Exhibit 10.1


 


COMMON STOCK PURCHASE AGREEMENT


 


Dated as of September 23, 2021


 


by and between


 


BIOHITECH GLOBAL, INC.


 


and


 


KEYSTONE CAPITAL PARTNERS, LLC


 






     


     


    

 


Table
of Contents


 





	 	Page
	 	 
	Article I DEFINITIONS	1
	 	 	 
	Article II PURCHASE AND SALE OF COMMON STOCK	2
	Section 2.1.	Purchase and Sale of Stock	2
	Section 2.2.	Closing Date; Settlement Dates	2
	Section 2.3.	Initial Public Announcements and Required Filings	2
	 	 	 
	Article III PURCHASE TERMS	3
	Section 3.1.	VWAP Purchases	3
	Section 3.2.	Settlement	4
	Section 3.3.	Compliance with Rules of Trading Market.	5
	Section 3.4.	Beneficial Ownership Limitation	6
	 	 	 
	Article IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR	6
	Section 4.1.	Organization and Standing of the Investor	6
	Section 4.2.	Authorization and Power	7
	Section 4.3.	No Conflicts	7
	Section 4.4.	Investment Purpose	7
	Section 4.5.	Accredited Investor Status	7
	Section 4.6.	Reliance on Exemptions	7
	Section 4.7.	Information	8
	Section 4.8.	No Governmental Review	8
	Section 4.9.	No General Solicitation	8
	Section 4.10.	Not an Affiliate	8
	Section 4.11.	No Prior Short Sales	9
	Section 4.12.	Statutory Underwriter Status	9
	Section 4.13.	Resales of Securities	9
	 	 	 
	Article V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY	9
	Section 5.1.	Organization, Good Standing and Power	9
	Section 5.2.	Authorization, Enforcement	9
	Section 5.3.	Capitalization	10
	Section 5.4.	Issuance of Securities	10
	Section 5.5.	No Conflicts	11
	Section 5.6.	Commission Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants	12
	Section 5.7.	Subsidiaries	14
	Section 5.8.	No Material Adverse Effect or Material Adverse Change	15
	Section 5.9.	No Material Defaults	15
	Section 5.10.	Enforceability of Agreements	15
	Section 5.11.	Indebtedness; Solvency	16
	Section 5.12.	Title To Assets	16
	Section 5.13.	Actions Pending	16



 






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	Section 5.14.	Compliance With Law; Compliance with Continued Listing Standards	16
	Section 5.15.	Certain Fees	17
	Section 5.16.	Disclosure	17
	Section 5.17.	Operation of Business	17
	Section 5.18.	Environmental Compliance	18
	Section 5.19.	No Improper Practices	19
	Section 5.20.	Transactions With Affiliates	19
	Section 5.21.	Labor Disputes	19
	Section 5.22.	Use of Proceeds	19
	Section 5.23.	Investment Company Act Status	19
	Section 5.24.	ERISA	20
	Section 5.25.	Taxes	20
	Section 5.26.	Insurance	20
	Section 5.27.	Exemption from Registration	20
	Section 5.28.	No General Solicitation or Advertising	21
	Section 5.29.	No Integrated Offering	21
	Section 5.30.	Dilutive Effect	21
	Section 5.31.	Manipulation of Price	21
	Section 5.32.	Securities Act	21
	Section 5.33.	Listing and Maintenance Requirements; DTC Eligibility	22
	Section 5.34.	Application of Takeover Protections	22
	Section 5.35.	No Unlawful Payments	22
	Section 5.36.	Money Laundering Laws	23
	Section 5.37.	OFAC	23
	Section 5.38.	U.S. Real Property Holding Corporation	23
	Section 5.39.	Information Technology; Compliance With Data Privacy Laws	24
	Section 5.40.	No Disqualification Events	24
	Section 5.41.	Acknowledgement Regarding Investor’s Acquisition of Securities	24
	 	 	 
	Article VI ADDITIONAL COVENANTS	24
	Section 6.1.	Securities Compliance	25
	Section 6.2.	Reservation of Common Stock	25
	Section 6.3.	Registration and Listing	26
	Section 6.4.	Compliance with Laws.	26
	Section 6.5.	Keeping of Records and Books of Account; Due Diligence.	27
	Section 6.6.	No Frustration; No Variable Rate Transactions.	27
	Section 6.7.	Corporate Existence	27
	Section 6.8.	Fundamental Transaction	27
	Section 6.9.	Selling Restrictions.	28
	Section 6.10.	Effective Registration Statement	28
	Section 6.11.	Blue Sky	28
	Section 6.12.	Non-Public Information	29
	Section 6.13.	Broker/Dealer	29
	Section 6.14.	Disclosure Schedule.	29
	Section 6.15.	Delivery of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events	30



 






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	Article VII CONDITIONS TO CLOSING (AND INITIAL PURCHASE), CONDITIONS TO COMMENCEMENT AND CONDITIONS TO VWAP PURCHASES	31
	Section 7.1.	Conditions Precedent to Closing and Initial Purchase	31
	Section 7.2.	Conditions Precedent to Commencement	32
	Section 7.3.	Conditions Precedent to VWAP Purchases after Commencement Date	35
	 	 	 
	Article VIII TERMINATION	39
	Section 8.1.	Automatic Termination	39
	Section 8.2.	Other Termination	39
	Section 8.3.	Effect of Termination	40
	 	 	 
	Article IX INDEMNIFICATION	41
	Section 9.1.	Indemnification of Investor	41
	Section 9.2.	Indemnification Procedures	41
	 	 	 
	Article X MISCELLANEOUS	42
	Section 10.1.	Certain Fees and Expenses; Commitment Shares; Initial Purchase Shares; Commencement Irrevocable Transfer Agent Instructions.	42
	Section 10.2.	Specific Enforcement, Consent to Jurisdiction, Waiver of Jury Trial.	45
	Section 10.3.	Entire Agreement	46
	Section 10.4.	Notices	46
	Section 10.5.	Waivers	47
	Section 10.6.	Amendments	47
	Section 10.7.	Headings	47
	Section 10.8.	Construction	47
	Section 10.9.	Binding Effect	48
	Section 10.10.	No Third Party Beneficiaries	48
	Section 10.11.	Governing Law	48
	Section 10.12.	Survival	48
	Section 10.13.	Counterparts	48
	Section 10.14.	Publicity	49
	Section 10.15.	Severability	49
	Section 10.16.	Further Assurances	49



 


Annex I. Definitions


 






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COMMON
STOCK PURCHASE AGREEMENT


 


This COMMON STOCK PURCHASE
AGREEMENT is made and entered into as of September 23, 2021 (this “Agreement”), by and between Keystone
Capital Partners, LLC, a Delaware limited liability company (the “Investor”), and BioHiTech Global, 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) $20,000,000
in aggregate gross purchase price of newly issued shares of the Company’s common stock, par value $0.0001 per share (“Common
Stock”), and (ii) the Exchange Cap (to the extent applicable under Section 3.3), pursuant to the Initial Purchase
on the Closing Date and pursuant to one or more VWAP Purchases the Company may elect to effect from time to time from and after the Commencement
Date under this Agreement;


 


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


 


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


 


WHEREAS,
in consideration for the Investor’s execution and delivery of this Agreement, the Company is concurrently causing its transfer agent
to issue to the Investor the Initial Commitment Shares pursuant to and in accordance with Section 10.1(ii)(a); and


 


WHEREAS,
upon the satisfaction of the conditions set forth in Section 7.1, on the Closing Date, the Company shall sell to the Investor, and
the Investor shall purchase from the Company, the Initial Purchase Shares as set forth in Section 2.1.


 


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 satisfaction of the conditions set
forth in Section 7.1, on the Closing Date, the Company shall sell to the Investor, and the Investor shall purchase from the Company,
the Initial Purchase Shares for an aggregate gross purchase price of $750,000 (the “Aggregate Initial Purchase Price”).
On the Closing Date, the Company shall deliver to its transfer agent irrevocable instructions to issue the Initial Purchase Shares to
the Investor or its designees as provided in Section 10.1(ii)(a), and the Investor shall pay the Aggregate Initial Purchase Price
to the Company by wire transfer of immediately available funds to an account designated by the Company on or prior to the Closing Date.
In addition to the sale of Initial Purchase Shares by the Company to the Investor on the Closing Date pursuant to the Initial Purchase
under this Agreement, 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) such number of duly authorized, validly issued, fully paid and non-assessable shares of Common
Stock having an aggregate gross purchase price equal to the Total Commitment and (ii) the Exchange Cap, to the extent such Exchange
Cap is applicable under Section 3.3 (the lesser of such number of shares of Common Stock, the “Aggregate Limit”),
by the delivery to the Investor of VWAP Purchase Notices directing the Investor to purchase Shares in VWAP Purchases pursuant to Section 3.1
of this Agreement.


 


Section 2.2.     Closing
Date; Settlement Dates. This Agreement shall become effective and binding (the “Closing”)
upon (a) the payment of the Document Preparation Fee to the Investor or its counsel at or prior to the Closing pursuant to Sections
7.1 and 10.1(i), (b) the delivery of irrevocable instructions to issue the Initial Commitment Shares to the Investor or its designees
as provided in Sections 7.1 and 10.1(ii)(a), (c) the delivery of counterpart signature pages of this Agreement and the Registration
Rights Agreement executed by each of the parties hereto and thereto, and (d) the delivery of all other documents, instruments and
writings required to be delivered at the Closing, in each case as provided in Section 7.1, to the offices of Dorsey & Whitney
LLP, 51 West 52nd Street, New York, NY 10019-6119, at 3:30 p.m., New York City time, on the Closing Date. In addition to the
Initial Purchase on the Closing Date, in consideration of and in express reliance upon the representations, warranties and covenants
contained in, and upon the terms and subject to the conditions of, this Agreement, during the Investment Period, the Company, at its
sole option and discretion, may issue and sell to the Investor, and, if the Company elects to so issue and sell, the Investor shall purchase
from the Company, the Shares in respect of each VWAP Purchase. The delivery of Shares in respect of each VWAP Purchase, and the payment
for such Shares, shall occur in accordance with Section 3.2.


 


Section 2.3.     Initial
Public Announcements and Required Filings. The Company shall, within the time period required
under the Exchange Act, file with the Commission a Current Report on Form 8-K describing the material terms of the transactions
contemplated by the Transaction Documents, including, without limitation, the issuance and sale by the Company to the Investor of the
Initial Purchase Shares in exchange for the payment of the Aggregate Initial Purchase Price by the Investor in the Initial Purchase on
the Closing Date, and the issuance of the Initial Commitment Shares to the Investor, and attaching as exhibits thereto copies of each
of this Agreement, the Registration Rights Agreement and, if applicable, any press release issued by the Company disclosing the execution
of this Agreement and the Registration Rights Agreement by the Company (including all exhibits thereto, the “Current Report”).
The Company shall provide the Investor a reasonable opportunity to comment on a draft of the Current Report prior to filing the Current
Report with the Commission and shall give due consideration to all such comments. From and after the filing of the Current Report with
the Commission, the Company shall have publicly disclosed all material, nonpublic information delivered to the Investor (or the Investor’s
representatives or agents) by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, agents
or representatives (if any) in connection with the transactions contemplated by the Transaction Documents. The Investor covenants that
until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in this Section 2.3,
the Investor shall maintain the confidentiality of all disclosures made to it in connection with the transactions contemplated by the
Transaction Documents (including the existence and terms of the transactions), except that the Investor may disclose the terms of such
transactions to its financial, accounting, legal and other advisors (provided that the Investor directs such Persons to maintain the
confidentiality of such information). Not later than 15 calendar days following the Closing Date, the Company shall file a Form D
with respect to the issuance and sale of the Securities in accordance with Regulation D and shall provide a copy thereof to the Investor
promptly after such filing. The Company shall use its commercially reasonable efforts to prepare and, as soon as practicable, but in
no event later than the applicable Filing Deadline, file with the Commission the Initial Registration Statement and any New Registration
Statement covering only the resale by the Investor of the Registrable Securities in accordance with the Securities Act and the Registration
Rights Agreement. At or before 8:30 a.m. (New York City time) on the Trading Day immediately following the Effective Date of the
Initial Registration Statement and any New Registration Statement (or any post-effective amendment thereto), the Company shall use its
commercially reasonable efforts to file with the Commission in accordance with Rule 424(b) under the Securities Act the final
Prospectus to be used in connection with sales pursuant to such Registration Statement (or post-effective amendment thereto).


 






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Article III

PURCHASE TERMS


 


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


 


Section 3.1.     VWAP
Purchases. Upon the initial satisfaction of all of the conditions set forth in Section 7.2
(the “Commencement” and the date of initial satisfaction of all of such conditions, the “Commencement
Date”) and from time to time thereafter, subject to the satisfaction of all of the conditions set forth in Section 7.3,
the Company shall have the right, but not the obligation, to direct the Investor, by its timely delivery to the Investor of a VWAP Purchase
Notice, after 6:00 a.m., New York City time, but prior to 9:00 a.m., New York City time, on a VWAP Purchase Date, to purchase the applicable
VWAP Purchase Share Amount, not to exceed the applicable VWAP Purchase Maximum Amount, at the applicable VWAP Purchase Price therefor
on the applicable VWAP Purchase Date in accordance with this Agreement (each such purchase, a “VWAP Purchase”).
The Company may timely deliver a VWAP Purchase Notice to the Investor as often as every Trading Day, so long as (i) the Closing
Sale Price of the Common Stock on the Trading Day immediately preceding such Trading Day is not less than the Threshold Price, and (ii) 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 VWAP Purchase Share Amount 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, and shall not purchase, such excess Shares pursuant to such VWAP Purchase Notice;
provided, however, that the Investor shall remain obligated to purchase the applicable VWAP Purchase Maximum Amount pursuant
to such VWAP Purchase. At or prior to 5:30 p.m., New York City time, on the VWAP Purchase Date for each VWAP Purchase, the Investor shall
provide to the Company a written confirmation for such VWAP Purchase (each, a “VWAP Purchase Confirmation”)
setting forth the applicable VWAP Purchase Price per Share to be paid by the Investor in such VWAP Purchase, and the total aggregate
VWAP Purchase Price to be paid by the Investor for the total VWAP Purchase Share Amount purchased by the Investor in such VWAP Purchase.
Notwithstanding the foregoing, the Company shall not deliver any VWAP Purchase Notices to the Investor during the PEA Period.


 






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Section 3.2.     Settlement.
The Shares constituting the applicable VWAP Purchase Share Amount purchased by the Investor in each VWAP Purchase shall be delivered
to the Investor as DWAC Shares not later than 1:00 p.m., New York City time, on the Trading Day immediately following the applicable
VWAP Purchase Date for such VWAP Purchase (the “VWAP Purchase Share Delivery Date”) (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). For each VWAP Purchase, the Investor shall pay to the Company an amount in cash equal to the product of (a) the
total number of Shares purchased by the Investor in such VWAP Purchase and (b) the applicable VWAP Purchase Price for such Shares,
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 Trading Day immediately 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 Trading Day next following the Trading Day on which the Investor shall have received all of such
Shares as DWAC Shares, but not later than 5:00 p.m., New York City time, on such next Trading Day. If the Company or its transfer agent
shall fail for any reason to deliver to the Investor, as DWAC Shares, any Shares purchased by the Investor in a VWAP Purchase prior to
10:30 a.m., New York City time, on the Trading Day immediately following the applicable VWAP Purchase Share Delivery Date for such VWAP
Purchase, and if on or after such Trading Day the Investor purchases (in an open market transaction or otherwise) shares of Common Stock
to deliver in satisfaction of a sale by the Investor of such Shares that the Investor anticipated receiving from the Company on such
VWAP Purchase Share Delivery Date in respect of such VWAP Purchase, then the Company shall, within one (1) Trading Day after the
Investor’s request, either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including
brokerage commissions, if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point
the Company’s obligation to deliver such Shares as DWAC Shares 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 Trading Market.


 


(a)            Exchange
Cap. Subject to Section 3.3(b), the Company shall not issue or sell any shares of Common Stock pursuant to this Agreement,
and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving
effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated
hereby (including Initial Purchase Shares, Commitment Shares and Shares) would exceed 5,689,663 (such number of shares equal to 19.99%
of the shares of Common Stock issued and outstanding immediately prior to the execution of this Agreement), which number of shares shall
be reduced, on a share-for-share basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series
of transactions that may be aggregated with the transactions contemplated by this Agreement under applicable rules of the Trading
Market (such maximum number of shares, the “Exchange Cap”), unless the Company’s stockholders have approved
the issuance of Common Stock pursuant to this Agreement in excess of the Exchange Cap in accordance with the applicable rules of
the Trading Market. For the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve
the issuance of Common Stock pursuant to this Agreement; provided, that if such stockholder approval is not obtained, the Exchange
Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during the term of this
Agreement (except as set forth in Section 3.3(b)).


 


(b)            At-Market
Transaction. Notwithstanding Section 3.3(a) above, the Exchange Cap shall not be applicable for any purposes of this
Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall equal
or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of this
Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder approval
referred to in Section 3.3(a) is obtained). The parties acknowledge and agree that the Minimum Price used to determine the
Base Price hereunder represents the lower of (i) the Nasdaq official closing price of the Common Stock on the Trading Market (as
reflected on Nasdaq.com) on the Trading Day immediately preceding the date of this Agreement and (ii) the average Nasdaq official
closing price of the Common Stock on the Trading Market (as reflected on Nasdaq.com) for the five (5) consecutive Trading Days ending
on the Trading Day immediately preceding the date of this Agreement.


 






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


 


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


 


Article IV

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR


 


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


 


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


 


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


 






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


 


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


 


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


 


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


 






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


 


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


 


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


 


Section 4.10.     Not
an Affiliate. The Investor is not an officer, director or an Affiliate of the Company. As
of the date of this Agreement, the Investor does not beneficially own any shares of Common Stock or securities exercisable for or convertible
into shares of Common Stock, and during the Investment Period, the Investor will not acquire beneficial ownership of any shares of the
Company’s capital stock (including shares of Common Stock or securities exercisable for or convertible into shares of Common Stock)
other than pursuant to this Agreement; provided, however, that nothing in this Agreement shall prohibit or be deemed to
prohibit the Investor from purchasing, in an open market transaction or otherwise, shares of Common Stock necessary to make delivery
by the Investor in satisfaction of a sale by the Investor of Shares that the Investor anticipated receiving from the Company in connection
with the settlement of a 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 to set up a DWAC and required instructions) to electronically transfer all of the Shares subject to such
VWAP Purchase to the Investor on the applicable VWAP Purchase Share Delivery Date by crediting the Investor’s or its designated
Broker-Dealer’s account at DTC through its DWAC delivery system in compliance with Section 3.2 of this Agreement.


 






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


 


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


 


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


 


Article V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY


 


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


 


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


 


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


 






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


 


Section 5.4.     Issuance
of Securities. The Initial Commitment Shares have been, and the Shares and the Additional
Commitment 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 authorized
by all necessary corporate action on the part of the Company. The Commitment Shares, when issued to the Investor in accordance with this
Agreement, and the Shares, when issued and sold against payment therefor in accordance with this Agreement, shall be validly issued and
outstanding, fully paid and non-assessable and free from all liens, charges, taxes, security interests, encumbrances, rights of first
refusal, preemptive or similar rights and other encumbrances with respect to the issue thereof, and the Investor shall be entitled to
all rights accorded to a holder of Common Stock. 7,000,000 shares of Common Stock have been duly authorized and reserved by the Company
for issuance as Securities under this Agreement, including (i) 69,137 shares of Common Stock solely for the purpose of issuing the
Initial Commitment Shares under this Agreement to the Investor pursuant to Section 10.1(ii)(a) hereof within the time period
specified in Section 10.1(ii)(a) hereof, (ii) 200,000 shares of Common Stock (as the maximum number of Additional Commitment
Shares issuable pursuant to this Agreement) solely for the purpose of issuing all of the Additional Commitment Shares under this Agreement,
if any, to be issued and delivered to the Investor under Section 10.1(ii)(b) hereof within the time period specified in Section 10.1(ii)(b) hereof,
and (iii) 625,000 shares of Common Stock solely for the purpose of issuing the Initial Purchase Shares in connection with the Initial
Purchase under this Agreement pursuant to Section 2.1 and Section 10.1(ii)(a) hereof within the time period specified
in Section 10.1(ii)(a) hereof.


 






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Section 5.5.     No
Conflicts. The execution, delivery and performance by the Company of each of the Transaction
Documents to which it is a party and the consummation by the Company of the transactions contemplated hereby and thereby do not and shall
not (i) result in a violation of any provision of the Company’s Charter or Bylaws, (ii) except as provided in Schedule
5.5 hereto, for which a waiver/consent to the transactions contemplated by this Agreement and the Registration Rights Agreement has been
obtained from all necessary Persons, conflict with or result in a breach or violation of any of the terms or provisions of, or constitute
a default (or an event which, with notice or lapse of time or both, would become a default) under, or give rise to any rights of termination,
amendment, acceleration or cancellation of, any material agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement,
instrument or obligation to which the Company or any of its Subsidiaries is a party or is bound, (iii) except as provided in Schedule
5.5 hereto, for which a waiver/consent to the transactions contemplated by this Agreement and the Registration Rights Agreement has been
obtained from all necessary Persons, create or impose a lien, charge or encumbrance on any property or assets of the Company or any of
its Subsidiaries under any agreement or any commitment 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 their respective properties or assets is subject, or (iv) result in a violation
of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree applicable to the Company or any of its
Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries are bound or affected (including federal and
state securities laws and regulations and the rules and regulations of the Trading Market or applicable Eligible Market), except,
in the case of clauses (ii), (iii) and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations,
liens, charges, encumbrances and violations as would not, individually or in the aggregate, have a Material Adverse Effect. Except as
specifically contemplated by this Agreement or the Registration Rights Agreement and as required under the Securities Act and any applicable
state securities laws, the Company is not required under any federal, state, local or foreign law, rule or regulation to obtain
any consent, authorization or order of, or make any filing or registration with, any court or governmental agency (including, without
limitation, the Trading Market) in order for it to execute, deliver or perform any of its obligations under the Transaction Documents
to which it is a party, or to issue the Securities to the Investor in accordance with the terms hereof and thereof (other than such consents,
authorizations, orders, filings or registrations as have been obtained or made prior to the Closing Date); provided, however,
that, for purposes of the representation made in this sentence, the Company is assuming and relying upon the accuracy of the representations
and warranties of the Investor in this Agreement and the compliance by it with its covenants and agreements contained in this Agreement
and the Registration Rights Agreement.


 






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


 


(a)          Except
as set forth on Schedule 5.6(a) hereto, the Company has timely filed (giving effect to permissible extensions in accordance with
Rule 12b-25 under the Exchange Act) all Commission Documents for the twelve months preceding the date of this Agreement. The Company
has delivered or made available to the Investor via EDGAR or otherwise true and complete copies of the Commission Documents filed with
or furnished to the Commission prior to the Closing Date (including, without limitation, the 2020 Form 10-K). No Subsidiary of the
Company is required to file or furnish any report, schedule, registration, form, statement, information or other document with the Commission.
As of its filing date, each Commission Document filed with or furnished to the Commission prior to the Closing Date (including, without
limitation, the 2020 Form 10-K) complied in all material respects with the requirements of the Securities Act or the Exchange Act,
as applicable, and other federal, state and local laws, rules and regulations applicable to it, and, as of its filing date (or,
if amended or superseded by a filing prior to the Closing Date, on the date of such amended or superseded filing). Each Registration
Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission, on each 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 light of
the circumstances under which they were made, not misleading, except that this representation and warranty shall not apply to statements
in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information relating to
the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each Commission Document
(other than the Initial Registration Statement or any New Registration Statement, or the Prospectus included therein or any Prospectus
Supplement thereto) to be filed with or furnished to the Commission after the Closing Date and incorporated by reference in the Initial
Registration Statement or any New Registration Statement, or the Prospectus included therein or any Prospectus Supplement thereto required
to be filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when
such document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may
be, shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal,
state and local laws, rules and regulations applicable to it. The Company has delivered or made available to the Investor via EDGAR
or otherwise true and complete copies of all comment letters and substantive correspondence received by the Company from the Commission
relating to the Commission Documents filed with or furnished to the Commission as of the Closing Date, together with all written responses
of the Company thereto in the form such responses were filed via EDGAR. There are no outstanding or unresolved comments or undertakings
in such comment letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending
the effectiveness of any registration statement filed by the Company under the Securities Act or the Exchange Act.


 






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(b)          The
consolidated financial statements of the Company included or incorporated by reference in the Commission Documents, together with the
related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the Subsidiaries
(as defined below) as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company and the Subsidiaries for the periods specified (subject, in the case of unaudited statements, to normal year-end
audit adjustments which will not be material, either individually or in the aggregate) and have been prepared in compliance with the
published requirements of the Securities Act and Exchange Act, as applicable, and in conformity with generally accepted accounting principles
in the United States (“GAAP”) applied on a consistent basis (except (i) for such adjustments to accounting
standards and practices as are noted therein and (ii) in the case of unaudited interim statements, to the extent they may exclude
footnotes or may be condensed or summary statements) during the periods involved; the other financial and statistical data with respect
to the Company and the Subsidiaries contained or incorporated by reference in the Commission Documents, are accurately and fairly presented
and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in the Commission Documents that are not included
or incorporated by reference as required; the Company and the Subsidiaries do not have any material liabilities or obligations, direct
or contingent (including any off balance sheet obligations), not described in Commission Documents which are required to be described
in the Commission Documents; and 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.


 


(c)          There
are no transactions, arrangements and other relationships between and/or among the Company, and/or, to the knowledge of the Company,
any of its affiliates and any unconsolidated entity, including, but not limited to, any structured finance, special purpose or limited
purpose entity (each, an “Off Balance Sheet Transaction”) that would 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.


 






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(d)          Except
as set forth in the Commission Documents, the Company maintains a system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company is not aware of any material weaknesses in its internal control over financial reporting (other
than as set forth in the Commission Documents). Since the date of the latest audited financial statements of the Company included in
the 2020 Form 10-K, there has been no change in the Company’s internal control over financial reporting that has materially
affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting (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) that comply with the requirements of the Exchange Act. The Company’s certifying officers have evaluated the effectiveness
of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K for the fiscal
year most recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K for
the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls and
procedures based on their evaluations as of the most recent Evaluation Date, and the “disclosure controls and procedures”
are effective.


 


(e)          Marcum
LLP (the “Accountant”), whose report on the consolidated financial statements of the Company is filed with
the Commission as part of the Company’s most recent Annual Report on Form 10-K filed with the Commission, are and, during
the periods covered by their report, were independent public accountants within the meaning of the Securities Act and the Public Company
Accounting Oversight Board (United States). To the Company’s knowledge, the Accountant is not in violation of the auditor independence
requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) with respect to the Company.


 


(f)           There
is and has been no failure on the part of the Company or, to the knowledge of the Company, any of the Company’s directors or officers,
in their capacities as such, to comply in all material respects with any applicable provisions of the Sarbanes-Oxley Act and the rules and
regulations promulgated thereunder. Each of the principal executive officer and the principal financial officer of the Company (or each
former principal executive officer of the Company and each former principal financial officer of the Company as applicable) has made
all certifications required by Sections 302 and 906 of the Sarbanes-Oxley Act with respect to all reports, schedules, forms, statements
and other documents required to be filed by it or furnished by it to the Commission during the past 12 months. For purposes of the preceding
sentence, “principal executive officer” and “principal financial officer” shall have the meanings given to such
terms in the Exchange Act Rules 13a-15 and 15d-15.


 


Section 5.7.     Subsidiaries.
The 2020 Form 10-K sets forth each Subsidiary of the Company as of the Closing Date, other than those that may be omitted pursuant
to Item 601 of Regulation S-K, showing its jurisdiction of incorporation or organization and the percentage of the Company’s ownership
of the outstanding capital stock or other ownership interests of such Subsidiary, and the Company does not have any other Subsidiaries
as of the Closing Date.


 






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Section 5.8.     No
Material Adverse Effect or Material Adverse Change. Since the date of the most recent financial statements of the Company included
or incorporated by reference in 2020 Form 10-K, there has not been (i) any Material Adverse Effect, or any development that
would 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 the Subsidiaries, which is material to the Company and the Subsidiaries taken as a whole, (iv) any material change in the capital
stock (other than (A) the grant of additional options under the Company’s existing stock option plans, (B) changes in
the number of outstanding Common Stock of the Company due to the issuance of shares upon the exercise or conversion of securities exercisable
for, or convertible into, Common Stock outstanding on the date hereof, (C) as a result of the issuance of Securities, (D) any
repurchases of capital stock of the Company, (E) as described in a proxy statement filed on Schedule 14A or a Registration Statement
on Form S-4, or (F) otherwise publicly announced) or outstanding long-term indebtedness of the Company or the 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
incorporated by reference therein).


 


Section 5.9.     No
Material Defaults. Except as set forth in Schedule 5.11 hereto, neither the Company nor any Subsidiary has defaulted on any installment
on indebtedness for borrowed money or on any rental on one or more long-term leases, which defaults, individually or in the aggregate,
would have a Material Adverse Effect. Except for the Company’s Quarterly Report on Form 10-Q for its fiscal quarter ended
June 30, 2021, the Company has not filed a report pursuant to Section 13(a) or 15(d) of the Exchange Act since the
filing of the 2020 Form 10-K, indicating that it (i) has failed to pay any dividend or sinking fund installment on preferred
stock or (ii) has defaulted on any installment on indebtedness for borrowed money or on any rental on one or more long-term leases,
which defaults, individually or in the aggregate, would have a Material Adverse Effect.


 


Section 5.10.   Enforceability
of Agreements. All agreements between the Company and third parties expressly referenced in the Commission Documents,
other than such agreements that have expired by their terms or whose termination is disclosed in documents filed by the Company on EDGAR,
are legal, valid and binding obligations of the Company and, to the Company’s knowledge, enforceable in accordance with their respective
terms, except to the extent that (i) enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors’ rights generally and by general equitable principles and (ii) the indemnification provisions of
certain agreements may be limited by federal or state securities laws or public policy considerations in respect thereof, and except
for any unenforceability that, individually or in the aggregate, would not have a Material Adverse Effect.


 






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Section 5.11.   Indebtedness;
Solvency. The Company’s Quarterly Report on Form 10-Q for its fiscal quarter ended June 30, 2021 sets forth,
as of June 30, 2021, all outstanding secured and unsecured Indebtedness of the Company or any Subsidiary, or for which the Company
or any Subsidiary has commitments through such date. For the purposes of this Agreement, “Indebtedness” shall
mean (a) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in
the ordinary course of business), (b) all guaranties, endorsements, indemnities and other contingent obligations in respect of Indebtedness
of others in excess of $100,000, whether or not the same are or should be reflected in the Company’s balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary
course of business; and (c) the present value of any lease payments in excess of $100,000 due under leases required to be capitalized
in accordance with GAAP. Except as set forth in Schedule 5.11 hereto, there is no existing or continuing default or event of default
in respect of any Indebtedness of the Company or any of its Subsidiaries. The Company has not taken any steps, and does not currently
expect to take any steps, to seek protection pursuant to Title 11 of the United States Code or any similar federal or state bankruptcy
law or law for the relief of debtors, nor does the Company have any Knowledge that its creditors intend to initiate involuntary bankruptcy,
insolvency, reorganization or liquidation proceedings or other proceedings for relief under Title 11 of the United States Code or any
other federal or state bankruptcy law or any law for the relief of debtors. The Company is financially solvent and is generally able
to pay its debts as they become due.


 


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


 


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


 


Section 5.14.   Compliance
With Law; Compliance with Continued Listing Standards. The Company has not been advised, and has no reason to believe, that it
and each of its Subsidiaries are not conducting business in compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, except where failure to be so in compliance would not result in a Material Adverse Effect. The Company
has not received any notice of any continuing failure to maintain requirements for continued listing or quotation of its Common Stock
on the Trading Market or in violation of any of the rules, regulations or requirements of the Trading Market, other than as disclosed
in the Commission Documents.


 






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


 


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


 


Section 5.17.   Operation
of Business.


 


(a)          The
Company and the Subsidiaries possess or have obtained, all licenses, certificates, consents, orders, approvals, permits and other authorizations
issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses
as currently conducted, as described in the Registration Statement and the Prospectus (the “Permits”), except
where the failure to possess, obtain or make the same would not, individually or in the aggregate, have a Material Adverse Effect. Neither
the Company nor any Subsidiary has received written notice of any proceeding relating to revocation or modification of any such Permit
or has any reason to believe that such Permit will not be renewed in the ordinary course, except where the failure to obtain any such
renewal would not, individually or in the aggregate, have a Material Adverse Effect. This Section 5.17(a) does not relate to
environmental matters, such items being the subject of Section 5.18.


 






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


 


Section 5.18.   Environmental
Compliance. The Company and the Subsidiaries (i) are in compliance with any and all applicable federal, state, local and
foreign laws, rules, regulations, decisions and orders relating to the protection of human health and safety, the environment or hazardous
or toxic substances or wastes, pollutants or contaminants (collectively, “Environmental Laws”); (ii) have
received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses as described in the Commission Documents; and (iii) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants
or contaminants, except, in the case of any of clauses (i), (ii) or (iii) above, for any such failure to comply or failure
to receive required permits, licenses, other approvals or liability as would not, individually or in the aggregate, have a Material Adverse
Effect.


 






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


 


Section 5.20.   Transactions
With Affiliates. Except as set forth in the Commission Documents, there are no loans, leases, agreements, contracts, royalty
agreements, management contracts, service arrangements or other continuing transactions exceeding $120,000 between (a) the Company
or any Subsidiary, on the one hand, and (b) any person or entity who would be covered by Item 404(a) of Regulation S-K, on
the other hand. Except as disclosed in the Commission Documents, there are no outstanding amounts payable to or receivable from, or advances
by the Company or any of its Subsidiaries to, and neither the Company nor any of its Subsidiaries is otherwise a creditor of or debtor
to, any beneficial owner of more than 5% of the outstanding shares of Common Stock, or any director, employee or affiliate of the Company
or any of its Subsidiaries, other than (i) reimbursement for reasonable expenses incurred on behalf of the Company or any of its
Subsidiaries or (ii) as part of the normal and customary terms of such person’s employment or service as a director with the
Company or any of its Subsidiaries.


 


Section 5.21.   Labor
Disputes. No labor disturbance by or dispute with employees of the Company or any Subsidiary exists or, to the knowledge of the
Company, is threatened which would result in a Material Adverse Effect.


 


Section 5.22.   Use
of Proceeds. The proceeds from the sale of the Shares by the Company to Investor shall be used by the Company and its Subsidiaries
in the manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment thereto)
and any Prospectus Supplement thereto filed pursuant to the Registration Rights Agreement.


 


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


 






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Section 5.24.   ERISA.
To the Knowledge of the Company, (i) 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 the Subsidiaries has been maintained
in material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including
but not limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material
liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative exemption;
and (iii) for each such plan that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA,
no “accumulated funding deficiency” as defined in Section 412 of the Code has been incurred, whether or not waived,
and the fair market value of the assets of each such plan (excluding for these purposes accrued but unpaid contributions) equals or exceeds
the present value of all benefits accrued under such plan determined using reasonable actuarial assumptions, other than, in the case
of (i), (ii) and (iii) above, as would not have a Material Adverse Effect.


 


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


 


Section 5.26.   Insurance.
The Company and the Subsidiaries carry, or are covered by, insurance in such amounts and covering such risks as the Company and the Subsidiaries
reasonably believe are adequate for the conduct of their business.


 


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


 






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


 


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


 


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


 


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


 


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


 






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Section 5.33.   Listing
and Maintenance Requirements; DTC Eligibility. As of the date of this Agreement and the Closing Date, the Common Stock is registered
pursuant to Section 12(b) of the Exchange Act, and the Company has taken no action designed to, or which to its Knowledge is
likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act, nor has the Company received any
notification that the Commission is contemplating terminating such registration. As of the date of this Agreement and the Closing Date,
the Company has not received notice from the Trading Market or any Eligible Market on which the Common Stock is or has been listed or
quoted to the effect that the Company is not in compliance with the listing or maintenance requirements of such Trading Market or Eligible
Market, as applicable. As of the Closing Date, the Company is in compliance with all such listing and maintenance requirements. The Common
Stock is eligible for participation in the DTC book entry system and has shares on deposit at DTC for transferred electronically to third
parties via DTC through its Deposit/Withdrawal at Custodian (“DWAC”) delivery system. The Company has not received
notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits of the Common Stock, electronic
trading or book-entry services by DTC with respect to the Common Stock is being imposed or is contemplated.


 


Section 5.34.   Application
of Takeover Protections. There is no control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or other similar anti-takeover provision under the Company’s Charter or the laws of its state of incorporation
that is or could become applicable to the Investor as a result of the Investor and the Company fulfilling their respective obligations
or exercising their respective rights under the Transaction Documents (as applicable), including, without limitation, as a result of
the Company’s issuance of the Securities and the Investor’s ownership of the Securities.


 


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


 






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


 


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


 


Section 5.38.   U.S.
Real Property Holding Corporation. Neither the Company nor any of its Subsidiaries is, or has ever been, and so long as any of
the Securities are held by the Investor, shall become a U.S. real property holding corporation within the meaning of Section 897
of the Code.


 






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Section 5.39.   Information
Technology; Compliance With Data Privacy Laws. (i)(x) To the Knowledge of Company, there has been no security breach or
other compromise of any Company’s information technology and computer systems, networks, hardware, software, data (including the
data of their respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of them), equipment
or technology (collectively, “IT Systems and Data”) and (y) the Company has not been notified of, and
has no Knowledge of any event or condition that would reasonably be expected to result in, any security breach or other compromise to
their IT Systems and Data; (ii) the Company is presently in material compliance with all applicable laws or statutes and all judgments,
orders, rules and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual
obligations relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems and Data from unauthorized
use, access, misappropriation or modification, except as would not, in the case of this clause (ii), individually or in the aggregate,
have a Material Adverse Effect; and (iii) the Company has implemented backup and disaster recovery technology consistent with industry
standards and practices.


 


Section 5.40.   No
Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company's
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405
under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the
Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or
(d)(3) under the Securities Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject
to a Disqualification Event.


 


Section 5.41.   Acknowledgement
Regarding Investor’s Acquisition of Securities. The Company acknowledges and agrees that the Investor is acting solely
in the capacity of an arm’s-length purchaser with respect to this Agreement and the transactions contemplated by the Transaction
Documents. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in
any similar capacity) with respect to this Agreement and the transactions contemplated by the Transaction Documents, and any advice given
by the Investor or any of its representatives or agents in connection therewith is merely incidental to the Investor’s acquisition
of the Securities. The Company further represents to the Investor that the Company’s decision to enter into the Transaction Documents
to which it is a party has been based solely on the independent evaluation of the transactions contemplated thereby by the Company and
its representatives. The Company acknowledges and agrees that the Investor has not made and does not make any representations or warranties
with respect to the transactions contemplated by the Transaction Documents other than those specifically set forth in Article IV.


 


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):


 






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


 


Section 6.2.     Reservation
of Common Stock. The Company has available and the Company shall reserve and keep available at all times, free of preemptive
and other similar rights of stockholders, the requisite aggregate number of authorized but unissued shares of Common Stock to enable
the Company to timely effect (i) the issuance and delivery of all Initial Commitment Shares and all Initial Purchase Shares to be
issued and delivered to the Investor under Section 10.1(ii)(a) hereof within the time period specified in Section 10.1(ii)(a) hereof,
(ii) the issuance and delivery of all Additional Commitment Shares to be issued and delivered to the Investor under Section 10.1(ii)(b) hereof
within the time period specified in Section 10.1(ii)(b) hereof, and (iii) the issuance, sale and delivery of all Shares
to be issued, sold and delivered in respect of each VWAP Purchase effected under this Agreement, in the case of this clause (iii), at
least prior to the delivery by the Company to the Investor in connection with such VWAP Purchase the applicable VWAP Purchase Notice.
Without limiting the generality of the foregoing, (a) as of the date of this Agreement, the Company has reserved, out of its authorized
and unissued Common Stock, 69,137 shares of Common Stock solely for the purpose of issuing all of the Initial Commitment Shares under
this Agreement to be issued and delivered to the Investor under Section 10.1(ii)(a) hereof within the time period specified
in Section 10.1(ii)(a) hereof, (b) as of the date of this Agreement the Company has reserved, and as of the Commencement
Date shall have continued to reserve, out of its authorized and unissued Common Stock, 200,000 shares of Common Stock (as the maximum
number of Additional Commitment Shares issuable pursuant to this Agreement) solely for the purpose of issuing all of the Additional Commitment
Shares under this Agreement, if any, to be issued and delivered to the Investor under Section 10.1(ii)(b) hereof within the
time period specified in Section 10.1(ii)(b) hereof, (c) as of the date of this Agreement, the Company has reserved, out
of its authorized and unissued Common Stock, 625,000 shares of Common Stock solely for the purpose of issuing all of the Initial Purchase
Shares in the Initial Purchase under this Agreement to be issued and delivered to the Investor under Section 10.1(ii)(a) hereof
within the time period specified in Section 10.1(ii)(a) hereof, and (d) as of the date of this Agreement the Company has
reserved, and as of the Commencement Date shall have continued to reserve, out of its authorized and unissued Common Stock, 6,105,863
shares of Common Stock solely for the purpose of issuing Shares 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 under this Agreement. The number of shares of Common Stock so
reserved for the purpose of effecting VWAP Purchases under this Agreement may be increased from time to time by the Company from and
after the Commencement Date, and such number of reserved shares may be reduced from and after the Commencement Date only by the number
of Shares actually issued, sold and delivered to the Investor pursuant to any VWAP Purchase effected from and after the Commencement
Date pursuant to this Agreement.


 






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


 


Section 6.4.     Compliance
with Laws.


 


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


 


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


 






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


 


(i)           The
Investor and the Company shall each maintain records showing the remaining Total Commitment, the remaining Aggregate Limit 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 after the Closing
Date, the Investor’s continued due diligence shall not be a condition precedent to the Commencement or to the Investor’s
obligation to accept any VWAP Purchase Notice timely delivered by the Company to the Investor in accordance with this Agreement.


 


Section 6.6.     No
Frustration; No Variable Rate Transactions.


 


(i)           No
Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement or
transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the Company
to perform its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation of the
Company to deliver (i) the Initial Commitment Shares and the Initial Purchase Shares to the Investor not later than 4:00 p.m. (New
York time) on the Trading Day immediately following the Closing Date, (ii) the Additional Commitment Shares to the Investor not
later than 4:00 p.m. (New York time) on the Trading Day immediately following the Additional Commitment Share Trigger Date, and
(iii) the Shares to the Investor in respect of a VWAP Purchase not later than the VWAP Purchase Share Delivery Date in accordance
with Section 3.2. 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 Section 3.2 of this Agreement, the Company shall not effect any Fundamental Transaction
until the expiration of five (5) Trading Days following the date of full settlement thereof and the issuance to the Investor of
all of the Shares that are issuable to the Investor pursuant to the VWAP Purchase 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”),
neither the Investor nor any of its Affiliates nor any entity managed or controlled by the Investor (collectively, the “Restricted
Persons” and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly
or indirectly, (x) engage in any Short Sales involving the Company’s securities or (y) grant any option to purchase,
or acquire any right to dispose of or otherwise dispose for value of, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for any shares of Common Stock, or enter into any swap, hedge or other similar agreement that transfers,
in whole or in part, the economic risk of ownership of the Common Stock. Notwithstanding the foregoing, it is expressly understood and
agreed that nothing contained herein shall (without implication that the contrary would otherwise be true) prohibit any Restricted
Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200 promulgated under Regulation
SHO) the Securities; or (2) selling a number of shares of Common Stock equal to the number of Shares that such Restricted Person is
unconditionally obligated to purchase under a pending VWAP Purchase Notice but has not yet received from the Company or its transfer
agent pursuant to this Agreement, so long as (X) 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 (Y) neither the
Company nor its transfer agent shall have failed for any reason to deliver such Shares to the Investor or its Broker-Dealer so that such
Shares are timely received by the Investor as DWAC Shares on the applicable VWAP Purchase Share Delivery Date in accordance with Section 3.2
of this Agreement.


 


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


 


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


 


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


 






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


 


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


 


Section 6.14.   Disclosure
Schedule.


 


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


 


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


 






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


 






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Article VII

CONDITIONS TO CLOSING (AND INITIAL PURCHASE), CONDITIONS TO 

COMMENCEMENT AND CONDITIONS TO VWAP PURCHASES


 


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


 


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


 


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


 


(iii)         Payment
of Document Preparation Fee; Issuance of Instructions to Issue Initial Purchase Shares and Initial Commitment Shares. On or prior
to the Closing Date, the Company shall have paid by wire transfer of immediately available funds (a) to an account designated by
the Investor or the Investor’s counsel on or prior to the date hereof, the Document Preparation Fee in accordance with Section 10.1(i),
all of which Document Preparation Fee shall be fully earned and non-refundable as of the Closing Date, regardless of whether any VWAP
Purchases are made or settled hereunder or any subsequent termination of this Agreement. On the Closing Date, the Company shall deliver
irrevocable instructions to its transfer agent to issue to the Investor, not later than 4:00 p.m. (New York City time) on the Trading
Day immediately following the Closing Date, one or more certificates or book-entry statements representing (x) the Initial Commitment
Shares in the name of the Investor or its designee (in which case such designee name shall have been provided to the Company prior to
the Closing Date), in consideration for the Investor’s execution and delivery of this Agreement, and (y) the Initial Purchase
Shares in the name of the Investor or its designee (in which case such designee name shall have been provided to the Company prior to
the Closing Date) being purchased by the Investor from the Company in the Initial Purchase on the Closing Date, in exchange for the payment
by the Investor to the Company of the Aggregate Initial Purchase Price on the Closing Date by wire transfer of immediately available
funds to an account designated by the Company on or prior to the Closing Date. Such certificate(s) or book-entry statement(s) shall
be delivered to the Investor by overnight courier at its address set forth in Section 10.4 hereof. For the avoidance of doubt, all
of the Initial Commitment Shares shall be fully earned as of the Closing Date regardless of whether any VWAP Purchases are made hereunder
or any subsequent termination of this Agreement.


 






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


 


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


 


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


 


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


 


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


 



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


 


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


 


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


 



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


 


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


 


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


 


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


 


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


 


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


 



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(xiii)       Initial
Commitment Shares and Initial Purchase Shares Issued as DWAC Shares. The Company shall have caused the Company’s transfer
agent to credit the Investor’s or its designee’s account at DTC as DWAC Shares such number of shares of Common Stock equal
to the sum of (x) the number of Initial Commitment Shares issued to the Investor pursuant to Section 10.1(ii)(a) hereof
and (y) the number of Initial Purchase Shares issued and sold to the Investor in the Initial Purchase on the Closing Date pursuant
to Sections 2.1 and 10.1(ii)(a) hereof, in each case in accordance with Section 10.1(iv) hereof.


 


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


 


(xv)       Reservation
of Shares. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, (i) 200,000
shares of Common Stock (as the maximum number of Additional Commitment Shares issuable pursuant to this Agreement) solely for the purpose
of issuing all of the Additional Commitment Shares under this Agreement, if any, to be issued and delivered to the Investor under Section 10.1(ii)(b) hereof
within the time period specified in Section 10.1(ii)(b) hereof, and (ii) 6,105,863 shares of Common Stock solely for the
purpose of issuing Shares pursuant to VWAP Purchases that may be effected by the Company, in its sole discretion, from and after the
Commencement Date under this Agreement.


 


(xvi)      Opinions
and Bring-Down Opinions of Company Counsel. On the Commencement Date, the Investor shall have received the opinions, bring-down
opinions and negative assurances from outside counsel to the Company, dated the Commencement Date, in the forms mutually agreed to by
the Company and the Investor prior to the date of this Agreement.


 


Section 7.3.         Conditions
Precedent to 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”).


 






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


 


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


 


(iii)        Any
Required New Registration Statement Effective. Any New Registration Statement covering the resale by the Investor of the Registrable
Securities included therein, and any post-effective amendment thereto, required to be filed by the Company with the Commission pursuant
to the Registration Rights Agreement after the Commencement Date and prior to the applicable VWAP Purchase Date, in each case shall have
been declared effective under the Securities Act by the Commission and shall remain effective for the applicable Registration Period,
and the Investor shall be permitted to utilize the Prospectus therein, and any Prospectus Supplement thereto, to resell (a) all of
the Commitment Shares (if any) and all of the Initial Purchase Shares (if any) included in such New Registration Statement, and any post-effective
amendment thereto, (b) all of the Shares included in such New Registration Statement, and any post-effective amendment thereto, that
have been issued and sold to the Investor hereunder pursuant to all VWAP Purchase Notices delivered by the Company to the Investor prior
to such applicable VWAP Purchase Date and (c) all of the Shares included in such new Registration Statement, and any post-effective
amendment thereto, that are issuable pursuant to the applicable 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 declared effective by the Commission after the Commencement Date, the Company shall have delivered or caused to be delivered
to its transfer agent (a) irrevocable instructions in the form substantially similar to the Commencement Irrevocable Transfer Agent
Instructions executed by the Company and acknowledged in writing by its transfer agent and (b) the Notice of Effectiveness, in each
case modified as necessary to refer to such Registration Statement or post-effective amendment and the Registrable Securities included
therein, to issue the Registrable Securities included therein as DWAC Shares in accordance with the terms of this Agreement and the Registration
Rights Agreement.


 






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(v)         No
Material Notices. None of the following events shall have occurred and be continuing: (a) receipt of any request by the
Commission or any other federal or state governmental authority for any additional information relating to the Initial Registration Statement
or any post-effective amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained
in any of the foregoing or any Prospectus Supplement thereto, or for any amendment of or supplement to the Initial Registration Statement
or any post-effective amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained
in any of the foregoing or any Prospectus Supplement thereto; (b) the issuance by the Commission or any other federal or state governmental
authority of any stop order suspending the effectiveness of the Initial Registration Statement or any post-effective amendment thereto,
any New Registration Statement or any post-effective amendment thereto, or prohibiting or suspending the use of the Prospectus contained
in any of the foregoing or any Prospectus Supplement thereto, or of the suspension of qualification or exemption from qualification of
the Securities for offering or sale in any jurisdiction, or the initiation or contemplated initiation of any proceeding for such purpose;
or (c) the occurrence of any event or the existence of any condition or state of facts, which makes any statement of a material
fact made in the Initial Registration Statement or any post-effective amendment thereto, any New Registration Statement or any post-effective
amendment thereto, or the Prospectus contained in any of the foregoing or any Prospectus Supplement thereto untrue or which requires
the making of any additions to or changes to the statements then made in the Initial Registration Statement or any post-effective amendment
thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the foregoing
or any Prospectus Supplement thereto in order to state a material fact required by the Securities Act to be stated therein or necessary
in order to make the statements then made therein (in the case of the Prospectus or any Prospectus Supplement, in light of the circumstances
under which they were made) not misleading, or which requires an amendment to the Initial Registration Statement or any post-effective
amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the
foregoing or any Prospectus Supplement thereto to comply with the Securities Act or any other law (other than the transactions contemplated
by the applicable VWAP Purchase Notice delivered by the Company to the Investor with respect to a VWAP Purchase 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 and, if any Registrable Securities are covered by a Registration Statement on Form S-3, such filings shall have been
made within the applicable time period prescribed for such filing under the Exchange Act.


 


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


 


(viii)      Certain
Limitations. The issuance and sale of the Shares issuable pursuant to the applicable VWAP Purchase Notice (a) shall not
exceed the applicable VWAP Purchase Maximum Amount, (b) shall not cause the Aggregate Limit or the Beneficial Ownership Limitation
to be exceeded, and (c) when such Shares are aggregated with (1) all Initial Commitment Shares, (2) all Initial Purchase
Shares, (3) all Additional Commitment Shares issued or issuable by the Company to the Investor under this Agreement (for purposes
of this clause (c) of this Section 7.3(viii), if the applicable VWAP Purchase Condition Satisfaction Time for the applicable
VWAP Purchase occurs prior to the Additional Commitment Share Trigger Date, the Company shall assume the maximum of 200,000 Additional
Commitment Shares are then issuable to the Investor under this Agreement and shall aggregate all such 200,000 Additional Commitment Shares
with all other Securities that have been issued by the Company pursuant to this Agreement prior to such VWAP Purchase Condition Satisfaction
Time for such applicable VWAP Purchase), and (4) all Shares that have been issued or are issuable by the Company pursuant to all
VWAP Purchase Notices delivered prior to the applicable VWAP Purchase Condition Satisfaction Time for the applicable VWAP Purchase, shall
not cause the Exchange Cap (to the extent applicable under Section 3.3) to be exceeded, unless in the case of this clause (c) of
this Section 7.3(viii), the Company’s stockholders have theretofore approved the issuance of Common Stock under this Agreement
in excess of the Exchange Cap in accordance with the applicable rules of the Trading Market.


 






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(ix)         Shares
and Additional Commitment Shares Authorized and Delivered. All of the Shares issuable pursuant to the applicable VWAP Purchase
Notice, and all of the Additional Commitment Shares issuable to the Investor under Section 10.1(ii)(b) hereof 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. From and
after the Additional Commitment Share Trigger Date, all of the Additional Commitment Shares issuable to the Investor under Section 10.1(ii)(b) hereof
shall have been issued and delivered to the Investor as DWAC Shares within the time period specified in Section 10.1(ii)(b) hereof
and otherwise in accordance therewith.


 


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


 


Article VIII

TERMINATION


 


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


 


Section 8.2.         Other
Termination. Subject to Section 8.3, the Company may terminate this Agreement after
the Commencement Date effective upon ten (10) Trading Days’ prior written notice to the Investor in accordance with Section 10.4;
provided, however, that (i) the Company shall have issued all Initial Commitment Shares required to be issued to the
Investor under Section 10.1(ii)(a) and all Additional Commitment Shares, if any, required to be issued to the Investor under
Section 10.1(ii)(b), and shall have paid the Document Preparation Fee to the Investor or its counsel required to be paid pursuant
to Section 10.1(i) of this Agreement prior to such termination, and (ii) prior to issuing any press release, or making
any public statement or announcement, with respect to such termination, the Company shall consult with the Investor and its counsel on
the form and substance of such press release or other disclosure. Subject to Section 8.3, this Agreement may be terminated at any
time by the mutual written consent of the parties, effective as of the date of such mutual written consent unless otherwise provided
in such written consent. Subject to Section 8.3, the Investor shall have the right to terminate this Agreement effective upon ten
(10) Trading Days’ prior written notice to the Company in accordance with Section 10.4, if: (a) any condition, occurrence,
state of facts or event constituting a Material Adverse Effect has occurred and is continuing; (b) a Fundamental Transaction shall
have occurred; (c) the Initial Registration Statement and any New Registration Statement is not filed by the applicable Filing Deadline
therefor or declared effective by the Commission by the applicable Effectiveness Deadline (as defined in the Registration Rights Agreement)
therefor, or the Company is otherwise in breach or default in any material respect under any of the other provisions of the Registration
Rights Agreement, and, if such failure, breach or default is capable of being cured, such failure, breach or default is not cured within
10 Trading Days after notice of such failure, breach or default is delivered to the Company pursuant to Section 10.4; (d) while
a Registration Statement, or any post-effective amendment thereto, is required to be maintained effective pursuant to the terms of the
Registration Rights Agreement and the Investor holds any Registrable Securities, the effectiveness of such Registration Statement, or
any post-effective amendment thereto, lapses for any reason (including, without limitation, the issuance of a stop order by the Commission)
or such Registration Statement or any post-effective amendment thereto, the Prospectus contained therein or any Prospectus Supplement
thereto otherwise becomes unavailable to the Investor for the resale of all of the Registrable Securities included therein in accordance
with the terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period of 20 consecutive Trading
Days or for more than an aggregate of 60 Trading Days in any 365-day period, other than due to acts of the Investor; (e) trading
in the Common Stock on the Trading Market (or if the Common Stock is then listed on an Eligible Market, trading in the Common Stock on
such Eligible Market) shall have been suspended and such suspension continues for a period of three (3) consecutive Trading Days;
or (f) the Company is in material breach or default of this Agreement, and, if such breach or default is capable of being cured,
such breach or default is not cured within 10 Trading Days after notice of such breach or default is delivered to the Company pursuant
to Section 10.4. Unless notification thereof is required elsewhere in this Agreement (in which case such notification shall be provided
in accordance with such other provision), the Company shall promptly (but in no event later than 24 hours) notify the Investor (and,
if required under applicable law, including, without limitation, Regulation FD promulgated by the Commission, or under the applicable
rules and regulations of the Trading Market, the Company shall publicly disclose such information in accordance with Regulation
FD and the applicable rules and regulations of the Trading Market) upon becoming aware of any of the events set forth in the immediately
preceding sentence.


 






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Section 8.3.         Effect
of Termination. In the event of termination by the Company or the Investor (other than by
mutual termination) pursuant to Section 8.2, written notice thereof shall forthwith be given to the other party as provided in Section 10.4
and the transactions contemplated by this Agreement shall be terminated without further action by either party. If this Agreement is
terminated as provided in Section 8.1 or Section 8.2, this Agreement shall become void and of no further force and effect,
except that (i) the provisions of Article V (Representations, Warranties and Covenants of the Company), Article IX (Indemnification),
Article X (Miscellaneous) and this Article VIII (Termination) shall remain in full force and effect indefinitely notwithstanding
such termination, and, (ii) so long as the Investor owns any Securities, the covenants and agreements of the Company contained in
Article VI (Additional Covenants) shall remain in full force and notwithstanding such termination for a period of six (6) months
following such termination. Notwithstanding anything in this Agreement to the contrary, no termination of this Agreement by any party
shall (i) become effective prior to the first Trading Day immediately following the settlement date related to any pending VWAP
Purchase Notice that has not been fully settled in accordance with the terms and conditions of this Agreement (it being hereby acknowledged
and agreed that no termination of this Agreement shall limit, alter, modify, change or otherwise affect any of the Company’s or
the Investor’s rights or obligations under the Transaction Documents with respect to any pending VWAP Purchase, 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, (iii) affect the Document Preparation Fee payable to the Investor’s
counsel, all of which fees and expenses shall be non-refundable when paid on the Closing Date pursuant to Section 10.1(i), regardless
of whether any VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement, (iv) affect any Initial
Commitment Shares previously issued or delivered, or any rights of any holder thereof, it being hereby acknowledged and agreed that all
of the Initial Commitment Shares shall be fully earned as of the Closing Date, regardless of whether any VWAP Purchases are made or settled
hereunder or any subsequent termination of this Agreement, or (v) affect any Additional Commitment Shares previously issued or delivered
(if any), or any rights of any holder thereof, it being hereby acknowledged and agreed that all of the Additional Commitment Shares shall
be fully earned as of the Additional Commitment Share Trigger Date, regardless of whether any further VWAP Purchases are made or settled
hereunder or any subsequent termination of this Agreement. Nothing in this Section 8.3 shall be deemed to release the Company or
the Investor from any liability for any breach or default under this Agreement or any of the other Transaction Documents to which it
is a party, or to impair the rights of the Company and the Investor to compel specific performance by the other party of its obligations
under the Transaction Documents to which it is a party.


 






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Article IX

INDEMNIFICATION


 


Section 9.1.         Indemnification
of Investor. In consideration of the Investor’s execution and delivery of this Agreement
and acquiring the Securities hereunder and in addition to all of the Company’s other obligations under the Transaction Documents
to which it is a party, subject to the provisions of this Section 9.1, the Company shall indemnify and hold harmless the Investor,
each of its directors, officers, shareholders, members, partners, employees, representatives, agents and advisors (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each
Person, if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act), and the respective directors, officers, shareholders, members, partners, employees, representatives, agents and advisors
(and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or
any other title) of such controlling Persons (each, an “Investor Party”), from and against all losses, liabilities,
obligations, claims, contingencies, damages, costs and expenses (including all judgments, amounts paid in settlement, court costs, reasonable
attorneys’ fees and costs of defense and investigation) (collectively, “Damages”) that any Investor Party
may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in the other Transaction Documents to which it is a party or (b) any action, suit, claim
or proceeding (including for these purposes a derivative action brought on behalf of the Company) instituted against such Investor Party
arising out of or resulting from the execution, delivery, performance or enforcement of the Transaction Documents, other than claims
for indemnification within the scope of Section 6 of the Registration Rights Agreement; provided, however, that (x) the
foregoing indemnity shall not apply to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily
from a breach of any of the Investor’s representations, warranties, covenants or agreements contained in this Agreement or the
Registration Rights Agreement, and (y) the Company shall not be liable under subsection (b) of this Section 9.1 to the
extent, but only to the extent, that a court of competent jurisdiction shall have determined by a final judgment (from which no further
appeals are available) that such Damages resulted directly and primarily from any acts or failures to act, undertaken or omitted to be
taken by such Investor Party through its fraud, bad faith, gross negligence, or willful or reckless misconduct.


 


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


 


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


 


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


 


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


 






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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.


 


Article X

MISCELLANEOUS


 


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


 


(i)           Certain
Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated by this Agreement;
provided, however, that the Company shall pay, on or prior to the Closing Date, by wire transfer of immediately available
funds to an account designated by the Investor or its counsel on or prior to the Closing Date, a non-accountable and non-refundable document
preparation fee of up to $50,000, exclusive of disbursements and out-of-pocket expenses (the “Document Preparation Fee”),
in connection with the preparation, negotiation, execution and delivery of the Transaction Documents and legal due diligence of the Company.
For the avoidance of doubt, the Document Preparation Fee shall be non-refundable when paid on the Closing Date, regardless of whether
any VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement. The Company shall pay all U.S. federal,
state and local stamp and other similar transfer and other taxes and duties levied in connection with issuance of the Securities pursuant
hereto.


 


(ii)          Commitment
Shares; Initial Purchase Shares.


 


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


 






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(b)         Additional
Commitment Shares. In further consideration for the Investor’s execution and delivery of this Agreement, on the Trading
Day on which the Company shall have received from the Investor aggregate gross cash proceeds equal to $10,000,000 from the payment by
the Investor to the Company of the Aggregate Initial Purchase Price for all Initial Purchase Shares theretofore purchased by the Investor
in the Initial Purchase on the Closing Date and from the payment by the Investor to the Company of the aggregate of all VWAP Purchase
Prices for all VWAP Purchase Share Amounts theretofore purchased by the Investor in all prior VWAP Purchases pursuant to this Agreement
(the “Additional Commitment Share Trigger Date”), the Company shall deliver irrevocable instructions to the
Transfer Agent to electronically transfer to the Investor or its designee(s), not later than 4:00 p.m. (New York City time) on the
Trading Day immediately following the Additional Commitment Share Trigger Date, such number of additional shares of Common Stock as shall
equal the quotient obtained by dividing (X) $100,000 by (Y) the arithmetic average of the VWAPs of the Common Stock for the
ten (10) consecutive Trading Day period including such Additional Commitment Share Trigger Date (the “Additional Commitment
Shares”) (provided that the number of Additional Commitment Shares issuable to the Investor hereunder shall not exceed 200,000
Additional Commitment Shares), as DWAC Shares by crediting the Investor's or its designee(s) account at DTC through its Deposit/Withdrawal
at Custodian (DWAC) system, all of which Additional Commitment Shares. For the avoidance of doubt, all of the Additional Commitment Shares
shall be fully earned as of the Additional Commitment Share Trigger Date, regardless of whether any further VWAP Purchase Notices are
issued by the Company or settled hereunder and regardless of any subsequent termination of this Agreement. The Additional Commitment Shares
shall constitute Registrable Securities and the Company shall include the maximum of 200,000 Additional Commitment Shares in the Initial
Registration Statement and any post-effective amendment thereto, and the Prospectus included therein and, if necessary to register the
resale thereof by the Investor under the Securities Act, in any New Registration Statement and any post-effective amendment thereto filed
with the Commission prior to the Additional Commitment Share Trigger Date (it being acknowledged and agreed that with respect to any New
Registration Statement and any post-effective amendment thereto filed with the Commission on or after the Additional Commitment Share
Trigger Date, the Company shall include in such New Registration Statement and any post-effective amendment thereto, and the Prospectus
included therein, the actual number of Additional Commitment Shares to be issued to the Investor pursuant to this Section 10.1(ii)(b)),
in each case in accordance with this Agreement and the Registration Rights Agreement.


 


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


 


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


 






    43 


     


    

 


Notwithstanding the foregoing
and 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, and all Additional Commitment Shares to be issued pursuant to this Agreement, if any, shall be issued to the Investor (with
respect to such Shares, in accordance with Section 3.2) by crediting the Investor’s or its designees’ account at DTC
as DWAC Shares, and the Company shall not take any action or give instructions to any transfer agent of the Company otherwise.


 


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


 






    45 


     


    

 


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


 


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


 


If to the Company:


 


BioHiTech Global, Inc.


80 Red Schoolhouse Rd.


Chestnut
Ridge, NY 10977

Telephone Number: (845) 262-1081


Email: tfuller@biohitech.com


           bessman@biohitech.com


Attention: Tony Fuller, Chief Executive Officer


   Brian Essman, Chief Financial Officer


 


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


 


McCarter & English LLP


Two Tower Center Blvd., 24th Floor


Newark,
NJ 08816

Telephone Number: (732) 867-9741


Email: pcampitiello@mccarter.com

Attention: Peter Campitiello, Esq.


 






    46 


     


    

 


If to the Investor:


 


Keystone Capital Partners, LLC


139 Fulton Street, Suite 412


New York, NY 10038

Telephone Number: (646) 349-0916


Email: fz@keystone-cp.com


Attention: Fredric G. Zaino


 


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


 


Dorsey &
Whitney LLP


51 West 52nd
Street


New York, NY 10019


Telephone Number:
(212) 415-9214


Email: marsico.anthony@dorsey.com


Attention: Anthony J. Marsico, Esq.


 


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


 


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


 


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


 


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


 


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


 






    47 


     


    

 


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 V (Representations, Warranties and Covenants of the Company), Article VIII (Termination), Article IX (Indemnification)
and this Article X (Miscellaneous) shall remain in full force and effect indefinitely notwithstanding such termination, and, (ii) so
long as the Investor owns any Securities, the covenants and agreements of the Company and the Investor contained in Article VI (Additional
Covenants), shall remain in full force and effect notwithstanding such termination for a period of six months following such termination.


 


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


 






    48 


     


    

 


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


 


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


 


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


 


[Signature Pages Follow]


 



    49 


     


    





 


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.


 


	 	BIOHITECH GLOBAL, INC.:




 


		By:	



	 	Name:
	 	Title:




 


	 	KEYSTONE CAPITAL PARTNERS, LLC:




 


		By:	



	 	Name:
	 	Title:




 



     


     


    

 


ANNEX
I TO THE

COMMON STOCK PURCHASE AGREEMENT

DEFINITIONS


 


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


 


“Additional Commitment
Share Trigger Date” shall have the meaning assigned to such term in Section 10.1(ii)(b).


 


“Additional Commitment
Shares” shall have the meaning assigned to such term in Section 10.1(ii)(b).


 


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


 


“Aggregate Initial
Purchase Price” shall have the meaning assigned to such term in Section 2.1.


 


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


 


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


 


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


 


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


 


“Base Price”
means, with respect to Initial Purchase Shares and Shares, a price per share equal to the sum of (i) the Minimum Price and (ii) $0.0718
(subject to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction that occurs on or after the date of this Agreement).


 


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


 


“Bloomberg”
means Bloomberg, L.P.


 


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


 


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


 


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


 






    I-1 


     


    

 


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


 


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


 


“Closing Date”
means the date of this Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


“Commission Documents”
shall mean (1) all reports, schedules, registrations, forms, statements, information and other documents filed with or furnished
to the Commission by the Company pursuant to the reporting requirements of the Exchange Act, including all material filed with or furnished
to the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, since December 31, 2020, including,
without limitation, the Annual Report on Form 10-K filed by the Company for its fiscal year ended December 31, 2020 (the “2020
Form 10-K”), and which hereafter shall be filed with or furnished to the Commission by the Company, including, without
limitation, the Current Report, (2) each Registration Statement, as the same may be amended from time to time, the Prospectus contained
therein and each Prospectus Supplement thereto and (3) all information contained in such filings and all documents and disclosures
that have been and heretofore shall be incorporated by reference therein.


 


“Commitment Shares”
shall mean, collectively, all of the Initial Commitment Shares and all of the Additional Commitment Shares.


 


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


 


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


 






    I-2 


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Disqualification
Event” shall have the meaning assigned to such term in Section 5.40.


 


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


 


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


 


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


 


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


 


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


 


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


 






    I-3 


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


“Exchange Cap”
shall have the meaning assigned to such term in Section 3.3(a)(i) hereof.


 


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


 






    I-4 


     


    

 


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


 


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


 


“FINRA”
means the Financial Industry Regulatory Authority.


 


“Fundamental
Transaction” means that (i) the Company shall, directly or indirectly, in one or more related transactions,
(1) consolidate or merge with or into (whether or not the Company is the surviving corporation) another Person, with the result that
the holders of the Company’s capital stock immediately prior to such consolidation or merger together beneficially own less than
50% of the outstanding voting power of the surviving or resulting corporation, or (2) sell, lease, license, assign, transfer, convey
or otherwise dispose of all or substantially all of the properties or assets of the Company to another Person, or (3) take action
to facilitate a purchase, tender or exchange offer by another Person that is accepted by the holders of more than 50% of the outstanding
shares of Common Stock (excluding any shares of Common Stock held by the Person or Persons making or party to, or associated or affiliated
with the Persons making or party to, such purchase, tender or exchange offer), or (4) consummate a stock or share purchase agreement
or other business combination (including, without limitation, a reorganization, recapitalization, spin-off or scheme of arrangement) with
another Person whereby such other Person acquires more than 50% of the outstanding shares of Common Stock (not including any shares of
Common Stock held by the other Person or other Persons making or party to, or associated or affiliated with the other Persons making or
party to, such stock or share purchase agreement or other business combination), or (5) reorganize, recapitalize or reclassify its
Common Stock, or (ii) any “person” or “group” (as these terms are used for purposes of Sections 13(d) and
14(d) of the Exchange Act) is or shall become the “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of 50% of the aggregate ordinary voting power represented by issued and outstanding Common Stock.


 


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


 


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


 


“Initial Commitment
Shares” means 69,137 shares of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock which,
concurrently with the execution and delivery of this Agreement on the Closing Date, the Company has caused its transfer agent to issue
and deliver to the Investor not later than 4:00 p.m. (New York City time) on the Trading Day immediately following the Closing Date.


 


“Initial Purchase”
shall have the meaning assigned to such term in Section 2.1.


 


“Initial Purchase
Shares” means 625,000 shares of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock which,
in connection with the Initial Purchase on the Closing Date pursuant to this Agreement, 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.


 






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


 


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


 


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


 


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


 


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


 


“Issuer Covered
Person” shall have the meaning assigned to such term in Section 5.40.


 


“IT Systems and
Data” shall have the meaning assigned to such term in Section 5.39.


 


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


 


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


 






    I-6 


     


    

 


“Minimum Price”
means $1.44, representing the lower of (i) the Nasdaq official closing price of the Common Stock on the Trading Market (as reflected
on Nasdaq.com) on the Trading Day immediately preceding the date of this Agreement and (ii) the average Nasdaq official closing price
of the Common Stock on the Trading Market (as reflected on Nasdaq.com) for the five (5) consecutive Trading Days ending on the Trading
Day immediately preceding the date of this Agreement (subject to adjustment for any reorganization, recapitalization, non-cash dividend,
stock split, reverse stock split or other similar transaction that occurs on or after the date of this Agreement).


 


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


 


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


 


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


 


“Off Balance Sheet
Transaction” shall have the meaning assigned to such term in Section 5.6(c).


 


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


 


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


 


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


 


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


 


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


 


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


 






    I-7 


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“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”
means $0.50, which shall be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar
transaction and, effective upon the consummation of any such reorganization, recapitalization, non-cash dividend, stock split or other
similar transaction, the “Threshold Price” shall mean the lower of (i) such adjusted price and (ii) $0.50.


 






    I-8 


     


    

 


“Total Commitment”
means, initially, $20,000,000, in the aggregate, which dollar amount shall be reduced, on a dollar-for-dollar basis, by (i) the Aggregate
Initial Purchase Price upon the purchase of the Initial Purchase Shares by the Investor on the Closing Date pursuant to Section 2.1
of this Agreement, and (ii) the aggregate gross VWAP Purchase Price paid by the Investor to the Company for the applicable VWAP Purchase
Share Amount purchased by the Investor in a VWAP Purchase, each time the Investor purchases Shares in a VWAP Purchase under Sections 3.1
and 3.2 of this Agreement.


 


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


 


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


 


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


 


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


 






    I-9 


     


    

 


“VWAP”
means, for the Common Stock for a specified period, the dollar volume-weighted average price for the Common Stock on the Trading Market
(or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market), for such period, as reported by Bloomberg through
its “AQR” function. 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”
shall have the meaning assigned to such term in Section 3.1.


 


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


 


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


 


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


 


“VWAP Purchase
Date” means, with respect to a VWAP Purchase made pursuant to Section 3.1, the Trading Day on which the Investor receives,
after 6:00 a.m., New York City time, but prior to 9:00 a.m., New York City time, on such Trading Day, a valid VWAP Purchase Notice for
such VWAP Purchase in accordance with this Agreement.


 


“VWAP Purchase
Maximum Amount” means, with respect to a VWAP Purchase made pursuant to Section 3.1, a number of Shares equal to the
lesser of (i) such 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 cause the Investor’s beneficial ownership of Common Stock to equal, or approximate as closely as possible without
exceeding, the Beneficial Ownership Limitation and (ii) such number of shares of Common Stock equal to (A) the VWAP Purchase
Share Percentage multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Trading Market (or, if the
Common Stock is then listed on an Eligible Market, on such Eligible Market) during the applicable VWAP Purchase Period on the applicable
VWAP Purchase Date for such VWAP Purchase.


 


“VWAP Purchase
Notice” means, with respect to a VWAP Purchase made pursuant to Section 3.1, an irrevocable written notice timely delivered
by the Company to the Investor on a VWAP Purchase Date 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.


 






    I-10 


     


    

 


“VWAP Purchase
Period” means, 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” means, with respect to a VWAP Purchase made pursuant to Section 3.1, the purchase price per Share to be purchased
by the Investor in such VWAP Purchase equal to ninety-five percent (95.0%) of the VWAP of the Common Stock for the applicable VWAP Purchase
Period on the applicable VWAP Purchase Date for such VWAP Purchase (to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction).


 


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


 


“VWAP Purchase
Share Percentage” means, with respect to a VWAP Purchase made pursuant to Section 3.1, thirty percent (30%).


 


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


 






    I-11