Exhibit
10.1


 





EXECUTION
VERSION

 


COMMON
STOCK PURCHASE AGREEMENT


 


Dated
as of August 10, 2022


 


by
and between


 


SIDUS
SPACE, INC.


 


and


 


B.
RILEY PRINCIPAL CAPITAL II, 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.	Intraday
    VWAP Purchases	4
	 	Section
    3.3.	Settlement	5
	 	Section
    3.4.	Compliance
    with Rules of Trading Market.	6
	 	Section
    3.5.	Beneficial
    Ownership Limitation	7
	 	 	 	 
	Article
    IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR	7
	 	Section
    4.1.	Organization
    and Standing of the Investor	7
	 	Section
    4.2.	Authorization
    and Power	7
	 	Section
    4.3.	No
    Conflicts	8
	 	Section
    4.4.	Investment
    Purpose	8
	 	Section
    4.5.	Accredited
    Investor Status	8
	 	Section
    4.6.	Reliance
    on Exemptions	8
	 	Section
    4.7.	Information	9
	 	Section
    4.8.	No
    Governmental Review	9
	 	Section
    4.9.	No
    General Solicitation	9
	 	Section
    4.10.	Not
    an Affiliate	9
	 	Section
    4.11.	No
    Prior Short Sales	10
	 	Section
    4.12.	Statutory
    Underwriter Status	10
	 	Section
    4.13.	Resales
    of Securities	10
	 	 	 	 
	Article
    V REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY	10
	 	Section
    5.1.	Organization,
    Good Standing and Power	10
	 	Section
    5.2.	Authorization,
    Enforcement	11
	 	Section
    5.3.	Capitalization	11
	 	Section
    5.4.	Issuance
    of Securities	11
	 	Section
    5.5.	No
    Conflicts	12
	 	Section
    5.6.	Commission
    Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants	12
	 	Section
    5.7.	Subsidiaries	14
	 	Section
    5.8.	No
    Material Adverse Effect or Material Adverse Change	14
	 	Section
    5.9.	No
    Undisclosed Liabilities	14
	 	Section
    5.10.	No
    Material Defaults	15
	 	Section
    5.11.	Solvency	15


 






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	 	Section
    5.12.	Title
    To Assets	15
	 	Section
    5.13.	Actions
    Pending	15
	 	Section
    5.14.	Compliance
    With Laws	16
	 	Section
    5.15.	Certain
    Fees	16
	 	Section
    5.16.	Disclosure	17
	 	Section
    5.17.	Operation
    of Business	17
	 	Section
    5.18.	Environmental
    Compliance	18
	 	Section
    5.19.	Material
    Contracts	18
	 	Section
    5.20.	Transactions
    With Affiliates	19
	 	Section
    5.21.	Employees;
    Labor Laws	19
	 	Section
    5.22.	Use
    of Proceeds	19
	 	Section
    5.23.	Investment
    Company Act Status	19
	 	Section
    5.24.	ERISA	19
	 	Section
    5.25.	Taxes	20
	 	Section
    5.26.	Insurance	20
	 	Section
    5.27.	Exemption
    from Registration	20
	 	Section
    5.28.	No
    General Solicitation or Advertising	20
	 	Section
    5.29.	No
    Integrated Offering	20
	 	Section
    5.30.	Dilutive
    Effect	21
	 	Section
    5.31.	Manipulation
    of Price	21
	 	Section
    5.32.	Securities
    Act	21
	 	Section
    5.33.	Listing
    and Maintenance Requirements; DTC Eligibility	21
	 	Section
    5.34.	Application
    of Takeover Protections	22
	 	Section
    5.35.	No
    Unlawful Payments	22
	 	Section
    5.36.	International
    Trade	22
	 	Section
    5.37.	Government
    Contracts	23
	 	Section
    5.38.	IT
    Systems	24
	 	Section
    5.39.	Compliance
    With Data Security Requirements	25
	 	Section
    5.40.	No
    Disqualification Events	25
	 	Section
    5.41.	Market
    Capitalization	25
	 	Section
    5.42.	Emerging
    Growth Company Status	25
	 	Section
    5.43.	Smaller
    Reporting Company Status	25
	 	Section
    5.44.	Broker/Dealer
    Relationships; FINRA Information	26
	 	Section
    5.45.	Margin
    Rules	26
	 	Section
    5.46.	Acknowledgement
    Regarding Relationship with Investor and BRS	26
	 	Section
    5.47.	Acknowledgement
    Regarding Investor’s Affiliate Relationships	27
	 	 	 	 
	Article
    VI ADDITIONAL COVENANTS	27
	 	Section
    6.1.	Securities
    Compliance	27
	 	Section
    6.2.	Reservation
    of Common Stock	28
	 	Section
    6.3.	Registration
    and Listing	28
	 	Section
    6.4.	Compliance
    with Laws.	29
	 	Section
    6.5.	Keeping
    of Records and Books of Account; Due Diligence.	29
	 	Section
    6.6.	No
    Frustration; No Variable Rate Transactions.	29
	 	Section
    6.7.	Corporate
    Existence	30
	 	Section
    6.8.	Fundamental
    Transaction	30
	 	Section
    6.9.	Selling
    Restrictions.	30
	 	Section
    6.10.	Effective
    Registration Statement	31


 






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	 	Section
    6.11.	Blue
    Sky	31
	 	Section
    6.12.	Non-Public
    Information	31
	 	Section
    6.13.	Broker-Dealer	32
	 	Section
    6.14.	FINRA
    Filing	32
	 	Section
    6.15.	QIU	33
	 	Section
    6.16.	Disclosure
    Schedule.	33
	 	Section
    6.17.	Delivery
    of Compliance Certificates, Bring-Down Negative Assurance Letters and Bring-Down Comfort Letters Upon Occurrence of Certain Events	34
	 	 	 	 
	Article
    VII CONDITIONS TO CLOSING, COMMENCEMENT AND PURCHASES	35
	 	Section
    7.1.	Conditions
    Precedent to Closing	35
	 	Section
    7.2.	Conditions
    Precedent to Commencement	36
	 	Section
    7.3.	Conditions
    Precedent to Purchases after Commencement Date	40
	 	 	 	 
	Article
    VIII TERMINATION	44
	 	Section
    8.1.	Automatic
    Termination	44
	 	Section
    8.2.	Other
    Termination	45
	 	Section
    8.3.	Effect
    of Termination	46
	 	 	 	 
	Article
    IX INDEMNIFICATION	47
	 	Section
    9.1.	Indemnification
    of Investor	47
	 	Section
    9.2.	Indemnification
    Procedures	48
	 	 	 	 
	Article
    X MISCELLANEOUS	49
	 	Section
    10.1.	Certain
    Fees and Expenses; Commitment Fee; Commencement Irrevocable Transfer Agent Instructions.	49
	 	Section
    10.2.	Specific
    Enforcement, Consent to Jurisdiction, Waiver of Jury Trial.	52
	 	Section
    10.3.	Entire
    Agreement	52
	 	Section
    10.4.	Notices	52
	 	Section
    10.5.	Waivers	54
	 	Section
    10.6.	Amendments	54
	 	Section
    10.7.	Headings	54
	 	Section
    10.8.	Construction	54
	 	Section
    10.9.	Binding
    Effect	54
	 	Section
    10.10.	No
    Third Party Beneficiaries	54
	 	Section
    10.11.	Governing
    Law	54
	 	Section
    10.12.	Survival	55
	 	Section
    10.13.	Counterparts	55
	 	Section
    10.14.	Publicity	55
	 	Section
    10.15.	Severability	55
	 	Section
    10.16.	Further
    Assurances	55


 


Annex
I. Definitions


 




    	iii



     


    

 


COMMON
STOCK PURCHASE AGREEMENT


 


This
COMMON STOCK PURCHASE AGREEMENT is made and entered into as of August 10, 2022 (this “Agreement”), by
and between B. Riley Principal Capital II, LLC, a Delaware limited liability company (the “Investor”), and
Sidus Space, Inc., a Delaware corporation (the “Company”).


 


RECiTALS


 


WHEREAS,
the parties desire that, upon the terms and subject to the conditions and limitations set forth herein, the Company may issue and sell
to the Investor, from time to time as provided herein, and the Investor shall purchase from the Company, up to the lesser of (i) $30,000,000
in aggregate gross purchase price of newly issued shares of the Company’s Class A common stock, par value $0.0001 per share (the
“Common Stock”), and (ii) the Exchange Cap (to the extent applicable under Section 3.4);


 


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 under the Securities Act
the resale of the Registrable Securities (as defined in the Registration Rights Agreement) by the Investor, upon the terms and subject
to the conditions set forth therein;


 


WHEREAS,
in consideration for the Investor’s execution and delivery of this Agreement, on the Closing Date, the Company shall pay the Cash
Commitment Fee to the Investor and shall concurrently cause its transfer agent to issue to the Investor the Commitment Shares, in each
case at such times and otherwise in accordance with Section 10.1(ii); and


 


WHEREAS,
the Company acknowledges that the Investor is an Affiliate of the B. Riley group of entities, and its Affiliate, B. Riley Securities,
Inc. (“BRS”), is acting as the Investor’s representative in connection with the transactions contemplated
by the Transaction Documents.


 


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


 


Article
I

DEFINITIONS


 


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


 



    	 



     


    

 





Article
II

PURCHASE AND SALE OF COMMON STOCK


 


Section
2.1. Purchase and Sale of Stock. Upon the terms and subject to the conditions
of this Agreement, during the Investment Period, the Company, in its sole discretion, shall have the right, but not the obligation, to
issue and sell to the Investor, and the Investor shall purchase from the Company, up to the lesser of (i) $30,000,000 (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 Intraday VWAP Purchase
Notices as provided in Article III.


 


Section
2.2. Closing Date; Settlement Dates. This Agreement shall become effective
and binding (the “Closing”) upon (a) the delivery of counterpart signature pages of this Agreement and the
Registration Rights Agreement executed by each of the parties hereto and thereto, and (b) the delivery of all other documents, instruments
and writings required to be delivered at the Closing, in each case as provided in Section 7.1(iv), to the offices of Dorsey & Whitney
LLP, 51 West 52nd Street, New York, NY 10019-6119, at 5.00 p.m., New York City time, on the Closing Date. In consideration
of and in express reliance upon the representations, warranties and covenants contained in, and upon the terms and subject to the conditions
of, this Agreement, during the Investment Period, the Company, 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 Intraday VWAP Purchase (as applicable). The delivery of Shares in respect of each VWAP Purchase and each Intraday 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,
not later than 5:30 p.m., New York City time, on the Trading Day immediately after the date of this Agreement, 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 payment of the Cash Commitment Fee and the issuance
of the Commitment Shares to the Investor pursuant to this Agreement, and attaching as exhibits thereto copies of each of this Agreement
and the Registration Rights Agreement and, if applicable, any press release issued by the Company disclosing the execution of this Agreement
and the Registration Rights Agreement by the Company (including all exhibits thereto, the “Current Report”).
The Company shall provide the Investor a reasonable opportunity to comment on a draft of the Current Report prior to filing the Current
Report with the Commission and shall give due consideration to all such comments. From and after the filing of the Current Report with
the Commission, the Company shall have publicly disclosed all material, nonpublic information delivered to the Investor (or the Investor’s
representatives or agents) by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, agents
or representatives (if any) in connection with the transactions contemplated by the Transaction Documents. The Investor covenants that
until such time as the transactions contemplated by this Agreement 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 and shall provide a copy thereof to the Investor promptly after such filing. The Company shall use its commercially reasonable efforts
to prepare and, as soon as practicable, but in no event later than the applicable Filing Deadline, file with the Commission the Initial
Registration Statement and any New Registration Statement covering only the resale by the Investor of the Registrable Securities in accordance
with the Securities Act and the Registration Rights Agreement. At or before 8:30 a.m. (New York City time) on the Trading Day immediately
following the Effective Date of the Initial Registration Statement and any New Registration Statement (or any post-effective amendment
thereto), the Company shall file with the Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to
be used in connection with resales of the Registrable Securities by the Investor 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 Intraday VWAP Purchases (as applicable)
pursuant to this Agreement have been received by the Investor as DWAC Shares prior to the Company’s delivery to the Investor of
such VWAP Purchase Notice for such VWAP Purchase on such Purchase Date. 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, by email correspondence to each
of the individual notice recipients of the Company set forth in the applicable VWAP Purchase Notice, a written confirmation for such
VWAP Purchase, 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, any Allowable Grace Period or any MPA Period.


 



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Section
3.2. Intraday 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 Intraday VWAP Purchase Notice on the applicable
Purchase Date therefor, to purchase a specified Intraday VWAP Purchase Share Amount, which shall not exceed the applicable Intraday VWAP
Purchase Maximum Amount, at the applicable Intraday VWAP Purchase Price therefor on such Purchase Date in accordance with this Agreement
(each such purchase, an “Intraday VWAP Purchase”). The Company may timely deliver to the Investor an Intraday
VWAP Purchase Notice for an Intraday VWAP Purchase on any Trading Day selected by the Company as the Purchase Date for such Intraday
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 Intraday VWAP Purchases (as applicable)
have been received by the Investor as DWAC Shares prior to the Company’s delivery to the Investor of such Intraday VWAP Purchase
Notice for such Intraday VWAP Purchase on such Purchase Date. The Investor is obligated to accept each Intraday 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 Intraday VWAP Purchase Notice directing the Investor to purchase an Intraday VWAP Purchase
Share Amount in excess of the applicable Intraday VWAP Purchase Maximum Amount that the Company is then permitted to include in such
Intraday VWAP Purchase Notice, such Intraday VWAP Purchase Notice shall be void ab initio to the extent of the amount by which
the Intraday VWAP Purchase Share Amount set forth in such Intraday VWAP Purchase Notice exceeds such applicable Intraday VWAP Purchase
Maximum Amount, and the Investor shall have no obligation to purchase, and shall not purchase, such excess Shares pursuant to such Intraday
VWAP Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the applicable Intraday VWAP
Purchase Maximum Amount pursuant to such Intraday VWAP Purchase. At or prior to 5:30 p.m., New York City time, on the Purchase Date on
which one or more Intraday VWAP Purchases shall have occurred, the Investor shall provide to the Company, by email correspondence to
each of the individual notice recipients of the Company set forth in the applicable Intraday VWAP Purchase Notice, a written confirmation
for each such Intraday VWAP Purchase, setting forth the applicable Intraday VWAP Purchase Price per Share to be paid by the Investor
for the Shares purchased by the Investor in such Intraday VWAP Purchase, and the total aggregate Intraday VWAP Purchase Price to be paid
by the Investor for the total Intraday VWAP Purchase Share Amount purchased by the Investor in such Intraday VWAP Purchase. Notwithstanding
the foregoing, the Company shall not deliver any Intraday VWAP Purchase Notices to the Investor during the PEA Period, any Allowable
Grace Period or any MPA 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 Intraday VWAP Purchase Share Amount
purchased by the Investor in each Intraday VWAP Purchase (as applicable), in each case shall be delivered to the Investor as DWAC Shares
not later than 10:00 a.m., New York City time, on the Trading Day immediately following the Purchase Date for such VWAP Purchase and
for each such Intraday VWAP Purchase (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 Intraday 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 Intraday VWAP Purchase and (2) the applicable Intraday
VWAP Purchase Price for such Shares, as full payment for such Shares purchased by the Investor in such Intraday 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 Intraday 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 such
Intraday VWAP Purchase(s) (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 Intraday VWAP Purchase prior to 10:00 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 Intraday VWAP Purchase (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 Intraday 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 Intraday
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 Intraday 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.


 



    	5



     


    

 





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 3,373,121 shares of Common Stock (such number of shares equal to 19.99% of the
aggregate number of shares of Common Stock and shares of the Company’s Class B common stock, par value $0.0001 per share,
combined, 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 of Common Stock, 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)).


 


(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 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 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.


 



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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 limited liability
company power and authority to enter into and perform its obligations under this Agreement and the Registration Rights Agreement and
to purchase or acquire the Securities in accordance with the terms hereof. The execution, delivery and performance by the Investor of
this Agreement and the Registration Rights Agreement and the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary limited liability company action, and no further consent or authorization of the Investor, its
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 Governmental Authority 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 Governmental Authority 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, other than as may be required by FINRA; provided, however, that for purposes of the representation made in
this sentence, the Investor is assuming and relying upon the accuracy of the relevant representations and warranties and the compliance
with the relevant covenants and agreements of the Company in the Transaction Documents to which it is a party.


 


Section
4.4. Investment Purpose. The Investor is acquiring the 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.


 






    	8



     


    

 





Section
4.7. Information. All materials relating to the business, financial
condition, management and operations of the Company and materials relating to the offer and sale of the Securities which have been requested
by the Investor have been furnished or otherwise made available to the Investor or its advisors, including, without limitation, the Commission
Documents. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor is able to bear
the economic risk of an investment in the Securities and has such knowledge and experience in financial and business matters that it
is capable of evaluating the merits and risks of a proposed investment in the Securities. The Investor and its advisors have been afforded
the opportunity to ask questions of and receive answers from representatives of the Company concerning the financial condition and business
of the Company and other matters relating to an investment in the Securities. Neither such inquiries nor any other due diligence investigations
conducted by the Investor or its advisors, if any, or its representatives shall modify, amend or affect the Investor’s right to
rely on the Company’s representations and warranties contained in this Agreement or in any other Transaction Document to which
the Company is a party or the Investor’s right to rely on any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transaction contemplated hereby (including, without limitation, the opinions of the Company’s
counsel delivered pursuant to Sections 7.1(iv), 7.2(xvi) and 7.3(x)). The Investor has sought such accounting, legal and tax advice as
it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities. The Investor understands
that it (and not the Company) shall be responsible for its own tax liabilities that may arise as a result of this investment or the transactions
contemplated by this Agreement.


 


Section
4.8. No Governmental Review. The Investor understands that no United States
federal or state agency or any other government or Governmental Authority has passed on or made any recommendation or endorsement of
the Securities or the fairness or suitability of an 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, other than the Commitment Shares. 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 Intraday 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 Intraday 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. For the avoidance of doubt, the foregoing restriction does not apply to any Affiliate of the Investor,
provided that any such purchases do not cause the Investor to violate any applicable Exchange Act requirement, including Regulation M.


 






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Section
4.11.  No Prior Short Sales. At no time prior to the date of this Agreement has the Investor, its sole
member, any of their respective officers, or any entity managed or controlled by the Investor or its sole member, engaged in or effected,
in any manner whatsoever, directly or indirectly, for its own 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 and the Prospectus contained therein, in a manner described under
the caption “Plan of Distribution” in such Registration Statement and Prospectus, and in a manner in compliance with all
applicable U.S. federal and applicable state securities laws, rules and regulations.


 


Article
V

REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY


 


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


 


Section
5.1. Organization, Good Standing and Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware and has the corporate power and authority to
own, lease or operate its assets and properties and to conduct its business as now being conducted. The Company is duly licensed or qualified
to do business and in good standing (or equivalent status as applicable) in each jurisdiction in which the assets owned or leased by
it or the character of its activities require it to be licensed or qualified or in good standing (or equivalent status as applicable),
except where the failure to be so licensed or qualified, individually or in the aggregate, has not had and would not reasonably be expected
to have a Material Adverse Effect.


 



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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 Intraday 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, the Registration Rights Agreement or any of
the other Transaction Documents, or the consummation of the transactions described herein or therein. The Company has filed with the
Commission true and correct copies of the Company’s Amended and Restated Certificate of Incorporation as in effect on the Closing
Date (the “Charter”), and the Company’s Amended and Restated Bylaws as in effect on the Closing Date
(the “Bylaws”).


 


Section
5.4. Issuance of 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 pursuant to a particular Intraday
VWAP Purchase Notice (as applicable), will be, prior to the delivery to the Investor hereunder of such VWAP Purchase Notice and prior
to the delivery to the Investor hereunder of such Intraday VWAP Purchase Notice (as applicable), 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. An aggregate of 3,282,754 shares of Common Stock will be duly authorized and reserved by the Company
for issuance and sale to the Investor as Shares pursuant to VWAP Purchases and Intraday VWAP Purchases under this Agreement as of the
Commencement Date.


 






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Section
5.5. No Conflicts. The execution, delivery and performance by the Company
of each of the Transaction Documents to which it is a party and the consummation by the Company of the transactions contemplated hereby
and thereby do not and shall not (i) result in a violation of any provision of the Company’s Charter or Bylaws, (ii) 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 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 applicable Eligible Market),
except, in the case of clauses (ii), (iii) and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations,
liens, charges, encumbrances and violations as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. Except as specifically contemplated by this Agreement or the Registration Rights Agreement and as required under the
Securities Act and any applicable state securities laws, the Company is not required under any federal, state, local or foreign law,
rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with, any Governmental Authority
(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.


 


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


 


(a)   
Since December 31, 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 Closing Date, no Subsidiary of the Company is required to file or furnish any report, schedule, registration,
form, statement, information or other document with the Commission. As of its filing date (or, if amended or superseded by a filing prior
to the Closing Date, as of the date of such amended or superseded filing), each Commission Document filed with or furnished to the Commission
prior to the Closing Date complied in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable.
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
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 filed as part of or 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.
The Company has delivered or made available to the Investor via EDGAR or otherwise true and complete copies of all comment letters and
substantive correspondence received by the Company from the Commission relating to the Commission Documents filed with or furnished to
the Commission as of the Closing Date, together with all written responses of the Company thereto in the form such responses were filed
via EDGAR. Except as disclosed in the Commission Documents, there are no outstanding or unresolved comments or undertakings in such comment
letters received by the Company from the Commission. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company under the Securities Act or the Exchange Act.


 






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(b)   
The consolidated financial statements of the Company included or incorporated by reference in the Commission Documents, together with
the related notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company and the
Subsidiaries (as defined below) as of the dates indicated and the consolidated results of operations, cash flows and changes in stockholders’
equity of the Company and the Subsidiaries for the periods specified (subject, in the case of unaudited statements, to normal year-end
audit adjustments which will not be material, either individually or in the aggregate) and have been prepared in compliance with the
published requirements of the Securities Act and 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 pro forma financial statements or data
included or incorporated by reference in the Commission Documents, if any, comply with the requirements of Regulation S-X of the Securities
Act, including, without limitation, Article 11 thereof, and the assumptions used in the preparation of such pro forma financial statements
and data are reasonable, the pro forma adjustments used therein are appropriate to give effect to the circumstances referred to therein
and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data. The
other financial and statistical data with respect to the Company and the Subsidiaries contained or incorporated by reference in the Commission
Documents, if any, are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and
records of the Company. There are no financial statements (historical or pro forma) that are required to be included or incorporated
by reference in the Commission Documents that are not included or incorporated by reference as required. All disclosures contained or
incorporated by reference in the Commission Documents, if any, regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply in all material respects with Regulation G of the Exchange Act and Item 10 of
Regulation S-K under the Securities Act, to the extent applicable.


 


(c)   
Except as set forth in the Commission Documents, the Company maintains a system of internal accounting controls sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. Except as set forth in the Commission Documents, the Company is not aware of any material weaknesses in its internal
control over financial reporting. Except as set forth in the Commission Documents, since the date of the latest audited financial statements
of the Company included in the 2021 Form 10-K, there has been no change in the Company’s internal control over financial reporting
that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
Except as set forth in the Commission Documents, the Company has established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15 and 15d-15) that comply with the requirements of the Exchange Act. The Company’s certifying officers have evaluated
the effectiveness of the Company’s controls and procedures as of a date within 90 days prior to the filing date of the Form 10-K
for the fiscal year most recently ended (such date, the “Evaluation Date”). The Company presented in its Form 10-K
for the fiscal year most recently ended the conclusions of the certifying officers about the effectiveness of the disclosure controls
and procedures based on their evaluations as of the most recent Evaluation Date and, except as set forth in such Form 10-K or any Commission
Document filed with the Commission for a period subsequent to the period covered by such Form 10-K, the “disclosure controls and
procedures” are effective.


 






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(d)   
BF Borgers CPA CP (the “Accountant”), whose report on the consolidated financial statements of the Company
is filed with the Commission as part of the 2021 Form 10-K, are and, during the periods covered by their report, were independent public
accountants within the meaning of the Securities Act and the Public Company Accounting Oversight Board (United States). To the Company’s
knowledge, the Accountant is not in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) with respect to the Company.


 


(e)   
Since December 31, 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. Exhibit 21.1 to the 2021 Form 10-K sets forth each
Subsidiary of the Company as of the Closing Date, other than those that may be omitted pursuant to Item 601 of Regulation S-K, and the
Company does not have any other Subsidiaries as of the Closing Date, other than those that may be omitted pursuant to Item 601 of Regulation
S-K. Each Subsidiary of the Company has been duly formed or organized, is validly existing under the applicable laws of its jurisdiction
of incorporation or organization and has the organizational power and authority to own, lease and operate its assets and properties and
to conduct its business as it is now being conducted, except as would not reasonably be expected to have a Material Adverse Effect. Each
of the Company’s Subsidiaries is duly licensed or qualified and in good standing (or equivalent status as applicable) as a foreign
corporation (or other entity, if applicable) in each jurisdiction in which the assets owned or leased by it or the character of its activities
require it to be licensed or qualified or in good standing (or equivalent status as applicable), except where the failure to be so licensed
or qualified, individually or in the aggregate, has not had and would not reasonably be expected to have a Material Adverse Effect. No
Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any
other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from
the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company,
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. No Material Adverse Effect or Material Adverse Change. Except as otherwise
disclosed in any Commission Documents, since December 31, 2021: (i) there has not occurred any Material Adverse Effect, or any current
development that would reasonably be expected to result in a Material Adverse Effect and (ii) the Company and its Subsidiaries have conducted
their respective businesses in the ordinary course of business consistent with past practice in all material respects.


 


Section
5.9. No Undisclosed Liabilities. 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.


 



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Section
5.10.  No Material Defaults. Since December 31, 2021, neither the Company nor any of its
Subsidiaries (i) has failed to pay any dividend or sinking fund installment on preferred stock or (ii) has defaulted on any installment
on Indebtedness or on any rental on one or more long-term leases, which defaults, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect, and the Company has not filed a report pursuant to Section 13(a) or 15(d) of the
Exchange Act disclosing that it or any of its Subsidiaries has failed to make any such payments or has so defaulted.


 


Section
5.11.  Solvency. The Company has not taken any steps, and does not currently expect to take any steps,
to seek protection pursuant to any Bankruptcy Law, 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 any Bankruptcy Law. The Company
and its Subsidiaries are financially solvent and are generally able to pay their respective debts as they become due.


 


Section
5.12.  Title To Assets. Each of the Company and its Subsidiaries have good and marketable title to
all real property owned by them, if any, and good and marketable title to all personal property reflected as owned by them in the financial
statements, supporting schedules or other financial data filed with the Commission as a part of the Commission Documents, in each case
free and clear of all liens, security interests, pledges, charges, encumbrances, mortgages, equities, adverse claims and other defects,
except such as are disclosed in the Commission Documents or such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such property by the Company and its Subsidiaries; and any Leased Real
Property, improvements, buildings, equipment and personal property held under lease by the Company or any Subsidiary of the Company are
held under valid, existing and enforceable leases, with such exceptions as are disclosed in the Commission Documents or are not material
and do not interfere with the use made or proposed to be made of such real property, improvements, buildings, equipment and personal
property by the Company or such Subsidiary.


 


Section
5.13.  Actions Pending. Except as disclosed in the Commission Documents, there are no pending or, to
the Knowledge of the Company, threatened, Actions and, to the Knowledge of the Company, there are no pending or threatened investigations
against the Company or any of its Subsidiaries, or otherwise affecting the Company or any of its Subsidiaries, or any of their respective
assets, including any condemnation or similar proceedings, that would, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect. There is no Governmental Order imposed upon or to the Knowledge of the Company or any of its Subsidiaries,
nor any of their respective properties, assets or businesses, in each case that would, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. There is no unsatisfied judgment or any open injunction binding upon the Company or any of
its Subsidiaries, which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the ability
of the Company to consummate the transactions contemplated by this Agreement, the Registration Rights Agreement and the other Transaction
Documents.


 



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Section
5.14.  Compliance With Laws. Except (i) with respect to compliance with Environmental Laws (as to which
certain representations and warranties are made pursuant to Section 5.18) and (ii) where the failure to be, or to have been,
in compliance with such Laws would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the
Company and its Subsidiaries are, and since December 31, 2021 have been, in compliance in all material respects with all applicable Laws. The
Company has not received any written notice from any Governmental Authority of a violation of any applicable Law by the Company or any
of its Subsidiaries at any time since December 31, 2021, which violation would, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. Except where the failure to have or to comply would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect, each of the Company and its Subsidiaries: (i) is in compliance in all material respects
with all Laws applicable to its business, operations, and assets, including all applicable rules, regulations, directives or policies
of the DOT and/or FAA; (ii) has all material Permits required to own, lease or operate its assets and properties and to conduct its business
as now being conducted as described in the Commission Documents; and (iii) except as disclosed in the Commission Documents, has not received
any written notice of or been charged with the violation of any laws, and has not been the subject of any DOT or FAA enforcement action
or investigation. Neither the Company nor any of its Subsidiaries is a party to or bound by any Governmental Order. To the Company’s
Knowledge, except as disclosed in the Commission Documents, neither the Company nor any of its Subsidiaries is under investigation with
respect to the violation of any Laws, and there are no facts or circumstances which could reasonably form the basis for any such violation.
There are no statutes, laws, rules, regulations or ordinances of any Governmental Authority, self-regulatory organization or body that
are applicable to the Company or any of its Subsidiaries or to their respective businesses, assets or properties that are required to
be described in any Commission Document that are not described therein as required.


 


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


 



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Section
5.16.  Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has
provided the Investor or any of its agents, advisors or counsel with any information that constitutes or could reasonably be expected
to constitute material, nonpublic information concerning the Company or any of its Subsidiaries, that has not been publicly disclosed
by the Company in a Commission Document filed by the Company with the Commission. The Company understands and confirms that the Investor
will rely on the foregoing representations in effecting resales of Shares under the Registration Statement. All disclosure provided to
Investor regarding the Company and its Subsidiaries, their businesses and the transactions contemplated by the Transaction Documents
(including, without limitation, the representations and warranties of the Company contained in the Transaction Documents to which it
is a party (as modified by the Disclosure Schedule)) furnished in writing by or on behalf of the Company or any of its Subsidiaries for
purposes of or in connection with the Transaction Documents, taken together, is true and correct in all material respects on the date
on which such information is dated or certified, and does not contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading
at such time. Each press release issued by the Company or any of its Subsidiaries since December 31, 2021 did not at the time of release
(or, if amended or superseded by a later dated press release issued by the Company or any of its Subsidiaries prior to the Closing Date
or by a later dated Commission Document filed with or furnished to the Commission by the Company prior to the Closing Date, at the time
of issuance of such later dated press release or filing or furnishing of such Commission Document, as applicable) contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they are made, not misleading.


 


Section
5.17.  Operation of Business.


 


(a)   
The Company and its Subsidiaries have timely obtained and hold all material Permits (the “Material Permits”)
that are required to own, lease or operate their respective properties and assets and to conduct their respective businesses as currently
conducted, except where the failure to obtain the same would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect. For the avoidance of doubt, Material Permits include, but are not limited to, all Federal Aviation Administration
(“FAA”) and Department of Transportation (“DOT”) certificates, licenses, consents,
exemptions, ratings, approvals and other authorizations and permissions required for the operation of the Company’s and its Subsidiaries’
respective businesses as currently conducted as described in the Commission Documents, the lack of which could reasonably be expected
to have a Material Adverse Effect.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (a) each Material Permit has been duly and validly obtained by the Company or one of its Subsidiaries and is in full
force and effect in accordance with its terms, (b) no outstanding written notice of revocation, cancellation or termination of any Material
Permit has been received by the Company or any of its Subsidiaries, (c) to the Knowledge of the Company, none of such Permits upon its
termination or expiration in the ordinary due course will not be renewed or reissued in the ordinary course of business upon terms and
conditions substantially similar to its existing terms and conditions, (d) there are no Actions pending or, to the Knowledge of the Company,
threatened, that seek the revocation, cancellation, limitation, restriction or termination of any Material Permit and (e) the Company
and its Subsidiaries are in compliance with all Material Permits applicable to them. This Section 5.17(a) does not relate to environmental
matters, such items being the subject of Section 5.18.


 






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(b)   
The Company and its Subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks (both registered
and unregistered), trade names, trademark registrations, service marks, service mark registrations, Internet domain name registrations,
copyrights, copyright registrations, and know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) (collectively, the “Intellectual Property”), necessary for the conduct
of their respective businesses as conducted as of the date hereof, except to the extent that the failure to own or possess adequate rights
to use such Intellectual Property would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Since December 31, 2021, the Company and its Subsidiaries have not received any written notice of any claim of infringement or other
violation of Intellectual Property rights of any third Person, which infringement or other violation, if the subject of an unfavorable
decision, would reasonably be expected to result in a Material Adverse Effect. Except as would not be, individually or in the aggregate,
reasonably expected to have a Material Adverse Effect, (i) there are no pending, or to the Company’s Knowledge, threatened judicial
proceedings or interference proceedings challenging the Company’s or any Subsidiary’s rights in or to or the validity of
the scope of any of the Company’s or its Subsidiaries’ owned Intellectual Property; and (ii) to the Knowledge of the Company,
no other entity or individual has any right or claim in any of the Company’s or any of its Subsidiary’s owned Intellectual
Property by virtue of any contract, license or other agreement entered into between such entity or individual and the Company or any
Subsidiary or by any non-contractual obligation, other than by written licenses or other agreements granted or entered into by the Company
or any Subsidiary. Since December 31, 2021, the Company has not received any written notice of any claim challenging the rights of the
Company or its Subsidiaries in or to any Intellectual Property owned or exclusively licensed by the Company or any Subsidiary which claim,
if the subject of an unfavorable decision, would reasonably be expected to result in a Material Adverse Effect.


 


Section
5.18.  Environmental Compliance. Since December 31, 2021, the Company and its Subsidiaries (i) are
in material compliance with all Environmental Laws and all Material Permits issued under Environmental Laws (collectively, the “Environmental
Permits”); (ii) there has been no release of any Hazardous Materials at, in, on or under any Leased Real Property
or in connection with the Company’s or any of its Subsidiaries operations off-site of the Leased Real Property or, at, in, on or
under any formerly owned or leased real property during the time that the Company or any of its Subsidiaries owned or leased such property;
(iii) none of the Company or any of its Subsidiaries is subject to and has not received any Governmental Order relating to any non-compliance
with Environmental Laws or Environmental Permits by the Company or any of its Subsidiaries or the release, investigation, sampling, monitoring,
treatment, remediation, removal or cleanup of Hazardous Materials; and (iv) no Action is pending or, to the Knowledge of the Company,
threatened and no investigation is pending or, to the Knowledge of the Company, threatened with respect to the Company’s or any
of its Subsidiaries’ compliance with or liability under Environmental Law or related to a release of Hazardous Materials, except,
in the case of any of clauses (i), (ii), (iii) or (iv) above, for any such failure to comply or failure to receive required permits,
licenses, other approvals or non-compliance or liability as would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.


 


Section
5.19.  Material Contracts. Except as set forth in the Commission Documents,
the descriptions in the Commission Documents of the material Contracts therein described present fairly in all material respects the
information required to be shown, and there are no material Contracts of a character required to be described in the Commission Documents
or to be filed as exhibits thereto which are not described or filed as required; all material Contracts between the Company or any
of its Subsidiaries and third parties expressly referenced in the Commission Documents are legal, valid and binding obligations of the
Company or one or more of its Subsidiaries, enforceable in accordance with their respective terms, except to the extent enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and
by general equitable principles, and except where the failure of any such Contract to be enforceable in accordance with
its terms would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.


 






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Section
5.20.  Transactions With Affiliates. Except as set forth in the Commission Documents, none of the officers
or directors of the Company and, to the Knowledge of the Company, none of the Company’s stockholders, the officers or directors
of any stockholder of the Company who is the beneficial owner of more than five per cent (5%) of the outstanding shares of Common Stock,
or any immediate family member or Affiliate of any of the foregoing, has either directly or indirectly any material interest in, or is
a party to, any transaction that is required to be disclosed as a related party transaction pursuant to Item 404 of Regulation S-K promulgated
under the Securities Act.


 


Section
5.21.  Employees; Labor Laws. No material labor dispute with the employees of the Company exists, except
as described in the Commission Documents, or, to the Knowledge of the Company, is imminent; and the Company is not aware of any existing,
threatened or imminent labor disturbance by the employees of any of its principal suppliers, manufacturers or contractors that would
reasonably be expected to have a Material Adverse Effect.


 


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


 


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


 


Section
5.24.  ERISA. For purposes of this Agreement a “Company Benefit Plan” is
each “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”) that is maintained, administered or contributed to, maintained by the Company or any of its affiliates
for the benefit of any current or former employee, officer, director, individual independent contractor or individual consultant of the
Company or its Subsidiaries. Except as disclosed in the Commission Documents, to the Knowledge of the Company, (i) each Company Benefit
Plan has been maintained in material compliance with its terms and all applicable Laws, including 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 Company
Benefit 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
5.25.  Taxes. The Company and each of its Subsidiaries has filed all federal, state, local and foreign
tax returns required to be filed through the date of this Agreement or have requested extensions thereof (except where the failure to
file would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect) and have paid all taxes required
to be paid thereon (except for cases in which the failure to file or pay would not reasonably be expected to have a Material Adverse
Effect, or, except as currently being contested in good faith and for which reserves required by GAAP have been created in the financial
statements of the Company), and no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which have
had a Material Adverse Effect, nor does the Company have any notice or Knowledge of any tax deficiency which could reasonably be expected
to be determined adversely to the Company or any of its Subsidiaries and which would reasonably be expected to have a Material Adverse
Effect.


 


Section
5.26.  Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company
and the Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage. The Company has no reason
to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage
from similar insurers as may be necessary to continue its business without a significant increase in cost.


 


Section
5.27.  Exemption from Registration. Subject to, and in reliance on, the representations, warranties
and covenants made herein by the Investor, the offer and sale of the Securities by the Company to the Investor 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 agreement of the Investor
(including, without limitation, the representations, warranties and covenants of Investor set forth in Sections 4.10 through 4.13), the
Securities to be issued from and after Commencement to or for the benefit of the Investor pursuant to this Agreement shall be issued
to the Investor or its designee only as DWAC Shares and will not bear legends noting restrictions as to resale of such securities under
federal or state securities laws, nor will any such securities be subject to stop transfer instructions.


 


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


 


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


 






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Section
5.30.  Dilutive Effect. The Company is aware and acknowledges that issuance of the Securities could
cause dilution to existing stockholders and could significantly increase the number of outstanding shares of Common Stock. The Company
further acknowledges that its obligations to (i) issue the Commitment Shares in accordance with Section 10.1(ii)(a) , (ii) issue the
Shares to the Investor pursuant to the terms of a VWAP Purchase Notice in accordance with this Agreement and (iii) issue the Shares to
the Investor pursuant to the terms of an Intraday VWAP Purchase Notice in accordance with this Agreement, in each case, are absolute
and unconditional regardless of the dilutive effect that such issuance of Commitment Shares or Shares may have on the ownership interests
of other stockholders of the Company.


 


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


 


Section
5.32.  Securities Act. The Company has complied and shall comply with all applicable federal and state
securities laws in connection with the offer, issuance and sale of the Securities hereunder, including, without limitation, the applicable
requirements of the Securities Act. Each Registration Statement, upon filing with the Commission and at the time it is declared effective
by the Commission, shall satisfy all of the requirements of the Securities Act to register the resale of the Registrable Securities included
therein by the Investor in accordance with the Registration Rights Agreement on a delayed or continuous basis under Rule 415 under the
Securities Act at then-prevailing market prices, and not fixed prices. The Company is not currently, and has never been, an issuer identified
in, or subject to, Rule 144(i).


 


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


 






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


 


Section
5.35.  No Unlawful Payments. Since December 31, 2021, and except where the failure to be, or to have
been, in compliance with such Laws would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect,
(1) there has been no action taken by the Company, any of its Subsidiaries or, to the Knowledge of the Company, any officer, director,
manager, employee, agent or representative of the Company or any of its Subsidiaries, in each case, acting on behalf of the Company or
one of its Subsidiaries, in violation of any applicable Anti-Corruption Law, (2) neither the Company nor any of its Subsidiaries has
been convicted of violating any Anti-Corruption Laws or subjected to any investigation by a Governmental Authority for violation of any
applicable Anti-Corruption Laws, nor, to the Knowledge of the Company, has any investigation been threatened or pending, (3) neither
the Company nor any of its Subsidiaries has conducted or initiated any internal investigation or made a voluntary, directed, or involuntary
disclosure to any Governmental Authority regarding any alleged act or omission arising under or relating to any noncompliance with any
Anti-Corruption Law, (4) neither the Company nor any of its Subsidiaries has received any written notice, inquiry or citation from a
Governmental Authority for any actual or potential noncompliance with any applicable Anti-Corruption Law, nor has any such notice, inquiry
or citation been threatened or is pending and (5) the Company and its Subsidiaries have instituted and maintained policies and procedures
reasonably designed to ensure compliance with Anti-Corruption Laws. No officer, director, manager or, to the Knowledge of the Company,
employee, agent or member of the Company or any of its Subsidiaries is a foreign official within the meaning of the FCPA.


 


Section
5.36.  International Trade.


 


(a)   
The Company and its Subsidiaries and, to the Knowledge of the Company, each officer, director, manager, employee, agent or representative
of the Company and its Subsidiaries, in each case, acting on behalf of the Company or any of its Subsidiaries, is, and has been for the
past five (5) years, in compliance with all applicable International Trade Laws and Anti-Corruption Laws.


 






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(b)   
Each of the Company and its Subsidiaries has, and for the past five (5) years has had, all required licenses, license exemptions and
other material consents, notices, waivers, approvals, orders, authorizations, registrations, declarations, classifications and filings
required for the export, re-export, transfer and import of products, technical data, and services in accordance with the International
Trade Laws and any permit obtained thereunder, including in relation to the Company’s and its Subsidiaries’ launch activities
and employment of any foreign persons.


 


(c)   
None of the Company or any of its Subsidiaries is a Restricted Party and no agency of the United States Government has denied, suspended,
or otherwise abridged the Company’s or any of its Subsidiaries’ export or import privileges. None of the Company or any of
its Subsidiaries has been subject to any economic sanctions imposed by the United States, including, but not limited to, those enforced
by the U.S. Department of the Treasury’s Office of Foreign Assets Control and the U.S. Department of State. None of the Company
or any of its Subsidiaries contracts with, retains or employs any Person from, located, organized, or ordinarily resident in a Sanctioned
Country in violation of International Trade Laws.


 


(d)   
During the past five (5) years, none of the Company or any of its Subsidiaries has (i) been subjected to any investigation by a Governmental
Authority for any past or present violation of any applicable International Trade Laws or Anti-Corruption Laws, (ii) conducted or initiated
any internal investigation or made a voluntary, directed, or involuntary disclosure to any Governmental Authority regarding any alleged
act or omission arising under or relating to any noncompliance with any International Trade Laws or Anti-Corruption Laws or (iii) received
any written notice or citation from a Governmental Authority for any actual or potential noncompliance with any applicable International
Trade Law.


 


Section
5.37.  Government Contracts.


 


(a)   
With respect to each Government Contract and Government Bid, except as set forth in the Commission Documents, since December 31, 2021,
(i) the Company and its Subsidiaries have complied in all material respects with all applicable Laws and contractual requirements,
(ii) to the Knowledge of the Company, none of the Company or any of its Subsidiaries is in material violation or breach of any applicable
Laws or contractual requirements governing any Government Contract or Government Bid, (iii) the representations, certifications,
and warranties made by the Company or one of its Subsidiaries in connection with the Government Contracts and Government Bids were accurate
in all material respects as of their effective date, and the Company and its Subsidiaries have complied in all material respects with
all such representations, certifications, and warranties, and (iv) there has not existed any event, condition or omission that would
constitute a breach or default, whether by lapse of time or notice or both, by any other Person under any Government Contract.


 






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(b)   
Except as disclosed in the Commission Documents, since December 31, 2021, (i) none of the Company or any of its Subsidiaries has
received written notice of any pending or threatened investigation, prosecution, or civil or administrative proceeding in connection
with any Government Contract or Government Bid, and, to the Knowledge of the Company, no such investigation, prosecution, or civil or
administrative proceeding or settlement negotiation, or internal investigation is pending or is contemplated by any Governmental Authority;
(ii)  there have been no document requests, subpoenas, or search warrants involving any of the officers, directors, employees, or
agents of the Company or any of its Subsidiaries in connection with any Government Contract or Government Bid; (iii) no Government
Contract has been terminated for default or convenience, (iv) none of the Company or any of its Subsidiaries has received any written
termination for default notice, cure notice, or show-cause notice from any Governmental Authority or any prime contractor or higher-tier
subcontractor that remains unresolved; and (v) none of the Company or any of its Subsidiaries has received notice of any disallowance
of costs under any Government Contract and/or assessment of any penalty (whether actual or threatened), nor received in writing any material
negative findings in any audit or investigation performed by any Governmental Authority which, in each case, remains unresolved or in
dispute.


 


(c)   
Except as disclosed in the Commission Documents, since December 31, 2021, no Governmental Authority nor any prime contractor, subcontractor
or vendor has asserted in writing any claim or initiated any dispute proceeding against the Company or any of its Subsidiaries relating
to any Government Contract or Government Bid, nor is the Company or any of its Subsidiaries asserting in writing any claim or initiating
any dispute proceeding directly or indirectly against any such party concerning any Government Contract or Government Bid.


 


(d)   
Except as disclosed in the Commission Documents, since December 31, 2021, none of the Company or any of its Subsidiaries has received
any written notice from a Governmental Authority regarding any alleged violation or potential violation by the Company, any of its Subsidiaries
or one of their respective subcontractors of the Civil False Claims Act, Procurement Integrity Act, Anti-Kickback Act, Truth in Negotiations
Act, Service Contract Act, Buy American Act, or Trade Agreements Act that remains unresolved.


 


Section
5.38.  IT Systems. Except as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect, (i) the IT Systems are operational and adequate and sufficient for the current needs of the business
of the Company and its Subsidiaries, (ii) to the Knowledge of the Company, there have been no material failures of the IT Systems currently
used to provide material products to customers in the conduct of their business as it is currently conducted since December 31, 2021,
(iii) the Company has in place adequate and commercially reasonable security controls and backup and disaster recovery plans and procedures
in place, and (iv) to the Knowledge of the Company, there have been no unauthorized intrusions or breaches of the IT Systems since December
31, 2021 that, pursuant to any legal requirement, would require the Company or any of its Subsidiaries to notify customers or employees
of such breach or intrusion.


 






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Section
5.39.  Compliance With Data Security Requirements. To the Knowledge of the Company, in connection with
its collection, storage, transfer (including without limitation, any transfer across national borders) and/or use of any information
or Protected Data, the Company and its Subsidiaries are and have been, in material compliance with all Privacy and Security Requirements.
The Company and its Subsidiaries have commercially reasonable physical, technical, organizational and administrative security measures
and policies in place to protect the confidentiality, integrity and availability of all systems, information and Protected Data maintained
and collected by the Company or its Subsidiaries or on their behalf. Except as set forth in the Commission Documents, none of the Company
or any of its Subsidiaries has experienced any security incident that has compromised the integrity or availability of the Company’s
or its Subsidiaries’ network, systems, data or information. The Company and its Subsidiaries are and have been, to the Company’s
Knowledge, in compliance in all material respects with all Privacy and Security Requirements relating to data loss, theft and breach
of security notification obligations. None of the Company or its Subsidiaries has received, or provided, any written notice of any claims,
actions, investigations, inquiries or alleged violations of Privacy and Security Requirements or any other security incidents.


 


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


 


Section
5.41.  Market Capitalization. As of the date of this Agreement, the aggregate market value of
the outstanding voting and non-voting common equity (as defined in Rule 405 of the Securities Act) of the Company held by persons other
than Affiliates of the Company (pursuant to Rule 144, those that directly, or indirectly through one or more intermediaries, control,
or are controlled by, or are under common control with, the Company) (the “Non-Affiliate Shares”), was equal
to $52,448,620 (calculated by multiplying (i) the highest price at which the common equity of the Company closed on the Trading Market
within 60 days of the date of this Agreement by (ii) the number of Non-Affiliate Shares).


 


Section
5.42.  Emerging Growth Company Status. As of the Closing Date the Company was, and as of the Commencement
Date the Company will be, an “emerging growth company” as defined in Section 2(a)(19) of the Securities Act, as modified
by the Jumpstart Our Business Startups Act of 2012.


 


Section
5.43.  Smaller Reporting Company Status. As of the Closing Date the Company was, and as of the Commencement
Date the Company will be, a “smaller reporting company” as defined in Rule 12b-2 of the Exchange Act.


 






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Section
5.44.  Broker/Dealer Relationships; FINRA Information. Neither the Company nor any of the Subsidiaries
(i) is required to register as a “broker” or “dealer” in accordance with the provisions of the Exchange Act or
(ii) directly or indirectly through one or more intermediaries, controls or is a “person associated with a member” or “associated
person of a member” (within the meaning set forth in the FINRA Manual). All of the information provided to the Investor, BRS or
to their counsel, specifically for use by BRS in connection with the FINRA Filing (and related disclosure) with FINRA, by the Company,
its counsel, its officers and directors and the holders of any securities (debt or equity) or options to acquire any securities of the
Company in connection with the transactions contemplated by the Transaction Documents is true, complete, correct and compliant with FINRA’s
rules and any letters, filings or other supplemental information provided to FINRA pursuant to FINRA Rules.


 


Section
5.45.  Margin Rules. Neither the issuance, sale and delivery of the Shares nor the application
of the proceeds thereof by the Company as described in the Commission Documents will violate Regulation T, U or X of the Board of Governors
of the Federal Reserve System or any other regulation of such Board of Governors.


 


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


 



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


 


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.


 






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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, within such time and otherwise in accordance with Section 10.1(ii)(a) 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 Intraday 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
Intraday VWAP Purchase Notice in connection with such Intraday 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, 90,367 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)(a) hereof within the time period specified in Section 10.1(ii)(a) hereof, and (b) as of the Commencement
Date the Company has reserved, out of its authorized and unissued Common Stock, 3,282,754 shares of Common Stock solely for the
purpose of issuing Shares pursuant to one or more VWAP Purchases and pursuant to one or more Intraday VWAP Purchases (as applicable)
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 issuances of Shares pursuant to VWAP Purchases and pursuant
to Intraday VWAP Purchases under this Agreement (as applicable) 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 Intraday VWAP Purchase (as applicable) effected
from and after the Commencement Date pursuant to this Agreement.


 


Section
6.3. Registration and Listing. The Company shall use its commercially reasonable
efforts to cause the Common Stock to continue to be registered as a class of securities under Sections 12(b) of the Exchange Act, and
to comply with its reporting and filing obligations under the Exchange Act, and shall not take any action or file any document (whether
or not permitted by the Securities Act or the Exchange Act) to terminate or suspend such registration or to terminate or suspend its
reporting and filing obligations under the Exchange Act or Securities Act, except as permitted herein. The Company shall use its commercially
reasonable efforts to continue the listing and trading of its Common Stock and the listing of the 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.


 






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Section
6.4. Compliance with Laws.


 


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


 


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


 


(ii)  
Subject to the requirements of Section 6.12, from time to time from and after the Closing Date, the Company shall make available for
inspection and review by the Investor during normal business hours and after reasonable notice, customary documentation reasonably requested
by the Investor and/or its appointed counsel or advisors to conduct due diligence; provided, however, that after the Closing
Date, the Investor’s continued due diligence shall not be a condition precedent to the Commencement or to the Investor’s
obligation to accept each VWAP Purchase Notice and each Intraday VWAP Purchase Notice timely delivered by the Company to the Investor
in accordance with this Agreement.


 


Section
6.6. No Frustration; No Variable Rate Transactions.


 


(i)
No Frustration. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the
Company to perform its obligations under the Transaction Documents to which it is a party, including, without limitation, the obligation
of the Company to (i) issue and deliver 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)(a), (ii) pay the Cash Commitment Fee to the Investor on
the Closing Date in accordance with Section 10.1(ii)(b), and (iii) issue and deliver the Shares to the Investor in respect of each VWAP
Purchase and each Intraday VWAP Purchase effected by the Company, in each case not later than the applicable Purchase Share Delivery
Date with respect to such VWAP Purchase and not later than the applicable Purchase Share Delivery Date with respect to such Intraday
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).


 






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


 


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


 


Section
6.8. Fundamental Transaction. If a VWAP Purchase Notice or an Intraday 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 Intraday VWAP Purchase (as applicable) to which such VWAP Purchase Notice or Intraday VWAP Purchase
Notice (as applicable) relates.


 


Section
6.9. Selling Restrictions.


 


(i)
Except as expressly set forth below, the Investor covenants that from and after the Closing Date through and including the Trading Day
next following the expiration or termination of this Agreement as provided in Article VIII (the “Restricted Period”),
none of the Investor, its sole member, any of their respective officers, or any entity managed or controlled by the Investor or its sole
member (collectively, the “Restricted Persons” and each of the foregoing is referred to herein as a “Restricted
Person”) shall, directly or indirectly, (i) engage in any Short Sales of the Common Stock or (ii) hedging transaction,
which establishes a net short position with respect to the Common Stock, with respect to each of clauses (i) and (ii) hereof, either
for its own 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 any pending VWAP Purchase Notice or any pending Intraday VWAP Purchase Notice (as applicable), 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 pending VWAP Purchase Notice and the Shares purchased pursuant to such
pending Intraday VWAP Purchase Notice (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 on the applicable Purchase Share Delivery Date
for such Intraday 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
6.10.  Effective Registration Statement. During the Investment Period, the Company shall use its commercially
reasonable efforts to maintain the continuous effectiveness of the Initial Registration Statement and each New Registration Statement
filed with the Commission under the Securities Act for the applicable Registration Period pursuant to and in accordance with the Registration
Rights Agreement.


 


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


 


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


 






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Section
6.13.  Broker-Dealer. The Investor shall use one or more broker-dealers (one of which is BRS, an Affiliate
of the Investor) 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 Company’s transfer agent with all information regarding the
Broker-Dealer reasonably requested by the Company. The Investor shall be solely responsible for all fees and commissions of the Broker-Dealer
(if any), which shall not exceed customary brokerage fees and commissions and shall be responsible for designating only a DTC participant
eligible to receive DWAC Shares.


 


Section
6.14.  FINRA Filing. The Company shall assist the Investor and BRS with BRS’ preparation and
filing with FINRA’s Corporate Financing Department via the Public Offering System of all documents and information required to
be filed with FINRA pursuant to FINRA Rule 5110 with regard to the transactions contemplated by this Agreement (the “FINRA
Filing”). In connection therewith, on or prior to the date the FINRA Filing is first made by BRS with FINRA, the Company
shall pay to FINRA by wire transfer of immediately available funds the applicable filing fee with respect to the FINRA Filing, and the
Company shall be solely responsible for payment of such fee. The parties hereby agree to provide each other and BRS all requisite
information and otherwise to assist each other and BRS in a timely fashion in order for BRS to complete the preparation and submission
of the FINRA Filing in accordance with this Section 6.14 and to assist BRS in promptly responding to any inquiries or requests from FINRA
or its staff. Each party hereto shall (a) promptly notify the other party and BRS of any communication to that party or its Affiliates
from FINRA, including, without limitation, any request from FINRA or its staff for amendments or supplements to or additional information
in respect of the FINRA Filing and permit the other party and BRS to review in advance any proposed written communication to FINRA and
(b) furnish the other party and BRS with copies of all written correspondence, filings and communications between them and their affiliates
and their respective representatives and advisors, on the one hand, and FINRA or members of its staff, on the other hand, with respect
to this Agreement, the Registration Rights Agreement or the transactions contemplated by the Transaction Documents. Each of the parties
hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with the other party and BRS in doing, all things necessary, proper or advisable in order for BRS to obtain
as promptly as practicable written confirmation from FINRA to the effect that FINRA’s Corporate Financing Department has determined not
to raise any objection with respect to the fairness and reasonableness of the terms of the transactions contemplated by the Transaction
Documents. Notwithstanding anything to the contrary contained in this Agreement, the Commencement Date shall not occur, unless and until
BRS shall have received written confirmation from FINRA to the effect that FINRA’s Corporate Financing Department has determined not
to raise any objection with respect to the fairness and reasonableness of the terms of the transactions contemplated by this Agreement.


 






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Section
6.15.  QIU. If the Investor or any of its Affiliates, including BRS, reasonably determines that a Qualified
Independent Underwriter is required to participate in the transactions contemplated by the Transaction Documents in order for such transactions
to be in full compliance with the rules and regulations of FINRA, including, without limitation, FINRA Rule 5121, each of the parties
hereto shall have executed such documentation as may reasonably be required to engage a Qualified Independent Underwriter to participate
in the transactions contemplated by the Transaction Documents in accordance with the rules and regulations of FINRA, including, without
limitation, FINRA Rule 5121.


 


Section
6.16.  Disclosure Schedule.


 


(i)
The Company may, from time to time, update the Disclosure Schedule as may be required to satisfy the conditions set forth in Section
7.2(i) and Section 7.3(i) (to the extent such condition set forth in Section 7.3(i) relates to the condition in Section 7.2(i) as of
a specific Purchase Condition Satisfaction Time). For purposes of this Section 6.16, any disclosure made in a schedule to the Compliance
Certificate shall be deemed to be an update of the Disclosure Schedule. Notwithstanding anything in this Agreement to the contrary, no
update to the Disclosure Schedule pursuant to this Section 6.16 shall cure any breach of a representation or warranty of the Company
contained in this Agreement and made prior to the update and shall not affect any of the Investor’s rights or remedies with respect
thereto.


 


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


 






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Section
6.17.  Delivery of Compliance Certificates, Bring-Down Negative Assurance Letters and Bring-Down Comfort Letters
Upon Occurrence of Certain Events. Within three (3) Trading Days immediately following: (i) each date on which the Company files
with the Commission (A) an annual report on Form 10-K under the Exchange Act, (B) a Form 10-K/A containing amended (or restated) financial
information or a material amendment to a previously filed annual report on Form 10-K, (C) a quarterly report on Form 10-Q under the Exchange
Act, or (D) a current report on Form 8-K containing amended (or restated) financial information (other than information “furnished”
pursuant to Items 2.02 or 7.01 of Form 8-K or to provide disclosure pursuant to Item 8.01 of Form 8-K relating to the reclassification
of certain properties as discontinued operations in accordance with Statement of Financial Accounting Standards No. 144) under the Exchange
Act; and (ii) the effective date of (A) each post-effective amendment to the Initial Registration Statement, (B) each New Registration
Statement and (C) each post-effective amendment to each New Registration Statement, and in any case, not more than once per calendar
quarter (each, a “Representation Date”), the Company shall (I) deliver to the Investor a Compliance Certificate,
dated the date of delivery to the Investor, (II) cause to be furnished to the Investor an opinion and negative assurance letter “bring-down”
from outside counsel to the Company, dated the date of delivery to the Investor, 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 a New Registration Statement or a
post-effective amendment to the Initial Registration Statement or a New Registration Statement, and the Prospectus contained in a Registration
Statement or post-effective amendment as then amended or supplemented by any Prospectus Supplement thereto as of the date of such letter,
as applicable (each, a “Bring-Down Negative Assurance Letter”) and (III) other than with respect to a Representation
Date pursuant to clause (i)(C) above, cause to be furnished to the Investor a customary “comfort letter” provided by the
Accountant or a successor independent registered public accounting firm for the Company (as applicable), dated the date of delivery to
the Investor, substantially in the form, scope and substance as the information contained in the Initial Comfort Letter (to the extent
such information is then applicable), stating, as of such date, the conclusions and findings of such firm with respect to the financial
information and other matters covered by the Initial Comfort Letter (to the extent such financial information or other matters are then
applicable), modified, as necessary, to address such new, amended or restated financial information contained in any of the Commission
Documents referred to in clause (i) above or to relate to a New Registration Statement or a post-effective amendment to the Initial Registration
Statement or a New Registration Statement, or the Prospectus contained in a Registration Statement or post-effective amendment as then
amended or supplemented by any Prospectus Supplement thereto as of the date of such letter, as applicable (each, a “Bring-Down
Comfort Letter”). The requirement to provide the documents identified in the previous sentence shall be tolled with respect
to any Representation Date, if (A) the Company has given written notice to the Investor (with a copy to its counsel) in accordance with
Section 10.4, not later than one (1) Trading Day prior to the applicable Representation Date, of the Company’s decision to suspend
delivery of VWAP Purchase Notices for future VWAP Purchases and delivery of Intraday VWAP Purchase Notices for future Intraday VWAP Purchases
(each, a “Future Purchase Suspension”) (it being hereby acknowledged and agreed that no Future Purchase Suspension
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 any pending Intraday VWAP Purchase (as applicable) that has not
been fully settled in accordance with the terms and conditions of this Agreement, and that the parties shall fully perform their respective
obligations with respect to any such pending VWAP Purchase and any pending Intraday VWAP Purchase under the Transaction Documents), and
(B) such Representation Date does not occur during the period beginning on the Trading Day immediately preceding the Purchase Date for
a VWAP Purchase or an Intraday VWAP Purchase (as applicable) and ending on the third (3rd) Trading Day 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 such VWAP
Purchase or such Intraday VWAP Purchase (as applicable), which tolling shall continue until the earlier to occur of (1) the Trading Day
immediately preceding the Purchase Date for a VWAP Purchase or an Intraday VWAP Purchase (as applicable), which for such calendar quarter
shall be considered a Representation Date, and (2) the next occurring Representation Date. Notwithstanding the foregoing, if the Company
subsequently decides to deliver a VWAP Purchase Notice or an Intraday VWAP Purchase Notice following a Representation Date when a Future
Purchase Suspension was in effect and did not provide the Investor with the documents identified in clauses (I), (II) and (III) of the
first sentence of this Section 6.17, then prior to the Company’s delivery to the Investor of such VWAP Purchase Notice or such
Intraday VWAP Purchase Notice (as applicable) on a Purchase Date, the Company shall provide the Investor with the documents identified
in clauses (I), (II) and (III) of the first sentence of this Section 6.17, dated as of the applicable Purchase Date.


 






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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 Initial Investor Expense Reimbursement and Cash Commitment 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
on or prior to the date of this Agreement (a) the Initial Investor Expense Reimbursement in accordance with Section 10.1(i), all of which
Initial Investor Expense Reimbursement shall be fully earned by the Investor and become non-refundable as of the Closing Date, regardless
of whether the Commencement occurs or whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent
termination of this Agreement, and (b) the Cash Commitment Fee in accordance with Section 10.1(ii)(b), all of which Cash Commitment Fee
shall be fully earned by the Investor and become non-refundable as of the Closing Date, regardless of whether the Commencement occurs
or whether any VWAP Purchases or Intraday or 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 email and 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 by the Investor as of the Closing Date, regardless of whether
the Commencement occurs or whether any VWAP Purchases or Intraday 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. Simultaneously with the execution and delivery
of this Agreement and the Registration Rights Agreement, the Investor’s counsel shall have received (a) the opinions of outside
counsel to the Company, dated the Closing Date, in the forms mutually agreed to by the Company and the Investor prior to the date of
this Agreement, (b) the closing certificate from the Company, dated the Closing Date, in the form of Exhibit B hereto, and (c)
a copy of the irrevocable instructions to the Company’s transfer agent regarding the issuance to the Investor or its designee of
the certificate(s) or book-entry statement(s) representing the Commitment Shares pursuant to and in accordance with Section 10.1(ii)(a)
hereof.


 


Section
7.2. Conditions Precedent to Commencement. The right of the Company to commence
delivering VWAP Purchase Notices and Intraday VWAP Purchase Notices under this Agreement, and the obligation of the Investor to accept
VWAP Purchase Notices and Intraday VWAP Purchase Notices timely 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 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
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; (c) the objection of FINRA to the terms of the transactions contemplated by the
Transaction Documents or (d) the occurrence of any event or the existence of any condition or state of facts, which makes any
statement of a material fact made in the Initial Registration Statement, the Prospectus contained therein or any Prospectus
Supplement thereto untrue or which requires the making of any additions to or changes to the statements then made in the Initial
Registration Statement, the Prospectus contained therein or any Prospectus Supplement thereto in order to state a material fact
required by the Securities Act to be stated therein or necessary in order to make the statements then made therein (in the case of
the Prospectus or any Prospectus Supplement, in 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, any applicable state securities laws 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 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)(a) 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 all of the Shares included in the Initial Registration Statement as
DWAC Shares in accordance with this Agreement and the Registration Rights Agreement.


 


(xv)
Reservation of Shares. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued
Common Stock, 3,282,754 shares of Common Stock solely for the purpose of issuing Shares pursuant to VWAP Purchases and Intraday
VWAP Purchases that may be effected by the Company, in its sole discretion, from and after the Commencement Date under this Agreement.


 


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


 


(xvii) Initial
Comfort Letter of Company Auditor. On the Commencement Date, the Investor shall have received from the Accountant, or a
successor independent registered public accounting firm for the Company (as applicable), a letter dated the Commencement Date and
addressed to the Investor, in substantially the form, scope and substance mutually agreed to by the Company and the Investor at
least one (1) Trading Day prior to the date on which the Initial Registration Statement is first filed with the Commission, (i)
confirming that they are independent public accountants with respect to the Company within the meaning of the Securities Act and the
Public Company Accounting Oversight Board, and (ii) stating the conclusions and findings of such firm with respect to the audited
and unaudited financial statements and certain financial information contained or incorporated by reference in the Registration
Statement and the Prospectus (as supplemented by any Prospectus Supplement filed with the Commission on or prior to the Commencement
Date), and certain other matters customarily covered by auditor “comfort letters,” except that the specific date
referred to therein for the carrying out of procedures shall be no more than three (3) Trading Days prior to the Commencement Date
(the “Initial Comfort Letter”).


 



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(xviii) FINRA
No Objections. Prior to the Commencement Date, FINRA’s Corporate Financing Department shall have confirmed in writing
that it has determined not to raise any objection with respect to the fairness and reasonableness of the terms and arrangements of
the transactions contemplated by the Transaction Documents.


 


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


 


(i) Satisfaction
of Certain Prior Conditions. Each of the conditions set forth in subsections (i), (ii), and (vii) through (xiv) set forth in
Section 7.2 shall be satisfied at the applicable Purchase Condition Satisfaction Time after the Commencement Date (with the terms
“Commencement” and “Commencement Date” in the conditions set forth in subsections (i) and (ii) of Section
7.2 replaced with “applicable Purchase Condition Satisfaction Time”); provided, however, that the Company
shall not be required to deliver the Compliance Certificate after the Commencement Date, except as provided in Section 6.17 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, and the Investor shall
be permitted to utilize the Prospectus therein, and any Prospectus Supplement thereto, to resell (a) all of the Commitment Shares,
and (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 Intraday 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 Intraday VWAP Purchase Notice (as applicable) delivered by the Company to the Investor with respect to a VWAP Purchase or an
Intraday VWAP Purchase (as applicable) to be effected hereunder on such applicable Purchase Date.


 



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(iii) Any
Required New Registration Statement Effective. Any New Registration Statement covering the resale by the Investor of the
Registrable Securities included therein, and any post-effective amendment thereto, required to be filed by the Company with the
Commission pursuant to the Registration Rights Agreement after the Commencement Date and prior to the applicable Purchase Date for
such VWAP Purchase or Intraday 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 Intraday 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 Intraday VWAP Purchase Notice (as
applicable) delivered by the Company to the Investor with respect to a VWAP Purchase or an Intraday VWAP Purchase (as applicable) to
be effected hereunder on such applicable Purchase Date.


 


(iv)  
Delivery of Subsequent Irrevocable Transfer Agent Instructions and Notice of Effectiveness. With respect to any post-effective
amendment to the Initial Registration Statement, any New Registration Statement or any post-effective amendment to any New Registration
Statement, in each case declared effective by the Commission after the Commencement Date, the Company shall have delivered or caused
to be delivered to the 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.


 



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(v) No Material Notices. None of the following events shall have occurred and be continuing: (a) receipt of any request by
the Commission or any other 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 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; (c) the objection
of FINRA to the terms of the transactions contemplated by the Transaction Documents or (d) the occurrence of any event or the existence
of any condition or state of facts, which makes any statement of a material fact made in the Initial Registration Statement or any post-effective
amendment thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the
foregoing or any Prospectus Supplement thereto untrue or which requires the making of any additions to or changes to the statements then
made in the Initial Registration Statement or any post-effective amendment thereto, any New Registration Statement or any post-effective
amendment thereto, or the Prospectus contained in any of the foregoing or any Prospectus Supplement thereto in order to state a material
fact required by the Securities Act to be stated therein or necessary in order to make the statements then made therein (in the case
of the Prospectus or any Prospectus Supplement, in 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, any applicable state securities laws 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 Intraday VWAP Purchase Notice delivered
by the Company to the Investor with respect to an Intraday 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.


 


(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 Intraday 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 Intraday 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 Intraday 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.


 



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(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 Intraday
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).


 


(viii)
Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable VWAP Purchase Notice or the
applicable Intraday 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 Intraday VWAP Purchase Notice, the Intraday VWAP Purchase
Maximum Amount applicable to such Intraday 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 Intraday
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 Intraday 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 Intraday
VWAP Purchase (as applicable) shall have been delivered to the Investor as DWAC Shares in accordance with this Agreement.


 



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(x) Bring-Down Negative Assurance Letters; Bring-Down Comfort Letters and Compliance Certificates. The Investor shall have
received (a) all Bring-Down Negative Assurance Letters from outside counsel to the Company, 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 Intraday VWAP Purchase (as applicable), (b) all Bring-Down Comfort Letters from the Accountant, or a successor independent registered
public accounting firm for the Company (as applicable), which the Company was obligated to instruct such firm to deliver to the Investor
prior to the applicable Purchase Condition Satisfaction Time for the applicable VWAP Purchase or Intraday VWAP Purchase (as applicable),
and (c) 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 Intraday VWAP Purchase (as applicable), in each case in accordance
with Section 6.17.


 


(xi) Payment
of Additional Investor Expense Reimbursement. The Company shall have paid, by wire transfer of immediately available funds
to an account designated by the Investor, all Additional Investor Expense Reimbursement payments that the Company was obligated to
pay to the Investor prior to the applicable Purchase Condition Satisfaction Time for the applicable VWAP Purchase or Intraday VWAP
Purchase (as applicable) in accordance with Section 10.1(i), each of which Additional Investor Expense Reimbursement payments shall
be fully earned and non-refundable as of the date such payments are made by the Company to the Investor, regardless of whether any
additional VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination of this
Agreement.


 


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 Commencement Date, (ii) the date on which the Investor shall have purchased from the Company, pursuant to all VWAP Purchases and
Intraday 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 ten (10) Trading Days’ prior written notice to the Investor in accordance
with Section 10.4; provided, however, that (i) the Company shall have issued all of the Commitment Shares required to be
issued to the Investor pursuant to Section 10.1(ii)(a) of this Agreement, shall have paid all of the Cash Commitment Fee required to
be paid to the Investor pursuant to Section 10.1(ii)(b) of this Agreement, and shall have paid the Initial Investor Expense Reimbursement
and all Additional Investor Expense Reimbursement payments required to be paid to the Investor 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 ten (10) Trading Days’ prior written notice to
the Company in accordance with Section 10.4, if: (a) any condition, occurrence, state of facts or event constituting a Material Adverse
Effect has occurred and is continuing; (b) a Fundamental Transaction shall have occurred; (c) the Initial Registration Statement and
any New Registration Statement is not filed by the applicable Filing Deadline therefor or declared effective by the Commission by the
applicable Effectiveness Deadline (as defined in the Registration Rights Agreement) therefor, or the Company is otherwise in breach or
default in any material respect under any of the other provisions of the Registration Rights Agreement, and, if such failure, breach
or default is capable of being cured, such failure, breach or default is not cured within 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 twenty (20) consecutive Trading Days or for more than an aggregate of sixty
(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 twenty-four (24) hours) notify the Investor (and, if required under applicable law, including,
without limitation, Regulation FD promulgated by the Commission, or under the applicable rules and regulations of the 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 fifth (5th) Trading Day immediately following the settlement date related to any pending VWAP Purchase
or any pending Intraday VWAP Purchase (as applicable) 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 any pending Intraday VWAP Purchase (as applicable), and that the parties shall fully perform their respective obligations
with respect to any such pending VWAP Purchase and any pending Intraday 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)(a), all of which Commitment Shares shall be fully earned by the Investor as of the Closing Date, regardless of whether the Commencement
shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent termination
of this Agreement, (iv) affect the Cash Commitment Fee payable or paid to the Investor pursuant to Section 10.1(ii)(b), all of which
Cash Commitment Fee shall be fully earned by the Investor and become non-refundable as of the Closing Date, regardless of whether the
Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made or settled hereunder or any subsequent
termination of this Agreement, (v) affect the Initial Investor Expense Reimbursement payable or paid to the Investor pursuant to Section
10.1(i), all of which Initial Investor Expense Reimbursement shall be fully earned by the Investor and become non-refundable as of the
Closing Date, regardless of whether the Commencement shall have occurred, whether any VWAP Purchases or Intraday VWAP Purchases are made
or settled hereunder or any subsequent termination of this Agreement, or (vi) affect any Additional Investor Expense Reimbursement payments
payable or paid to the Investor pursuant to Section 10.1(i), all of which Additional Investor Expense Reimbursement payments shall be
fully earned by the Investor and become non-refundable when paid by the Company pursuant to Section 10.1(i), regardless of whether any
additional VWAP Purchases or Intraday 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.


 



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


 


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


 


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


 






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Article
X

MISCELLANEOUS


 


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


 


(i)  
Certain Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated by
this Agreement; provided, however, that the Company, (a) on or prior to the Closing Date, shall have paid to the Investor,
by wire transfer of immediately available funds to an account designated by the Investor in writing to the Company on or prior to the
Closing Date, $75,000 as reimbursement for the reasonable fees and disbursements of the Investor’s legal counsel incurred by the
Investor prior to the Closing (the “Initial Investor Expense Reimbursement”), and (b) within ten (10) Business
Days after each Representation Date (provided a Future Purchase Suspension is not then in effect), shall have paid to the Investor, by
wire transfer of immediately available funds to an account designated by the Investor, an additional $5,000 per fiscal quarter as reimbursement
for the reasonable fees and disbursements of the Investor’s legal counsel incurred by the Investor in connection with the Investor’s
ongoing due diligence and review of deliverables subject to Section 6.17 (the “Additional Investor Expense Reimbursement”),
in each case in connection with the transactions contemplated by this Agreement and the Registration Rights Agreement. For the avoidance
of doubt, (1) the Initial Investor Expense Reimbursement shall be fully earned by the Investor and become non-refundable as of the Closing
Date in accordance with this Section 10.1(i) and (2) each Additional Investor Expense Reimbursement payment shall be fully earned by
the Investor and become non-refundable when paid by the Company pursuant to this Section 10.1(i), regardless of whether any additional
VWAP Purchases or Intraday 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 Fee.


 


(a) 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 by the Investor as of the Closing Date, regardless of whether the Commencement shall
have occurred, any VWAP Purchases or Intraday 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)(a), 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)(a) 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.


 



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(b) Cash Commitment Fee. In addition to the issuance of the Commitment Shares pursuant to and in accordance with Section 10.1(ii)(a)
above, and in further consideration for the Investor’s execution and delivery of this Agreement, the Company shall pay the Cash
Commitment Fee to the Investor by wire transfer of immediately available funds to an account designated by the Investor on or prior to
the date of this Agreement. For the avoidance of doubt, the entire amount of the Cash Commitment Fee shall be fully earned by the Investor
and become non-refundable as of the Closing Date, regardless of whether the Commencement shall have occurred, any VWAP Purchases or Intraday
VWAP Purchases are effected by the Company or settled hereunder or any subsequent termination of this 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 Intraday VWAP Purchase Notice delivered to the Investor pursuant to this Agreement, in each case 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)(a) (which certificates or book-entry statements
the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses (a) and (b) of this sentence),
cause the Company’s transfer agent to credit the Investor’s or its designee’s account at DTC as DWAC Shares such number
of shares of Common Stock equal to the number of Commitment Shares issued to the Investor pursuant to Section 10.1(ii)(a). The Company
shall take all actions to carry out the intent and accomplish the purposes of the immediately preceding sentence, including, without
limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to its transfer agent, and any successor
transfer agent of the Company, as may be requested from time to time by the Investor or necessary or desirable to carry out the intent
and accomplish the purposes of the immediately preceding sentence. On the Effective Date of the Initial Registration Statement and prior
to Commencement, the Company shall deliver or cause to be delivered to its transfer agent (and thereafter, shall deliver or cause to
be delivered to any subsequent transfer agent of the Company), (i) irrevocable instructions executed by the Company and acknowledged
in writing by the Company’s transfer agent (the “Commencement Irrevocable Transfer Agent Instructions”)
and (ii) the notice of effectiveness in the form attached as an exhibit to the Registration Rights Agreement (the “Notice
of Effectiveness”) relating to the Initial Registration Statement executed by the Company’s outside counsel, in each
case directing the Company’s transfer agent to issue to the Investor or its designee all of the Commitment Shares and the Shares
included in the Initial Registration Statement as DWAC Shares in accordance with this Agreement and the Registration Rights Agreement.
With respect to any post-effective amendment to the Initial Registration Statement, any New Registration Statement or any post-effective
amendment to any New Registration Statement, in each case declared effective by the Commission after the Commencement Date, the Company
shall deliver or cause to be delivered to its transfer agent (and thereafter, shall deliver or cause to be delivered to any subsequent
transfer agent of the Company) (i) irrevocable instructions in the form substantially similar to the Commencement Irrevocable Transfer
Agent Instructions executed by the Company and acknowledged in writing by the Company’s transfer agent and (ii) the Notice of Effectiveness,
in each case modified as necessary to refer to such Registration Statement or post-effective amendment and the Registrable Securities
included therein, to issue the Registrable Securities included therein as DWAC Shares in accordance with the terms of this Agreement
and the Registration Rights Agreement. For the avoidance of doubt, all Shares and Commitment Shares to be issued 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.


 



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


 


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


 


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


 


(iii)
EACH OF THE COMPANY AND THE INVESTOR HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR DISPUTES RELATING HERETO. EACH OF THE COMPANY AND THE INVESTOR (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE 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 PARTY HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.2.


 


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


 


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


 


If
to the Company:


 


Sidus
Space, Inc.


150
N. Sykes Creek Parkway, Suite 200


Merritt
Island, Florida 92953


Telephone
Number: (321) 613-5620


Email:
carol.craig@sidusspace.com


Attention:
Carol Craig, CEO


 



    	52



     


    

 





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


 


Sheppard,
Mullin, Richter & Hampton LLP


30
Rockefeller Plaza


New
York, New York 10112-0015


Telephone
Number: (212) 653-8700


Email:
jfessler@sheppardmullin.com


Attention:
Jeffrey Fessler, Esq.


 


If
to the Investor:


 


B.
Riley Principal Capital II, 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, New York 10019-6119


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.


 






    	53



     


    

 


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




 





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


 


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


 


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


 


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.


 






    	54



     


    

 


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 (6) months following such termination.




 


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


 


Section
10.14. Publicity. The Company shall afford the Investor and its counsel with a reasonable opportunity to review and comment
upon, shall consult with the Investor and its counsel on the form and substance of, and shall give due consideration to all such comments
from the Investor or its counsel on, any press release, Commission filing or any other public disclosure made by or on behalf of the
Company relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated
thereby, including any press release disclosing the execution of this Agreement and the Registration Rights Agreement by the Company,
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 substantially 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]


 




    	55



     


    

 


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.


 





	 	THE
    COMPANY:
	 	 	 
	 	SIDUS
    SPACE, INC.:
	 	 
	 	By:	/s/
                                            Carol Craig

	 	Name:	Carol
    Craig
	 	Title:
    	Chief
    Executive Officer


 





	 	THE
    INVESTOR:
	 	 	 
	 	B.
    RILEY PRINCIPAL CAPITAL II, LLC:
	 	 
	 	By:	/s/
    Patrice McNicoll
	 	Name:	Patrice
    McNicoll
	 	Title:
    	Authorized
    Signatory





 







    	 



     


    

 


ANNEX
I TO THE


COMMON STOCK PURCHASE AGREEMENT


 


DEFINITIONS


 


“2021
Form 10-K” has the meaning set forth in the definition of “Commission Documents”.


 


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


 


“Actions”
means any claim, action, suit, arbitration, proceeding or investigation by or before any Governmental Authority.


 


“Additional
Investor Expense Reimbursement” shall have the meaning assigned to such term in Section 10.1(i).


 


“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
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.


 


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


 


“Anti-Corruption
Laws” means any applicable Laws relating to anti-bribery or anti-corruption (governmental or commercial), including the
U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the U.S. Travel Act, 18 U.S.C. §
1952, and the U.K. Bribery Act 2010, when applicable.


 


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


 


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


 


“Base
Price” means a price per Share equal to the sum of (i) the Minimum Price and (ii) $0.18 (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.


 



    	I-1



     


    

 





“Bloomberg”
means Bloomberg, L.P.


 


“Bring-Down
Comfort Letter” shall have the meaning assigned to such term in Section 6.17.


 


“Bring-Down
Negative Assurance Letter” shall have the meaning assigned to such term in Section 6.17.


 


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


 


“BRS”
shall have the meaning assigned to such term in the Recitals.


 


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


 


“Cash
Commitment Fee” shall mean an amount in cash equal to $300,000.


 


“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.


 


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


 


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


 


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


 


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


 


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


 


“Commission
Documents” shall mean (1) all reports, schedules, registrations, forms, statements, information and other documents filed
with or furnished to the Commission by the Company pursuant to the reporting requirements of the Exchange Act, including all material
filed with or furnished to the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, since December 31, 2021,
including, without limitation, the Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2021 filed by the
Company with the Commission on April 5, 2022 (the “2021 Form 10-K”), and which hereafter shall be filed with
or furnished to the Commission by the Company, including, without limitation, the Current Report, (2) each Registration Statement, as
the same may be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto and (3) all information
contained in such filings and all documents and disclosures that have been and heretofore shall be incorporated by reference therein.


 



    	I-2



     


    

 





“Commitment
Fee” means, collectively, the Cash Commitment Fee and the Commitment Shares.


 


“Commitment
Shares” means 90,367 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 pursuant
to Section 10.1(ii)(a).


 


“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.


 


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


 


“Confidential
Data” means all data for which the Company or any of its Subsidiaries is required by Law, Contract or privacy policy to
keep confidential or private, including all such data transmitted to the Company or any of its Subsidiaries by customers of the Company
or any of its Subsidiaries or Persons that interact with the Company or any of its Subsidiaries.


 


“Contracts”
means any legally binding contracts, agreements, subcontracts, leases, and purchase orders.


 


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


 


“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions thereof or any other related or associated epidemics, pandemics or disease outbreaks.


 


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


 


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


 



    	I-3



     


    

 





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


 


“Data
Treatment” means the analysis, receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security
(both technical and physical), disposal, destruction, disclosure or transfer (including cross-border) of Personal Information.


 


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


 


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


 


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


 


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


 


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


 


“DWAC
Shares” means shares of Common Stock issued pursuant to this Agreement that are (i) issued in electronic form, (ii) freely
tradable and transferable and without restriction on resale and without stop transfer instructions maintained against the transfer thereof
and (iii) timely credited by the Company’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.


 


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


 


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


 


“Environmental
Laws” means any and all applicable Laws relating to pollution, protection of the environment (including natural resources)
and human health and safety, or the use, treatment, storage, emission, disposal or release of or exposure to Hazardous Materials.


 


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


 



    	I-4



     


    

 





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


 


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


 


“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).


 


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


 


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


 


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


 


“FINRA”
means the Financial Industry Regulatory Authority, Inc.


 


“FINRA
Filing” shall have the meaning assigned to such term in Section 6.14.


 



    	I-5



     


    

 





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


 


“Future
Purchase Suspension” shall have the meaning assigned to such term in Section 6.17.


 


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


 


“Government
Bid” means a bid issued by a contractor that, if accepted or awarded, would result in a Government Contract.


 


“Government
Contract” means any Contract, as amended by binding modifications or change orders, between the Company and (i) a Governmental
Authority, (ii) any prime contractor of a Governmental Authority or (iii) any subcontractor with respect to any contract of a type described
in clauses (i) or (ii) above. A task, purchase or delivery order under a Government Contract will not constitute a separate Government
Contract, for purposes of this definition, but will be part of the Government Contract to which it relates.


 


“Governmental
Authority” means any federal, state, provincial, municipal, local or foreign government, governmental authority, regulatory
or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, arbitral body (public
or private) or tribunal.


 


“Governmental
Order” means any order, judgment, injunction, decree, writ, stipulation, determination, directive, mandate, consent, approval
or award, in each case, entered by or with any Governmental Authority.


 



    	I-6



     


    

 





“Hazardous
Material” means any material, substance or waste that is listed, regulated, or defined as “hazardous,” “toxic,”
or “radioactive,” or as a “pollutant” or “contaminant” (or words of similar intent or meaning) under
applicable Environmental Laws, including but not limited to petroleum, petroleum by-products or derivatives, asbestos or asbestos-containing
material, polychlorinated biphenyls, flammable or explosive substances, mold, per- and polyfluoroalkyl substances or pesticides.


 


“Indebtedness”
means, with respect to any Person as of any time, without duplication, (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. Notwithstanding anything to the contrary contained
herein, “Indebtedness” of any Person shall not include any item that would otherwise constitute “Indebtedness”
of such Person that is an obligation between such Person and any wholly owned Subsidiary of such Person or between any two or more wholly
owned Subsidiaries of such Person.


 


“Initial
Comfort Letter” shall have the meaning assigned to such term in Section 7.2(xvii).


 


“Initial
Investor Expense Reimbursement” shall have the meaning assigned to such term in Section 10.1(i).


 


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


 


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


 


“International
Trade Laws” means all applicable export control, economic sanctions, import, and customs laws, regulations, rules and licenses
of the United States and other governments, including but not limited to, the International Traffic in Arms Regulations (“ITAR”)
administered by the U.S. Department of State, the Export Administration Regulations (“EAR”) administered by
the U.S. Department of Commerce, the International Emergency Economic Powers Act (“IEEPA”) and the Trading
with the Enemy Act (“TWEA”), the sanctions, embargoes and restrictions administered by the U.S. Department
of the Treasury’s Office of Foreign Assets Control (“OFAC”), the Foreign Trade Regulations administered
by the U.S. Department of Commerce’s Bureau of Census, the anti-boycott regulations administered by the U.S. Department of Commerce
and the U.S. Department of the Treasury, and the customs and import laws administered by the U.S. Department of Homeland Security’s
Customs and Border Protection (“CBP”).


 


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


 



    	I-7



     


    

 





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


 










“Intraday
VWAP Purchase Ending Time” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the time on the
Purchase Date for such Intraday VWAP Purchase that is the earlier of: (i) 3:59 p.m., New York City time, on the applicable Purchase
Date for such Intraday 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 Intraday VWAP Purchase Commencement Time of the Intraday VWAP Purchase Period for such Intraday 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) during such Intraday VWAP
Purchase Period has exceeded the applicable Intraday VWAP Purchase Share Volume Maximum for such Intraday 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) during such Intraday VWAP Purchase Period shall exclude from such calculation all shares of Common Stock
traded in any of the following transactions, to the extent they occur during such Intraday VWAP Purchase Period (as applicable): (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, (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), and (C) all sales of Common Stock on the Trading Market (or on such Eligible Market, as applicable) during such Intraday
VWAP Purchase Period at a Sale Price that is less than the applicable Intraday VWAP Purchase Minimum Price Threshold. All such calculations
shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction.


 


“Intraday
VWAP Purchase Maximum Amount” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, such number
of shares of Common Stock equal to the lesser of: (i) 1,000,000, and (ii) the product of (a) the Purchase Share Percentage, multiplied
by (b) the total number (or volume) of shares of Common Stock traded on the Trading Market (or on such Eligible Market, as applicable)
during the Intraday VWAP Purchase Period for such Intraday 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) during such
Intraday VWAP Purchase Period shall exclude from such calculation all shares of Common Stock traded in any of the following transactions,
to the extent they occur during such Intraday VWAP Purchase Period (as applicable): (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, (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), and (C) all sales of Common Stock
on the Trading Market (or on such Eligible Market, as applicable) during such Intraday VWAP Purchase Period at a Sale Price that is less
than the applicable Intraday VWAP Purchase Minimum Price Threshold. All such calculations shall be appropriately adjusted for any stock
dividend, stock split, stock combination, recapitalization or other similar transaction.


 



    	I-8



     


    

 





“Intraday
VWAP Purchase Minimum Price Threshold” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the
dollar amount specified by the Company in the applicable Intraday VWAP Purchase Notice for such Intraday VWAP Purchase as the per share
minimum Sale Price threshold to be used in determining the sales of Common Stock during the applicable Intraday VWAP Purchase Period
that shall be excluded from 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) during such Intraday VWAP Purchase Period; provided, however, that if the Company
has not specified any such dollar amount as the per share minimum Sale Price threshold in the applicable Intraday VWAP Purchase Notice
for such Intraday VWAP Purchase, then the per share minimum Sale Price threshold to be used in such Intraday VWAP Purchase shall be such
dollar amount equal to the product of (a) the Closing Sale Price of the Common Stock on the Trading Day immediately preceding the Purchase
Date for such Intraday VWAP Purchase, multiplied by (b) 0.75. All such calculations shall be appropriately adjusted for any stock dividend,
stock split, stock combination, recapitalization or other similar transaction.


 


“Intraday
VWAP Purchase Notice” means, with respect to an Intraday 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 Intraday VWAP Purchase Share Amount (such specified
Intraday VWAP Purchase Share Amount subject to adjustment as set forth in Section 3.2 as necessary to give effect to the Intraday VWAP
Purchase Maximum Amount), at the applicable Intraday VWAP Purchase Price therefor on the Purchase Date for such Intraday VWAP Purchase
in accordance with this Agreement, that is delivered by the Company to the Investor and received by the Investor (i) after the latest
of (X) 10:00 a.m., New York City time, on such Purchase Date, if the Company has not timely delivered a VWAP Purchase Notice to the
Investor for a VWAP Purchase on such Purchase Date, (Y) the VWAP Purchase Ending Time of the VWAP Purchase Period for the VWAP Purchase
preceding the Intraday VWAP Purchase Period for such Intraday VWAP Purchase occurring on the same Purchase Date as such earlier VWAP
Purchase, if the Company has timely delivered a VWAP Purchase Notice to the Investor for a VWAP Purchase on such Purchase Date, and (Z)
the Intraday VWAP Purchase Ending Time of the Intraday VWAP Purchase Period for the most recent prior Intraday VWAP Purchase, if any,
occurring on the same Purchase Date as such Intraday VWAP Purchase, and (ii) prior to the earlier of (X) 3:30 p.m., New York City
time, on such Purchase Date and (Y) such time that is exactly thirty (30) 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.


 



    	I-9



     


    

 





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


 


“Intraday
VWAP Purchase Price” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the purchase price
per Share to be purchased by the Investor in such Intraday VWAP Purchase, equal to the product of (i) 0.97, multiplied by (ii) the VWAP
of the Common Stock for the applicable Intraday VWAP Purchase Period on the applicable Purchase Date for such Intraday VWAP Purchase;
provided, however, that the calculation of the VWAP for the Common Stock for the Intraday VWAP Purchase Period for an Intraday
VWAP Purchase shall exclude each of the following transactions, to the extent they occur during such Intraday VWAP Purchase Period (as
applicable): (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, (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), and (C) all sales of Common Stock on the Trading Market (or on such Eligible Market, as applicable)
during such Intraday VWAP Purchase Period at a Sale Price that is less than the applicable Intraday VWAP Purchase Minimum Price Threshold
for such Intraday VWAP Purchase. All such calculations shall be appropriately adjusted for any stock dividend, stock split, stock combination,
recapitalization or other similar transaction.


 


“Intraday
VWAP Purchase Share Amount” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, the total number
of Shares to be purchased by the Investor in such Intraday VWAP Purchase as specified by the Company in the applicable Intraday VWAP
Purchase Notice for such Intraday VWAP Purchase, which total number of Shares shall not exceed the Intraday VWAP Purchase Maximum Amount
applicable to such Intraday VWAP Purchase (and such number of Shares specified by the Company in the applicable Intraday VWAP Purchase
Notice for such Intraday VWAP Purchase shall be subject to automatic adjustment in accordance with Section 3.2 hereof as necessary to
give effect to the Intraday VWAP Purchase Maximum Amount limitation applicable to such Intraday VWAP Purchase as set forth in this Agreement).


 


“Intraday
VWAP Purchase Share Volume Maximum” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.2, a number
of shares of Common Stock equal to the quotient obtained by dividing (i) the Intraday VWAP Purchase Share Amount to be purchased by the
Investor in such Intraday 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).


 


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


 


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


 


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


 



    	I-10



     


    

 





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


 


“IT
Systems”  means the Software, systems, servers, computers, hardware, firmware, middleware, networks, data communications
lines, routers, hubs, switches and all other information technology and telecommunications assets, systems, and equipment, and all associated
documentation, in each case, owned, used, held for use, leased, outsourced or licensed by or for the Company or any of its Subsidiaries
for use in the conduct of their respective businesses as currently conducted.


 


“Knowledge”
means the actual knowledge of any of (i) the Company’s Chairwoman and Chief Executive Officer, (ii) the Company’s Chief Financial
Officer and (iii) the Company’s Chief Technology Officer, in each case 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.


 


“Law”
means any statute, law (including common law), code, treaty, ordinance, rule, regulation or Governmental Order, in each case, of any
Governmental Authority.


 


“Leased
Real Property” means all real property leased, subleased, licensed or otherwise occupied by the Company or any of its Subsidiaries.


 


“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 effect of COVID-19 or any Law, directive, pronouncement
or guideline issued by a Governmental Authority, the Centers for Disease Control and Prevention, the World Health Organization or industry
group providing for business closures, changes to business operations, “sheltering-in-place” or other restrictions
that relate to, or arise out of, an epidemic, pandemic or disease outbreak (including the COVID-19 pandemic) or any change
in such Law, directive, pronouncement or guideline or interpretation thereof following the date of this Agreement, (f) 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 (g) 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-11



     


    

 





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


 


“Minimum
Price” means $3.26, representing the Nasdaq official closing price of the Common Stock on the Trading Market (as reflected
on Nasdaq.com) on 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).


 


“MPA
Period” means the period commencing at 5:00 p.m., New York City time, on the Trading Day immediately preceding the Trading
Day on which any Affiliate of the Investor, including, without limitation, BRS, shall have published or distributed any research report
(as such term is defined in Rule 500 of Regulation AC) concerning the Company, and ending at 6:00 a.m., New York City time, on the sixth
(6th) Trading Day immediately following the Trading Day on which any Affiliate of the Investor, including, without limitation,
BRS, shall have published or distributed any research report (as such term is defined in Rule 500 of Regulation AC) concerning the Company.


 


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


 


“Non-Affiliate
Shares” shall have the meaning assigned to such term in Section 5.41.


 


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


 


“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”
means all permits, franchises, exemptions, allocations, filings, waivers, licenses, certificates of authority, authorizations, approvals,
registrations and other similar consents issued by or obtained from a Governmental Authority.


 


“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 or Governmental Authority.


 



    	I-12



     


    

 





“Personal
Information” means any personal information that specifically identifies, is reasonably capable of being associated with,
or could reasonably be linked, directly or indirectly, any particular individual or household.


 


“Privacy
and Security Requirements” means, to the extent applicable to the Company or any of its Subsidiaries: (a) any Laws relating
to privacy and data security, including laws regulating the Processing of Protected Data; (b) the Payment Card Industry Data Security
Standard issued by the PCI Security Standards Council, as it may be amended from time to time (“PCI DSS”);
(c) all Contracts between the Company or any of its Subsidiaries, on the one hand, and any Person, on the other hand, that is applicable
to the PCI DSS, privacy, data security and/or the Processing of Protected Data; and (d) all policies and procedures applicable to the
Company or any of its Subsidiaries relating to the PCI DSS, privacy, data security and/or the Processing of Protected Data.


 


“Processing”
means the creation, collection, use (including, without limitation, for the purposes of sending telephone calls, text messages and emails),
storage, maintenance, processing, recording, distribution, transfer, transmission, receipt, import, export, protection, safeguarding,
access, disposal or disclosure or other activity regarding data (whether electronically or in any other form or medium).


 


“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.


 


“Protected
Data” means Personal Information and Confidential Data.


 


“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 Intraday VWAP Purchase made pursuant
to Section 3.2, the Trading Day on which the Investor timely receives a valid Intraday VWAP Purchase Notice for such Intraday VWAP Purchase
in accordance with this Agreement, (A) after the latest of (X) 10:00 a.m., New York City time, on such Trading Day, if the Company
has not timely delivered a valid VWAP Purchase Notice to the Investor for a VWAP Purchase on such Trading Day, (Y) the VWAP Purchase
Ending Time of the VWAP Purchase Period for the VWAP Purchase preceding the applicable Intraday VWAP Purchase Period for such Intraday
VWAP Purchase occurring on the same Trading Day as such earlier VWAP Purchase, if the Company has timely delivered a valid VWAP Purchase
Notice to the Investor for a VWAP Purchase on such Trading Day, and (Z) the Intraday VWAP Purchase Ending Time of the Intraday VWAP Purchase
Period for the most recent prior Intraday VWAP Purchase, if any, occurring on the same Trading Day as such Intraday VWAP Purchase, and
(B) prior to the earlier of (X) 3:30 p.m., New York City time, on such Trading Day for such Intraday VWAP Purchase and (Y) such
time that is exactly thirty (30) 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.


 



    	I-13



     


    

 





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


 


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


 


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


 


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


 


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


 


“Registration
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.


 


“Representation
Date” shall have the meaning assigned to such term in Section 6.17.


 


“Restricted
Party” means the following: (i) any Person on the OFAC list of Specially Designated Nationals and Blocked Persons, List
of Foreign Sanctions Evaders, or Sectoral Sanctions Identifications List; (ii) any Person on the Denied Persons List, Unverified List,
or the Entity List maintained by the Bureau of Industry and Security of the U.S. Department of Commerce; (iii) any Person on the Debarred
List and non-proliferation sanctions lists maintained by the U.S. State Department; (iv) any Person that is, in the aggregate, fifty
percent (50%) or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (i), (ii)
or (iii) so as to subject the Person to sanctions; (v) any Person that is organized, ordinarily resident, or located in a Sanctioned
Country; or (vi) any Person on any other list maintained by any relevant Governmental Authority restricting the export of any item to
specific individuals, companies or other entities.


 


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


 



    	I-14



     


    

 





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


 


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


 


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


 


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


 


“Sanctioned
Country” means any country or region that is the subject or target of a comprehensive embargo administered by the United
States (including Cuba, Iran, North Korea, Venezuela, Sudan, Syria, Russia and the Crimea region of Ukraine).


 


“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 may be purchased by the Investor under this Agreement pursuant to one or more VWAP Purchase
Notices or one or more Intraday 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 any and all computer software programs and software systems, including all computer software and code (including source code, executable
code, and object code), databases and compilations (including any and all data and collections of data, whether machine readable or otherwise),
compilers and decompilers, development tools, menus, higher level or “proprietary” languages, templates, macros, user interfaces,
report formats, firmware, data files, whether in source code, object code or human readable form, and all documentation and materials
(including user manuals, other specifications, training documentation, descriptions, flow-charts and other work product used to design,
plan, organize and develop any of the foregoing) and know-how relating to any of the foregoing.


 


“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.


 



    	I-15



     


    

 





“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 Capital Market (or any nationally recognized successor thereto).


 


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


 


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


 



    	I-16



     


    

 





“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 shall exclude each of the following transactions, to the extent
they occur during such VWAP Purchase Period (as applicable): (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, (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), and (C) all sales of Common Stock on the Trading Market
(or on such Eligible Market, as applicable) during such VWAP Purchase Period at a Sale Price that is less than the applicable VWAP Purchase
Minimum Price Threshold for such VWAP Purchase; and (ii) the calculation of the dollar volume-weighted average price for the Common Stock
for the Intraday VWAP Purchase Period for each Intraday VWAP Purchase shall exclude each of the following transactions, to the extent
they occur during such Intraday VWAP Purchase Period (as applicable): (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, (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), and (C) all sales of Common Stock on the Trading
Market (or on such Eligible Market, as applicable) during such Intraday VWAP Purchase Period at a Sale Price that is less than the applicable
Intraday VWAP Purchase Minimum Price Threshold for such Intraday VWAP Purchase. All such calculations shall be appropriately adjusted
for any stock dividend, stock split, stock combination, recapitalization or other similar transaction.


 


“VWAP
Purchase” 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.


 


“VWAP
Purchase Ending Time” means, with respect to a VWAP Purchase made pursuant to Section 3.1, the time on the Purchase Date
for such VWAP Purchase that is the earliest of: (i) 3:59 p.m., New York City time, on the applicable 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; (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) during such VWAP Purchase Period 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) during such VWAP Purchase Period shall exclude from such
calculation all shares of Common Stock traded in any of the following transactions, to the extent they occur during such VWAP Purchase
Period (as applicable): (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, (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), and (C) all sales of Common Stock on the Trading Market (or on such Eligible Market, as applicable)
during such VWAP Purchase Period at a Sale Price that is less than the applicable VWAP Purchase Minimum Price Threshold. All such calculations
shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction.


 






    	I-17



     


    

 


“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 lesser of: (i) 1,000,000, and (ii) the product of (a) the Purchase Share Percentage, multiplied by (b) the
total number (or volume) of shares of Common Stock traded on the Trading Market (or on such Eligible Market, as applicable) during the
VWAP Purchase Period 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) during such VWAP Purchase Period shall
exclude from such calculation all shares of Common Stock traded in any of the following transactions, to the extent they occur during
such VWAP Purchase Period (as applicable): (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, (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), and (C) all sales of Common Stock on the Trading Market (or on such
Eligible Market, as applicable) during such VWAP Purchase Period at a Sale Price that is less than the applicable VWAP Purchase Minimum
Price Threshold. All such calculations shall be appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization
or other similar transaction.


 


“VWAP
Purchase Minimum Price Threshold” means, with respect to an Intraday VWAP Purchase made pursuant to Section 3.1, the dollar
amount specified by the Company in the applicable VWAP Purchase Notice for such VWAP Purchase as the per share minimum Sale Price threshold
to be used in determining the sales of Common Stock during the applicable VWAP Purchase Period that shall be excluded from 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) during
such VWAP Purchase Period; provided, however, that if the Company has not specified any such dollar amount as the per share
minimum Sale Price threshold in the applicable VWAP Purchase Notice for such VWAP Purchase, then the per share minimum Sale Price threshold
to be used in such VWAP Purchase shall be such dollar amount equal to the product of (a) the Closing Sale Price of the Common Stock on
the Trading Day immediately preceding the Purchase Date for such VWAP Purchase, multiplied by (b) 0.75. All such calculations shall be
appropriately adjusted for any stock dividend, stock split, stock combination, recapitalization or other similar transaction.


 



    	I-18



     


    

 





“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.


 


“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 the product of (i) 0.97, multiplied by (ii) the VWAP of the Common Stock for
the applicable VWAP Purchase Period on the applicable Purchase Date for such VWAP Purchase; provided, however, that the
calculation of the VWAP for the Common Stock for the VWAP Purchase Period for a VWAP Purchase shall exclude each of the following transactions,
to the extent they occur during such VWAP Purchase Period (as applicable): (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, (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), and (C) all sales of Common Stock on the Trading
Market (or on such Eligible Market, as applicable) during such VWAP Purchase Period at a Sale Price that is less than the applicable
VWAP Purchase Minimum Price Threshold for such VWAP Purchase. All such calculations shall be appropriately adjusted for any stock dividend,
stock split, stock combination, recapitalization or other similar transaction.


 


“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 (and such number
of Shares specified by the Company in the applicable VWAP Purchase Notice for such VWAP Purchase shall be subject to automatic adjustment
in accordance with Section 3.1 hereof as necessary to give effect to the VWAP Purchase Maximum Amount limitation applicable to such VWAP
Purchase as set forth in this Agreement).


 


“VWAP
Purchase Share Volume Maximum” means, with respect to a 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-19



     


    

 


EXHIBIT
A


 


FORM
OF REGISTRATION RIGHTS AGREEMENT


 





[TO
BE FURNISHED SEPARATELY]


 







    	A-1



     


    

 


EXHIBIT
B


 


CLOSING
CERTIFICATE


 


[●],
2022


 


The
undersigned, the [●] of Sidus Space, Inc., a Delaware corporation (the “Company”), delivers this certificate
in connection with the Common Stock Purchase Agreement, dated as of August 10, 2022 (the “Agreement”), by and
between the Company and B. Riley Principal Capital II, LLC, a Delaware limited liability company (the “Investor”),
and hereby certifies on the date hereof that (capitalized terms used herein without definition have the meanings assigned to them in
the Agreement):


 


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


 


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


 


3. The
Board of Directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has not been
amended, rescinded or modified and remains in full force and effect as of the date hereof. Attached hereto as Exhibit C are true,
correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company on [●], 2022.


 


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


 


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


 


	 	 
	
	Name:	
	 	Title:	 







 




    	B-1



     


    

 


EXHIBIT
C


 


COMPLIANCE
CERTIFICATE


 


The
undersigned, the [●] of Sidus Space, Inc., a Delaware corporation (the “Company”), delivers this certificate
in connection with the Common Stock Purchase Agreement, dated as of August 10, 2022 (the “Agreement”), by and
between the Company and B. Riley Principal Capital II, LLC, a Delaware limited liability company (the “Investor”),
and hereby certifies on the date hereof that, to the best of his knowledge after reasonable investigation, on behalf of the Company (capitalized
terms used herein without definition have the meanings assigned to them in the Agreement):


 


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


 


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


 


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


 


4. The
Shares issuable in respect of each VWAP Purchase Notice and each Intraday 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 Company has reserved out of its authorized and unissued Common Stock, 3,282,754 shares of Common
Stock solely for the purpose of issuing Shares pursuant to VWAP Purchases and Intraday VWAP Purchases effected under the Agreement.


 


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




 


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


 


	 	By:	 
	 	Name:	 
	 	Title:	 



 



    	C-1



     


    


 


DISCLOSURE
SCHEDULE

RELATING TO THE COMMON STOCK

PURCHASE AGREEMENT, DATED AS OF AUGUST 10, 2022

BETWEEN SIDUS SPACE, INC. AND B. Riley Principal Capital II, LLC


 


This
disclosure schedule is made and given pursuant to Article V of the Common Stock Purchase Agreement, dated as of August 10, 2022 (the
“Agreement”), by and between Sidus Space, Inc., a Delaware corporation (the “Company”),
and B. Riley Principal Capital II, LLC, a Delaware limited liability company. Unless the context otherwise requires, all capitalized
terms are used herein as defined in the Agreement. The numbers below correspond to the section numbers of representations and warranties
in the Agreement most directly modified by the below exceptions.