Exhibit 4.1


 


COMMON STOCK PURCHASE AGREEMENT 


 


This COMMON STOCK PURCHASE AGREEMENT is made and entered into
as of May 31, 2022 (this “Agreement”), by and between CF Principal Investments LLC, a Delaware limited
liability company (the “Investor”), and Embark Technology, 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) 30,000,000 newly issued shares of the Company’s Class
A common stock, par value $0.0001 per share (the “Common Stock”), and (ii) the Exchange Cap (to the extent applicable
under Section 3.3);


 


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


 


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


 


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


 


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


 


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


 


ARTICLE I 


DEFINITIONS 


 


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


 


ARTICLE II 


PURCHASE AND SALE OF COMMON STOCK 


 


Section 2.1. Purchase and Sale of Stock. Upon the terms
and subject to the conditions of this Agreement, during the Investment Period, the Company, in its sole discretion, shall have the right,
but not the obligation, to issue and sell to the Investor, and the Investor shall purchase from the Company, up to the lesser of (i) 30,000,000
shares (the “Total Commitment”) of duly authorized, validly issued, fully paid and non-assessable shares of
Common Stock and (ii) the Exchange Cap, to the extent applicable under Section 3.3 (such lesser amount of shares of Common Stock, the
 “Aggregate Limit”), by the delivery to the Investor of VWAP Purchase Notices as provided in Article III.


 






     


     


    

 


Section 2.2. Closing Date; Settlement Dates. This Agreement
shall become effective and binding (the “Closing”) upon (a) the delivery of counterpart signature pages of this
Agreement and the Registration Rights Agreement executed by each of the parties hereto and thereto, and (b) the delivery of all other
documents, instruments and writings required to be delivered at the Closing, in each case as provided in Section 7.1, to the offices of
Covington & Burling LLP, The New York Times Building, 620 Eighth Avenue, New York, NY 10018, at a mutually agreed time, New York City
time, on the Closing Date. In consideration of and in express reliance upon the representations, warranties and covenants contained in,
and upon the terms and subject to the conditions of, this Agreement, during the Investment Period, the Company, at its sole option and
discretion, may issue and sell to the Investor, and, if the Company elects to so issue and sell, the Investor shall purchase from the
Company, the Shares in respect of each VWAP Purchase (as defined below). The delivery of Shares in respect of each VWAP Purchase, and
the payment for such Shares, shall occur in accordance with Section 3.2; provided that all of the conditions precedent in Article
VII shall have been fulfilled at the applicable times set forth in Article VII.



 





 


Section 2.3. Initial Public Announcements
and Required Filings. The Company shall, not later than four (4) business days following the date of this Agreement, file
with the Commission a Current Report on Form 8-K disclosing the material terms of the transactions contemplated by the Transaction
Documents, including, without limitation, the execution of this Agreement and the Registration Rights Agreement by the Company and
the Investor and the Upfront Commitment Fee payable by the Company to the Investor in accordance with Section 10.1(ii), and
attaching as exhibits thereto copies of each of this Agreement and the Registration Rights Agreement (including all exhibits
thereto, the “Current Report”). The Company shall provide the Investor and its legal counsel a reasonable
opportunity to comment on a draft of the Current Report prior to filing the Current Report with the Commission and shall reasonably
consider all such comments.  The Company shall use its
reasonable best efforts to prepare and, as soon as practicable, file with the Commission the Initial Registration Statement and any
New Registration Statement covering only the resale by the Investor of the Registrable Securities in accordance with the Securities
Act and the Registration Rights Agreement. At or before 8:30 a.m. (New York City time) on the second (2nd) Trading Day immediately
following the Effective Date of the Initial Registration Statement and any New Registration Statement (or any post-effective
amendment thereto), the Company shall use its reasonable best efforts to file with the Commission in accordance with Rule 424(b)
under the Securities Act the final Prospectus to be used in connection with sales pursuant to such Registration Statement (or
post-effective amendment thereto).


