Exhibit 10.1


 


COMMON STOCK PURCHASE AGREEMENT


 


Dated as of December 15, 2021


 


by and between


 


APPHARVEST, INC.


 


and


 


B. RILEY PRINCIPAL CAPITAL, 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.	Additional
    VWAP Purchases	3
	Section
    3.3.	Settlement	4
	Section
    3.4.	Compliance
    with Rules of Trading Market.	4
	Section
    3.5.	Beneficial
    Ownership Limitation	5
	 	 	 
	Article IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR 	5
	Section
    4.1.	Organization
    and Standing of the Investor	5
	Section
    4.2.	Authorization
    and Power	5
	Section
    4.3.	No
    Conflicts	6
	Section
    4.4.	Investment
    Purpose	6
	Section
    4.5.	Accredited
    Investor Status	6
	Section
    4.6.	Reliance
    on Exemptions	6
	Section
    4.7.	Information	6
	Section
    4.8.	No
    Governmental Review	7
	Section
    4.9.	No
    General Solicitation	7
	Section
    4.10.	Not
    an Affiliate	7
	Section
    4.11.	No
    Prior Short Sales	7
	Section
    4.12.	Statutory
    Underwriter Status	7
	Section
    4.13.	Resales
    of Securities	7


 






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	Article V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY 	8
	Section
    5.1.	Organization,
    Good Standing and Power	8
	Section
    5.2.	Authorization,
    Enforcement	8
	Section
    5.3.	Capitalization	8
	Section
    5.4.	Issuance
    of Securities	9
	Section
    5.5.	No
    Conflicts	9
	Section
    5.6.	Commission
    Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants	10
	Section
    5.7.	Subsidiaries	11
	Section
    5.8.	Absence
    of Certain Changes or Events	11
	Section
    5.9.	No
    Undisclosed Liabilities	12
	Section
    5.10.	FDA/USDA/FTC
    Matters	12
	Section
    5.11.	Title
    To Assets	12
	Section
    5.12.	Actions
    Pending	12
	Section
    5.13.	Compliance
    With Law	13
	Section
    5.14.	Certain
    Fees	13
	Section
    5.15.	Disclosure	13
	Section
    5.16.	Permits;
    Intellectual Property	13
	Section
    5.17.	Environmental
    Compliance	14
	Section
    5.18.	Employees;
    Labor Laws	15
	Section
    5.19.	Investment
    Company Act Status	15
	Section
    5.20.	ERISA	15
	Section
    5.21.	Taxes	16
	Section
    5.22.	Insurance	16
	Section
    5.23.	Exemption
    from Registration	16
	Section
    5.24.	No
    General Solicitation or Advertising	16
	Section
    5.25.	No
    Integrated Offering	17
	Section
    5.26.	Dilutive
    Effect	17
	Section
    5.27.	Manipulation
    of Price	17
	Section
    5.28.	Securities
    Act	17
	Section
    5.29.	Listing
    and Maintenance Requirements; DTC Eligibility	18
	Section
    5.30.	Application
    of Takeover Protections	18
	Section
    5.31.	No
    Unlawful Payments	18
	Section
    5.32.	Money
    Laundering Laws	19
	Section
    5.33.	OFAC	19
	Section
    5.34.	U.S.
    Real Property Holding Corporation	19
	Section
    5.35.	IT
    Systems	19
	Section
    5.36.	Compliance
    With Data Privacy Laws	20
	Section
    5.37.	Use
    of Proceeds	20
	Section
    5.38.	No
    Disqualification Events	20
	Section
    5.39.	Acknowledgement
    Regarding Investor’s Acquisition of Securities	20
	 	 	 
	Article VI ADDITIONAL COVENANTS 	21
	Section
    6.1.	Securities
    Compliance	21
	Section
    6.2.	Reservation
    of Common Stock	21
	Section
    6.3.	Registration
    and Listing	22
	Section
    6.4.	Compliance
    with Laws.	22
	Section
    6.5.	Keeping
    of Records and Books of Account; Due Diligence.	22
	Section
    6.6.	No
    Frustration; No Similar Transactions.	23
	Section
    6.7.	Fundamental
    Transaction	23
	Section
    6.8.	Selling
    Restrictions.	23
	Section
    6.9.	Effective
    Registration Statement	24
	Section
    6.10.	Blue
    Sky	24
	Section
    6.11.	Non-Public
    Information	24
	Section
    6.12.	Broker-Dealer	25
	Section
    6.13.	Delivery
    of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events	25


 









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	Article VII CONDITIONS TO CLOSING, COMMENCEMENT AND PURCHASES 	26
	Section
    7.1.	Conditions
    Precedent to Closing	26
	Section
    7.2.	Conditions
    Precedent to Commencement	27
	Section
    7.3.	Conditions
    Precedent to Purchases after Commencement Date	30
	 	 	 
	Article VIII TERMINATION 	34
	Section
    8.1.	Automatic
    Termination	34
	Section
    8.2.	Other
    Termination	35
	Section
    8.3.	Effect
    of Termination	36
	 	 	 
	Article IX INDEMNIFICATION 	37
	Section
    9.1.	Indemnification
    of Investor	37
	Section
    9.2.	Indemnification
    Procedures	38
	 	 	 
	Article X MISCELLANEOUS 	39
	Section
    10.1.	Certain
    Fees and Expenses; Commitment Shares; Commencement Irrevocable Transfer Agent Instructions.	39
	Section
    10.2.	Specific
    Enforcement, Consent to Jurisdiction, Waiver of Jury Trial.	41
	Section
    10.3.	Entire
    Agreement	41
	Section
    10.4.	Notices	42
	Section
    10.5.	Waivers	42
	Section
    10.6.	Amendments	43
	Section
    10.7.	Headings	43
	Section
    10.8.	Construction	43
	Section
    10.9.	Binding
    Effect	43
	Section
    10.10.	No
    Third Party Beneficiaries	43
	Section
    10.11.	Governing
    Law	43
	Section
    10.12.	Survival	43
	Section
    10.13.	Counterparts	43
	Section
    10.14.	Publicity	44
	Section
    10.15.	Severability	44
	Section
    10.16.	Further
    Assurances	44


 


Annex I. Definitions


 






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COMMON STOCK PURCHASE
AGREEMENT


 


This COMMON STOCK PURCHASE
AGREEMENT is made and entered into as of December 15, 2021 (this “Agreement”), by and between B.
Riley Principal Capital, LLC, a Delaware limited liability company (the “Investor”), and AppHarvest, Inc., a
Delaware corporation (the “Company”).


 


RECiTALS


 


WHEREAS, the parties
desire that, upon the terms and subject to the conditions and limitations set forth herein, the Company may issue and sell to the Investor,
from time to time as provided herein, and the Investor shall purchase from the Company, up to the lesser of (i) $100,000,000 in aggregate
gross purchase price of newly issued shares of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and (ii) the Exchange Cap (to the extent applicable under Section 3.4);


 


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


 


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


 


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


 


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


 


Article
I

DEFINITIONS


 


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


 






     



     


    

 


Article
II

PURCHASE AND SALE OF COMMON STOCK


 


Section 2.1.         Purchase
and Sale of Stock. Upon the terms and subject to the conditions of this Agreement, during the Investment Period, the
Company, in its sole discretion, shall have the right, but not the obligation, to issue and sell to the Investor, and the Investor
shall purchase from the Company, up to the lesser of (i) $100,000,000 (the “Total Commitment”) in
aggregate gross purchase price of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock and (ii) the
Exchange Cap, to the extent applicable under Section 3.4 (such lesser amount of shares of Common Stock, the “Aggregate
Limit”), by the delivery to the Investor of VWAP Purchase Notices and Additional VWAP Purchase Notices as provided in
Article III.


 


Section 2.2.        
Closing Date; Settlement Dates. This Agreement shall become effective and binding (the “Closing”)
upon (a) the delivery of counterpart signature pages of this Agreement and the Registration Rights Agreement executed by each of the parties
hereto and thereto, and (b) the delivery of all other documents, instruments and writings required to be delivered at the Closing as provided
in Section 7.1(iv), to the offices of Dorsey & Whitney LLP, 51 West 52nd Street, New York, NY 10019-6119, at 3:45 pm, New York City time, on the Closing Date. In consideration of and in express reliance upon the representations, warranties
and covenants contained in, and upon the terms and subject to the conditions of, this Agreement, during the Investment Period, the Company,
at its sole option and discretion, may issue and sell to the Investor, and, if the Company elects to so issue and sell, the Investor shall
purchase from the Company, the Shares in respect of each VWAP Purchase and each Additional VWAP Purchase (as applicable). The delivery
of Shares in respect of each VWAP Purchase and each Additional VWAP Purchase, and the payment for such Shares, shall occur in accordance
with Section 3.3.


 


Section 2.3.         Initial
Public Announcements and Required Filings. The Company shall, within the time period required under the Exchange Act, file
with the Commission a Current Report on Form 8-K disclosing the execution of this Agreement and the Registration Rights
Agreement by the Company and the Investor and describing the material terms thereof, including, without limitation, the issuance of
the Commitment Shares to the Investor in accordance with Section 10.1(ii), and attaching as exhibits thereto copies of each of this
Agreement and the Registration Rights Agreement (including all exhibits thereto, the “Current Report”).
The Company shall provide the Investor a reasonable opportunity to comment on a draft of the Current Report prior to filing the
Current Report with the Commission. From and after the filing of the Current Report with the Commission, the Company shall have
publicly disclosed all material, nonpublic information delivered to the Investor (or the Investor’s representatives or agents)
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, agents or representatives (if
any) in connection with the transactions contemplated by the Transaction Documents. The Investor covenants that until such time as
the transactions contemplated by this Agreement and the Registration Rights Agreement are publicly disclosed by the Company as
described in this Section 2.3, the Investor shall maintain the confidentiality of all disclosures made to it in connection with the
transactions contemplated by the Transaction Documents (including the existence and terms of the transactions contemplated thereby),
except that the Investor may disclose the terms of such transactions to its financial, accounting, legal and other advisors
(provided that the Investor directs such Persons to maintain the confidentiality of such information). Not later than 15 calendar
days following the Closing Date, the Company shall file a Form D with respect to the issuance and sale of the Securities in
accordance with Regulation D. The Company shall use its commercially reasonable efforts to prepare and, as soon as practicable, but
in no event later than the applicable Filing Deadline, file with the Commission the Initial Registration Statement and any New
Registration Statement covering only the resale by the Investor of the Registrable Securities in accordance with the Securities Act
and the Registration Rights Agreement. At or before 8:30 a.m. (New York City time) on the 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 for a VWAP Purchase on the applicable
Purchase Date therefor, to purchase a specified VWAP Purchase Share Amount, which shall not exceed the applicable VWAP Purchase Maximum
Amount, at the applicable VWAP Purchase Price therefor on such Purchase Date in accordance with this Agreement (each such purchase, a
 “VWAP Purchase”). The Company may timely deliver to the Investor a VWAP Purchase Notice for a VWAP Purchase
on any Trading Day selected by the Company as the Purchase Date for such VWAP Purchase, so long as (i) the Closing Sale Price of the Common
Stock on the Trading Day immediately preceding such Purchase Date is not less than the Threshold Price, and (ii) all Shares subject to
all prior VWAP Purchases and Additional VWAP Purchases (as applicable) theretofore required to have been delivered to and received by
the Investor as DWAC Shares pursuant to this Agreement have been timely received by the Investor as DWAC Shares on the applicable Purchase
Share Delivery Date therefor 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 that the Company is then permitted to include in such VWAP Purchase Notice, such VWAP Purchase Notice shall
be void ab initio to the extent of the amount by which the VWAP Purchase Share Amount set forth in such VWAP Purchase Notice exceeds
such applicable VWAP Purchase Maximum Amount, and the Investor shall have no obligation to purchase, and shall not purchase, such excess
Shares pursuant to such VWAP Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the
applicable VWAP Purchase Maximum Amount pursuant to such VWAP Purchase. At or prior to 5:30 p.m., New York City time, on the Purchase
Date for each VWAP Purchase, the Investor shall provide to the Company a written confirmation for such VWAP Purchase (each, a “VWAP
Purchase Confirmation”) setting forth the applicable VWAP Purchase Price per Share to be paid by the Investor for the Shares
purchased by the Investor in such VWAP Purchase, and the total aggregate VWAP Purchase Price to be paid by the Investor for the total
VWAP Purchase Share Amount purchased by the Investor in such VWAP Purchase. Notwithstanding the foregoing, the Company shall not deliver
any VWAP Purchase Notices to the Investor during the PEA Period.


 


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


 






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Section 3.3.         Settlement.
The Shares constituting the applicable VWAP Purchase Share Amount purchased by the Investor in each VWAP Purchase, and the Shares
constituting the applicable Additional VWAP Purchase Share Amount purchased by the Investor in each Additional VWAP Purchase
occurring on the same Purchase Date (as applicable), in each case shall be delivered to the Investor as DWAC Shares not later than
1:00 p.m., New York City time, on the Trading Day immediately following the Purchase Date for such VWAP Purchase and for each such
Additional VWAP Purchase occurring on such same Purchase Date (as applicable) (the “Purchase Share Delivery
Date”). For (a) each VWAP Purchase, the Investor shall pay to the Company an amount in cash equal to the product of
(1) the total number of Shares purchased by the Investor in such VWAP Purchase and (2) the applicable VWAP Purchase Price for such
Shares, as full payment for such Shares purchased by the Investor in such VWAP Purchase, and (b) each Additional VWAP Purchase, the
Investor shall pay to the Company an amount in cash equal to the product of (1) the total number of Shares purchased by the Investor
in such Additional VWAP Purchase and (2) the applicable Additional VWAP Purchase Price for such Shares, as full payment for such
Shares purchased by the Investor in such Additional VWAP Purchase, in each case via wire transfer of immediately available funds,
not later than 5:00 p.m., New York City time, on the Trading Day immediately following the applicable Purchase Share Delivery Date
for such VWAP Purchase and for each such Additional VWAP Purchase occurring on the same Purchase Date as such VWAP Purchase (as
applicable), provided the Investor shall have timely received, as DWAC Shares, all of such Shares purchased by the Investor in such
VWAP Purchase and Additional VWAP Purchase (as applicable) on such Purchase Share Delivery Date in accordance with the first
sentence of this Section 3.3, or, if any of such Shares are received by the Investor after 1:00 p.m., New York City time, then the
Company’s receipt of such funds in its designated account may occur on the Trading Day next following the Trading Day on which
the Investor shall have received all of such Shares as DWAC Shares, but not later than 5:00 p.m., New York City time, on such next
Trading Day. If the Company or its transfer agent shall fail for any reason to deliver to the Investor, as DWAC Shares, any Shares
purchased by the Investor in a VWAP Purchase or an Additional VWAP Purchase prior to 10:30 a.m., New York City time, on the Trading
Day immediately following the applicable Purchase Share Delivery Date for such VWAP Purchase and for each such Additional VWAP
Purchase occurring on the same Purchase Date (as applicable), and if on or after such Trading Day the Investor purchases (in an open
market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of such Shares that the
Investor anticipated receiving from the Company on such Purchase Share Delivery Date in respect of such VWAP Purchase or such
Additional VWAP Purchase (as applicable), then the Company shall, within one (1) Trading Day after the Investor’s request,
either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage
commissions, if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the
Company’s obligation to deliver such Shares as DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver
to the Investor such Shares as DWAC Shares and pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price
over the total purchase price paid by the Investor pursuant to this Agreement for all of the Shares purchased by the Investor in
such VWAP Purchase or such Additional VWAP Purchase (as applicable). The Company shall not issue any fraction of a share of Common
Stock to the Investor in connection with any VWAP Purchase or Additional VWAP Purchase effected pursuant to this Agreement. If the
issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of
Common Stock up or down to the nearest whole share. All payments to be made by the Investor pursuant to this Agreement shall be made
by wire transfer of immediately available funds to such account as the Company may from time to time designate by written notice to
the Investor in accordance with the provisions of this Agreement.


 


Section 3.4.        
Compliance with Rules of Trading Market.


 


(a)              
Exchange Cap. Subject to Section 3.4(b), the Company shall not issue or sell any shares of Common Stock pursuant
to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent
that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the
transactions contemplated hereby would exceed 20,143,404 (representing the 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
3.4(b)).


 






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


 


(c)              
General. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement if such issuance
or sale would reasonably be expected to result in (A) a violation of the Securities Act or (B) a breach of the rules of the Trading Market.
The provisions of this Section 3.4 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section
3.4 only if necessary to ensure compliance with the Securities Act and the applicable rules of the Trading Market.


 


Section 3.5.        
Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company
shall not issue or sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which,
when aggregated with all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant
to Section 13(d) of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor of
more than 4.99% of the outstanding shares of Common Stock (the “Beneficial Ownership Limitation”). Upon
the written request of the Investor, the Company shall promptly (but not later than the next business day on which the Company’s
transfer agent is open for business) confirm orally or in writing to the Investor the number of shares of Common Stock then outstanding.
The Investor and the Company shall each cooperate in good faith in the determinations required under this Section 3.5 and the application
of this Section 3.5. The Investor’s written certification to the Company of the applicability of the Beneficial Ownership Limitation,
and the resulting effect thereof hereunder at any time, shall be conclusive with respect to the applicability thereof and such result
absent manifest error. The provisions of this Section 3.5 shall be construed and implemented in a manner otherwise than in strict conformity
with the terms of this Section 3.5 to the extent necessary to properly give effect to the limitations contained in this Section 3.5.


 


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 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 action, and no further consent or authorization
of the Investor, its officers or its sole member is required. Each of this Agreement and the Registration Rights Agreement has been duly
executed and delivered by the Investor and constitutes a valid and binding obligation of the Investor enforceable against it in accordance
with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation,
conservatorship, receivership, or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies
or by other equitable principles of general application (including any limitation of equitable remedies).


 






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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 or local law, rule or regulation to obtain any consent,
authorization or order of, or make any filing or registration with, any court or governmental agency in order for it to execute,
deliver or perform any of its obligations under this Agreement and the Registration Rights Agreement or to purchase or acquire the
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, in violation of the Securities Act or any applicable
state securities laws; provided, however, that by making the representations herein, the Investor does not agree, or make
any representation or warranty, to hold any of the Securities for any minimum or other specific term and reserves the right to dispose
of the Securities at any time in accordance with, or pursuant to, a registration statement filed pursuant to the Registration Rights Agreement
or an applicable exemption under the Securities Act. The Investor does not presently have any agreement or understanding, directly or
indirectly, with any Person to sell or distribute any of the Securities. The Investor is acquiring the Securities hereunder in the ordinary
course of its business.


 


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


 


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


 


Section 4.7.         Information.
All materials relating to the business, financial condition, management and operations of the Company and materials relating to the
offer and sale of the Securities which have been requested by the Investor have been furnished or otherwise made available to the
Investor or its advisors, including, without limitation, the Commission Documents. The Investor understands that its investment in
the Securities involves a high degree of risk. The Investor is able to bear the economic risk of an investment in the Securities and
has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of a
proposed investment in the Securities. The Investor and its advisors have been afforded the opportunity to ask questions of and
receive answers from representatives of the Company concerning the financial condition and business of the Company and other matters
relating to an investment in the Securities. Neither such inquiries nor any other due diligence investigations conducted by the
Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the
Company’s representations and warranties contained in this Agreement or in any other Transaction Document to which the Company
is a party or the Investor’s right to rely on any other document or instrument executed and/or delivered in connection with
this Agreement or the consummation of the transaction contemplated hereby (including, without limitation, the opinions of the
Company’s counsel delivered pursuant to Section 7.2(xvi)). The Investor has sought such accounting, legal and tax advice as it
has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. The Investor
understands that it (and not the Company) shall be responsible for its own tax liabilities that may arise as a result of this
investment or the transactions contemplated by this Agreement.


 






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Section 4.8.        
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.
During the Investment Period, the Investor will not acquire for its own account any shares of Common Stock or securities exercisable for
or convertible into shares of Common Stock, other than pursuant to this Agreement; provided, however, that nothing in this
Agreement shall prohibit or be deemed to prohibit the Investor from purchasing, in an open market transaction or otherwise, shares of
Common Stock necessary to make delivery by the Investor in satisfaction of a sale by the Investor of Shares that the Investor anticipated
receiving from the Company in connection with the settlement of a VWAP Purchase or an Additional VWAP Purchase (as applicable) if the
Company or its transfer agent shall have failed for any reason (other than a failure of the Investor or its Broker-Dealer to set up a
DWAC and required instructions) to electronically transfer all of the Shares subject to such VWAP Purchase or such Additional VWAP Purchase
(as applicable) to the Investor on the applicable Purchase Share Delivery Date by crediting the Investor’s or its designated Broker-Dealer’s
account at DTC through its DWAC delivery system in compliance with Section 3.3 of this Agreement.


 


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


 


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


 


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


 






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Article
V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY


 


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


 


Section 5.1.        
Organization, Good Standing and Power. Each of the Company and each of its Material Subsidiaries has been duly incorporated
or formed, as applicable, and is validly existing as a corporation, limited liability company or partnership, as applicable, in good standing
under the laws of the jurisdiction of its incorporation or organization, as applicable, with requisite power and authority (corporate
and other) to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Commission
Documents, and has been duly qualified to transact business and is in good standing in each jurisdiction in which its ownership or leasing
of property and/or the conduct of its business requires such qualification, or is subject to no material liability or disability by reason
of the failure to be so qualified in any such jurisdiction, except where the failure to be so duly qualified or be in good standing in
such foreign jurisdiction would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 


Section 5.2.         Authorization,
Enforcement. The Company has the requisite corporate power and authority to enter into and perform its obligations under
each of the Transaction Documents to which it is a party and to issue the Securities in accordance with the terms hereof and
thereof. Except for approvals of the Company’s Board of Directors or a committee thereof as may be required in connection with
any issuance and sale of Shares to the Investor hereunder (which approvals shall be obtained prior to the delivery of any VWAP
Purchase Notice and any Additional VWAP Purchase Notice), the execution, delivery and performance by the Company of each of the
Transaction Documents to which it is a party and the consummation by it of the transactions contemplated hereby and thereby have
been duly and validly authorized by all necessary corporate action, and no further consent or authorization of the Company, its
Board of Directors or its stockholders is required. Each of the Transaction Documents to which the Company is a party has been duly
executed and delivered by the Company and constitutes a valid and binding obligation of the Company enforceable against the Company
in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of,
creditor’s rights and remedies or by other equitable principles of general application (including any limitation of equitable
remedies).


 


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


 






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Section 5.4.        
Issuance of Securities. The Commitment Shares have been, and the Shares to be issued under this Agreement have been,
or with respect to Shares to be purchased by the Investor pursuant to a particular VWAP Purchase Notice or a particular Additional VWAP
Purchase Notice, will be, prior to the delivery to the Investor hereunder of such VWAP Purchase Notice and Additional VWAP Purchase Notice,
respectively, 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. 19,945,776 shares of Common Stock have been duly authorized and reserved
by the Company for issuance as Shares pursuant to one or more VWAP Purchases and Additional VWAP Purchases under this Agreement.


 


Section 5.5.        
No Conflicts. The execution, delivery and performance by the Company of each of the Transaction Documents to which
it is a party and the consummation by the Company of the transactions contemplated hereby and thereby do not and shall not (i) result
in a violation of any provision of the Company’s Charter or Bylaws, (ii) conflict with or 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) 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 Eligible Market, as the case may be), 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, reasonably be expected to result in a Material Adverse Effect.
Except as specifically contemplated by this Agreement or the Registration Rights Agreement and as required under the Securities Act 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)               Since
January 29, 2021, the Company has timely filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the
Exchange Act) all Commission Documents required to be filed with or furnished to the Commission by the Company under the Securities
Act or the Exchange Act, including those required to be filed with or furnished to the Commission under Section 13(a) or Section
15(d) of the Exchange Act. As of the date of this Agreement, no Subsidiary of the Company is required to file or furnish any report,
schedule, registration, form, statement, information or other document with the Commission. As of its filing date, each Commission
Document filed with or furnished to the Commission prior to the Closing Date complied in all material respects with the requirements
of the Securities Act or the Exchange Act, as applicable, and other federal, state and local laws, rules and regulations applicable
to it (or, if amended or superseded by a filing prior to the Closing Date, on the date of such amended or superseded filing). Each
Registration Statement, on the date it is filed with the Commission, on the date it is declared effective by the Commission and on
each Purchase Date shall comply in all material respects with the requirements of the Securities Act (including, without limitation,
Rule 415 under the Securities Act) and shall not contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements therein not misleading, except that this representation
and warranty shall not apply to statements in or omissions from such Registration Statement made in reliance upon and in conformity
with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use
therein. The Prospectus and each Prospectus Supplement required to be filed pursuant to this Agreement or the Registration Rights
Agreement after the Closing Date, when taken together, on its date and on each Purchase Date shall comply in all material respects
with the requirements of the Securities Act (including, without limitation, Rule 424(b) under the Securities Act) and shall not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that this
representation and warranty shall not apply to statements in or omissions from the Prospectus or any Prospectus Supplement made in
reliance upon and in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the
Investor expressly for use therein. Each 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 Commission has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company under the Securities Act or the Exchange Act.


 


(b)               The
consolidated financial statements of the Company included or incorporated by reference in the Initial Registration Statement and any
New Registration Statement to be filed by the Company with the Commission after the Closing Date pursuant to the Registration Rights
Agreement, and included or incorporated by reference in the Commission Documents, in each case together with the related notes and
schedules, present fairly, in all material respects, the financial position of the Company as of the dates indicated, and the
results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified (subject, in
the case of unaudited statements, to normal year-end audit adjustments which will not be material, either individually or in the
aggregate) and have been prepared in compliance with the requirements of the Securities Act and the Exchange Act, as applicable, and
in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a
consistent basis (except (i) for such adjustments to accounting standards and practices as are noted therein and (ii) in the case of
unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements) during the periods
involved. The Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any “variable interest entities” as that term is used in Accounting Standards
Codification Paragraph 810-10-25-20), not described in Commission Documents which are required to be described in the Commission
Documents. All disclosures contained or incorporated by reference in the Commission Documents, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects
with Regulation G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.


 






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(c)              
Except as disclosed 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 generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; (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; and (v) the interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Commission Documents, the Initial Registration Statement or any New Registration Statement fairly
present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and
guidelines applicable thereto. Except as disclosed in the Commission Documents, the Company’s internal controls over financial reporting
are effective and the Company is not aware of any material weakness in its internal controls over financial reporting.


 


(d)              
Ernst & Young LLP (the “Accountant”), whose report on the audited consolidated financial statements
of the Company and its Subsidiaries as of and for the years ended December 31, 2020 and 2019, and the related notes, and which report
is to be included or incorporated by reference into the Initial Registration Statement and any New Registration Statement, are independent
public accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the
Company’s Knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002
(the “Sarbanes-Oxley Act”) with respect to the Company.


 


(e)              
Since January 29, 2021, the Company has timely filed all certifications and statements the Company is required to file under (i) Rule
13a-14 or Rule 15d-14 under the Exchange Act or (ii) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act) with respect
to all Commission Documents with respect to which the Company is required to file such certifications and statements thereunder.


 


Section 5.7.    
Subsidiaries. The Company owns 100% of the capital stock or ownership interests of the Material Subsidiaries. No Material
Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other
distribution on such Material Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Material Subsidiary
from the Company or from transferring any of such Material Subsidiary’s property or assets to the Company or any other Material
Subsidiary of the Company, except as described in or contemplated by the Commission Documents or as would not reasonably be expected to
have a Material Adverse Effect.


 


Section 5.8.     
Absence of Certain Changes or Events. Except as disclosed in the Commission Documents, since the date of the most
recent audited financial statements of the Company filed by the Company with the Commission, (a) there has not occurred any Material
Adverse Effect, or any development that would result in a Material Adverse Effect, (b) the Company and its Subsidiaries have conducted
their respective businesses in all material respects in the ordinary course and in a manner consistent with past practice, other than
due to any actions taken due to a “shelter in place,” “non-essential employee” or similar direction of any Governmental
Authority, and (c) none of the Company or any of its Subsidiaries has sold, assigned, transferred, permitted to lapse, abandoned,
or otherwise disposed of any right, title, or interest in or to any of its material assets (including Owned IP) other than revocable
non-exclusive licenses (or sublicenses) of Owned IP granted in the ordinary course of business. There is no existing or continuing default
or event of default in respect of any Indebtedness of the Company or any of its Subsidiaries which would reasonably be expected to have
a Material Adverse Effect. Neither the Company nor any Subsidiary is in default, and no event has occurred that, with notice or lapse
of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan agreement or other similar agreement or instrument to which the Company or any
Subsidiary is a party or by which the Company or any Subsidiary is bound or to which any of the property or assets of the Company or
any Subsidiary is subject, except for any such default that would not reasonably be expected to have a Material Adverse Effect. To the
Company’s Knowledge, no other party under any material contract or other agreement to which it or any Subsidiary is a party is
in default in any respect thereunder where such default would reasonably be expected to have a Material Adverse Effect. The Company has
not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to Title 11 of the United States Code
or any similar federal or state bankruptcy law or law for the relief of debtors, nor does the Company have any Knowledge that its creditors
intend to initiate involuntary bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under
Title 11 of the United States Code or any other federal or state bankruptcy law or any law for the relief of debtors. The Company is
financially solvent and is generally able to pay its debts as they become due.


 






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Section 5.9.     No Undisclosed Liabilities. Neither the Company nor any of its Subsidiaries has any liabilities, obligations, claims
or losses (whether liquidated or unliquidated, secured or unsecured, absolute, accrued, contingent or otherwise) that would be required
to be disclosed on the consolidated balance sheet of the Company (including the notes thereto) in conformity with GAAP and are not disclosed
in the Commission Documents, other than those incurred in the ordinary course of the Company’s or its Subsidiaries’ respective
businesses since December 31, 2020 and which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.


 


Section 5.10.     FDA/USDA/FTC
Matters. The Company is in compliance with all applicable laws governing the growing, handling, purity, safety, quality,
composition, and labeling of food sold for human consumption (collectively, the “Food Laws”), except, in
each case, for any such conflicts, defaults, breaches or violations that would not have or would not reasonably be expected to have
a Material Adverse Effect. All products grown and sold by the Company satisfy the Company’s obligations with respect to
applicable Food Laws, including the Federal Food, Drug, and Cosmetic Act and implementing regulations including the Food Safety
Modernization Act, the Organic Foods Production Act, and any other applicable laws, except, in each case, for any such conflicts,
defaults, breaches or violations that would not have or would not reasonably be expected to have a Material Adverse Effect. As of
the date hereof, the Company has not (i) received written notice of any adverse inspection, finding of deficiency or finding of
non-compliance, (ii) received any written regulatory or warning letter, or (iii) to the Company’s Knowledge, been
the subject of any investigation or other compliance or enforcement action, in each case, from or by any Governmental Authority, in
each case of (i), (ii) and (iii) would individually or in the aggregate reasonably be expected to result in a Material Adverse
Effect. The Company has in place policies and procedures to allow for compliance with all Food Laws applicable to the Company,
except where the failure to have such policies and procedures would not reasonably be expected to have a Material Adverse
Effect.


 


Section 5.11.    
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 reasonably be expected to, have a Material Adverse Effect. Any real property described in the Commission
Documents as being leased by the Company or any of its 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, reasonably be expected to have a Material Adverse Effect. Other than due to any actions
taken due to a “shelter in place,” “non-essential employee” or similar direction of any Governmental Authority,
there are no contractual or legal restrictions that preclude or restrict the ability of the Company or any of its Subsidiaries to use
any leased real property by such party for the purposes for which it is currently being used, except as would not, individually or in
the aggregate, be material to the Company or any of its Subsidiaries. There are no latent defects or adverse physical conditions affecting
any real property described in the Commission Documents as being leased by the Company or any of its Subsidiaries, and improvements thereon,
other than those that would not reasonably be expected to have a Material Adverse Effect.


 


Section 5.12.    
Actions Pending. Except as disclosed in the Commission Documents, there is no litigation, suit, claim, action, proceeding
or investigation by or before any Governmental Authority (an “Action”) pending or, to the Knowledge of the Company,
threatened against the Company or any of its Subsidiaries, or any property or asset of the Company or any of its Subsidiaries, before
any Governmental Authority which would reasonably be expected to have a Material Adverse Effect. None of the Company or any of its Subsidiaries
nor any material property or asset of the Company or any of its Subsidiaries is subject to any continuing order of, consent decree, settlement
agreement or other similar written agreement with, or, to the Knowledge of the Company, continuing investigation by, any Governmental
Authority, or any order, writ, judgment, injunction, decree, determination or award of any Governmental Authority, which would reasonably
be expected to have a Material Adverse Effect.


 






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Section 5.13.    
Compliance With Law. The business of the Company and the Subsidiaries has been and is presently being conducted
in compliance with all applicable federal, state, local and foreign governmental laws, rules, regulations and ordinances, except as set
forth in the Commission Documents and except for such non-compliance which, individually or in the aggregate, would not reasonably be
expected to result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries is in violation of any judgment, decree
or order or any statute, ordinance, rule or regulation of any Governmental Authority applicable to the Company or any of its Subsidiaries,
and neither the Company nor any of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases
for any such violations which would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.


 


Section 5.14.    
Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker,
financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Investor shall have no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section 5.14 incurred by the Company or its Subsidiaries that may be
due or payable in connection with the transactions contemplated by the Transaction Documents.


 


Section 5.15.    
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 Schedules, as applicable))
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.


 


Section 5.16.    
Permits; Intellectual Property.


 


(a)       The
Company and its Subsidiaries possess all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions,
consents, certificates, approvals and orders of any Governmental Authority reasonably necessary for them to own, lease and operate
their properties or to carry on their business as it is now being conducted, including the certification of Legacy AppHarvest as a
Certified B Corporation by B Lab, Inc. (the “Permits”), except where the failure to have such Permits
would not reasonably be expected to 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, reasonably be expected to have a Material Adverse Effect. This Section 5.16(a) does not relate to environmental matters,
such items being the subject of Section 5.17.


 






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(b)       The Company and its Subsidiaries own and possess all right, title and interest in and to the Owned IP and have the right to use
pursuant to a valid and enforceable written license, all Licensed IP, reasonably necessary for the operation of their respective businesses
as currently conducted as of the date hereof, except where the failure to so own or possess would not reasonably be expected to have a
Material Adverse Effect. The Company and its Subsidiaries have taken commercially reasonable actions to maintain, protect and enforce
Intellectual Property rights, including the secrecy, confidentiality and value of its trade secrets and other Confidential Information,
except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. There have been no claims
filed and served, or threatened in writing (including email), against the Company or any of its Subsidiaries, by any Person (A) contesting
the validity, use, ownership, enforceability, patentability or registrability of any of the Owned IP, or (B) alleging any infringement
or misappropriation of, or other violation of, any Intellectual Property rights of other Persons. To the Company’s Knowledge,
no other Person has infringed, misappropriated or violated any of the Owned IP.


 


Section 5.17.     Environmental
Compliance. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect:
(i) each of the Company and its Subsidiaries (A) is in compliance with applicable Environmental Laws and (B) is in
compliance with all Environmental Permits; and (ii) all Environmental Permits are validly issued and are in full force and
effect, and all applications, notices or other documents have been timely filed to effect timely renewal, issuance or reissuance of
such Environmental Permits. None of the Company or any of its Subsidiaries has been or is the subject of any Environmental Claim,
and no Environmental Claim is pending or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries
or against any Person whose liability for the Environmental Claim was or may have been retained or assumed by contract or by
operation of law or pursuant to any order by any Governmental Authority by the Company or any of its Subsidiaries, except for any
such Environmental Claims that have not had and would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect. No Hazardous Materials are present at, on, under or emanating from any properties or facilities currently
leased, operated or used or previously owned, leased, operated or used, in circumstances that would reasonably be expected to form
the basis for a material Environmental Claim against, or a requirement for investigation or remediation pursuant to applicable
Environmental Law by, the Company or any of its Subsidiaries, except as would not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect. None of the Company or any of its Subsidiaries has Released, disposed of, or arranged to
dispose of, any Hazardous Materials in a manner, or to a location, that would reasonably be expected to result in a material
Environmental Claim, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect. No material lien imposed by any Governmental Authority having jurisdiction pursuant to any Environmental Law is currently
outstanding as to any assets owned, leased or operated by the Company or any of its Subsidiaries, except as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.


 






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Section 5.18.    
Employees; Labor Laws. Except as would not reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, (i) there are no Actions pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries
by any of its current or former employees, which Actions would be material to the Company or any of its Subsidiaries; (ii) neither
the Company nor any of its Subsidiaries is or has been for the past five (5) years a party to, bound by, or negotiating any collective
bargaining agreement or other contract with a union, works council or labor organization applicable to Persons employed by the Company
or any of its Subsidiaries, nor, to the Knowledge of the Company, are there any activities or proceedings of any labor union to organize
any such employees; (iii) there are no unfair labor practice complaints pending against the Company or any of its Subsidiaries before
the National Labor Relations Board; and (iv) there has never been, nor, to the Knowledge of the Company, has there been any threat
of any strike, slowdown, work stoppage, lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting,
or, to the Knowledge of the Company, threat thereof, by or with respect to any employees of the Company or any of its Subsidiaries. Each
of the Company and its Subsidiaries is and have been in compliance in all respects with all applicable laws relating to the employment,
employment practices, employment discrimination, terms and conditions of employment, mass layoffs and plant closings (including the Worker
Adjustment and Retraining Notification Act of 1988, as amended, or any similar state or local laws), immigration, meal and rest breaks,
pay equity, workers’ compensation, family and medical leave, and occupational safety and health requirements, including those related
to wages, hours and collective bargaining and is not liable for any arrears of wages, penalties or other sums for failure to comply with
any of the foregoing, except where non-compliance with any such employment laws would not reasonably be expected to have a Material Adverse
Effect.


 


Section 5.19.    
Investment Company Act Status. The Company is not, and as a result of the consummation of the transactions contemplated
by the Transaction Documents and the application of the proceeds from the sale of the Shares as will be set forth in the Prospectus included
in any Registration Statement (and any post-effective amendment thereto) and any Prospectus Supplement thereto filed pursuant to the Registration
Rights Agreement the Company will not be an “investment company” within the meaning of the Investment Company Act of 1940,
as amended.


 


Section 5.20.     ERISA.
To the Knowledge of the Company, (i) each employee benefit plan, within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) that is maintained, administered or contributed to by
the Company or any of its affiliates for employees or former employees of the Company and the Subsidiaries has been maintained in
material compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Internal Revenue Code of 1986, as amended (the “Code”); and (ii) no prohibited
transaction, within the meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred which would result in a material
liability to the Company with respect to any such plan excluding transactions effected pursuant to a statutory or administrative
exemption, other than, in the case of (i) and (ii) above, as would not reasonably be expected to have a Material Adverse Effect.


 






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Section 5.21.    
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 5.22.    
Insurance. (i) The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks in such amounts and subject to such self-insurance retentions as are prudent and customary in the businesses
in which they are engaged; (ii) all policies of insurance and fidelity or surety bonds insuring the Company or any of the Subsidiaries
or their respective businesses, assets, employees, officers and directors are in full force and effect; (iii) the Company and each of
its Subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no claims by
the Company or any of its Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending
under a reservation of rights clause; and (iv) the Company and its Subsidiaries have no reason to believe that they will not be able to
renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not reasonably be expected to have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business.


 


Section 5.23.    
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 Section 4.13), the Securities to be issued from and after Commencement to or
for the benefit of the Investor pursuant to this Agreement shall be issued to the Investor or its designee only as DWAC Shares and will
not bear legends noting restrictions as to resale of such Securities under federal or state securities laws, nor will any such Securities
be subject to stop transfer instructions.


 


Section 5.24.    
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.


 






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Section 5.25.    
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 under the Securities Act of the offer, issuance and sale of any of the Securities by the
Company to the Investor pursuant to this Agreement, whether through integration with prior offerings or otherwise, or cause this offering
of the Securities by the Company 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
under the Securities Act of the offer, issuance and sale of any of the Securities by the Company to the Investor pursuant to this Agreement
or cause the offering of any of the Securities by the Company to be integrated with any other offering of securities of the Company.


 


Section 5.26.    
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 Notice and an Additional
VWAP Purchase Notice, as applicable, in accordance with this Agreement is, in each case, absolute and unconditional regardless of the
dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.


 


Section 5.27.    
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 5.28.    
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 currently, and has not been since January 29, 2021, an issuer identified in, or
subject to, Rule 144(i). The Company has filed current “Form 10 information” (as defined in Rule 144(i)(3) under the Securities
Act) with the Commission on February 2, 2021 reflecting its status as an entity that is not a shell company.


 






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Section 5.29.    
Listing and Maintenance Requirements; DTC Eligibility. As of the date of this Agreement and the Closing Date, the class
of 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 to the effect that the Company is not in compliance
with the listing or maintenance requirements of the Trading Market. As of the Closing Date, the Company is in compliance with all applicable
listing and maintenance requirements of the Trading Market. The Common Stock may be issued and transferred electronically to third parties
via DTC through its Deposit/Withdrawal at Custodian (“DWAC”) delivery system. The Company has not received
notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits of the Common Stock, electronic
trading or book-entry services by DTC with respect to the Common Stock is being imposed or is contemplated.


 


Section 5.30.    
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 5.31.    
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 5.32.     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 5.33.    
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 5.34.    
U.S. Real Property Holding Corporation. The Company is not, and has never been, and during the Investment Period shall
take such actions not to become, a U.S. real property holding corporation within the meaning of Section 897 of the Code.


 


Section 5.35.    
IT Systems. With respect to Business Systems, the Company and its Subsidiaries own, lease, license, or otherwise has
the legal right to use all such Business Systems, and such Business Systems are sufficient for the current needs of the business of the
Company and its Subsidiaries. The Company and its Subsidiaries maintain commercially reasonable disaster recovery, business continuity
and risk assessment plans, procedures and facilities. To the Company’s Knowledge, since January 29, 2021, there has not been any
failure with respect to any of the Business Systems that would reasonably be expected to have a Material Adverse Effect that has not been
remedied or replaced in all material respects.


 






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Section 5.36.     Compliance
With Data Privacy Laws. The Company and its Subsidiaries comply in all respects with (i) all applicable Privacy/Data
Security Laws, (ii) any applicable privacy or other policies of the Company or any of its Subsidiaries, respectively,
concerning the collection, dissemination, storage or use of Personal Information or other Business Data, (iii) industry
standards to which the Company or any of its Subsidiaries, respectively, purports to adhere, and (iv) all contractual
commitments that the Company or any of its Subsidiaries has entered into with respect to privacy and/or data security (collectively,
the “Data Security Requirements”), except where the failure to so comply would not reasonably be expected
to have a Material Adverse Effect. The Company and its Subsidiaries have implemented commercially reasonable data security
safeguards designed to protect the security and integrity of the Business Systems and Business Data. Except as has not resulted in a
Material Adverse Effect, to the Company’s Knowledge, neither the Company nor any Subsidiary has experienced any data security
breaches, unauthorized access or use of any of the Business Systems, or unauthorized acquisition, destruction, damage, disclosure,
loss, corruption, alteration, or use of any Business Data; or been subject to or received written notice of any audits, proceedings
or investigations by any Governmental Authority or any customer, or received any material claims or complaints regarding the
collection, dissemination, storage or use of Personal Information, or the violation of any applicable Data Security
Requirements.


 


Section 5.37.    
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 5.38.    
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 5.39.    
Acknowledgement Regarding Investor’s Acquisition of Securities. The Company acknowledges and agrees that the Investor
is acting solely in the capacity of an arm’s-length purchaser with respect to this Agreement and the transactions contemplated by
the Transaction Documents. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated by the Transaction Documents, and
any advice given by the Investor or any of its representatives or agents in connection therewith is merely incidental to the Investor’s
acquisition of the Securities. The Company further represents to the Investor that the Company’s decision to enter into the Transaction
Documents to which it is a party has been based solely on the independent evaluation of the transactions contemplated thereby by the Company
and its representatives. The Company acknowledges and agrees that the Investor has not made and does not make any representations or warranties
with respect to the transactions contemplated by the Transaction Documents other than those specifically set forth in Article IV.


 






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Article
VI

ADDITIONAL COVENANTS


 


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


 


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


 


Section 6.2.        
Reservation of Common Stock. The Company has available and the Company shall reserve and keep available at all times,
free of preemptive and other similar rights of stockholders, the requisite aggregate number of authorized but unissued shares of Common
Stock to enable the Company to timely effect (i) the issuance and delivery of all Commitment Shares to be issued and delivered to the
Investor under Section 10.1(ii) hereof within the time period specified in Section 10.1(ii) hereof, (ii) 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
(ii), at least prior to the delivery by the Company to the Investor of the applicable VWAP Purchase Notice in connection with such VWAP
Purchase, and (iii) the issuance, sale and delivery of all Shares to be issued, sold and delivered in respect of each Additional VWAP
Purchase effected under this Agreement, in the case of this clause (iii), at least prior to the delivery by the Company to the Investor
of the applicable Additional VWAP Purchase Notice in connection with such Additional VWAP Purchase. Without limiting the generality of
the foregoing, (a) as of the date of this Agreement, the Company has reserved, out of its authorized and unissued Common Stock, 197,628
shares of Common Stock solely for the purpose of issuing all of the Commitment Shares under this Agreement to be issued and delivered
to the Investor under Section 10.1(ii) hereof within the time period specified in Section 10.1(ii) hereof, and (b) as of the date of this
Agreement the Company has reserved, and as of the Commencement Date shall have continued to reserve, out of its authorized and unissued
Common Stock, 19,945,776 shares of Common Stock solely for the purpose of issuing Shares pursuant to one or more VWAP Purchases and Additional
VWAP Purchases that may be effected by the Company, in its sole discretion, from time to time from and after the Commencement Date under
this Agreement. The number of shares of Common Stock so reserved for the purpose of effecting VWAP Purchases and Additional VWAP Purchases
under this Agreement may be increased from time to time by the Company from and after the Commencement Date, and such number of reserved
shares may be reduced from and after the Commencement Date only by the number of Shares actually issued, sold and delivered to the Investor
pursuant to any VWAP Purchase and any Additional VWAP Purchase (as applicable) 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 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 (but only to the extent set forth in Section 6.10), and applicable listing rules of the Trading
Market (or Eligible Market, as applicable), except as would not, individually or in the aggregate, prohibit or otherwise interfere with
the ability of the Company to enter into and perform its obligations under this Agreement in any material respect or for Investor to conduct
resales of Securities under the Registration Statement in any material respect.


 


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


 


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


 


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


 


(ii)              Subject
to the requirements of Section 6.11, from time to time from and after the Closing Date, the Company shall make available for
inspection and review by the Investor during normal business hours and after reasonable advance notice, customary documentation
reasonably requested by the Investor and/or its appointed counsel or advisors to conduct due diligence; provided, however,
that after the Closing Date, the Investor’s continued due diligence shall not be a condition precedent to the Commencement or
to the Investor’s obligation to accept each VWAP Purchase Notice and each Additional VWAP Purchase Notice timely delivered by
the Company to the Investor in accordance with this Agreement.


 






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Section 6.6.        
No Frustration; No Similar Transactions.


 


(i)                
No Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan,
arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right
of the Company to perform its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation
of the Company to deliver (i) the Commitment Shares to the Investor not later than 4:00 p.m. (New York time) on the Trading Day immediately
following the Closing Date in accordance with Section 10.1(ii), and (ii) the Shares to the Investor in respect of a VWAP Purchase, and
each Additional VWAP Purchase effected by the Company on the same Purchase Date for such VWAP Purchase, in each case not later than the
applicable Purchase Share Delivery Date with respect to such VWAP Purchase and each such Additional VWAP Purchase (as applicable) in accordance
with Section 3.3. For the avoidance of doubt, nothing in this Section 6.6(i) shall in any way limit the Company’s right to terminate
this Agreement in accordance with Section 8.2 (subject in all cases to Section 8.3).


 


(ii)             
No Similar Transactions. The Company shall not effect or enter into an agreement to effect an “equity line
of credit,” “at-the-market offering,” or “equity distribution program” whereby the Company may issue or
sell Common Stock or Common Stock Equivalents at a future determined price, other than in connection with an Exempt Issuance. The Investor
shall be entitled to seek injunctive relief against the Company and its Subsidiaries to preclude any such issuance, which remedy shall
be in addition to any right to collect damages, without the necessity of showing economic loss and without any bond or other security
being required.


 


Section 6.7.        
Fundamental Transaction. If a VWAP Purchase Notice or an Additional VWAP Purchase Notice has been delivered to the Investor
and the transactions contemplated therein have not yet been fully settled in accordance with Section 3.3 of this Agreement, the Company
shall not effect any Fundamental Transaction until the expiration of five (5) Trading Days following the date of full settlement thereof
and the issuance to the Investor of all of the Shares that are issuable to the Investor pursuant to the VWAP Purchase, or Additional VWAP
Purchase (as applicable), to which such VWAP Purchase Notice, or Additional VWAP Purchase Notice (as applicable), relates.


 


Section 6.8.        
Selling Restrictions.


 


(i)                 Except
as expressly set forth below, the Investor covenants that from and after the Closing Date through and including the Trading Day next
following the expiration or termination of this Agreement as provided in Article VIII (the “Restricted
Period”), none of the Investor, its officers, its sole member, or any entity managed or controlled by the Investor or
its sole member (collectively, the “Restricted Persons” and each of the foregoing is referred to herein as
a “Restricted Person”) shall, directly or indirectly, (i) engage in any Short Sales of the Common Stock or
(ii) hedging transaction, which establishes a net short position with respect to the Common Stock, with respect to each of clauses
(i) and (ii) hereof, either for its own account or for the account of any other Restricted Person. Notwithstanding the foregoing, it
is expressly understood and agreed that nothing contained herein shall (without implication that the contrary would otherwise
be true) prohibit any Restricted Person during the Restricted Period from: (1) selling “long” (as defined under Rule 200
promulgated under Regulation SHO) the Securities; or (2) selling a number of shares of Common Stock equal to the number of
Shares that the Investor is unconditionally obligated to purchase under a pending VWAP Purchase Notice and/or under any one or
more pending Additional VWAP Purchase Notices, but has not yet received from the Company or its transfer agent pursuant to this
Agreement, so long as (X) the Investor (or its Broker-Dealer, as applicable) delivers the Shares purchased pursuant to such VWAP
Purchase Notice and the Shares purchased pursuant to such pending Additional VWAP Purchase Notices (as applicable) to the purchaser
thereof promptly upon the Investor’s receipt of such Shares from the Company in accordance with Section 3.3 of this Agreement
and (Y) neither the Company or its transfer agent shall have failed for any reason to deliver such Shares to the Investor or its
Broker-Dealer so that such Shares are timely received by the Investor as DWAC Shares on the applicable Purchase Share Delivery Date
for such VWAP Purchase and one or more Additional VWAP Purchases (as applicable) in accordance with Section 3.3 of this
Agreement.


 






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(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 6.9.        
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 6.10.    
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 6.10, (y) subject itself to general taxation
in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction.


 


Section 6.11.     Non-Public
Information. Neither the Company or any of its Subsidiaries, nor any of their respective directors, officers, employees or
agents shall disclose any material non-public information about the Company to the Investor, unless a simultaneous public
announcement thereof is made by the Company in the manner contemplated by Regulation FD. In the event of a breach of the foregoing
covenant by the Company or any of its Subsidiaries, or any of their respective directors, officers, employees and agents (as
determined in the reasonable good faith judgment of the Investor, upon consultation with counsel), (i) the Investor shall promptly
provide written notice of such breach to the Company and (ii) after such notice has been provided to the Company and, provided that
the Company shall have failed to publicly disclose such material, non-public information within two (2) Trading Days following
demand therefor by the Investor, in addition to any other remedy provided herein or in the other Transaction Documents, the Investor
shall have the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such
material, non-public information without the prior approval by the Company, any of its Subsidiaries, or any of their respective
directors, officers, employees or agents. The Investor shall not have any liability to the Company, any of its Subsidiaries, or any
of their respective directors, officers, employees, stockholders or agents, for any such disclosure, except in the case of the
Investor’s willful misconduct or gross negligence.


 






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Section 6.12.    
Broker-Dealer. The Investor shall use one or more broker-dealers to effectuate all sales, if any, of the Securities
that it may purchase or otherwise acquire from the Company pursuant to the Transaction Documents, as applicable, which (or whom) shall
be a DTC participant (collectively, the “Broker-Dealer”). The Investor shall, from time to time, provide the
Company and the Transfer Agent with all information regarding the Broker-Dealer reasonably requested by the Company. The Investor shall
be solely responsible for all fees and commissions of the Broker-Dealer (if any), which shall not exceed customary brokerage fees and
commissions and shall be responsible for designating only a DTC participant eligible to receive DWAC Shares.


 


Section 6.13.     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 6.13), 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 6.13), 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 a negative assurance letter 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 letter, a
 “Bring Down Letter”).


 






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Article
VII

CONDITIONS TO CLOSING, COMMENCEMENT AND PURCHASES


 


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


 


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


 


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


 


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


 






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


 


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


 


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


 


(xv)          
Reservation of Shares. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued
Common Stock, 19,945,776 shares of Common Stock solely for the purpose of issuing Shares pursuant to VWAP Purchases and Additional VWAP
Purchases that may be effected by the Company, in its sole discretion, from and after the Commencement Date under this Agreement.


 


(xvi)        
Opinion and Negative Assurance Letter of Company Counsel. On the Commencement Date, the Investor shall have received
the opinion and negative assurance letter from outside counsel to the Company, dated the Commencement Date, in the forms mutually agreed
to by the Company and the Investor prior to the date of this Agreement.


 


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


 






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(i)                
 Satisfaction of Certain Prior Conditions. Each of the conditions set forth in subsections (i), (ii), and (vii) through
(xiv) set forth in Section 7.2 shall be satisfied at the applicable Purchase Condition Satisfaction Time after the Commencement Date (with
the terms “Commencement” and “Commencement Date” in the conditions set forth in subsections (i) and (ii) of Section
7.2 replaced with “applicable Purchase Condition Satisfaction Time”); provided, however, that the Company shall
not be required to deliver the Compliance Certificate after the Commencement Date, except as provided in Section 6.13 and Section 7.3(x).


 


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


 


(iii)           
Any Required New Registration Statement Effective. Any New Registration Statement covering the resale by the Investor
of the Registrable Securities included therein, and any post-effective amendment thereto, required to be filed by the Company with the
Commission pursuant to the Registration Rights Agreement after the Commencement Date and prior to the applicable Purchase Date for such
VWAP Purchase or Additional VWAP Purchase (as applicable), in each case shall have been declared effective under the Securities Act by
the Commission and shall remain effective for the applicable Registration Period, and the Investor shall be permitted to utilize the Prospectus
therein, and any Prospectus Supplement thereto, to resell (a) all of the Commitment Shares (if any) included in such New Registration
Statement, and any post-effective amendment thereto, (b) all of the Shares included in such New Registration Statement, and any post-effective
amendment thereto, that have been issued and sold to the Investor hereunder pursuant to all VWAP Purchase Notices and Additional VWAP
Purchase Notices (as applicable) delivered by the Company to the Investor prior to such applicable Purchase Date and (c) all of the Shares
included in such new Registration Statement, and any post-effective amendment thereto, that are issuable pursuant to the applicable VWAP
Purchase Notice or Additional VWAP Purchase Notice (as applicable) delivered by the Company to the Investor with respect to a VWAP Purchase
or an Additional VWAP Purchase (as applicable) to be effected hereunder on such applicable Purchase Date.


 






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


 


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


 






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(vi)            
Other Commission Filings. The final Prospectus included in any post-effective amendment to the Initial Registration
Statement, and any Prospectus Supplement thereto, required to be filed by the Company with the Commission pursuant to Section 2.3 and
the Registration Rights Agreement after the Commencement Date and prior to the applicable Purchase Date for such VWAP Purchase or such
Additional VWAP Purchase (as applicable), shall have been filed with the Commission in accordance with Section 2.3 and the Registration
Rights Agreement. The final Prospectus included in any New Registration Statement and in any post-effective amendment thereto, and any
Prospectus Supplement thereto, required to be filed by the Company with the Commission pursuant to Section 2.3 and the Registration Rights
Agreement after the Commencement Date and prior to the applicable Purchase Date for such VWAP Purchase or such Additional VWAP Purchase
(as applicable), shall have been filed with the Commission in accordance with Section 2.3 and the Registration Rights Agreement. All reports,
schedules, registrations, forms, statements, information and other documents required to have been filed by the Company with the Commission
pursuant to the reporting requirements of the Exchange Act, including all material required to have been filed pursuant to Section 13(a)
or 15(d) of the Exchange Act, after the Commencement Date and prior to the applicable Purchase Date for such VWAP Purchase or such Additional
VWAP Purchase (as applicable), shall have been filed with the Commission and, if any Registrable Securities are covered by a Registration
Statement on Form S-3, such filings shall have been made within the applicable time period prescribed for such filing under the Exchange
Act.


 


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


 






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


 


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


 


(x)              
Bring-Down Letter of Company Counsel. The Investor shall have received (a) all Bring Down Letters from outside counsel
to the Company for which the Company was obligated to instruct its outside counsel to deliver to the Investor prior to the applicable
Purchase Condition Satisfaction Time for the applicable VWAP Purchase or Additional VWAP Purchase (as applicable) and (b) all Compliance
Certificates from the Company that the Company was obligated to deliver to the Investor prior to the applicable Purchase Condition Satisfaction
Time for the applicable VWAP Purchase or Additional VWAP Purchase (as applicable), in each case in accordance with Section 6.13.


 


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,


 


(ii)             
the date on which the Investor shall have purchased from the Company, pursuant to all VWAP Purchases and Additional VWAP Purchases
that have occurred and fully settled pursuant to this Agreement, an aggregate number of Shares for a total aggregate gross purchase price
to the Company equal to the Total Commitment,


 


(iii)           
the date on which the Common Stock shall have failed to be listed or quoted on the Trading Market or any Eligible Market for a
period of one (1) Trading Day,


 


(iv)            
 the thirtieth (30th) Trading Day next following the date on which, pursuant to or within the meaning of any Bankruptcy
Law, the Company commences a voluntary case or any Person commences a proceeding against the Company, in each case that is not discharged
or dismissed prior to such thirtieth (30th) Trading Day, and


 


(v)              
the date on which, pursuant to or within the meaning of any Bankruptcy Law, a Custodian is appointed for the Company or for all
or substantially all of its property, or the Company makes a general assignment for the benefit of its creditors.


 






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Section 8.2.         Other
Termination. Subject to Section 8.3, the Company may terminate this Agreement after the Commencement Date effective upon
five (5) Trading Days’ prior written notice to the Investor in accordance with Section 10.4; provided, however,
that (i) the Company shall have issued all of the Commitment Shares required to be issued to the Investor pursuant to Section
10.1(ii) of this Agreement and shall have paid the Document Preparation Fee required to be paid to the Investor or its counsel
pursuant to Section 10.1(i) of this Agreement, in each case prior to such termination, and (ii) prior to issuing any press release,
or making any public statement or announcement, with respect to such termination, the Company shall consult with the Investor and
its counsel on the form and substance of such press release or other disclosure. Subject to Section 8.3, this Agreement may be
terminated at any time by the mutual written consent of the parties, effective as of the date of such mutual written consent unless
otherwise provided in such written consent. Subject to Section 8.3, the Investor shall have the right to terminate this Agreement
effective upon five (5) Trading Days’ prior written notice to the Company in accordance with Section 10.4, if: (a) any
condition, occurrence, state of facts or event constituting a Material Adverse Effect has occurred and is continuing; (b) a
Fundamental Transaction shall have occurred; (c) the Initial Registration Statement and any New Registration Statement is not filed
by the applicable Filing Deadline therefor or declared effective by the Commission by the applicable Effectiveness Deadline (as
defined in the Registration Rights Agreement) therefor, or the Company is otherwise in breach or default in any material respect
under any of the other provisions of the Registration Rights Agreement, and, if such failure, breach or default is capable of being
cured, such failure, breach or default is not cured within ten (10) Trading Days after notice of such failure, breach or default is
delivered to the Company pursuant to Section 10.4; (d) while a Registration Statement, or any post-effective amendment thereto, is
required to be maintained effective pursuant to the terms of the Registration Rights Agreement and the Investor holds any
Registrable Securities, the effectiveness of such Registration Statement, or any post-effective amendment thereto, lapses for any
reason (including, without limitation, the issuance of a stop order by the Commission) or such Registration Statement or any
post-effective amendment thereto, the Prospectus contained therein or any Prospectus Supplement thereto otherwise becomes
unavailable to the Investor for the resale of all of the Registrable Securities included therein in accordance with the terms of the
Registration Rights Agreement, and such lapse or unavailability continues for a period of 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 ten (10) Trading Days after notice of such breach or default is delivered to the Company pursuant to
Section 10.4. Unless notification thereof is required elsewhere in this Agreement (in which case such notification shall be provided
in accordance with such other provision), the Company shall promptly (but in no event later than 24 hours) notify the Investor (and,
if required under applicable law, including, without limitation, Regulation FD promulgated by the Commission, or under the
applicable rules and regulations of the Trading Market (or Eligible Market, as applicable), the Company shall publicly disclose such
information in accordance with Regulation FD and the applicable rules and regulations of the Trading Market (or Eligible Market, as
applicable)) upon becoming aware of any of the events set forth in the immediately preceding sentence.


 






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Section 8.3.        
Effect of Termination. In the event of termination by the Company or the Investor (other than by mutual termination)
pursuant to Section 8.2, written notice thereof shall forthwith be given to the other party as provided in Section 10.4 and the transactions
contemplated by this Agreement shall be terminated without further action by either party. If this Agreement is terminated as provided
in Section 8.1 or Section 8.2, this Agreement shall become void and of no further force and effect, except that (i) the provisions of
Article V (Representations, Warranties and Covenants of the Company), Article IX (Indemnification), Article X (Miscellaneous) and this
Article VIII (Termination) shall remain in full force and effect indefinitely notwithstanding such termination, and, (ii) so long as the
Investor owns any Securities, the covenants and agreements of the Company contained in Article VI (Additional Covenants) shall remain
in full force and notwithstanding such termination for a period of six (6) months following such termination. Notwithstanding anything
in this Agreement to the contrary, no termination of this Agreement by any party shall (i) become effective prior to the second (2nd)
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 any Commitment Shares issued or issuable to the Investor pursuant to Section 10.1(ii), all of which Commitment Shares shall
be fully earned as of the Closing Date, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Additional
VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement, or (iv) affect the Document Preparation
Fee payable or paid to the Investor (or to its counsel directly), all of which Document Preparation Fee shall be non-refundable when paid
on the Closing Date pursuant to Section 10.1(i), regardless of whether the Commencement shall have occurred, whether any VWAP Purchases
or Additional VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement. Nothing in this Section 8.3
shall be deemed to release the Company or the Investor from any liability for any breach or default under this Agreement or any of the
other Transaction Documents to which it is a party, or to impair the rights of the Company and the Investor to compel specific performance
by the other party of its obligations under the Transaction Documents to which it is a party.


 






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Article
IX


INDEMNIFICATION


 


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


 


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


 


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.


 






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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. The Company will
not, without the prior written consent of the Investor Party, which consent shall not be unreasonably withheld, delayed or conditioned
effect any settlement of a pending or threatened action with respect to which an Investor Party is, or is informed that it may be, made
a party and for which it would be entitled to indemnification, unless the settlement includes an unconditional release of the Investor
Party from all liability and claims which are the subject matter of the pending or threatened action.


 


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


 






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Article
X

MISCELLANEOUS


 


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


 





(i)                
 Certain Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated
by this Agreement; provided, however, that the Company shall pay, on or prior to the Closing Date, by wire transfer of immediately
available funds to an account designated by the Investor (or to an account designated by the Investor’s counsel) on or prior to
the date of this Agreement, a non-accountable and non-refundable document preparation fee of up to $75,000, 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 or prior to the Closing Date, regardless of whether the Commencement shall have occurred, any
VWAP Purchases or Additional VWAP Purchases are effected by the Company or settled hereunder or any subsequent termination of this Agreement.
The Company shall pay all U.S. federal, state and local stamp and other similar transfer and other taxes and duties levied in connection
with issuance of the Securities pursuant hereto.


 


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


 


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


 


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


 


Notwithstanding the foregoing
and for the avoidance of doubt, all Shares to be issued in respect of each VWAP Purchase Notice and all Shares to be issued in respect
of each Additional VWAP Purchase Notice delivered to the Investor pursuant to this Agreement shall be issued to the Investor in accordance
with Section 3.3 by crediting the Investor’s or its designees’ account at DTC as DWAC Shares, and the Company shall not take
any action or give instructions to any transfer agent of the Company otherwise.


 






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


 






    40


     


    

 


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


 


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


 


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


 


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


 


Section 10.3.    
Entire Agreement. The Transaction Documents set forth the entire agreement and understanding of the parties with respect
to the subject matter hereof and 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.


 






    41


     


    

 



 


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:


 


AppHarvest, Inc.


500 Appalachian Way


Morehead, KY 40351

Telephone Number: (606) 548-1052


Email: derek.lyons@appharvest.com


		Attention:	Derek Lyons
	 	 	General Counsel



 


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


 


Cooley LLP


3175 Hanover Street


Palo Alto, CA 94304

Telephone Number: (650) 843-5000


Email: jmckenna@cooley.com

Attention: John T. McKenna, Esq.


 


If to the Investor:


 


B. Riley Principal Capital, LLC


11100 Santa Monica Blvd., Suite 800


Los Angeles, CA 90025

Telephone Number: (310) 966-1444


Email: legal@brileyfin.com


Attention: General Counsel


 


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


 


Dorsey & Whitney
LLP


51 West 52nd
Street


New York, 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.


 






    42


     


    

 


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.


 


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


 


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


 


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


 


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


 


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


 



    43


     


    




 


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.


 


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]


 






     44


     


    

 


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.


 





	 	APPHARVEST, INC.
	 	 
	 	By:	/s/ Loren Eggleton
	 	Name:	Loren Eggleton
	 	Title:	Chief Financial Officer
	 	 	 
	 	 	 
	 	B. RILEY PRINCIPAL CAPITAL, LLC
	 	 
	 	By:	/s/ Daniel Shribman
	 	Name:	Daniel Shribman
	 	Title:	CIO


 






     


     


    

 





ANNEX I TO THE

COMMON STOCK PURCHASE AGREEMENT

DEFINITIONS


 


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


 


“Actions”
shall have the meaning assigned to such term in Section 5.12.


 


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


 


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


 


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


 


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


 


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


 






    I-1


     


    

 


“Additional VWAP
Purchase Notice” means, with respect to an Additional VWAP Purchase made pursuant to Section 3.2, an irrevocable written
notice from the Company to the Investor directing the Investor to purchase a specified Additional VWAP Purchase Share Amount (such specified
Additional VWAP Purchase Share Amount subject to adjustment as set forth in Section 3.2 as necessary to give effect to the Additional
VWAP Purchase Maximum Amount), at the applicable Additional VWAP Purchase Price therefor on the Purchase Date for such Additional VWAP
Purchase in accordance with this Agreement, that is delivered by the Company to the Investor and received by the Investor (i) after the
later of (X) the VWAP Purchase Ending Time of the VWAP Purchase Period for the VWAP Purchase preceding the applicable Additional
VWAP Purchase Period for such Additional VWAP Purchase occurring on the same Purchase Date as such earlier VWAP Purchase and (Y) the Additional
VWAP Purchase Ending Time of the Additional VWAP Purchase Period for the most recent prior Additional VWAP Purchase, if any, occurring
on the same Purchase Date as such Additional VWAP Purchase, and (ii) prior to the earlier of (X) 1:30 p.m., New York City time,
on such Purchase Date and (Y) such time that is exactly two-and-a-half (2-1⁄2) hours (or 150 minutes) immediately prior to the official
close of the primary (or “regular”) trading session on the Trading Market (or, if the Common Stock is then listed on an Eligible
Market, on such Eligible Market) on such Purchase Date, if the Trading Market (or such Eligible Market, as applicable) has theretofore
publicly announced that the official close of the primary (or “regular”) trading session on the Trading Market (or on such
Eligible Market, as applicable) on such Purchase Date shall be earlier than 4:00 p.m., New York City time, on such Purchase Date.


 


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


 


“Additional
VWAP Purchase Price” means, with respect to an Additional VWAP Purchase made pursuant to Section 3.2, the purchase
price per Share to be purchased by the Investor in such Additional VWAP Purchase, equal to (i) the product of (A) 0.97, multiplied
by (B) the VWAP of the Common Stock for the applicable Additional VWAP Purchase Period on the applicable Purchase Date for such
Additional VWAP Purchase, provided that the Aggregate Daily Purchase Share Amount to be purchased by the Investor on the
applicable Purchase Date for such Additional VWAP Purchase (collectively in the VWAP Purchase and all Additional VWAP Purchases, as
applicable, effected by the Company on such Purchase Date) is equal to or less than 6.67% of the Purchase Volume Reference Amount
applicable to such Additional VWAP Purchase, (ii) the product of (A) 0.96, multiplied by (B) the VWAP of the Common Stock for the
applicable Additional VWAP Purchase Period on the applicable Purchase Date for such Additional VWAP Purchase, provided that
the Aggregate Daily Purchase Share Amount to be purchased by the Investor on the applicable Purchase Date for such Additional VWAP
Purchase (collectively in the VWAP Purchase and all Additional VWAP Purchases, as applicable, effected by the Company on such
Purchase Date) is greater than 6.67%, but less than 15%, of the Purchase Volume Reference Amount applicable to such Additional VWAP
Purchase, or (iii) the product of (A) 0.95, multiplied by (B) the VWAP of the Common Stock for the applicable Additional VWAP
Purchase Period on the applicable Purchase Date for such Additional VWAP Purchase, provided that the Aggregate Daily Purchase
Share Amount to be purchased by the Investor on the applicable Purchase Date for such Additional VWAP Purchase (collectively in the
VWAP Purchase and all Additional VWAP Purchases, as applicable, effected by the Company on such Purchase Date) is equal to or
greater than 15% of the Purchase Volume Reference Amount applicable to such Additional VWAP Purchase; provided, further
that in each case, the calculation of the VWAP for the Common Stock for the Additional VWAP Purchase Period for an Additional VWAP
Purchase, during which Additional VWAP Purchase Period the last or closing sale of Common Stock at or prior to the official close of
the primary (or “regular”) trading session on the Trading Market (or, if the Common Stock is then listed on an Eligible
Market, on such Eligible Market) on the applicable Purchase Date has occurred, shall exclude from such calculation such last or
closing sale of Common Stock at or prior to the official close of such primary (or “regular”) trading session that is
reported in the consolidated system on such Purchase Date (as applicable). All such calculations shall be appropriately adjusted for
any stock dividend, stock split, stock combination, recapitalization or other similar transaction during such period.


 






    I-2


     


    

 


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


 


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


 


“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 Daily
Purchase Share Amount” means, with respect to a Purchase Date on which a VWAP Purchase is made pursuant to Section 3.1 and,
if applicable, on which one or more Additional VWAP Purchases are also made pursuant to Section 3.2, such aggregate number of Shares equal
to the sum of (i) the applicable VWAP Purchase Share Amount purchased by the Investor in such VWAP Purchase on such Purchase Date and
(ii) the applicable Additional VWAP Purchase Share Amount purchased by the Investor in each such Additional VWAP Purchase occurring on
the same Purchase Date as such VWAP Purchase (as applicable).


 


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


 






    I-3


     


    

 


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


 


“Base Price”
means a price per Share equal to the sum of (i) the Minimum Price and (ii) $0.05 (subject to adjustment for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction that occurs on or after the date of this Agreement).


 


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


 


“Bloomberg”
means Bloomberg, L.P.


 


“Bring Down Letter”
shall have the meaning assigned to such term in Section 6.13.


 


“Broker-Dealer”
shall have the meaning assigned to such term in Section 6.12.


 


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


 


“Business Data”
means all business information and data, including Personal Information (whether of employees, contractors, consultants, customers, consumers,
or other persons and whether in electronic or any other form or medium) that is accessed, collected, used, stored, shared, distributed,
transferred, disclosed, destroyed, disposed of or otherwise processed by any of the Business Systems or otherwise in the course of the
conduct of the business of the Company and its Subsidiaries.


 


“Business Systems”
means all Software, computer hardware (whether general or special purpose), electronic data processors, databases, communications, telecommunications,
networks, interfaces, platforms, servers, peripherals, and computer systems, including any outsourced systems and processes, that are
owned or used in the conduct of the business of the Company and its Subsidiaries.


 


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


 






    I-4


     


    

 


“Code”
shall have the meaning assigned to such term in Section 5.20.


 


“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 Section 13(a), 13(c), 14 or 15(d) of the Exchange Act since
January 29, 2021, including, without limitation, (A) Current Report and (B) the Company’s current report on Form 8-K filed
with the Commission on December 15, 2021, attaching as an Exhibit thereto the consolidated financial statements of the Company and
its Subsidiaries at December 31, 2020 and 2019, and for each of the two years in the period ended December 31, 2020, retroactively
reacast to give effect to the recapitalization transaction described therein; (2) each Registration Statement, as the same may be amended
from time to time, the Prospectus contained therein and each Prospectus Supplement thereto; and (3) all information contained in
such filings and all documents and disclosures that have been and heretofore shall be incorporated by reference therein.


 


“Commitment Shares”
means 197,628 shares of duly authorized, validly issued, fully paid and non-assessable shares of Common Stock which, concurrently with
the execution and delivery of this Agreement on the Closing Date, the Company has caused its transfer agent to issue and deliver to the
Investor not later than 4:00 p.m. (New York City time) on the Trading Day immediately following the Closing Date.


 


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


 


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


 


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


 






    I-5


     


    

 


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


 


“Confidential
Information” means any information, knowledge or data concerning the businesses and affairs of the Company and its Subsidiaries,
or any Suppliers or customers of the Company or any of its Subsidiaries (as applicable) that is not already generally available to the
public.


 


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


 


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


 


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


 


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


 


“Data Security
Requirements” shall have the meaning assigned to such term in Section 5.36.


 


“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 5.38.


 


“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 5.29.


 


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


 


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


 


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


 






    I-6


     


    

 


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


 


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


 


“Environment”
means any ambient air, surface water, drinking water, groundwater, land surface (whether below or above water), subsurface strata, sediment,
plant or animal life, and natural resources.


 


“Environmental
Claim” means any claim, judicial or administrative proceeding, investigation or notice by any Person, including any Governmental
Authority, alleging potential liability (including potential liability for investigatory costs, cleanup or remediation costs, governmental
or third party response costs, natural resource damages, property damage, personal injuries, or fines or penalties) based on or resulting
from (a) the presence or Release of, or exposure to, any Hazardous Materials at any location, whether or not owned or operated by
the Company or any of its Subsidiaries, as applicable, or (b) any Environmental Law, including the alleged or actual violation thereof.


 


“Environmental
Laws” means any law, statute, ordinance, regulation, order or rule relating to: (a) the Environment, including pollution,
contamination, cleanup, preservation, protection and reclamation of the Environment, (b) the protection of human health with respect
to, or the exposure of employees or third parties to, any Hazardous Materials, (c) any Release or threatened Release of any Hazardous
Materials, including investigation, assessment, testing, monitoring, containment, removal, remediation and cleanup of any such Release
or threatened Release, (d) the management of any Hazardous Materials, including the use, labeling, processing, disposal, storage,
treatment, transport, or recycling of any Hazardous Materials, or (e) the presence of Hazardous Materials in any building, physical
structure, product or fixture.


 


“Environmental
Permits” means all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates,
approvals and orders of any Governmental Authority required under Environmental Laws for the conduct of the business and activities of
the Company and its Subsidiaries, as currently conducted.


 


“ERISA”
shall have the meaning assigned to such term in Section 5.20.


 


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


 


“Exchange Cap”
shall have the meaning assigned to such term in Section 3.4(a) hereof.


 


“Exempt
Issuance” means the issuance by the Company of (a) (1) any Securities to the Investor (or its designee) pursuant to
the Transaction Documents or (2) any securities upon the exercise or exchange of or conversion of any shares of Common Stock or
Common Stock Equivalents held by the Investor at any time, (b) shares of Common Stock to the Investor (or its designee) in
connection with any “equity line of credit” or other continuous offering or similar offering of Common Stock (other than
the transactions contemplated by the Transaction Documents) pursuant to one or more written agreements between the Company and the
Investor or an Affiliate of the Investor executed after the date of this Agreement (if any), whereby the Company may sell Common
Stock to the Investor or an Affiliate of the Investor at a future determined price, (c) shares of Common Stock in any
 “at-the-market offering” or “equity distribution program” exclusively to or through B. Riley Securities,
Inc., pursuant to one or more written agreements between the Company and B. Riley Securities, Inc., or (d) shares of Common Stock or
Common Stock Equivalents pursuant to any employee benefit, purchase, or incentive plan of the Company adopted by the Company’s
board of directors or a majority of the members of a committee of the Company’s board of directors established for such
purpose.


 






    I-7


     


    

 


“FCPA”
shall have the meaning assigned to such term in Section 5.31.


 


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


 


“FINRA”
means the Financial Industry Regulatory Authority.


 


“Food Laws”
shall have the meaning assigned to such term in Section 5.10.


 


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


 


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


 


“Governmental
Authority” means (a) the United States, (b) any federal, state, provincial, municipal, local or any
governmental or quasi-governmental authority of any nature, (c) any body exercising or entitled to exercise any administrative,
executive, judicial, legislative, police, standards, regulatory or taxing authority, or (d) any subdivision, agency,
department, branch, official, bureau, commission, board, court, tribunal, judicial or arbitral body or other instrumentality or
authority of any of the foregoing.


 






    I-8


     


    

 


“Hazardous Materials”
means all materials, chemicals, wastes, compounds and substances in any form defined, regulated or characterized as a pollutant, contaminant
or toxic or hazardous substance or waste (or terms of similar meaning) under Environmental Laws protecting the Environment and human health,
including petroleum, crude oil and any fraction thereof.


 


“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.


 


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


 


“Intellectual
Property” means: (a) patents, patent applications and patent disclosures, together with all reissues, continuations,
continuations-in-part, divisionals, revisions, extensions or reexaminations thereof; (b) trademarks and service marks, trade dress,
logos, trade names, corporate names, brands, slogans, and other source identifiers together with all translations, adaptations, derivations,
combinations and other variants of the foregoing, and all applications, registrations, and renewals in connection therewith, together
with all of the goodwill associated with the foregoing; (c) copyrights, and other works of authorship (whether or not copyrightable),
and moral rights, and registrations and applications for registration, renewals and extensions thereof; (d) trade secrets and know-how
(including ideas, formulas, compositions, inventions (whether or not patentable or reduced to practice)), customer and supplier lists,
improvements, protocols, processes, methods and techniques, research and development information, industry analyses, algorithms, architectures,
layouts, drawings, specifications, designs, plans, methodologies, proposals, industrial models, technical data, financial and accounting
and all other data, databases, database rights, including rights to use any Personal Information, pricing and cost information, business
and marketing plans and proposals, and customer and supplier lists (including lists of prospects) and related information; (e) Internet
domain names and social media accounts; (f) rights of privacy and publicity and all other intellectual property or proprietary rights
of any kind or description; (g) copies and tangible embodiments of any of the foregoing, in whatever form or medium; and (h) all
legal rights arising from items (a) through (f), including the right to prosecute, enforce and perfect such interests and rights
to sue, oppose, cancel, interfere, enjoin and collect damages based upon such interests, including such rights based on past infringement,
if any, in connection with any of the foregoing.


 


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


 






    I-9


     


    

 


“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 5.38.


 


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


 


“Licensed IP”
means all Intellectual Property rights owned or purported to be owned by a third party and licensed to the Company or any of its Subsidiaries
or to which the Company or any of its Subsidiaries otherwise has a right to use.


 


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


 






    I-10


     


    

 


“Material Subsidiaries”
means each of AppHarvest Operations, Inc., AppHarvest Morehead Farm, LLC, AppHarvest Richmond Farm, LLC, AppHarvest Berea Farm, LLC, Russell
Springs Land Company, LLC, and Morehead Farm, LLC.


 


“Minimum Price”
means $5.06, representing the Nasdaq official closing price of the Common Stock on the Trading Market (as reflected on Nasdaq.com) on
the Trading Day immediately preceding the date of this Agreement (subject to adjustment for any reorganization, recapitalization, non-cash
dividend, stock split, reverse stock split or other similar transaction that occurs on or after the date of this Agreement).


 


“Money Laundering
Laws” shall have the meaning assigned to such term in Section 5.32.


 


“Nasdaq”
means The Nasdaq Stock Market LLC.


 


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


 


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


 


“Owned IP”
means all Intellectual Property rights owned or purported to be owned by the Company or any of its Subsidiaries.


 


“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 5.16(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.


 


“Personal Information”
means (a) information related to an identified or identifiable individual (e.g., name, address telephone number, email address, financial
account number, government-issued identifier), (b) any other data used or intended to be used or which allows one to identify, contact,
or precisely locate an individual, including any internet protocol address or other persistent identifier, and (c) any other, similar
information or data regulated by Privacy/Data Security Laws.


 






    I-11


     


    

 



 


“Privacy/Data
Security Laws” means all laws governing the receipt, collection, use, storage, processing, sharing, security, disclosure,
or transfer of Personal Information or the security of the Business Systems or Business Data.


 


“Products”
mean any products or services, developed, manufactured, performed, out-licensed, sold, distributed other otherwise made available by or
on behalf of the Company or any of its Subsidiaries, from which the Company or any of its Subsidiaries has derived previously, is currently
deriving or is scheduled to derive, revenue from the sale or provision thereof.


 


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


 


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


 


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


 


“Purchase Date”
means, (i) with respect to a VWAP Purchase made pursuant to Section 3.1, the Trading Day on which the Investor timely receives, (A) after
6:00 a.m., New York City time, and (B) prior to 9:00 a.m., New York City time, on such Trading Day, a valid VWAP Purchase Notice for such
VWAP Purchase in accordance with this Agreement, and (ii) with respect to an Additional VWAP Purchase made pursuant to Section 3.2, the
Trading Day on which the Investor timely receives, (A) after the later of (X) the VWAP Purchase Ending Time of the VWAP Purchase
Period for the VWAP Purchase preceding the applicable Additional VWAP Purchase Period for such Additional VWAP Purchase occurring on the
same Trading Day as such earlier VWAP Purchase and (Y) the Additional VWAP Purchase Ending Time of the Additional VWAP Purchase Period
for the most recent prior Additional VWAP Purchase, if any, occurring on the same Trading Day as such Additional VWAP Purchase, and (B)
prior to the earlier of (X) 1:30 p.m., New York City time, on such Trading Day for such Additional VWAP Purchase and (Y) such time
that is exactly two-and-a-half (2-1⁄2) hours (or 150 minutes) immediately prior to the official close of the primary (or “regular”)
trading session on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) on such
Trading Day, if the Trading Market (or such Eligible Market, as applicable) has publicly announced that the official close of the primary
(or “regular”) trading session shall be earlier than 4:00 p.m., New York City time, on such Trading Day.


 


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


 


“Purchase Share
Percentage” means, with respect to each VWAP Purchase made pursuant to Section 3.1 and with respect to each Additional VWAP
Purchase made pursuant to Section 3.2, twenty percent (20.0%).


 



    I-12


     


    

 


“Purchase Volume
Reference Amount” means, with respect to a VWAP Purchase made pursuant to Section 3.1 on a Purchase Date and with respect
to each Additional VWAP Purchase made pursuant to Section 3.2 on the same Purchase Date as such VWAP Purchase (as applicable), the lowest
of: (i) the total number (or volume) of shares of Common Stock traded during the full primary (or “regular”) trading session
on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) on the Trading Day immediately
preceding the Purchase Date for such VWAP Purchase and for each such Additional VWAP Purchase occurring on the same Purchase Date as such
VWAP Purchase (as applicable), (ii) the quotient obtained by dividing (A) the total aggregate number (or volume) of shares of Common Stock
traded during the full primary (or “regular”) trading sessions on the Trading Market (or on such Eligible Market, as applicable)
during the five (5) consecutive Trading Day period ending on (and including) the Trading Day immediately preceding the Purchase Date for
such VWAP Purchase and for each such Additional VWAP Purchase occurring on the same Purchase Date as such VWAP Purchase (as applicable),
by (B) five (5), and (iii) the quotient obtained by dividing (A) the total aggregate number (or volume) of shares of Common Stock traded
during the full primary (or “regular”) trading sessions on the Trading Market (or on such Eligible Market, as applicable)
during the twenty-one (21) consecutive Trading Day period ending on (and including) the Trading Day immediately preceding the Purchase
Date for such VWAP Purchase and for each such Additional VWAP Purchase occurring on the same Purchase Date as such VWAP Purchase, by (B)
twenty-one (21). All such calculations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or other similar transaction during such periods.


 


“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.


 


“Release”
means any release, spill, emission, leaking, pumping, emitting, depositing, discharging, injecting, escaping, leaching, dispersing, dumping,
pouring, disposing or migrating into, onto or through the Environment.


 


“Restricted Period”
shall have the meaning assigned to such term in Section 6.8(i).


 


“Restricted Person”
shall have the meaning assigned to such term in Section 6.8(i).


 


“Restricted Persons”
shall have the meaning assigned to such term in Section 6.8(i).


 


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


 



    I-13


     


    

 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Software”
means all computer software (in object code or source code format), data and databases, and related documentation and materials.


 


“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.


 


“Supplier”
means any person that supplies inventory or other materials or personal property, components, or other goods or services that are utilized
in or comprise the Products of the Company and its Subsidiaries.


 


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


 


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


 


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


 


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


 



    I-14


     


    

 


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


 


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


 


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


 


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


 


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


 



    I-15


     


    

 


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


 


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


 


“VWAP Purchase
Notice” means, with respect to a VWAP Purchase made pursuant to Section 3.1, an irrevocable written notice delivered by
the Company to the Investor, and received by the Investor, after 6:00 a.m., New York City time, and prior to 9:00 a.m., New York City
time, on the Purchase Date for such VWAP Purchase, directing the Investor to purchase a specified VWAP Purchase Share Amount (such specified
VWAP Purchase Share Amount subject to adjustment as set forth in Section 3.1 as necessary to give effect to the VWAP Purchase Maximum
Amount), at the applicable VWAP Purchase Price therefor on such Purchase Date for such VWAP Purchase in accordance with this Agreement.


 


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


 



    I-16


     


    

 


“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 (i) the product of (A) 0.97, multiplied by (B) the VWAP of the Common
Stock for the applicable VWAP Purchase Period on the applicable Purchase Date for such VWAP Purchase, provided that the
Aggregate Daily Purchase Share Amount to be purchased by the Investor on the applicable Purchase Date for such VWAP Purchase
(collectively in such VWAP Purchase and all Additional VWAP Purchases, as applicable, effected by the Company on such Purchase Date)
is equal to or less than 6.67% of the Purchase Volume Reference Amount applicable to such VWAP Purchase, (ii) the product of (A)
0.96, multiplied by (B) the VWAP of the Common Stock for the applicable VWAP Purchase Period on the applicable Purchase Date for
such VWAP Purchase, provided that the Aggregate Daily Purchase Share Amount to be purchased by the Investor on the applicable
Purchase Date for such VWAP Purchase (collectively in such VWAP Purchase and all Additional VWAP Purchases, as applicable, effected
by the Company on such Purchase Date) is greater than 6.67%, but less than 15%, of the Purchase Volume Reference Amount applicable
to such VWAP Purchase, or (iii) the product of (A) 0.95, multiplied by (B) the VWAP of the Common Stock for the applicable VWAP
Purchase Period on the applicable Purchase Date for such VWAP Purchase, provided that the Aggregate Daily Purchase Share
Amount to be purchased by the Investor on the applicable Purchase Date for such VWAP Purchase (collectively in such VWAP Purchase
and all Additional VWAP Purchases, as applicable, effected by the Company on such Purchase Date) is equal to or greater than 15% of
the Purchase Volume Reference Amount applicable to such VWAP Purchase; provided, further that the calculation of the
VWAP for the Common Stock for the VWAP Purchase Period for each VWAP Purchase, (1) during which VWAP Purchase Period the opening or
first purchase of Common Stock at or following the official open of the primary (or “regular) trading session on the Trading
Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) on the Purchase Date for such VWAP
Purchase has occurred, shall exclude from such calculation such opening or first purchase of Common Stock at or following the
official open of such primary (or “regular) trading session that is reported in the consolidated system on such Purchase Date,
and (2) during which VWAP Purchase Period the last or closing sale of Common Stock at or prior to the official close of the primary
(or “regular”) trading session on the Trading Market (or on such Eligible Market, as applicable) on the Purchase Date
for such VWAP Purchase has occurred (as applicable), shall exclude from such calculation such last or closing sale of Common Stock
at or prior to the official close of such primary (or “regular”) trading session that is reported in the consolidated
system on such Purchase Date. All such calculations shall be appropriately adjusted for any stock dividend, stock split, stock
combination, recapitalization or other similar transaction during such period.


 


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


 


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


 



    I-17


     


    

 


EXHIBIT A

REGISTRATION RIGHTS AGREEMENT


 



    A-1


     


    

 


EXHIBIT B TO THE

COMMON STOCK PURCHASE AGREEMENT

CERTiFICATE OF THE COMPANY


 


CLOSING CERTIFICATE


 


December 15, 2021


 


The undersigned, the Chief
Financial Officer of AppHarvest, Inc., a Delaware corporation (the “Company”), delivers this certificate in
connection with the Common Stock Purchase Agreement, dated as of December 15, 2021 (the “Agreement”),
by and between the Company and B. Riley Principal Capital, LLC, a Delaware limited liability company (the “Investor”),
and hereby certifies solely in his capacity as an executive officer of the Company on the date hereof that (capitalized terms used herein
without definition have the meanings assigned to them in the Agreement):


 


1.       A
true, complete and correct copy of the Amended and Restated Certificate of Incorporation of the Company, as amended through the date hereof,
as filed with the Secretary of State of the State of Delaware is filed as Exhibit 3.1 to the Company’s Current Report on Form 8-K
(001-39288) filed with the Securities and Exchange Commission on February 2, 2021. The Certificate of Incorporation of the Company has
not been further amended or restated, and no document with respect to any amendment to the Certificate of Incorporation of the Company
has been filed in the office of the Secretary of State of the State of Delaware since the date shown on the face of the state certification
relating to the Company’s Certificate of Incorporation, which is in full force and effect on the date hereof, and no action has
been taken by the Company in contemplation of any such amendment or the dissolution, merger or consolidation of the Company.


 


2.       A
true and complete copy of the Bylaws of the Company, as amended and restated through, and as in full force and effect on, the date hereof
is filed as Exhibit 3.2 to the Company’s Current Report on Form 8-K (001-39288) filed with the Securities and Exchange Commission
on February 2, 2021, and no proposal for any amendment, repeal or other modification to the Bylaws of the Company has been taken or is
currently pending before the Board of Directors or stockholders of the Company.


 


3.       The
Board of Directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has not been
amended, rescinded or modified and remains in full force and effect as of the date hereof. Attached hereto as Exhibit A are true,
correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company on December 15, 2021.


 


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


 


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


 



    B-1


     


    

 


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


 


	 	AppHarvest, Inc.
	 	 
	 	 
	 	Name:	Loren
    Eggleton
	 	Title:	Chief Financial Officer




 



    B-2


     


    

 


EXHIBIT C

COMPLIANCE CERTIFICATE


 


The undersigned, the
[●] of AppHarvest, Inc., a Delaware corporation (the “Company”), delivers this certificate in
connection with the Common Stock Purchase Agreement, dated as of December 15, 2021 (the “Agreement”), by
and between the Company and B. Riley Principal Capital, LLC, a Delaware limited liability company (the
 “Investor”), and hereby certifies solely in his capacity as an executive officer of the Company on the
date hereof that, to the best of his knowledge after reasonable investigation, on behalf of the Company (capitalized terms used
herein without definition have the meanings assigned to them in the Agreement):


 


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


 


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


 


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


 


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


 


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


 


6.       As
of [the Commencement Date][the date hereof], the Company has reserved out of its authorized and unissued Common Stock, 19,945,776 shares
of Common Stock solely for the purpose of effecting VWAP Purchases and Additional VWAP Purchases under the Agreement.


 


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


 






     


     


    

 


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


 


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


 


	 	AppHarvest, Inc.
	 	 
	 	 
	 	Name:
	 	Title: