of being cured, such failure, breach or default is not cured
within 10 Trading Days after notice of such failure, breach or default is delivered to the Company pursuant to Section 10.4; (d)
while a Registration Statement, or any post-effective amendment thereto, is required to be maintained effective pursuant to the
terms of the Registration Rights Agreement and the Investor holds any Registrable Securities, the effectiveness of such Registration
Statement, or any post-effective amendment thereto, lapses for any reason (including, without limitation, the issuance of a stop
order by the Commission) or such Registration Statement or any post-effective amendment thereto, the Prospectus contained therein
or any Prospectus Supplement thereto otherwise becomes unavailable to the Investor for the resale of all of the Registrable Securities
included therein in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues
for a period of 20 consecutive Trading Days or for more than an aggregate of 60 Trading Days in any 365-day period, other than
due to acts of the Investor; (e) trading in the Common Stock on the Trading Market (or if the Common Stock is then listed on an
Eligible Market, trading in the Common Stock on such Eligible Market) shall have been suspended and such suspension continues
for a period of three (3) consecutive Trading Days; or (f) the Company is in material breach or default of this Agreement, and,
if such breach or default is capable of being cured, such breach or default is not cured within 10 Trading Days after notice of
such breach or default is delivered to the Company pursuant to Section 10.4. Unless notification thereof is required elsewhere
in this Agreement (in which case such notification shall be provided in accordance with such other provision), the Company shall
promptly (but in no event later than 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,
the Company shall publicly disclose such information in accordance with Regulation FD and the applicable rules and regulations
of the Trading Market) upon becoming aware of any of the events set forth in the immediately preceding sentence.


 






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Section
8.3. Effect of Termination. In the event of termination by the Company
or the Investor (other than by mutual termination) pursuant to Section 8.2, written notice thereof shall forthwith be given to
the other party as provided in Section 10.4 and the transactions contemplated by this Agreement shall be terminated without further
action by either party. If this Agreement is terminated as provided in Section 8.1 or Section 8.2, this Agreement shall become
void and of no further force and effect, except that (i) the provisions of Article V (Representations, Warranties and Covenants
of the Company), Article IX (Indemnification), Article X (Miscellaneous) and this Article VIII (Termination) shall remain in full
force and effect indefinitely notwithstanding such termination, and, (ii) so long as the Investor owns any Securities, the covenants
and agreements of the Company contained in Article VI (Additional Covenants) shall remain in full force and notwithstanding such
termination for a period of six (6) months following such termination. Notwithstanding anything in this Agreement to the contrary,
no termination of this Agreement by any party shall (i) become effective prior to the first Trading Day immediately following
the settlement date related to any pending Fixed Purchase Notice that has not been fully settled in accordance with the terms
and conditions of this Agreement (it being hereby acknowledged and agreed that no termination of this Agreement shall limit, alter,
modify, change or otherwise affect any of the Company’s or the Investor’s rights or obligations under the Transaction
Documents with respect to any pending Fixed Purchase, and that the parties shall fully perform their respective obligations with
respect to any such pending Fixed Purchase under the Transaction Documents, provided all of the conditions to the settlement
thereof set forth in Article VII are timely satisfied), (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 any Commitment Shares previously issued or delivered, or any rights of any holder thereof, it being hereby acknowledged
and agreed that all of the Commitment Shares shall be fully earned as of the Closing Date, regardless of whether any Fixed Purchases
are made or settled hereunder or any subsequent termination of this Agreement. Nothing in this Section 8.3 shall be deemed to
release the Company or the Investor from any liability for any breach or default under this Agreement or any of the other Transaction
Documents to which it is a party, or to impair the rights of the Company and the Investor to compel specific performance by the
other party of its obligations under the Transaction Documents to which it is a party.


 


Article
IX

INDEMNIFICATION


 


Section
9.1. Indemnification of Investor. In consideration of the Investor’s
execution and delivery of this Agreement and acquiring the Securities hereunder and in addition to all of the Company’s
other obligations under the Transaction Documents to which it is a party, subject to the provisions of this Section 9.1, the Company
shall indemnify and hold harmless the Investor, each of its directors, officers, shareholders, members, partners, employees, representatives,
agents and advisors (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
the lack of such title or any other title), each Person, if any, who controls the Investor (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act), and the respective directors, officers, shareholders, members, partners,
employees, representatives, agents and advisors (and any other Persons with a functionally equivalent role of a Person holding
such titles notwithstanding the lack of such title or any other title) of such controlling Persons (each, an “Investor
Party”), from and against all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses
(including all judgments, amounts paid in settlement, court costs, reasonable attorneys’ fees and costs of defense and investigation)
(collectively, “Damages”) that any Investor Party may suffer or incur as a result of or relating to
(a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement 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.


 






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


 


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


 


To
the extent that the foregoing undertakings by the Company set forth in this Section 9.1 may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of each of the Damages which is permissible under
applicable law.


 


Section
9.2. Indemnification Procedures. Promptly after an Investor Party receives
notice of a claim or the commencement of an action for which the Investor Party intends to seek indemnification under Section
9.1, the Investor Party will notify the Company in writing of the claim or commencement of the action, suit or proceeding; provided,
however, that failure to notify the Company will not relieve the Company from liability under Section 9.1, except to the
extent it has been materially prejudiced by the failure to give notice. The Company will be entitled to participate in the defense
of any claim, action, suit or proceeding as to which indemnification is being sought, and if the Company acknowledges in writing
the obligation to indemnify the Investor Party against whom the claim or action is brought, the Company may (but will not be required
to) assume the defense against the claim, action, suit or proceeding with counsel satisfactory to it. After the Company notifies
the Investor Party that the Company wishes to assume the defense of a claim, action, suit or proceeding, the Company will not
be liable for any further legal or other expenses incurred by the Investor Party in connection with the defense against the claim,
action, suit or proceeding except that if, in the opinion of counsel to the Investor Party, it would be inappropriate under the
applicable rules of professional responsibility for the same counsel to represent both the Company and such Investor Party. In
such event, the Company will pay the reasonable fees and expenses of no more than one separate counsel for all such Investor Parties
promptly as such fees and expenses are incurred. Each Investor Party, as a condition to receiving indemnification as provided
in Section 9.1, will cooperate in all reasonable respects with the Company in the defense of any action or claim as to which indemnification
is sought. The Company will not be liable for any settlement of any action effected without its prior written consent, which consent
shall not be unreasonably withheld, delayed or conditioned. The Company will not, without the prior written consent of the Investor
Party, effect any settlement of a pending or threatened action with respect to which an Investor Party is, or is informed that
it may be, made a party and for which it would be entitled to indemnification, unless the settlement includes an unconditional
release of the Investor Party from all liability and claims which are the subject matter of the pending or threatened action.


 


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


 






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Article
X

MISCELLANEOUS


 


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


 


(i)
Certain Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated
by this Agreement; provided, however, that the Company shall pay all U.S. federal, state and local stamp and other
similar transfer and other taxes and duties levied in connection with issuance of the Securities pursuant hereto.


 


(ii)
Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, concurrently
with the execution and delivery of this Agreement on the Closing Date, the Company shall deliver irrevocable instructions to its
transfer agent to issue to the Investor, not later than 4:00 p.m. (New York City time) on the Trading Day immediately following
the Closing Date, one or more certificate(s) or book-entry statement(s) representing the Commitment Shares in the name of the
Investor or its designee (in which case such designee name shall have been provided to the Company prior to the Closing Date).
Such certificate or book-entry statement shall be delivered to the Investor by overnight courier at its address set forth in Section
10.4. For the avoidance of doubt, all of the Commitment Shares shall be fully earned as of the Closing Date regardless of whether
any Fixed Purchases are issued by the Company or settled hereunder or any termination of this Agreement. Upon issuance, 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 subsection (iv) of this Section 10.1, the certificate or book-entry statement representing the
Commitment Shares shall bear the restrictive legend set forth below in subsection (iii) of this Section 10.1. 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, in each case in accordance with this Agreement
and the Registration Rights Agreement.


 






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


 


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


 


Notwithstanding
the foregoing and for the avoidance of doubt, all Shares to be issued in respect of any Fixed 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
or its designees’ account at DTC as DWAC Shares, and the Company shall not take any action or give instructions to any transfer
agent of the Company otherwise.


 


(iv)
Irrevocable Transfer Agent Instructions; Notice of Effectiveness. On the earlier of (a) the Commencement Date and
(b) such time that the Investor shall request, provided all conditions of Rule 144 are met, the Company shall, no later than one
(1) Trading Day following the delivery by the Investor to the Company or its transfer agent of one or more legended certificates
or book-entry statements representing the Commitment Shares issued to the Investor pursuant to Section 10.1(ii) (which certificates
or book-entry statements the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses
(a) and (b) of this sentence), cause the Company’s transfer agent to credit the Investor’s or its designee’s
account at DTC as DWAC Shares such number of shares of Common Stock equal to the number of Commitment Shares issued to the Investor
pursuant to Section 10.1(ii). The Company shall take all actions to carry out the intent and accomplish the purposes of the immediately
preceding sentence, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and
instructions to its transfer agent, and any successor transfer agent of the Company, as may be requested from time to time by
the Investor or necessary or desirable to carry out the intent and accomplish the purposes of the immediately preceding sentence.
On the Effective Date of the Initial Registration Statement and prior to Commencement, the Company shall deliver or cause to be
delivered to its transfer agent (and thereafter, shall deliver or cause to be delivered to any subsequent transfer agent of the
Company), (i) irrevocable instructions executed by the Company and acknowledged in writing by the Company’s transfer agent
(the “Commencement Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness in
the form attached as an exhibit to the Registration Rights Agreement (the “Notice of Effectiveness”)
relating to the Initial Registration Statement executed by the Company’s outside counsel, in each case directing the Company’s
transfer agent to issue to the Investor or its designee all of the Commitment Shares and the Shares included in the Initial Registration
Statement as DWAC Shares in accordance with this Agreement and the Registration Rights Agreement. With respect to any post-effective
amendment to the Initial Registration Statement, any New Registration Statement or any post-effective amendment to any New Registration
Statement, in each case declared effective by the Commission after the Commencement Date, the Company shall deliver or cause to
be delivered to its transfer agent (and thereafter, shall deliver or cause to be delivered to any subsequent transfer agent of
the Company) (i) irrevocable instructions in the form substantially similar to the Commencement Irrevocable Transfer Agent Instructions
executed by the Company and acknowledged in writing by the Company’s transfer agent and (ii) the Notice of Effectiveness,
in each case modified as necessary to refer to such Registration Statement or post-effective amendment and the Registrable Securities
included therein, to issue the Registrable Securities included therein as DWAC Shares in accordance with the terms of this Agreement
and the Registration Rights Agreement. For the avoidance of doubt, all Shares and Commitment 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. The Company represents and warrants to the Investor that, while this Agreement is effective, no instruction
other than those referred to in this Section 10.1(iv) will be given by the Company to its transfer agent, or any successor transfer
agent of the Company, with respect to the Shares and the Commitment Shares from and after Commencement, and the Shares and the
Commitment Shares (as applicable) covered by the Initial Registration Statement or any post-effective amendment thereof, or any
New Registration Statement or post-effective amendment thereof, as applicable, shall otherwise be freely transferable on the books
and records of the Company and no stop transfer instructions shall be maintained against the transfer thereof. The Company agrees
that if the Company fails to fully comply with the provisions of this Section 10.1(iv) within three (3) Trading Days after the
date on which the Investor has provided the deliverables referred to above that the Investor is required to provide to the Company
or its transfer agent, the Company shall, at the Investor’s written instruction, purchase from the Investor all shares of
Common Stock purchased or acquired by the Investor pursuant to this Agreement that contain the restrictive legend referred to
in Section 10.1(iii) hereof (or any similar restrictive legend) at the greater of (i) the purchase price paid for such shares
of Common Stock (as applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s written
instruction.


 






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


 


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


 


(ii)
Each of the Company and the Investor (a) hereby irrevocably submits to the jurisdiction of the U.S. District Court and other courts
of the United States sitting in the State of New York for the purposes of any suit, action or proceeding arising out of or relating
to this Agreement, and (b) hereby waives, and agrees not to assert in any such suit, action or proceeding, any claim that it is
not personally subject to the jurisdiction of such court, that the suit, action or proceeding is brought in an inconvenient forum
or that the venue of the suit, action or proceeding is improper. Each of the Company and the Investor consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such party at the address in effect for notices to
it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof.
Nothing in this Section 10.2 shall affect or limit any right to serve process in any other manner permitted by law.


 






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


 


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


 


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


 



    45


     


    

 


If
to the Company:


 


Adial
Pharmaceuticals, Inc.


1180
Seminole Trail, Suite 495


Charlottesville,
Virginia 22901

Telephone Number: (434) 422-9800


Email:
wstilley@adialpharma.com


Attention:
William B. Stilley


Chief
Executive Officer


 


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


 


Gracin
& Marlow, LLP


The
Chrysler Building


405
Lexington Avenue, 26th Floor

Telephone Number: (212) 907-6457


Email:
lmarlow@gracinmarlow.com

Attention: Leslie Marlow, Esq.


 


If
to the Investor:


 


Keystone
Capital Partners, LLC


139
Fulton Street, Suite 412


New
York, NY 10038

Telephone Number: (646) 349-0916


Email:
fz@keystone-cp.com


Attention:
Fredric G. Zaino


 


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


 


Dorsey
& Whitney LLP


51
West 52nd Street


New
York, NY 10019


Telephone
Number: (212) 415-9214


Email:
marsico.anthony@dorsey.com


Attention:
Anthony J. Marsico, Esq.


 


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


 


Section
10.5. Waivers. No provision of this Agreement may be waived by the parties from and after the
date that is one (1) Trading Day immediately preceding the 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.


 






    46


     


    

 


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 Fixed Purchase Threshold Price) and number of shares of Common
Stock in any Transaction Document shall, in all cases, be subject to adjustment for any stock splits, stock combinations, stock
dividends, recapitalizations, reorganizations and other similar transactions that occur on or after the date of this Agreement.
Any reference in this Agreement to “Dollars” or “$” shall mean the lawful currency of the United States
of America. Any references to “Section” or “Article” in this Agreement shall, unless otherwise expressly
stated herein, refer to the applicable Section or Article of this Agreement.


 


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.


 






    47


     


    

 


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


 


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


 


Section
10.14. Publicity. The Company shall afford the Investor and its counsel with a reasonable opportunity to review and
comment upon, shall consult with the Investor and its counsel on the form and substance of, and shall give due consideration to
all such comments from the Investor or its counsel on, any press release, Commission filing or any other public disclosure made
by or on behalf of the Company relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or
the transactions contemplated thereby, prior to the issuance, filing or public disclosure thereof. For the avoidance of doubt,
the Company shall not be required to submit for review any such disclosure (i) contained in periodic reports filed with the Commission
under the Exchange Act if it shall have previously provided the same disclosure to the Investor or its counsel for review in connection
with a previous filing or (ii) any Prospectus Supplement if it contains disclosure that does not reference the Investor, its purchases
hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby. The Company agrees and acknowledges
that its failure to comply with this provision in all material respects constitutes a Material Adverse Effect for purposes of
Section 7.2(xi).


 


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


 


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


 


[Signature
Pages Follow]


 






    48


     


    

 


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


 


	 	ADIAL PHARMACEUTICALS, INC.:
	 	 
	 	By:	 /s/ William B. Stilley
	 	Name: William B. Stilley
	 	Title: Chief Executive Officer
	 	 
	 	KEYSTONE CAPITAL PARTNERS, LLC:
	 	 
	 	By: 	/s/ Fredric G. Zaino
	 	Name: Fredric G. Zaino


 



     


     


    

 


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. With respect to the Investor, without limitation,
any Person owning, owned by, or under common ownership with the Investor, and any investment fund or managed account that is managed
on a discretionary basis by the same investment manager as the Investor will be deemed to be an Affiliate.


 


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


 


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


 


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


 


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


 


“Base
Price” means a price per Share equal to the sum of (i) the Minimum Price and (ii) $0.1122 (subject to adjustment
for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction that
occurs on or after the date of this Agreement).


 


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


 


“BHCA”
shall have the meaning assigned to such term in Section 5.39.


 


“Bloomberg”
means Bloomberg, L.P.


 


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


 


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


 


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


 


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


 


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


 


“Closing
Date” means the date of this Agreement.


 






    I-1


     


    

 


“Closing
Sale Price” means, for the Common Stock as of any date, the last closing trade price for the Common Stock on the
Trading Market, 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 trade price for the Common Stock prior to 4:00 p.m., New
York City time, as reported by Bloomberg, or, if the foregoing do not apply, the last trade price for the Common Stock in the
over-the-counter market on the electronic bulletin board for the Common Stock as reported by Bloomberg, or, if no last trade price
is reported for the Common Stock by Bloomberg, the average of the bid prices, or the ask prices, respectively, of any market makers
for such security as reported by OTC Markets Group Inc. All such determinations shall be appropriately adjusted for any stock
splits, stock dividends, stock combinations, recapitalizations or other similar transactions during such period.


 


“Code”
means the Internal Revenue Code of 1986, as amended.


 


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


 


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


 


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


 


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


 


“Commission
Documents” shall mean (1) all reports, schedules, registrations, forms, statements, information and other documents
filed with or furnished to the Commission by the Company pursuant to the reporting requirements of the Exchange Act, including
all material filed with or furnished to the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, since
December 31, 2019, including, without limitation, the Annual Report on Form 10-K filed by the Company for its fiscal year ended
December 31, 2019 (the “2019 Form 10-K”), and which hereafter shall be filed with or furnished to the
Commission by the Company, including, without limitation, the Current Report, (2) each Registration Statement, as the same may
be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto and (3) all information
contained in such filings and all documents and disclosures that have been and heretofore shall be incorporated by reference therein.


 


“Commitment
Shares” means One Hundred Seventy-Five Thousand (175,000) shares of duly authorized, validly issued, fully paid
and non-assessable shares of Common Stock which, concurrently with the execution and delivery of this Agreement on the Closing
Date, the Company has caused its transfer agent to issue and deliver to the Investor not later than 4:00 p.m. (New York City time)
on the Trading Day immediately following the Closing Date.


 


“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.


 






    I-2


     


    

 


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


 


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


 


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


 


“Cover
Price” shall have the meaning assigned to such term in Section 3.2.


 


“Critical
Accounting Policies” shall have the meaning assigned to such term in Section 5.6(f).


 


“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.


 


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


 


“Disqualification
Event” shall have the meaning assigned to such term in Section 4.6.


 


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


 


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


 


“DWAC
Shares” means shares of Common Stock issued pursuant to this Agreement that are (i) issued in electronic form, (ii)
freely tradable and transferable and without restriction on resale and without stop transfer instructions maintained against the
transfer thereof and (iii) timely credited by the Company to the Investor’s or its designated Broker-Dealer at which the
account or accounts to be credited with the Securities 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
Date” means, with respect to the Initial Registration Statement filed pursuant to Section 2(a) of the Registration
Rights Agreement (or any post-effective amendment thereto) or any New Registration Statement filed pursuant to Section 2(c) of
the Registration Rights Agreement (or any post-effective amendment thereto), as applicable, the date on which the Initial Registration
Statement (or any post-effective amendment thereto) or any New Registration Statement (or any post-effective amendment thereto)
is declared effective by the Commission.


 






    I-3


     


    

 


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


 


“Eligible
Market” means The Nasdaq Global Market, The Nasdaq Global Select Market, the New York Stock Exchange, the NYSE American,
the NYSE Arca, or the OTCQX Best Market or OTCQB Venture Market operated by OTC Markets Group Inc. (or any nationally recognized
successor to any of the foregoing).


 


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


 


“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended.


 


“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)(i) hereof.


 


“Exempt
Issuance” means the issuance of (a) Common Stock, options or other equity incentive awards to employees, officers,
directors or vendors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Company’s
Board of Directors or a majority of the members of a committee of the Board of Directors established for such purpose, (b) (1)
any Securities issued to the Investor pursuant to this Agreement, (2) any securities issued upon the exercise or exchange of or
conversion of any shares of Common Stock or Common Stock Equivalents held by the Investor at any time, or (3) any securities issued
upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the date of this Agreement,
provided that such securities referred to in this clause (3) have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c) securities
issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by the
Company’s Board of Directors or a majority of the members of a committee of directors established for such purpose, which
acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction
component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or
through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and shall
provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in which
the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities, or (d) Common Stock issued by the Company by any method deemed to be an “at the market offering” as
defined in Rule 415(a)(4) under the Securities Act, exclusively through a registered broker-dealer, as the Company’s sales
agent, pursuant to one or more written agreements between the Company and such registered broker-dealer.


 


“FCPA”
shall have the meaning assigned to such term in Section 5.35.


 


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


 


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


 






    I-4


     


    

 


“Federal
Reserve” shall have the meaning assigned to such term in Section 5.39.


 


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


 


“FINRA”
means the Financial Industry Regulatory Authority.


 


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


 


“Fixed
Purchase Date” means, with respect to a Fixed Purchase made pursuant to Section 3.1, the Trading Day on which the
Investor receives, after 4:00 p.m., New York City time, but prior to 5:00 p.m., New York City time, on such Trading Day, a valid
Fixed Purchase Notice for such Fixed Purchase in accordance with this Agreement.


 


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


 


“Fixed
Purchase Notice” means, with respect to a Fixed Purchase pursuant to Section 3.1, an irrevocable written notice
delivered by the Company to the Investor directing the Investor to purchase a Fixed Purchase Share Amount, at the applicable Fixed
Purchase Price therefor on the applicable Fixed Purchase Date for such Fixed Purchase in accordance with this Agreement.


 


“Fixed
Purchase Price” means, with respect to a Fixed Purchase made pursuant to Section 3.1, the purchase price per Share
to be purchased by the Investor in such Fixed Purchase equal to ninety percent (90%) of (i) the arithmetic average of the Closing
Sale Prices for the Common Stock during the five (5) consecutive Trading-Day period ending on the Fixed Purchase Date for such
Fixed Purchase, if the Common Stock is then listed on the Trading Market, or (ii) the arithmetic average of the Closing Sale Prices
for the Common Stock during the twenty (20) consecutive Trading-Day period ending on the Fixed Purchase Date for such Fixed Purchase,
if the Common Stock is then listed on an Eligible Market (in each case, to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction that occurs on or after the date of this Agreement).


 


“Fixed
Purchase Share Amount” means, with respect to a Fixed Purchase made pursuant to Section 3.1, the number of Shares
to be purchased by the Investor in such Fixed Purchase as specified by the Company in the applicable Fixed Purchase Notice.


 


“Fixed
Purchase Threshold Price” means, with respect to a Fixed Purchase made pursuant to Section 3.1, $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 “Fixed Purchase Threshold Price” shall mean the lower of (i) the adjusted price and (ii) $1.25.


 






    I-5


     


    

 


“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 (other than a reverse stock split), or (ii) any “person”
or “group” (as these terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act) is or shall become
the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 50% of the aggregate
ordinary voting power represented by issued and outstanding Common Stock.


 


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


 


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


 


“Indebtedness”
shall have the meaning assigned to such term in Section 5.11.


 


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


 


“Intellectual
Property” shall have the meaning assigned to such term in Section 5.17(c).


 


“Investment
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.


 


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


 


“Investor
Covered Person” shall have the meaning assigned to such term in Section 4.6.


 


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


 


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


 


“IT
Systems” shall have the meaning assigned to such term in Section 5.40.


 


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


 






    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 no facts, circumstances, changes or effects exclusively and directly resulting from,
relating to or arising out of the following, individually or in the aggregate, shall be taken into account in determining whether
a Material Adverse Effect has occurred or insofar as reasonably can be foreseen would likely occur: (a) changes in conditions
in the U.S. or global capital, credit or financial markets generally, including changes in the availability of capital or currency
exchange rates, provided such changes shall not have affected the Company in a materially disproportionate manner as compared
to other similarly situated companies; (b) changes generally affecting the industries in which the Company and its Subsidiaries
operate, provided such changes shall not have affected the Company and its Subsidiaries, taken as a whole, in a materially disproportionate
manner as compared to other similarly situated companies; (c) any effect of the announcement of, or the consummation of the
transactions contemplated by, this Agreement and the other Transaction Documents on the Company’s relationships, contractual
or otherwise, with customers, suppliers, vendors, bank lenders, strategic venture partners or employees; (d) changes arising in
connection with earthquakes, hostilities, acts of war, sabotage or terrorism or military actions or any escalation or material
worsening of any such hostilities, acts of war, sabotage or terrorism or military actions existing as of the date hereof; (e)
any action taken by the Investor, its affiliates or its or their successors and assigns with respect to the transactions contemplated
by this Agreement; and (f) the effect of any changes in applicable laws or accounting rules, provided such changes shall not have
affected the Company in a materially disproportionate manner as compared to other similarly situated companies.


 


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


 


“Minimum
Price” means $1.71, representing the official closing price of the Common Stock on the Trading Market (as reflected
on Nasdaq.com) on the trading day immediately preceding the date of this Agreement (subject to adjustment for any reorganization,
recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction that occurs on or after the
date of this Agreement).


 


“Money
Laundering Laws” shall have the meaning assigned to such term in Section 5.36.


 


“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).


 






    I-7


     


    

 


“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.


 


“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.


 


“Personal
Data” shall have the meaning assigned to such term in Section 5.40.


 


“Pharmaceutical
Product” shall have the meaning assigned to such term in Section 5.17(b).


 


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


 


“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.


 


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


 


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


 


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


 


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


 


“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.


 






    I-8


     


    

 


“Sale
Price” means any trade price for a share of Common Stock on the Trading Market, or if the Common Stock is then traded
on an Eligible Market, on such Eligible Market, as reported by Bloomberg.


 


“Sanctions”
shall have the meaning assigned to such term in Section 5.37.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Significant
Subsidiary” means any Subsidiary of the Company that would constitute a “significant subsidiary” of
the Company within the meaning of Rule 1-02 of Regulation S-X of the Commission.


 


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


 


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


 


“Trading
Day” shall mean a full trading day (beginning at 9:30:01 a.m., New York City time, and ending at 4:00 p.m., New
York City time) on the Trading Market or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market.


 


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


 


“Transaction
Documents” means, collectively, this Agreement (as qualified by the Disclosure Schedule) and the exhibits hereto,
the Registration Rights Agreement and 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.


 






    I-9


     


    

 


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


 






    I-10


     


    

 


EXHIBIT
A TO THE

COMMON STOCK PURCHASE AGREEMENT

  


Reference
is made to Exhibit 10.2 to the Company’s Current Report on Form 8-K (File No. 001-38323) filed on November 19, 2020, which
is incorporated by reference herein.


 






    A-1


     


    

 


EXHIBIT
B TO THE

COMMON STOCK PURCHASE AGREEMENT

CERTiFICATE OF THE COMPANY


 


CLOSING
CERTIFICATE


 


[●],
2020


 


The
undersigned, the Chief Executive Officer of Adial Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
delivers this certificate in connection with the Common Stock Purchase Agreement, dated as of November 18, 2020 (the “Agreement”),
by and between the Company and Keystone Capital Partners, LLC, a Delaware limited liability company (the “Investor”),
and hereby certifies on the date hereof that (capitalized terms used herein without definition have the meanings assigned to them
in the Agreement):


 


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


 


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


 


3.   The
Board of Directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has not
been amended, rescinded or modified and remains in full force and effect as of the date hereof. Attached hereto as Exhibit
C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company via unanimous
written consent on [●], 2020.


 


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


 


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


  


	 	 
	 	Name: William B. Stilley
	 	Title: Chief Executive Officer


 



    B-1


     


    

 


EXHIBIT
C TO THE

COMMON STOCK PURCHASE AGREEMENT

COMPLIANCE CERTIFICATE


 


The
undersigned, the Chief Executive Officer of Adial Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
delivers this certificate in connection with the Common Stock Purchase Agreement, dated as of November 18, 2020 (the “Agreement”),
by and between the Company and Keystone Capital Partners, LLC, a Delaware limited liability company (the “Investor”),
and hereby certifies on the date hereof that, to the best of his knowledge after reasonable investigation, on behalf of the Company
(capitalized terms used herein without definition have the meanings assigned to them in the Agreement):


 


1.   The
undersigned is the duly appointed Chief Executive Officer of the Company.


 


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


 


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


 


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


 


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


 


6.   As
of [the Commencement Date][the date hereof], the Company has reserved out of its authorized and unissued Common Stock, [●]
shares of Common Stock solely for the purpose of effecting Fixed Purchases under the Agreement.


 


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


 






    C-1


     


    

 


The
undersigned has executed this Certificate this [●] day of [●], 20[●].


  


	 	By:	 
	 	Name:	 
	 	Title:	 



 



    C-2


     


    

 


DISCLOSURE
SCHEDULE

RELATING TO THE COMMON STOCK

PURCHASE AGREEMENT, DATED AS OF NOVEMBER 18, 2020

BETWEEN ADIAL PHARMACEUTICALS, INC. AND Keystone Capital Partners, LLC


 


This
disclosure schedule is made and given pursuant to Article V of the Common Stock Purchase Agreement, dated as of November 18, 2020
(the “Agreement”), by and between Adial Pharmaceuticals, Inc., a Delaware corporation (the “Company”),
and Keystone Capital Partners, LLC, a Delaware limited liability company. Unless the context otherwise requires, all capitalized
terms are used herein as defined in the Agreement. The numbers below correspond to the section numbers of representations and
warranties in the Agreement most directly modified by the below exceptions.


 


5.3   William
Stilley, Joseph Truluck and Bankole Johnson are restricted from transferring certain shares until April 1, 2021.


 



     


     


    

 


FORM
OF OPINION OF OUTSIDE COUNSEL TO BE DELIVERED PURSUANT TO

SECTION 7.2(xvi)


 


[Company
Counsel’s Letterhead]


 


Capitalized
terms herein not otherwise defined herein will have the meaning given to such terms in the Common Stock Purchase Agreement, dated
as of November 18, 2020, by and between Adial Pharmaceuticals, Inc. and Keystone Capital Partners, LLC (the “Purchase
Agreement”).


 


		1.	The
                                         Company is validly existing and in good standing under the laws of the State of Delaware,
                                         with full corporate power and authority to own its properties and to conduct its business
                                         as such business is described in the Commission Documents. The Company is duly qualified
                                         to do business as a foreign corporation and is in good standing in the State of Virginia.



 


		2.	The
                                         Company has the requisite corporate power and authority to execute, deliver and perform
                                         its obligations under the Purchase Agreement and the Registration Rights Agreement. The
                                         execution and delivery by the Company of the Purchase Agreement and the Registration
                                         Rights Agreement, and the consummation by the Company of the transactions contemplated
                                         thereby (including, without limitation, the issuance of the Securities) have been duly
                                         and validly authorized by all necessary corporate action.



 


		3.	Each
                                         of the Purchase Agreement and the Registration Rights Agreement has been duly executed
                                         and delivered by the Company and constitutes a legal, valid and binding obligation of
                                         the Company, enforceable against the Company in accordance with its respective terms,
                                         subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
                                         moratorium and similar laws affecting creditors’ rights and remedies generally,
                                         and subject, as to enforceability, to general principles of equity, including principles
                                         of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement
                                         is sought in a proceeding at law or in equity).



 


		4.	The
                                         execution, delivery and performance by the Company of the Purchase Agreement and the
                                         Registration Rights Agreement and the consummation by the Company of the transactions
                                         contemplated thereby (including, without limitation, the issuance of the Securities)
                                         do not: (i) violate the Company’s certificate of incorporation or bylaws (the “Governing
                                         Documents”); (ii) violate the General Corporation Law of the State of Delaware,
                                         or any U.S. federal statute, rule or regulation applicable to the Company; (iii) require
                                         any consents, approvals, or authorizations to be obtained by the Company, or any registrations,
                                         declarations or filings to be made by the Company, in each case, under the General Corporation
                                         Law of the State of Delaware or any U.S. federal statute, rule or regulation applicable
                                         to the Company that have not been obtained or made (other than any filings required to
                                         be made by the Company after the Closing Date with the Commission in order to enable
                                         the Company to perform its obligations under the Purchase Agreement and the Registration
                                         Rights Agreement); (iv) conflict with, or constitute a default (or an event which with
                                         notice or lapse of time or both would become a default) under, or give to others any
                                         rights of termination, amendment, acceleration or cancellation of, any material agreement,
                                         mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument
                                         or obligation to which the Company is a party or is bound that has been filed as an exhibit
                                         to the 2019 Form 10-K or any other Commission Document filed after the 2019 Form 10-K
                                         and prior to the date on which this opinion is given (an “Existing SEC-Filed
                                         Material Agreement”); (v) create or impose a lien, charge or encumbrance
                                         on any property of the Company under the terms of any Existing SEC-Filed Material Agreement;
                                         or (vi) to our knowledge, result in a violation of any U.S. federal order, judgment or
                                         decree applicable to the Company or by which any property or asset of the Company is
                                         bound or affected.



 






     


     


    

 


		5.	Assuming
                                         the accuracy of the representations and warranties made by you in the Purchase Agreement
                                         at all relevant times, both on and after the Closing Date, and your compliance with the
                                         covenants made by you in the Purchase Agreement and the Registration Rights Agreement,
                                         the offering, sale and issuance of the Securities by the Company to you in accordance
                                         with the terms of the Purchase Agreement is exempt from the registration requirements
                                         of the Securities Act.



 


		6.	When
                                         issued in accordance with the Purchase Agreement, the Commitment Shares will be duly
                                         authorized and validly issued, fully paid and non-assessable, free and clear of all liens,
                                         charges, taxes, security interests, encumbrances, rights of first refusal, preemptive
                                         or similar rights and other encumbrances under the Company’s Governing Documents,
                                         the General Corporation Law of the State of Delaware or any Existing SEC-Filed Material
                                         Agreement. When issued and paid for in accordance with the Purchase Agreement, the Shares
                                         will be duly authorized and validly issued, fully paid and non-assessable, free and clear
                                         of all liens, charges, taxes, security interests, encumbrances, rights of first refusal,
                                         preemptive or similar rights and other encumbrances under the Company’s Governing
                                         Documents, the General Corporation Law of the State of Delaware or any Existing SEC-Filed
                                         Material Agreement.



 


		7.	The
                                         execution and delivery of the Purchase Agreement and the Registration Rights Agreement
                                         by the Company do not, and the performance by the Company of its obligations thereunder
                                         shall not, give rise to any rights of any other person that exist and are in effect as
                                         of the date of the Closing, for the registration under the Securities Act of any shares
                                         of Common Stock or other securities of the Company which have not been waived.



 


		8.	The
                                         Company is not an “investment company” or any entity controlled by an “investment
                                         company,” as such term is defined in the Investment Company Act of 1940, as amended.



 


		9.	Any
                                         required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner
                                         and within the time period required by such Rule.



 


		10.	The
                                         statements under the caption "Description of Capital Stock" included in the
                                         Prospectus, insofar as such statements purport to summarize legal matters, legal conclusions
                                         of certain provisions of the General Corporation Law of the State of Delaware as currently
                                         in effect or of the Company’s certificate of incorporation or bylaws as currently
                                         in effect, accurately describe such provisions in all material respects, subject to the
                                         qualifications and assumptions stated therein, except that we express no opinion in this
                                         paragraph with respect to any statements regarding the number of outstanding shares of
                                         Common Stock, to the effect that any shares of Common Stock have been or will be duly
                                         authorized, validly issued, fully paid or non-assessable or regarding preemptive or similar
                                         rights.



 






     


     


    

 


We
advise you that we are not representing the Company in any pending litigation in which it is a named defendant that challenges
the validity or enforceability of, or seeks to enjoin the performance of, the Purchase Agreement or the Registration Rights Agreement.


 


In
acting as special counsel to the Company in connection with the transactions described in the first paragraph above, we have participated
in conferences with officers and other representatives of the Company, the independent public accountants for the Company, your
counsel and your representatives, at which conferences certain contents of the Registration Statement and the Prospectus and related
matters were discussed. Although we are not passing upon or assuming responsibility for the accuracy, completeness or fairness
of the statements included or incorporated by reference in or omitted from the Registration Statement, the Prospectus or the Incorporated
Documents and have made no independent check or verification thereof (except as provided in paragraph 2 above), based upon our
participation in such conferences, no facts have come to our attention that have caused us to believe that, insofar as is relevant
to the offering of the Registrable Securities (as defined in the Registration Rights Agreement):


 


(A)   the
Registration Statement, at the time it was first declared effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or


 


(B)   the
Prospectus, as of the date of the Prospectus or on the date hereof, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading,


 


except
in each case that we express no belief and make no statement with respect to (i) the financial statements and schedules and other
financial, accounting or statistical data included or incorporated by reference in or omitted from the Registration Statement,
the Prospectus or the Incorporated Documents, including any assessments of, or reports on, the effectiveness of internal control
over financial reporting, and (ii) representations and warranties and other statements of fact included in the exhibits to the
Registration Statement or to the Incorporated Documents.


 


In
rendering the statement set forth in clause (A) of the immediately preceding paragraph, we have assumed that [●], 20[●]
was the earlier of the date on which the Prospectus was first used and the time of the first contract of sale of the Registrable
Securities within the meaning of Rule 430B(f)(1) of the Rules and Regulations


 


Based
solely on our review of the Commission’s EDGAR website, we advise you that the Registration Statement became effective under
the Securities Act on [●], 20[●]. In addition, based solely on our review of the information made available by the
Commission at http://www.sec.gov/litigation/stoporders.shtml, we confirm that the Commission has not issued any stop order suspending
the effectiveness of the Registration Statement. To our knowledge, based solely on our participation in the conferences mentioned
above regarding the Registration Statement and our review of the information made available by the SEC at http://www.sec.gov/litigation/stoporders.shtml,
no proceedings for that purpose are pending or have been instituted or threatened by the Commission.


 


“Incorporated
Documents,” when used with respect to the Registration Statement or the Prospectus as of any date, means the documents
incorporated or deemed to be incorporated by reference in the Registration Statement, or the Prospectus, as the case may be, as
of such date pursuant to General Instruction VII to Form S-1.


 






     


     


    

 


FORM
OF “BRING DOWN OPINION” TO BE DELIVERED PURSUANT TO SECTION 6.15


 


[Company
Counsel’s Letterhead]


 


Capitalized
terms herein not otherwise defined herein will have the meaning given to such terms in the Common Stock Purchase Agreement, dated
as of November 18, 2020, by and between Adial Pharmaceuticals, Inc. and Keystone Capital Partners, LLC (the “Purchase
Agreement”).


 


		1.	No
                                         facts have come to our attention that cause us to believe that any of the opinions expressed
                                         in our opinion letter to you dated [●], 20[●] are not true and correct as
                                         of the date hereof.



 


In
acting as special counsel to the Company in connection with the transactions described in the first paragraph above, we have participated
in conferences with officers and other representatives of the Company, the independent public accountants for the Company, your
counsel and your representatives, at which conferences certain contents of the Registration Statement and the Prospectus and related
matters were discussed. Although we are not passing upon or assuming responsibility for the accuracy, completeness or fairness
of the statements included or incorporated by reference in or omitted from the Registration Statement, the Prospectus or the Incorporated
Documents and have made no independent check or verification thereof (except as provided in paragraph 2 above), based upon our
participation in such conferences, no facts have come to our attention that have caused us to believe that, insofar as is relevant
to the offering of the Registrable Securities (as defined in the Registration Rights Agreement):


 


(A)   the
Registration Statement, at the time it was first declared effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or


 


(B)   the
Prospectus, as of the date of the Prospectus or on the date hereof, included or includes an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading,


 


except
in each case that we express no belief and make no statement with respect to (i) the financial statements and schedules and other
financial, accounting or statistical data included or incorporated by reference in or omitted from the Registration Statement,
the Prospectus or the Incorporated Documents, including any assessments of, or reports on, the effectiveness of internal control
over financial reporting, and (ii) representations and warranties and other statements of fact included in the exhibits to the
Registration Statement or to the Incorporated Documents.


 


In
rendering the statement set forth in clause (A) of the immediately preceding paragraph, we have assumed that [●], 20[●]
was the earlier of the date on which the Prospectus was first used and the time of the first contract of sale of the Registrable
Securities within the meaning of Rule 430B(f)(1) of the Rules and Regulations


 


Based
solely on our review of the Commission’s EDGAR website, we advise you that the Registration Statement became effective under
the Securities Act on [●], 20[●]. In addition, based solely on our review of the information made available by the
Commission at http://www.sec.gov/litigation/stoporders.shtml, we confirm that the Commission has not issued any stop order suspending
the effectiveness of the Registration Statement. To our knowledge, based solely on our participation in the conferences mentioned
above regarding the Registration Statement and our review of the information made available by the SEC at http://www.sec.gov/litigation/stoporders.shtml,
no proceedings for that purpose are pending or have been instituted or threatened by the Commission.


 


“Incorporated
Documents,” when used with respect to the Registration Statement or the Prospectus as of any date, means the documents
incorporated or deemed to be incorporated by reference in the Registration Statement, or the Prospectus, as the case may be, as
of such date pursuant to General Instruction VII to Form S-1.