 


ARTICLE III 


PURCHASE TERMS 


 


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


 


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





 






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Section 3.2. Settlement. For each VWAP Purchase,
the Investor shall pay to the Company an amount in cash equal to the product of (i) the total number of Shares purchased by the
Investor in such VWAP Purchase and (ii) the applicable VWAP Purchase Price for such Shares (the “VWAP Purchase
Amount”), as full payment for such Shares purchased by the Investor in such VWAP Purchase, via wire transfer of
immediately available funds, not later than 5:00 p.m., New York City time, on the second (2nd) Trading Day following the applicable
VWAP Purchase Share Delivery Date for such VWAP Purchase, provided the Investor shall have timely received, as DWAC Shares,
all of such Shares purchased by the Investor in such VWAP Purchase on such VWAP Purchase Share Delivery Date in accordance with the
first sentence of this Section 3.2, or, if any of such Shares are received by the Investor after 1:00 p.m., New York City time, then
the Company’s receipt of such funds in its designated account may occur on the third (3rd) Trading Day following the Trading
Day on which the Investor shall have received all of such Shares as DWAC Shares, but not later than 5:00 p.m., New York City time,
on such next Trading Day. If the Investor fails to pay the VWAP Purchase Amount when due, the Investor will return the DWAC Shares
to the Company. If the Company or the Transfer Agent shall fail for any reason, other than a failure of the Investor or its
Broker-Dealer (as defined below) to set up a DWAC and required instructions, to deliver to the Investor, as DWAC Shares, any Shares
purchased by the Investor in a VWAP Purchase prior to 10:30 a.m., New York City time, on the Trading Day immediately following the
date of the applicable VWAP Purchase Share Notice (the “Share Delivery Deadline”), and if on or after such
Trading Day the Investor purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of
a sale by the Investor of such Shares that the Investor anticipated receiving from the Company on such VWAP Purchase Share Delivery
Date in respect of such VWAP Purchase, then the Company shall, within two (2) Trading Days after the Investor’s request,
either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the
Company’s obligation to deliver such Shares as DWAC Shares (and the Investor’s obligation to purchase such Shares from
the Company) shall terminate, or (ii) promptly honor its obligation to deliver to the Investor such Shares as DWAC Shares and pay
cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total purchase price paid by the Investor
pursuant to this Agreement for all of the Shares purchased by the Investor in such VWAP Purchase. The Company shall not issue any
fraction of a share of Common Stock to the Investor in connection with any VWAP Purchase effected pursuant to this Agreement. If the
issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of
Common Stock up or down to the nearest whole share. All payments to be made by the Investor pursuant to this Agreement shall be made
by wire transfer of immediately available funds to such account as the Company may from time to time designate by written notice to
the Investor in accordance with the provisions of this Agreement.


 






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Section 3.3. Compliance with Rules of Principal Market.





 


(i) Exchange Cap. The Company shall not issue or sell
any shares of Common Stock pursuant to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant
to this Agreement, to the extent that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued
pursuant to this Agreement and the transactions contemplated hereby would exceed 73,537,299 shares of Common Stock (representing 19.99%
of the voting power or number of shares of Common Stock, issued and outstanding immediately prior to the execution of this Agreement),
which number of shares shall be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant
to any transaction or series of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable
rules of the Principal Market (such maximum number of shares, the “Exchange Cap”), unless the Company’s
stockholders have approved the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the
applicable rules of the Principal Market. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its
stockholders to approve the issuance of Common Stock pursuant to this Agreement; provided, that if such stockholder approval is
not obtained, the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all
times during the term of this Agreement.


 


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


 


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





 






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ARTICLE IV 


REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE INVESTOR 


 


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


 


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


 


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


 


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


 


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


 


Section 4.5. Accredited Investor Status. The Investor
is an institutional “accredited investor”.


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 






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Section 4.13. Resales of Shares. The
Investor will resell such Shares only pursuant to the Registration Statement in which the resale of such Shares is registered under the
Securities Act, in a manner described under the caption “Plan of Distribution” in such Registration Statement, and in a manner
in compliance with all applicable U.S. federal and state securities laws, rules and regulations, including, without limitation, any applicable
prospectus delivery requirements of the Securities Act.


 


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


 


ARTICLE V 


REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE COMPANY 


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


(i) (A) To the knowledge of the Company and except as set forth in
the Commission Documents, since January 12, 2021 through November 9, 2021 and (B) from November 10, 2021, the Company has timely filed
(giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all filings required to be filed with
or furnished to the Commission by the Company under the Securities Act or the Exchange Act, including those required to be filed with
or furnished to the Commission under Section 13(a) or Section 15(d) of the Exchange Act. As of the date of this Agreement, no Subsidiary
of the Company is required to file or furnish any report, schedule, registration, form, statement, information or other document with
the Commission. As of its filing date (or, if amended or superseded by a filing prior to the Closing Date, on the date of such amended
or superseded filing), each Commission Document filed with or furnished to the Commission prior to the Closing Date complied in all material
respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules
and regulations applicable to it, and, as of its filing date. Each Registration Statement, on the date it is filed with the Commission,
on the date it becomes effective and on each VWAP Purchase Date shall comply in all material respects with the requirements of the Securities
Act (including, without limitation, Rule 415 under the Securities Act) and shall not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, except
that this representation and warranty shall not apply to statements in or omissions from such Registration Statement made in reliance
upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly
for use therein. The Prospectus and each Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights
Agreement after the Closing Date, when taken together, on its date and on each VWAP Purchase Date shall comply in all material respects
with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall not contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading, except that this representation and
warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity
with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein.
The statistical, demographic and market-related data included in the Registration Statement and Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate or represent the Company’s good faith estimates that are made on the
basis of data derived from such sources. Each Commission Document (other than the Initial Registration Statement or any New Registration
Statement, or the Prospectus included therein or any Prospectus Supplement thereto) to be filed with or furnished to the Commission after
the Closing Date and incorporated by reference in the Initial Registration Statement or any New Registration Statement, or the Prospectus
included therein or any Prospectus Supplement thereto required to be filed pursuant to this Agreement or the Registration Rights Agreement
(including, without limitation, the Current Report), when such document is filed with or furnished to the Commission and, if applicable,
when such document becomes effective, as the case may be, shall comply in all material respects with the requirements of the Securities
Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable to it. The Company has
delivered or made available to the Investor via EDGAR or otherwise true and complete copies of all comment letters and substantive correspondence
received by the Company from the Commission relating to the Commission Documents filed with or furnished to the Commission as of the Closing
Date, together with all written responses of the Company thereto in the form such responses were filed via EDGAR. There are no outstanding
or unresolved comments or undertakings in such comment letters received by the Company from the Commission. The Commission has not issued
any stop order or other order suspending the effectiveness of any registration statement filed by the Company under the Securities Act
or the Exchange Act.


 






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(ii) The consolidated financial statements of the Company
included or incorporated by reference in the Commission Documents, together with the related notes and schedules, present fairly, in
all material respects, the consolidated financial position of the Company and its then consolidated subsidiaries as of the dates
indicated, and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company and its
then consolidated subsidiaries for the periods specified and have been prepared in compliance with the published requirements of the
Securities Act and the Exchange Act, as applicable, and in conformity with generally accepted accounting principles in the United
States (“GAAP”) applied on a consistent basis. There are no financial statements (historical or pro forma)
that are required to be included or incorporated by reference in the Commission Documents that are not included or incorporated by
reference as required. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent
(including any off-balance sheet obligations or any “variable interest entities” as that term is used in Accounting
Standards Codification Paragraph 810-10-25-20), not described in Commission Documents which are required to be described in the
Commission Documents. All disclosures contained or incorporated by reference in the Commission Documents, if any, regarding
 “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all
material respects with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent
applicable. The interactive data in eXtensible Business Reporting Language included in the Commission Documents fairly presents the
information called for in all material respects and has been prepared in accordance with the Commission’s rules and guidelines
applicable thereto.


 






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(iii) Deloitte & Touche LLP (such firm, or a successor independent
registered public accounting firm for the Company, the “Accountant”), whose report on the consolidated financial
statements of the Company is included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2021 (the “Annual
Report”), is and, during the periods covered by their report, was an independent public accounting firm within the meaning
of the Securities Act and the rules and regulations of the Public Company Accounting Oversight Board (United States). To the Company’s
Knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with respect to the Company.


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


 


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


 


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


 


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


 






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


 


Section 5.12. Solvency. The Company has not taken any
steps, and does not currently expect to take any steps, to seek protection pursuant to Title 11 of the United States Code or any similar
federal or state bankruptcy law or law for the relief of debtors, nor does the Company have any Knowledge that its creditors intend to
initiate involuntary bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under Title 11
of the United States Code or any other federal or state bankruptcy law or any law for the relief of debtors. The Company is financially
solvent and is generally able to pay its debts as they become due. The Company’s annual report on Form 10-K sets forth, as of December
31 for the year covered by the report, all material outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or
for which the Company or any Subsidiary has commitments through such date. There is no existing or continuing default or event of default
in respect of any material Indebtedness of the Company or any of its Subsidiaries.


 


Section 5.13. Real Property; Intellectual Property.


 


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


 


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


 






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


 


Section 5.15. Compliance with Law. The Company and each
of its Subsidiaries are in compliance with all applicable laws, regulations and statutes (including all Environmental Laws and regulations)
in the jurisdictions in which it carries on business; the Company has not received a notice of non-compliance, nor knows of, nor has reasonable
grounds to know of, any facts that could give rise to a notice of non-compliance with any such laws, regulations and statutes, and is
not aware of any pending change or contemplated change to any applicable law or regulation or governmental position; in each case that
would materially adversely affect the business of the Company or the business or legal environment under which the Company operates.


 


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


 


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


 


Section 5.18. Market Capitalization. As of the date
hereof, the aggregate market value of the outstanding voting and non-voting common equity (as defined in Securities Act Rule
405) of the Company held by persons other than Affiliates of the Company (pursuant to Securities Act Rule 144, those that directly,
or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the Company) (the
 “Non-Affiliate Shares”), was equal to approximately $2.0 billion (calculated by multiplying (i) the
highest price at which the common equity of the Company closed on the Principal Market within 60 days of the date of this Agreement
times (ii) the number of Non-Affiliate Shares).


 






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


 


Section 5.20. Controls. The Company and each of its Subsidiaries
maintain systems of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed
in the Commission Documents, the Company’s internal control over financial reporting is effective and the Company is not aware of
any material weaknesses in its internal control over financial reporting. Since the date of the latest audited financial statements of
the Company included in the Commission Documents, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting
(other than as set forth in the Commission Documents). The Company has established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15 and 15d-15) for the Company and designed such disclosure controls and procedures to ensure that material information
relating to the Company and each of its Subsidiaries is made known to the certifying officers by others within those entities, particularly
during the period in which the Company’s annual report on Form 10-K or quarterly report on Form 10-Q, as the case may be, is
being prepared. The Company’s certifying officers have evaluated the Company’s disclosure controls and procedures as of a
date within ninety (90) days prior to the filing date of the Company’s annual report on Form 10-K (such date, the “Evaluation
Date”) and, except as disclosed in the Commission Documents, the disclosure controls and procedures are effective. The Company
presented in its annual report on Form 10-K the conclusions of the certifying officers about the effectiveness of the disclosure controls
and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no significant changes
in the Company’s internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Securities Act) or, to
the Company’s Knowledge, in other factors that could significantly affect the Company’s internal controls.


 


Section 5.21. Permits. The Company and each Subsidiary
possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory
agencies or bodies necessary to conduct their respective businesses, and neither the Company nor any Subsidiary has received, or has any
reason to believe that it will receive, any notice of proceedings relating to the revocation or modification of, or non-compliance with,
any such certificate, authorization or permit which, if the subject of an unfavorable decision, ruling or finding, would, individually
or in the aggregate, have a Material Adverse Effect.


 


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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


Section 5.30. Margin Rules. [Reserved]


 


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


 


Section 5.32. ERISA. (a) To the Knowledge of the Company,
each material employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), that is maintained, administered or contributed to by the Company or any of its Affiliates for employees
or former employees of the Company and any of its Subsidiaries has been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the Internal Revenue Code of 1986, as amended
(the “Code”) and no prohibited transaction, within the meaning of Section 406 of ERISA or Section 4975 of the
Code, has occurred with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption and
(b) for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no failure to meet the
minimum funding standard within the meaning of Section 412 of the Code has occurred, whether or not waived, in each case of (a) or (b),
except as would not have a Material Adverse Effect.


 


Section 5.33. Stock Transfer Taxes. All stock transfer
or other taxes (other than income taxes) which are required to be paid in connection with the sale and transfer of the Shares to be sold
hereunder will be, or will have been, fully paid or provided for by the Company and all laws imposing such taxes will be or will have
been fully complied with.


 


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


 


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


 






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Section 5.36. No General Solicitation or Advertising.
Neither the Company, nor any of its Subsidiaries or Affiliates, nor any Person acting on its or their behalf, has engaged in any form
of general solicitation or general advertising (within the meaning of Regulation D) in connection with the offer or sale of the Shares.


 


Section 5.37. No Integrated Offering. None of the Company,
its Subsidiaries or any of their Affiliates, nor any Person acting on their behalf has, directly or indirectly, made any offers or sales
of any security or solicited any offers to buy any security, under circumstances that would require registration of the issuance of any
of the Shares under the Securities Act, whether through integration with prior offerings or otherwise, or cause this offering of the Shares
to require approval of stockholders of the Company under any applicable stockholder approval provisions, including, without limitation,
under the rules and regulations of the Principal Market. None of the Company, its Subsidiaries, their Affiliates nor any Person acting
on their behalf will take any action or steps referred to in the preceding sentence that would require registration of the issuance of
any of the Shares under the Securities Act or cause the offering of any of the Shares to be integrated with other offerings.


 


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


 


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


 


Section 5.40. [Reserved]


 


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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


Section 5.47. Emerging Growth Company Status. From the
time of the initial filing of the Company’s first registration statement with the Commission, the Company has been and is an “emerging
growth company,” as defined in Section 2(a) of the Securities Act.


 






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Section 5.48. No Additional Representation or Warranties.
Except as provided in this Article V, none of the Company, any of its Subsidiaries or any of their respective affiliates, nor any of their
respective directors, managers, officers, employees, stockholders, partners, members or representatives, has made, or is making, any representation
or warranty whatsoever to the Investor or its affiliates and no such party shall be liable in respect of the accuracy or completeness
of any information provided to the Investor or its affiliates. Without limiting the foregoing, the Investor acknowledges that the Investor
and its advisors have made their own investigation of the Company and its Subsidiaries and, except as provided in this Article V, are
not relying on any representation or warranty whatsoever as to the condition, merchantability, suitability or fitness for a particular
purpose or trade as to any of the assets of the Company or any of its Subsidiaries, or the prospects (financial or otherwise) or the viability
or likelihood of success of the business of the Company and its Subsidiaries as conducted after the Closing, as contained in any materials
provided by the Company, any of its Subsidiaries or any of their respective affiliates, or any of their respective directors, officers,
employees, shareholders, partners, members or representatives or otherwise.


 


ARTICLE VI 


ADDITIONAL COVENANTS 


 


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


 


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


 


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


 


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


 






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Section 6.4. Compliance with Laws.


 


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


 


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


 


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


 


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


 


(ii) Subject to the requirements of Section 6.12, from time to time
from and after the Closing Date, the Company shall make available for inspection and review by the Investor during normal business hours
and after reasonable notice, customary documentation reasonably requested by the Investor and/or its appointed counsel or advisors to
conduct due diligence; provided, however, that Investor’s satisfaction with the results of such due diligence shall
not be a condition precedent to the Company’s right to deliver to the Investor any VWAP Purchase Notice or the settlement thereof.


 


Section 6.6. No Frustration; No Variable Rate Transactions.


 


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


 


(ii) No Variable Rate Transactions. The Company shall
not effect or enter into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock
Equivalents (or a combination of units thereof) involving a Variable Rate Transaction, other than in connection with an Exempt Issuance.
The Investor shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which
remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other
security being required


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 






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


 


Section 6.14. Disclosure Schedule.


 


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


 


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


 


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


 






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


 


(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) mutually agreed upon forms of the opinions of outside counsel to the Company, to be dated the Commencement
Date, (b) the closing certificate from the Company, dated the Closing Date, in the form of Exhibit B hereto and (c) a copy of the
irrevocable instructions to the Company’s transfer agent regarding the issuance to the Investor or its designee of the certificate(s)
or book-entry statement(s) representing the shares issued pursuant to any Upfront Commitment Fee pursuant to and in accordance with Section
10.1(ii) hereof.


 


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


 






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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


(xvi) Comfort Letters of Accountants. On the Commencement
Date, the Investor shall have received from the independent registered public accounting firm or firms whose reports are included or incorporated
by reference in the Registration Statement and the Prospectus, with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectus, except that the specific date referred to therein for the carrying out of
procedures shall be no more than three (3) Trading Days prior to the Commencement Date.


 


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


 


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


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 






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ARTICLE VIII 


TERMINATION


 


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


 


Section 8.2. Other Termination. Subject to Section 8.3,
the Company may terminate this Agreement after the Commencement Date effective upon three (3) Trading Days’ prior written notice
to the Investor in accordance with Section 10.4; provided, however, that (i) the Company shall have issued the Upfront Commitment
Fee to the Investor required to be paid pursuant to Section 10.1(ii) of this Agreement prior to such termination, and (ii) prior to issuing
any press release, or making any public statement or announcement, with respect to such termination, the Company shall consult with the
Investor and its counsel on the form and substance of such press release or other disclosure. Subject to Section 8.3, this Agreement may
be terminated at any time by the mutual written consent of the parties, effective as of the date of such mutual written consent unless
otherwise provided in such written consent. Subject to Section 8.3, the Investor shall have the right to terminate this Agreement effective
upon three (3) Trading Days’ prior written notice to the Company, which notice shall be made in accordance with Section 10.4 of
this Agreement, if: (a) any condition, occurrence, state of facts or event constituting a Material Adverse Effect has occurred and is
continuing; (b) a Fundamental Transaction shall have occurred; (c) the Company is in breach or default in any material respect of any
of its covenants and agreements in the Registration Rights Agreement, and, if such breach or default is capable of being cured, such breach
or default is not cured within fifteen (15) Trading Days after notice of such breach or default is delivered to the Company pursuant to
Section 10.4 of this Agreement; (d) while a Registration Statement, or any post-effective amendment thereto, is required to be maintained
effective pursuant to the terms of the Registration Rights Agreement and the Investor holds any Registrable Securities, the effectiveness
of such Registration Statement, or any post-effective amendment thereto, lapses for any reason (including, without limitation, the issuance
of a stop order by the Commission) or such Registration Statement or any post-effective amendment thereto, the Prospectus contained therein
or any Prospectus Supplement thereto otherwise becomes unavailable to the Investor for the resale of all of the Registrable Securities
included therein in accordance with the terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period
of sixty (60) consecutive Trading Days or for more than an aggregate of ninety (90) Trading Days in any three hundred and sixty-five (365)-day
period, other than due to acts of the Investor; (e) trading in the Common Stock on the Principal Market shall have been suspended and
such suspension continues for a period of five (5) consecutive Trading Days; or (f) the Company is in material breach or default of any
of its covenants and agreements contained in this Agreement, and, if such breach or default is capable of being cured, such breach or
default is not cured within fifteen (15) Trading Days after notice of such breach or default is delivered to the Company pursuant to Section
10.4 of this Agreement. Unless notification thereof is required elsewhere in this Agreement (in which case such notification shall be
provided in accordance with such other provision), the Company shall promptly (but in no event later than twenty-four (24) hours) notify
the Investor (and, if required under applicable law, including, without limitation, Regulation FD promulgated by the Commission, or under
the applicable rules and regulations of the Principal Market the Company shall publicly disclose such information in accordance with Regulation
FD and the applicable rules and regulations of the Principal Market) upon becoming aware of any of the events set forth in the immediately
preceding sentence.


 






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


 


ARTICLE IX 


INDEMNIFICATION


 


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


 






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The Company shall reimburse any Investor Party promptly upon demand
(with accompanying presentation of documentary evidence) for all legal and other costs and expenses reasonably incurred by such Investor
Party in connection with (i) any action, suit, claim or proceeding, whether at law or in equity, to enforce compliance by the Company
with any provision of the Transaction Documents or (ii) any other any action, suit, claim or proceeding, whether at law or in equity,
with respect to which it is entitled to indemnification under this Section 9.1; 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 through
a final, non-appealable determination that any Investor Party was not entitled to such reimbursement.


 


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


 


Section 9.2. Indemnification Procedures.


 


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


 






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


 


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


 






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ARTICLE X 


MISCELLANEOUS


 


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


 





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


 


(ii) Upfront Commitment Fee. In consideration for the
Investor’s execution and delivery of this Agreement on the Closing Date, the Company shall issue to the Investor the Upfront Commitment
Fee on or prior to the Closing Date, by transfer of the Commitment Shares to an account designated by the Investor on or prior to the
Closing Date, and will provide Investor, not later than 4:00 P.M. New York City time on the Trading Day immediately following the Closing
Date, one or more book-entry statement(s) representing the Commitment Shares in the name of the Investor or its designee. For the avoidance
of doubt, the entire amount of the Upfront Commitment Fee shall be fully earned by the Investor and shall be non-refundable as of the
Closing Date, regardless of whether any VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.


 


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


 






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


 


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


 


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


 


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


 


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


 


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


 


If to the Company:


Embark Technology, Inc.


Telephone Number: (415) 671-9628


Email: capitalmarkets@embarktrucks.com;  legal@embarktrucks.com


Attention: Richard Hawwa; Adam Fee; Siddhartha Venkatesan


 


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


Latham & Watkins LLP


555 Eleventh Street, NW


Washington, DC 20004


Telephone Number: 202-637-2200


Email: rachel.sheridan@lw.com; shagufa.hossain@lw.com; samuel.rettew@lw.com


Attention: Rachel W. Sheridan; Shagufa R. Hossain; Samuel D. Rettew


 






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If to the Investor:


 





CF Principal Investments LLC


499 Park Avenue


New York, NY 10022


Attention: COO


Email: CFPINotices@cantor.com


 


and:


 


CF Principal Investments LLC 

499 Park Avenue


New York, NY 10022


Attention: General Counsel


Facsimile: (212) 829-4708


Email: #legal-IBD@cantor.com


 


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


 


Covington & Burling LLP


The New York Times Building


620 Eighth Avenue


New York, NY 10018


Email: mgehl@cov.com


Attention: Matthew T. Gehl


 


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


 


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


 


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


 


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


 


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


 






    35


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    36


     


    

 





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.


 


	 	Embark Technology, Inc.:
	 	 	 
	 	By:	/s/ Richard Hawwa
	 	Name: Richard Hawwa
	 	Title: Chief Financial Officer


 


	 	CF Principal Investments LLC
	 	 	 
	 	By:	/s/ Mark Kaplan
	 	Name: Mark Kaplan
	 	Title: Chief Operating Officer


  






    


     


    

 





ANNEX I TO THE 


COMMON STOCK PURCHASE AGREEMENT 


DEFINITIONS


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Bloomberg” shall mean Bloomberg, L.P.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    


     


    

 





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


 


“Commission Documents” shall mean (1) the
Company’s registration statement on Form S-4 (File No. 333-257647) initially filed with the Commission on July 2, 2021, including
any related prospectus or prospectuses, for the registration of the Common Stock to be issued pursuant to the agreement and plan of merger
by and among the Company (formerly known as Northern Genesis Acquisition Corp. II), NGAB Merger Sub Inc. and Embark Trucks Inc., on file
with the Commission at the time such registration statement became effective, including the financial statements, schedules, exhibits
and all other documents filed as a part thereof or incorporated therein and all information deemed to be a part thereof as of the effective
date of such registration statement under the Securities Act, (2) the proxy statement/prospectus, dated October 18, 2021, including all
documents incorporated or deemed incorporated therein by reference, included in the Registration Statement, as it may be supplemented,
in the form in which such proxy statement/prospectus has most recently been filed with the Commission pursuant to Rule 424(b) under the
Securities Act, (3) all reports, schedules, registrations, forms, statements, information and other documents filed with or furnished
to the Commission by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act since January 12, 2021, including,
without limitation, the Current Report, (4) each Registration Statement, as the same may be amended from time to time, the Prospectus
contained therein and each Prospectus Supplement thereto and (5) all information contained in such filings and all documents and disclosures
that have been or may in the future be incorporated by reference therein.


 


“Commitment Shares” shall mean the 450,000
shares of duly authorized, validly issued, fully paid and non-assessable 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 Equivalents” shall mean any
securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without
limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






    


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Exempt Issuance” shall mean the issuance
of (i) Common Stock, options or other equity incentive awards to employees, officers, directors or vendors of the Company pursuant to
any equity incentive plan duly adopted for such purpose, by the Company’s Board of Directors or a majority of the members of a committee
of the Board of Directors established for such purpose, (ii) (a) any Shares issued to the Investor pursuant to this Agreement, (b) any
securities issued upon the exercise or exchange of or conversion of any shares of Common Stock or Common Stock Equivalents held by the
Investor at any time, or (c) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued
and outstanding on the date of this Agreement; provided that except as set forth in any agreement applicable to such Common Stock
Equivalents and as disclosed in the Commission Documents, such securities referred to in this clause (c) have not been amended since the
date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price
of such securities, (iii) securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic
transactions approved by the Company’s Board of Directors or a majority of the members of a committee of directors established for
such purpose, 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,
(iv) Common Stock issued by the Company to the Investor or an Affiliate of the Investor in connection with any “equity line of credit”
or other continuous offering or similar offering of Common Stock pursuant to a written agreement between the Company and the Investor
or an Affiliate of the Investor, whereby the Company may sell Common Stock to the Investor or an Affiliate of the Investor at a future
determined price, or (v) Common Stock issued by the Company by any method deemed to be an “at the market offering” as defined
in Rule 415(a)(4) under the Securities Act, exclusively to or through CF&CO, as the Company’s sales agent, pursuant to one or more written agreements between the Company
and CF&CO.


 


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


 






    


     


    

 



 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


“Threshold Price” shall mean with respect
to any particular VWAP Purchase Notice, the Sale Price on the VWAP Purchase Date equal to the greater of (i) 90% of the Closing Sale Price
on the Trading Day immediately preceding the VWAP Purchase Date or (ii) such higher price as set forth by the Company in the VWAP Purchase
Notice.


 


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


 


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


 


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


 


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


 


“Upfront Commitment Fee” shall mean 450,000
shares of Common Stock.


 


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


 






     


     


    

 


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


 


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


 


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


 


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


 


“VWAP Purchase Date” shall mean, with respect
to a VWAP Purchase made pursuant to Section 3.1, the Trading Day for which the Investor receives a valid VWAP Purchase Notice, prior to
9:00 a.m., New York City time, on such Trading Day, for such VWAP Purchase in accordance with this Agreement.


 


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


 


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


 


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


 


“VWAP Purchase Price” shall mean the purchase
price per Share to be purchased by the Investor in such VWAP Purchase on such VWAP Purchase Date equal to ninety-seven percent (97.0%)
of the VWAP over the applicable VWAP Purchase Period on such VWAP Purchase Date for such VWAP Purchase. Notwithstanding anything in this
Agreement to the contrary, on any Trading Day on which the Company delivers, and the Investor accepts, a VWAP Purchase Notice for a VWAP
Purchase Share Request Percentage in excess of the VWAP Purchase Share Percentage, the VWAP Purchase Price shall be calculated using the
lower of (i) the VWAP over the applicable VWAP Purchase Period on such VWAP Purchase Date for such VWAP Purchase; and (ii) the lowest
Sale Price in any Block sold on such Trading Day following the delivery and acceptance of such VWAP Purchase Notice for a VWAP Purchase
Share Request Percentage in excess of the VWAP Purchase Share Percentage.


 






     


     


    

 


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


 


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


 


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


 


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


 


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


 


“VWAP Purchase Termination Time” means, with
respect to a VWAP Purchase made pursuant to Section 3.1, 3:59:58 p.m., New York City time, on the applicable VWAP Purchase Date, or two
seconds prior to such earlier time publicly announced by the Principal Market as the official close of trading (regular way) on the Principal
Market on such applicable VWAP Purchase Date.


 






     


     


    

 


SCHEDULE 1


 


Embark Trucks Inc.






    


     


    

 


EXHIBIT A


 


FORM OF REGISTRATION RIGHTS AGREEMENT


 


[TO BE FURNISHED SEPARATELY]


 






     


     


    

 


EXHIBIT B


 


CLOSING CERTIFICATE


 


[•], 202[•]


 


The undersigned, the [•] of Embark Technology, Inc., a Delaware
corporation (the “Company”), delivers this certificate in connection with the Common Stock Purchase Agreement,
dated as of [•], 2022 (the “Agreement”), by and between the Company and CF Principal Investments 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. The undersigned is the duly appointed [•] of the Company.


 


2. Attached hereto as Exhibit A is a true, complete and correct
copy of the Second Amended and Restated Certificate of Incorporation of the Company, as amended and restated through the date hereof,
as filed with the Secretary of State of the State of Delaware (the “Certificate of Incorporation”). 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 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.


 


3. Attached hereto as Exhibit B is a true and complete copy
of the Amended and Restated Bylaws of the Company, as amended and restated through, and as in full force and effect on, the date hereof
(the “Bylaws”), 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.


 


4. 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 [•], 2022.


 


5. 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:
	 	Title:


 






     


     


    

 


EXHIBIT C


 


COMPLIANCE CERTIFICATE


 


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


 


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


 


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


 


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


 


4. The Shares issuable in respect of each VWAP Purchase Notice 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.


 


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 VWAP 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.


 






     


     


    

 


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


 


	 	 	 
	 	By:	 
	 	 	 
	 	Name:	 
	 	 	 
	 	Title:	 


 






     


     


    

 


EXHIBIT D


 


FORM OF VWAP PURCHASE NOTICE


 


	From:	Embark Technology, Inc.
	To:	CF Principal Investments LLC
	Attention:	Chief Operating Officer
	C/O:	CFControlledEquityOffering@cantor.com
	 	 
	Subject:	VWAP Purchase Notice
	 	 
	Date:	[•], 202[•]
	Time:	[•]




 


Ladies and Gentlemen:


 


Pursuant to the terms and subject to the conditions contained in the
Common Stock Purchase Agreement (the “Agreement”) between Embark Technology, Inc., a Delaware corporation (the
 “Company”), and CF Principal Investments LLC (the “Investor”), dated [•], 2022,
the Company hereby directs the Investor to purchase a number of shares constituting [●]% of the total volume of the Company’s
common stock, par value $0.0001 per share, traded on the Principal Market during the applicable VWAP Purchase Period, at the relevant
VWAP Purchase Price (as defined in the Agreement); provided, however, that if such number exceeds the VWAP Purchase Share
Estimate of [•] shares of the Company’s common stock, par value $0.0001 per share, which the Company represents is no greater
than the VWAP Purchase Maximum Amount (as defined in the Agreement), then the Investor will instead purchase the number of shares equal
to the VWAP Purchase Share Estimate. The Company represents that all conditions set forth in Section 7.3 of the Agreement (including without
limitation Section 7.3(xi) in respect of Material Non-Public Information) have been satisfied. Capitalized terms used herein without definition
have the meanings assigned to them in the Agreement.


 


	 	 
	 	Name:
	 	Title: