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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
May 2, 2024
Aditxt, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
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001-39336 |
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82-3204328 |
(State or other jurisdiction
of incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
737 N. Fifth Street, Suite 200 Richmond, VA |
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23219 |
(Address of principal executive offices) |
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(Zip Code) |
Registrant’s telephone number, including
area code: (650) 870-1200
N/A
(Former name or former address, if changed since
last report)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425 ) |
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☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
Common Stock, par value $0.001 |
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ADTX |
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The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry Into
a Material Definitive Agreement.
On May 2, 2024, Aditxt,
Inc. (the “Company”) entered into a Common Stock Purchase Agreement (the “Purchase Agreement”) with
an equity line investor (the “Investor”), pursuant to which the Investor has agreed to purchase from the Company, at
the Company’s direction from time to time, in its sole discretion, from and after the date effective date of the Registration Statement
(as defined below) and until the termination of the Purchase Agreement in accordance with the terms thereof, shares of the Company’s
common stock having a total maximum aggregate purchase price of $150,000,000 (the “Purchase Shares”), upon the terms
and subject to the conditions and limitations set forth in the Purchase Agreement.
In connection with the
Purchase Agreement, the Company also entered into a Registration Rights Agreement with the Investor (the “Registration Rights
Agreement”), pursuant to which the Company agreed to file a registration statement with the Securities and Exchange Commission
covering the resale of the shares of common stock issued to the Investor pursuant to the Purchase Agreement (the “Registration
Statement”) by the later of (i) the 30th calendar day following the closing date, and (ii) the second business day
following Stockholder Approval (defined below).
The Company may, from time to time and at its
sole discretion, direct the Investor to purchase shares of its common stock upon the satisfaction of certain conditions set
forth in the Purchase Agreement at a purchase price per share based on the market price of the Company’s common stock at the time
of sale as computed under the Purchase Agreement. There is no upper limit on the price per share that the Investor could be
obligated to pay for common stock under the Purchase Agreement. The Company will control the timing and amount of any sales of its common
stock to the Investor, and the Investor has no right to require us to sell any shares to it under the Purchase Agreement.
Actual sales of shares of common stock to the Investor under the Purchase Agreement will depend on a variety of factors to be
determined by the Company from time to time, including (among others) market conditions, the trading price of its common stock and determinations
by the Company as to available and appropriate sources of funding for the Company and its operations. The Investor may not assign
or transfer its rights and obligations under the Purchase Agreement.
Under the applicable Nasdaq rules, in no event
may the Company issue to the Investor under the Purchase Agreement more than 332,876 shares of common stock, which number of
shares is equal to 19.99% of the shares of the common stock outstanding immediately prior to the execution of the Purchase Agreement (the
“Exchange Cap”), unless (i) the Company obtains stockholder approval to issue shares of common stock in excess of the
Exchange Cap in accordance with applicable Nasdaq rules (“Stockholder Approval”), or (ii) the average price per share
paid by the Investor for all of the shares of common stock that the Company directs the Investor to purchase from
the Company pursuant to the Purchase Agreement, if any, equals or exceeds the official closing sale price on the Nasdaq Capital Market
immediately preceding the delivery of the applicable purchase notice to the Investor and (B) the average of the closing sale prices of
the Company’s common stock on the Nasdaq Capital market for the five business days immediately preceding the delivery of such purchase
notice.
In all cases, the Company may not issue or sell
any shares of common stock to the Investor under the Purchase Agreement which, when aggregated with all other shares of the
Company’s common stock then beneficially owned by the Investor and its affiliates, would result in the Investor beneficially
owning more than 4.99% of the outstanding shares of the Company’s common stock.
The net proceeds under the Purchase Agreement
to the Company will depend on the frequency and prices at which the Company sells shares of its stock to the Investor. The Company
expects that any proceeds received by it from such sales to the Investor will be used for working capital and general corporate
purposes.
As consideration for the Investor’s commitment
to purchase shares of common stock at the Company’s direction upon the terms and subject to the conditions set forth in the Purchase
Agreement, the Company shall pay the Investor a commitment fee as outlined in the Purchase Agreement, which is payable on the later of
(i) January 2, 2025 and (ii) the trading day following the date on which Stockholder Approval is obtained.
The Purchase Agreement contains customary representations,
warranties and agreements of the Company and the Investor, limitations and conditions regarding sales of Purchase Shares, indemnification
rights and other obligations of the parties.
There are no restrictions on future financings,
rights of first refusal, participation rights, penalties or liquidated damages in the Purchase Agreement other than a prohibition (with
certain limited exceptions) on entering into a dilutive securities transaction during certain periods when the Company is selling common
stock to the Investorunder the Purchase Agreement. The Investor has agreed that it will not engage in or effect, directly
or indirectly, for its own account or for the account of any of its affiliates, any short sales of the Company’s common stock or
hedging transaction that establishes a net short position in the Company’s common stock during the term of the Purchase Agreement.
The Company has the right to terminate the Purchase
Agreement at any time after the Commencement Date (as defined in the Purchase Agreement), at no cost or penalty, upon three trading days’
prior written notice to the Investor. The Company and the Investor may also agree to terminate the Purchase Agreement by mutual
written consent, provided that no termination of the Purchase Agreement will be effective during the pendency of any purchase that has
not then fully settled in accordance with the Purchase Agreement. Neither the Company nor the Investor may assign or transfer the
Company’s respective rights and obligations under the Purchase Agreement.
This Current Report on Form 8-K shall not constitute
an offer to sell or a solicitation of an offer to buy any shares of common stock, nor shall there be any sale of shares of common stock
in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such state or other jurisdiction.
The foregoing descriptions of the Purchase Agreement
and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the full text
of the Purchase Agreement and the Registration Rights Agreement, copies of which are attached hereto as Exhibits 10.1 and 10.2, respectively.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
SIGNATURE
Pursuant to the requirements of the Securities
and Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: May 7, 2024
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Aditxt, Inc. |
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By: |
/s/ Amro Albanna |
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Name: |
Amro Albanna |
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Title: |
Chief Executive Officer |
Exhibit 10.1
COMMON STOCK PURCHASE AGREEMENT
Dated as of May 2, 2024
by and among
ADITXT, INC.,
and
SEVEN KNOTS, LLC
Table
of Contents
|
Page |
|
|
ARTICLE I PURCHASE AND SALE OF COMMON STOCK |
2 |
Section 1.1. |
Purchase and Sale of Stock |
2 |
Section 1.2. |
Closing Date; Settlement Dates |
2 |
Section 1.3. |
Initial Public Announcements and Required Filings |
3 |
|
|
|
ARTICLE II PURCHASE TERMS |
3 |
Section 2.1. |
Fixed Purchases |
3 |
Section 2.2. |
VWAP Purchases |
4 |
Section 2.3. |
Additional VWAP Purchases |
5 |
Section 2.4. |
Compliance with Rules of Trading Market. |
5 |
Section 2.5. |
Beneficial Ownership Limitation |
6 |
Section 2.6. |
Commitment Fee |
6 |
|
|
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ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR |
6 |
Section 3.1. |
Organization and Standing of the Investor |
6 |
Section 3.2. |
Authorization and Power |
7 |
Section 3.3. |
No Conflicts |
7 |
Section 3.4. |
Investment Purpose |
8 |
Section 3.5. |
Accredited Investor Status |
8 |
Section 3.6. |
Reliance on Exemptions |
8 |
Section 3.7. |
Information |
8 |
Section 3.8. |
No Governmental Review |
8 |
Section 3.9. |
No General Solicitation |
9 |
Section 3.10. |
Not an Affiliate |
9 |
Section 3.11. |
No Prior Short Sales |
9 |
Section 3.12. |
Statutory Underwriter Status |
9 |
|
|
|
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY |
9 |
Section 4.1. |
Organization, Good Standing and Power |
9 |
Section 4.2. |
Authorization, Enforcement |
10 |
Section 4.3. |
Capitalization |
10 |
Section 4.4. |
Issuance of Securities |
11 |
Section 4.5. |
No Conflicts |
11 |
Section 4.6. |
Commission Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting; Accountants |
12 |
Section 4.7. |
Subsidiaries |
14 |
Section 4.8. |
No Material Adverse Effect or Material Adverse Change, No Undisclosed Liabilities |
14 |
Section 4.9. |
No Undisclosed Events or Circumstances |
15 |
Section 4.10. |
Indebtedness |
15 |
Section 4.11. |
Title to Assets |
15 |
Section 4.12. |
Actions Pending |
16 |
Section 4.13. |
Compliance With Laws |
16 |
Section 4.14. |
Certain Fees |
16 |
Section 4.15. |
Operation of Business |
16 |
Section 4.16. |
Environmental Compliance |
17 |
Section 4.17. |
Material Agreements |
17 |
Section 4.18. |
Transactions With Affiliates |
17 |
Section 4.19. |
Intellectual Property Rights |
17 |
Section 4.20. |
Use of Proceeds |
18 |
Section 4.21. |
Investment Company Act Status |
18 |
Section 4.22. |
Benefit Plans; Labor Matters |
18 |
Section 4.23. |
Taxes |
19 |
Section 4.24. |
Insurance |
19 |
Section 4.25. |
Dilutive Effect |
19 |
Section 4.26. |
Manipulation of Price |
19 |
Section 4.27. |
Securities Act |
20 |
Section 4.28. |
Listing and Maintenance Requirements; DTC Eligibility |
20 |
Section 4.29. |
Application of Takeover Protections |
20 |
Section 4.30. |
Foreign Corrupt Practices |
20 |
Section 4.31. |
Money Laundering Laws |
20 |
Section 4.32. |
OFAC |
21 |
Section 4.33. |
Information Technology; Compliance with Data Privacy Laws |
21 |
Section 4.34. |
No Disqualification Events |
21 |
Section 4.35. |
ERISA |
22 |
Section 4.36. |
No Other Similar Agreement |
22 |
Section 4.37. |
Acknowledgement Regarding Investor’s Acquisition of Securities |
22 |
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ARTICLE V ADDITIONAL COVENANTS |
23 |
Section 5.1. |
Securities Compliance |
23 |
Section 5.2. |
Reservation of Common Stock |
23 |
Section 5.3. |
Registration and Listing |
23 |
Section 5.4. |
Compliance with Laws. |
24 |
Section 5.5. |
Keeping of Records and Books of Account; Due Diligence. |
24 |
Section 5.6. |
No Frustration; Prohibition of Certain Issuances Before Settlement of Purchases; No Similar Transactions. |
25 |
Section 5.7. |
Corporate Existence |
26 |
Section 5.8. |
Fundamental Transaction |
26 |
Section 5.9. |
Selling Restrictions. |
27 |
Section 5.10. |
Effective Registration Statement |
27 |
Section 5.11. |
Blue Sky |
27 |
Section 5.12. |
Non-Public Information |
28 |
Section 5.13. |
Broker/Dealer |
28 |
Section 5.14. |
Disclosure Schedules. |
28 |
Section 5.15. |
Delivery of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events |
29 |
Section 5.16. |
DTC Chill |
29 |
Section 5.17. |
Use of Proceeds |
30 |
Section 5.18. |
Stockholder Approval |
30 |
ARTICLE VI CONDITIONS TO CLOSING AND CONDITIONS TO THE SALE AND PURCHASE OF THE SHARES |
30 |
Section 6.1. |
Conditions Precedent to Closing |
30 |
Section 6.2. |
Conditions Precedent to Commencement |
31 |
Section 6.3. |
Conditions Precedent to Purchases by Investor |
34 |
|
|
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ARTICLE VII TERMINATION |
38 |
Section 7.1. |
Automatic Termination; Termination by Consent |
38 |
Section 7.2. |
Other Termination |
38 |
Section 7.3. |
Effect of Termination |
39 |
|
|
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ARTICLE VIII INDEMNIFICATION |
39 |
Section 8.1. |
Indemnification of Investor |
39 |
Section 8.2. |
Indemnification Procedures |
40 |
|
|
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ARTICLE IX MISCELLANEOUS |
41 |
Section 9.1. |
Certain Fees and Expenses; Commitment Shares; Commencement Irrevocable Transfer Agent Instructions. |
41 |
Section 9.2. |
Specific Enforcement, Consent to Jurisdiction, Waiver of Jury Trial. |
42 |
Section 9.3. |
Entire Agreement |
43 |
Section 9.4. |
Notices |
43 |
Section 9.5. |
Waivers |
44 |
Section 9.6. |
Amendments |
44 |
Section 9.7. |
Headings |
45 |
Section 9.8. |
Construction |
45 |
Section 9.9. |
Binding Effect |
45 |
Section 9.10. |
No Third Party Beneficiaries |
45 |
Section 9.11. |
Governing Law |
45 |
Section 9.12. |
Survival |
45 |
Section 9.13. |
Counterparts |
46 |
Section 9.14. |
Publicity |
46 |
Section 9.15. |
Severability |
46 |
Section 9.16. |
Further Assurances |
46 |
COMMON STOCK PURCHASE
AGREEMENT
This COMMON STOCK PURCHASE
AGREEMENT is made and entered into as of May 2, 2024 (this “Agreement”), by and among Seven Knots, LLC,
a Montana limited liability company (the “Investor”), and Aditxt, 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 (a) $150,000,000 and (b) 19.99%
of the Company’s outstanding shares of Common Stock as of the date of this Agreement (to the extent applicable under Section 2.4
hereof), unless (i) stockholder approval is obtained to issue more than such 19.99% (“Stockholder Approval”)
or (ii) the price of applicable sales of Common Stock to the Investor under this Agreement equals or exceeds the lower of (A) the official
Closing Sale Price on the Nasdaq Capital Market or any nationally recognized successor thereto (the “NCM”) immediately
preceding the delivery of the applicable Fixed Purchase notice, VWAP Purchase notice, or Additional VWAP Purchase notice to the Investor
and (B) the average of the Closing Sale Prices of the Common Stock on the NCM for the five business days immediately preceding the delivery
of such Fixed Purchase notice, VWAP Purchase notice or Additional VWAP Purchase Notice, as applicable (in each case plus an incremental
amount to take into account the Commitment Shares), such that the sales of such Common Stock to the Investor would not count toward the
19.99% because they are “at market” under applicable NCM rules;
WHEREAS, in consideration
for the Investor’s execution and delivery of this Agreement, the Company shall cause its Transfer Agent to issue to the Investor
the Commitment Shares in accordance with the terms and subject to the conditions of this Agreement; and
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 provide Investor with certain registration rights related to the
shares issued under this Agreement, upon the terms and subject to the conditions set forth therein.
NOW,
THEREFORE, the parties hereto, intending to be legally bound, hereby agree as follows:
Article
I
PURCHASE AND SALE OF COMMON STOCK
Section 1.1. 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 (a) $150,000,000 and (b) 19.99% of the Company’s outstanding shares of
Common Stock as of the date of this Agreement, including the Commitment Shares, unless (i) stockholder approval is obtained to issue
more than such 19.99% or (ii) the price of applicable sales of Common Stock to the Investor under this Agreement equals or exceeds
the lower of (A) the official Closing Sale Price on the NCM immediately preceding the delivery of the applicable Fixed Purchase
notice, VWAP Purchase notice, or Additional VWAP Purchase notice to the Investor and (B) the average of the Closing Sale Prices of
the Common Stock on the NCM for the five business days immediately preceding the delivery of such Fixed Purchase notice, VWAP
Purchase notice or Additional VWAP Purchase Notice, as applicable (in each case, plus an incremental amount to take into account the
Commitment Shares), such that the sales of such Common Stock to the Investor would not count toward the 19.99% because they are
“at market” under applicable NCM rules (the “Total Purchase Commitment”), to the extent
applicable under Section 2.4, by the delivery to the Investor of Fixed Purchase Notices, VWAP Purchase Notices, or Additional VWAP
Purchase Notices, as provided in Article II.
Section 1.2.
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 6.1, to the offices of Pryor Cashman LLP, 7 Times Square, New York, NY 10036, at 1:00 p.m., New York City
time, on the Closing Date, or such other time and place as the parties hereto shall agree. 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 Fixed Purchase, VWAP Purchase and Additional
VWAP Purchase (each, a “Settlement”). The payment for the Shares in respect of each Fixed Purchase, VWAP Purchase
and Additional VWAP Purchase shall occur (i) on the third (3rd) Trading Day following delivery of the Shares by the Company,
and (ii) in accordance with Article II hereof; provided, that all of the conditions precedent in Article VII shall have been fulfilled
at the applicable times set forth in Article VII.
Section 1.3. Initial
Public Announcements and Required Filings. The Company shall, within the time period required under the Exchange Act, file with
the Commission a Current Report on Form 8-K describing the material terms of the transactions contemplated by the Transaction Documents,
including, without limitation, the agreement by the Company to issue the Commitment Shares to the Investor following Stockholder Approval
pursuant to the terms of this Agreement, and attaching as exhibits thereto copies of each of this Agreement, the Registration Rights
Agreement, and, if applicable, any press release issued by the Company disclosing the execution of this Agreement by the Company (including
all exhibits thereto, the “Current Report”). The Company shall provide the Investor a reasonable opportunity
to comment on a draft of the Current Report prior to filing the Current Report with the Commission and shall give due consideration to
all such comments. From and after the filing of the Current Report with the Commission, the Company shall have publicly disclosed all
material, nonpublic information delivered to the Investor (or the Investor’s representatives or agents) by the Company, any of
its Subsidiaries, or any of their respective officers, directors, employees, agents or representatives (if any) in connection with the
transactions contemplated by the Transaction Documents. The Investor covenants that until such time as the transactions contemplated
by this Agreement are publicly disclosed by the Company as described in this Section 1.3, the Investor shall maintain the confidentiality
of all disclosures made to it in connection with the transactions contemplated by the Transaction Documents (including the existence and
terms of the transactions), except that the Investor may disclose the terms of such transactions to its financial, accounting, legal
and other advisors (provided that the Investor directs such Persons to maintain the confidentiality of such information). 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 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 Registration Statement, the Company shall use its commercially reasonable efforts
to file with the Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to be used in connection with
sales pursuant to such Registration Statement (or post-effective amendment thereto).
Article
II
PURCHASE TERMS
Subject
to the satisfaction or (to the extent permitted by applicable law) waiver of the conditions set forth in this Agreement, the parties agree
(unless otherwise mutually agreed upon by the parties in writing) as follows:
Section 2.1.
Fixed Purchases. Upon the initial satisfaction of all of the conditions set forth in set forth in Section 6.2, (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 6.3,
and on any business day selected by the Company where the Closing Sale Price on the applicable national market, or quotation service,
is equal to or greater than $1.00, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to
the Investor of a Fixed Purchase Notice, to purchase a Fixed Purchase Share Amount, not to exceed the applicable Fixed Purchase Maximum
Amount (calculated as of the applicable Fixed Purchase Date), at the applicable Fixed Purchase Price therefor on the applicable Fixed
Purchase Date in accordance with this Agreement (each such purchase a “Fixed Purchase”); provided, however,
that the Investor’s committed obligation under any single Fixed Purchase shall not exceed the lower of 100,000 shares of Common
Stock or $200,000 (provided that all shares of Common Stock in respect of all prior Fixed Purchases, VWAP Purchases and Additional VWAP
Purchases shall have been delivered to the Investor via Deposit/Withdrawal at Custodian (“DWAC”)). If the Company
delivers any Fixed Purchase Notice directing the Investor to purchase a Fixed Purchase Share Amount in excess of the applicable Fixed
Purchase Maximum Amount (calculated as of the applicable Fixed Purchase Date), such Fixed Purchase Notice shall be void ab initio
to the extent of the amount by which the Fixed Purchase Share Amount set forth in such Fixed Purchase Notice exceeds such applicable Fixed
Purchase Maximum Amount, and the Investor shall have no obligation to purchase such excess Shares in respect of such Fixed Purchase Notice;
provided, however, that the Investor shall remain obligated to purchase the applicable Fixed Purchase Maximum Amount in
such Fixed Purchase. The Company may deliver a Fixed Purchase Notice, in the Form attached hereto as Annex 2.1, to the Investor
as often as every Trading Day, so long as (i) the Closing Sale Price of the Common Stock on such Trading Day is not less than $1.00 and
(ii) all Shares subject to all prior Fixed Purchase Notices, VWAP Purchase Notices and Additional VWAP Purchase Notices (as applicable)
have theretofore been received by the Investor as DWAC Shares. Since delivery of a Fixed Purchase Notice is made by the Company after market close
on the applicable Fixed Purchase Date, the Fixed Purchase Price is determined and fixed at the time the Company delivers the Fixed Purchase
to the Investor.
Section 2.2.
VWAP Purchases. Upon the initial satisfaction of all of the conditions set forth in set forth in Section 6.2, on the
Commencement Date and from time to time thereafter, and on any business day selected by the Company where the Closing Sale Price on the
applicable national market, or quotation service is equal to or greater than $1.00, subject to the satisfaction of all of the conditions
set forth in Section 6.3, in addition to purchases of Shares as described in Section 2.1, the Company shall also have the right, but not
the obligation, to direct the Investor, by its delivery to the Investor of a VWAP Purchase Notice, to purchase the applicable VWAP Purchase
Share Amount, not to exceed the applicable VWAP Purchase Maximum Amount, at the applicable VWAP Purchase Price therefor on the applicable
VWAP Purchase Date in accordance with this Agreement (each such purchase, a “VWAP Purchase”); provided,
however, that the Investor’s aggregate committed obligation under a VWAP Purchase and all Additional VWAP Purchases shall
not exceed $2,000,000 in the aggregate for such VWAP Purchase and all such Additional VWAP Purchases on such VWAP Purchase Date, collectively.
The Company may deliver a VWAP Purchase Notice, in the Form attached hereto as Annex 2.2, to the Investor only (i) on a Trading
Day on which the Company also properly submitted a Fixed Purchase Notice providing for a Fixed Purchase of an amount of Shares not less
than the applicable Fixed Purchase Maximum Amount (calculated as of the applicable Fixed Purchase Date) and (ii) if all Shares subject
to all prior Fixed Purchase Notices, VWAP Purchase Notices, and Additional VWAP Purchase Notices (as applicable) have theretofore been
received by the Investor as DWAC Shares. 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 such excess Shares in respect of such VWAP Purchase Notice;
provided, however, that the Investor shall remain obligated to purchase the applicable VWAP Purchase Maximum Amount in such
VWAP Purchase At or prior to 9:30 a.m., New York City time, on the Trading Day immediately following the VWAP Purchase Date for each VWAP
Purchase, the Investor shall provide to the Company a written confirmation of such VWAP Purchase setting forth the applicable VWAP Purchase
Share Amount and VWAP Purchase Price for such VWAP Purchase (each, a “VWAP Purchase Confirmation”).
Section 2.3. Additional
VWAP Purchases. Upon the initial satisfaction of all of the conditions set forth in set forth in Section 6.3 on the
Commencement Date and from time to time thereafter, subject to the satisfaction of all of the conditions set forth in Section 6.3,
in addition to purchases of Shares as described in Section 2.1 and Section 2.2, the Company shall also have the right, but not the
obligation, to direct the Investor, by its delivery to the Investor of an Additional VWAP Purchase Notice, to purchase the
applicable Additional VWAP Purchase Share Amount, not to exceed the applicable Additional VWAP Purchase Maximum Amount, at the
applicable Additional VWAP Purchase Price therefor on the applicable Additional VWAP Purchase Date in accordance with this Agreement
(each such purchase, an “Additional VWAP Purchase”); provided, however, that the
Investor’s aggregate committed obligation under a VWAP Purchase and all Additional VWAP Purchases on the applicable Additional
VWAP Purchase Date, which Additional VWAP Purchase Date shall be the same Trading Day as the applicable VWAP Purchase Date for such
VWAP Purchase, shall not exceed $2,000,000 in the aggregate for such VWAP Purchase and all such Additional VWAP Purchases,
collectively. The Company may deliver an Additional VWAP Purchase Notice, in the Form attached hereto as Annex 2.3, to the Investor
only (i) on a Trading Day that is also the VWAP Purchase Date for a VWAP Purchase with respect to which the Company properly
submitted to the Investor a VWAP Purchase Notice in accordance with this Agreement on the applicable Fixed Purchase Date for a Fixed
Purchase of an amount of Shares not less than the applicable Fixed Purchase Maximum Amount (calculated as of the applicable Fixed
Purchase Date) and (ii) if all Shares subject to all prior Fixed Purchase Notices, VWAP Purchase Notices, and Additional VWAP
Purchase Notices, including, without limitation, all prior VWAP Purchases and Additional VWAP Purchases effected on the same Trading
Day as the Additional VWAP Purchase Date on which the applicable Additional VWAP Purchase is to be effected, as applicable, have
theretofore been received by the Investor as DWAC Shares. The Investor is obligated to accept each Additional VWAP Purchase Notice
prepared and delivered by the Company in accordance with the terms of and subject to the satisfaction of the conditions contained in
this Agreement. If the Company delivers any Additional VWAP Purchase Notice directing the Investor to purchase an Additional VWAP
Purchase Share Amount in excess of the applicable Additional VWAP Purchase Maximum Amount that the Company is then permitted to
include in such Additional VWAP Purchase Notice, such Additional VWAP Purchase Notice shall be void ab initio to the extent
of the amount by which the Additional VWAP Purchase Share Amount set forth in such Additional VWAP Purchase Notice exceeds such
applicable Additional VWAP Purchase Maximum Amount, and the Investor shall have no obligation to purchase such excess Shares in
respect of such Additional VWAP Purchase Notice; provided, however, that the Investor shall remain obligated to
purchase the applicable Additional VWAP Purchase Maximum Amount in such Additional VWAP Purchase At or prior to 9:30 a.m., New York
City time, on the Trading Day immediately following the Additional VWAP Purchase Date for each Additional VWAP Purchase, the
Investor shall provide to the Company a written confirmation of such Additional VWAP Purchase setting forth the applicable
Additional VWAP Purchase Share Amount and Additional VWAP Purchase Price for such Additional VWAP Purchase (each, an
“Additional VWAP Purchase Confirmation”).
Section 2.4.
Compliance with Rules of Trading Market.
(a)
Share Issuance Restriction. The Company shall not issue or sell any shares of Common Stock pursuant to this Agreement,
and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent that after giving
effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and the transactions contemplated
hereby, including the Commitment Shares, would exceed 332,876 (representing 19.99% of the shares of Common Stock issued and outstanding
immediately prior to the execution of this Agreement), which number of shares shall be reduced, on a share-for-share basis, by the number
of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with the transactions
contemplated by this Agreement under applicable rules of the Trading Market (such maximum number of shares of Common Stock issuable by
the Company under this Agreement, the “Aggregate Limit”).
(b)
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 2.4 shall be implemented in a manner otherwise than in strict conformity with the terms of this Section
2.4 only if necessary to ensure compliance with the Securities Act and the applicable rules of the Trading Market.
Section 2.5.
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 or oral request of the Investor, the Company shall promptly (but not later than the next business day on which the Transfer
Agent is open for business) confirm orally or in writing to the Investor the number of shares of Common Stock outstanding as of the most
recent date for which the Transfer Agent has such information. The Investor and the Company shall each cooperate in good faith in the
determinations required under this Section 2.5 and the application of this Section 2.5. 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 2.5 shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2.5 to the extent necessary
to properly give effect to the limitations contained in this Section 2.5.
Section 2.6. Commitment
Fee. In consideration for the Investor’s execution and delivery of this Agreement,
the Company shall pay the Commitment Fee (which may be paid in the sole discretion of the Company in the form of cash or Commitment
Shares) to the Investor or its designee (in which case such designee name shall have been provided to the Company prior to January
2, 2025) not later than 4:00 p.m. (New York City time) on the later of (i) January 2, 2025 and (ii) the Trading Day following the
date on which Stockholder Approval is obtained. All of the Commitment Shares, if any, shall be included in the Registration
Statement. For the avoidance of doubt, the Commitment Fee shall be fully earned as of the Closing Date, regardless of whether any
Fixed Purchases or VWAP Purchases are effected hereunder and regardless of any subsequent termination of this Agreement; provided,
that in the event that any issuance of Commitment Shares to the Investor would result in the Investor exceeding the Beneficial
Ownership Limitation, then any such Commitment Shares in excess of the Beneficial Ownership Limitation shall be held in abeyance for
the Investor until such time, if ever, as its rights thereto would not result in the Investor exceeding the Beneficial Ownership
Limitation.
Article
III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE INVESTOR
The Investor hereby makes
the following representations, warranties and covenants to the Company:
Section 3.1. 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 Montana.
Section 3.2.
Authorization and Power. The Investor has the requisite limited liability company power and authority to enter into
and perform its obligations under this Agreement and the Registration Rights Agreement and to purchase or acquire the Securities in accordance
with the terms hereof. The execution, delivery and performance by the Investor of this Agreement and the Registration Rights Agreement
and the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary limited liability
company action, and no further consent or authorization of the Investor, its Board of Directors or its members is required. Each of this
Agreement and the Registration Rights Agreement has been duly executed and delivered by the Investor and constitutes a valid and binding
obligation of the Investor enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship, receivership, or similar laws relating to, or affecting
generally the enforcement of, creditor’s rights and remedies or by other equitable principles of general application (including
any limitation of equitable remedies).
Section 3.3.
No Conflicts. The execution, delivery and performance by the Investor of this Agreement and the Registration Rights
Agreement and the consummation by the Investor of the transactions contemplated hereby and thereby do not and shall not (i) result in
a violation of such Investor’s certificate of formation, limited liability company agreement or other applicable organizational
instruments, (ii) conflict with, constitute a default (or an event which, with notice or lapse of time or both, would become a default)
under, or give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement, mortgage, deed of
trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Investor is a party or is bound, (iii) create
or impose any lien, charge or encumbrance on any property of the Investor under any agreement or any commitment to which the Investor
is party or under which the Investor is bound or under which any of its properties or assets are bound, or (iv) result in a violation
of any federal, state, local or foreign statute, rule, or regulation, or any order, judgment or decree of any court or governmental agency
applicable to the Investor or by which any of its properties or assets are bound or affected, except, in the case of clauses (ii), (iii)
and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually
or in the aggregate, prohibit or otherwise interfere with, in any material respect, the ability of the Investor to enter into and perform
its obligations under this Agreement and the Registration Rights Agreement. The Investor is not required under any applicable federal,
state, local or foreign law, rule or regulation to obtain any consent, authorization or order of, or make any filing or registration with,
any court or governmental agency in order for it to execute, deliver or perform any of its obligations under this Agreement and the Registration
Rights Agreement or to purchase or acquire the Securities in accordance with the terms hereof; provided, however, that for
purposes of the representation made in this sentence, the Investor is assuming and relying upon the accuracy of the relevant representations
and warranties and the compliance with the relevant covenants and agreements of the Company in the Transaction Documents to which it is
a party.
Section 3.4. Investment
Purpose. The Investor is acquiring the Securities for its own account, for investment purposes and not with a view towards,
or for resale in connection with, the public sale or distribution thereof, except pursuant to sales registered under or exempt from
the registration requirements of the Securities Act; provided, however, that by making the representations herein, the
Investor does not agree, or make any representation or warranty, to hold any of the Securities for any minimum or other specific
term and reserves the right to dispose of the Securities at any time in accordance with, or pursuant to, a registration statement
filed pursuant to the Registration Rights Agreement or an applicable exemption under the Securities Act. The Investor does not
presently have any agreement or understanding, directly or indirectly, with any Person to sell or distribute any of the
Securities.
Section 3.5.
Accredited Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)
of Regulation D.
Section 3.6.
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 upon
the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of the Investor
to acquire the Securities.
Section 3.7.
Information. All materials relating to the business, financial condition, management and operations of the Company
and materials relating to the offer and sale of the Securities which have been requested by the Investor have been furnished or otherwise
made available to the Investor or its advisors, including, without limitation, the Commission Documents. The Investor understands that
its investment in the Securities involves a high degree of risk. The Investor is able to bear the economic risk of an investment in the
Securities and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks
of a proposed investment in the Securities. The Investor and its advisors have been afforded the opportunity to ask questions of and receive
answers from representatives of the Company concerning the financial condition and business of the Company and other matters relating
to an investment in the Securities. Neither such inquiries nor any other due diligence investigations conducted by the Investor or its
advisors, if any, or its representatives shall modify, amend or affect the Investor’s right to rely on the Company’s representations
and warranties contained in this Agreement or in any other Transaction Document to which the Company is a party or the Investor’s
right to rely on any other document or instrument executed and/or delivered in connection with this Agreement or the consummation of the
transaction contemplated hereby (including, without limitation, the opinions of the Company’s counsel delivered pursuant to Section
6.2(xvi)). The Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment
decision with respect to its acquisition of the Securities. The Investor understands that it (and not the Company) shall be responsible
for its own tax liabilities that may arise as a result of this investment or the transactions contemplated by this Agreement.
Section 3.8.
No Governmental Review. The Investor understands that no United States federal or state agency or any other government
or governmental agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of the
investment in the Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
Section 3.9. 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 3.10.
Not an Affiliate. The Investor is not an officer, director or an Affiliate of the Company. As of the date of this Agreement,
the Investor does not beneficially own any shares of Common Stock or securities exercisable for or convertible into shares of Common Stock,
and during the Restricted Period, Investor will not acquire beneficial ownership of any shares of the Company’s capital stock (including
shares of Common Stock or securities exercisable for or convertible into shares of Common Stock) other than pursuant to this Agreement;
provided, however, that nothing in this Agreement shall prohibit or be deemed to prohibit the Investor from purchasing,
in an open market transaction or otherwise, shares of Common Stock necessary to make delivery by the Investor in satisfaction of a sale
by the Investor of Shares that the Investor anticipated receiving from the Company in connection with the settlement of a Fixed Purchase,
VWAP Purchase or Additional VWAP Purchase, as applicable, if the Company or the Transfer Agent shall have failed for any reason to electronically
transfer all of the Shares subject to such Fixed Purchase, VWAP Purchase or Additional VWAP Purchase, as applicable, to the Investor by
crediting the Investor’s or its designated Broker-Dealer’s account at DTC through its DWAC delivery system, at or prior to
the applicable time required by and otherwise in compliance with Section 2.4 of this Agreement.
Section 3.11.
No Prior Short Sales. At no time prior to the date of this Agreement has any of the Investor, its agents, representatives
or Affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any (i) “short sale” (as such term
is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net
short position with respect to the Common Stock.
Section 3.12.
Statutory Underwriter Status. The Investor acknowledges that it will be disclosed as an “underwriter” and
a “selling stockholder” in the Registration Statement and in any Prospectus contained therein to the extent required by applicable
law.
Article
IV
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 4.1. Organization,
Good Standing and Power. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified to
conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary, except where the failure to be so qualified or in
good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding
has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and
authority or qualification.
Section 4.2.
Authorization, Enforcement. Each of the Company and its Subsidiaries has the requisite corporate or other power and
authority to enter into and perform its obligations under each of the Transaction Documents to which it is a party and, in the case of
the Company, 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 and Stockholder Approval as may be required in connection with any issuance and sale of Shares to
the Investor hereunder (which approvals shall be obtained prior to the delivery of any Fixed Purchase Notice, any VWAP Purchase Notice
and any Additional VWAP Purchase Notice), the execution, delivery and performance by the Company of each of the Transaction Documents
to which it is a party and the consummation by it of the transactions contemplated hereby and thereby have been duly and validly authorized
by all necessary corporate or other action (as applicable) on the part of the Company, and no further consent or authorization of the
Company or its Board of Directors or its stockholders, or any other Person is required in order for the Company to execute, deliver and
perform its respective obligations under the Transaction Documents to which it is a party. Each of the Transaction Documents to which
the Company is a party has been duly executed and delivered by the Company and, following Stockholder Approval, 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 4.3. Capitalization.
All of the outstanding shares of capital stock of the Company and each of its Subsidiaries have been duly and validly authorized and
issued and are fully paid and non-assessable, and, except as otherwise set forth in the Commission Documents, all outstanding shares
of capital stock or membership interests of the Subsidiaries are owned by the Company either directly or through wholly owned
Subsidiaries and are free and clear of any perfected security interest or any other security interests, claims, liens or
encumbrances. Except as set forth in the Commission Documents and this 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 capital stock of the Company are entitled to preemptive rights and there are no outstanding debt
securities and no contracts, commitments, understandings, or arrangements by which the Company is or may become bound to issue
additional shares of the capital stock of the Company or options, warrants, scrip, rights to subscribe to, calls or commitments of
any character whatsoever relating to, or securities or rights convertible into or exchangeable for, any shares of capital stock of
the Company other than those issued or granted in the ordinary course of business pursuant to the Company’s equity incentive
and/or compensatory plans or arrangements. Except for customary transfer restrictions contained in agreements entered into by the
Company to sell restricted securities or as set forth in the Commission Documents, the Company is not a party to, and it has no
Knowledge of, any agreement restricting the voting or transfer of any shares of the capital stock of the Company. Except as set
forth in the Commission Documents, there are no securities or instruments containing anti-dilution or similar provisions that will
be triggered by this Agreement or any of the other Transaction Documents or the consummation of the transactions described herein or
therein. The Company has made available via EDGAR true and correct copies of the Company’s Amended and Restated Certificate of
Incorporation as amended to date as in effect on the Commencement Date (the “Charter”), and the Company’s
Amended and Restated Bylaws as in effect on the Commencement Date (the “Bylaws”).
Section 4.4.
Issuance of Securities. The Shares to be issued under this Agreement have been, or with respect to Shares to be purchased
by the Investor pursuant to a particular Fixed Purchase Notice, a particular VWAP Purchase Notice or a particular Additional VWAP Purchase
Notice, will be, prior to the delivery to the Investor hereunder of such Fixed Purchase Notice, VWAP Purchase Notice, Additional VWAP
Purchase Notice, respectively, duly authorized by all necessary corporate action on the part of the Company. Following Stockholder Approval,
the Commitment Shares, if and 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. Following Stockholder
Approval, 2,250,000 shares of Common Stock will be duly authorized and reserved by the Company for issuance and sale by the Company to
the Investor as Shares under this Agreement, and 147,750,000 shares of Common Stock have been duly authorized and reserved by the Company
for issuance by the Company to the Investor as Commitment Shares under this Agreement.
Section 4.5. No
Conflicts. The execution, delivery and performance by the Company of each of the Transaction Documents to which it is a
party and the consummation by the Company of the transactions contemplated hereby and thereby do not and shall not (i) result in a
violation of any provision of the Company’s Charter or Bylaws, (ii) conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default (or an event which, with notice or lapse of time or both, would become a
default) under, or give rise to any rights of termination, amendment, acceleration or cancellation of, any material agreement,
mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company or of the
Company’s Subsidiaries is a party or is bound, except as set forth on Schedule 4.5, (iii) create or impose a lien,
charge or encumbrance on any property or assets of the Company or of the Company’s Subsidiaries under any agreement or any
commitment to which the Company or of the Company’s Subsidiaries is a party or by which the Company or of the Company’s
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 of the
Company’s Subsidiaries or by which any property or asset of the Company or of the Company’s Subsidiaries are bound or
affected (including federal and state securities laws and regulations and the rules and regulations of the Trading Market), except,
in the case of clauses (ii), (iii) and (iv), for such conflicts, defaults, terminations, amendments, acceleration, cancellations,
liens, charges, encumbrances and violations as would not, individually or in the aggregate, have a Material Adverse Effect. Except
as specifically contemplated by this Agreement or the Registration Rights Agreement, including but not limited to the requirement to
obtain Stockholder Approval, and as required under the Securities Act and any applicable state securities laws, the Company is not
required under any federal, state, local or foreign law, rule or regulation to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency (including, without limitation, the Trading Market) in order
for it to execute, deliver or perform any of its respective 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 4.6.
Commission Documents, Financial Statements; Disclosure Controls and Procedures; Internal Controls Over Financial Reporting;
Accountants.
(a) The Company has timely
filed (giving effect to permissible extensions in accordance with Rule 12b-25 under the Exchange Act) all Commission Documents for
the twelve months preceding the date of this Agreement required to be filed by it (the “Filed Commission
Documents”). The Company has delivered or made available to the Investor via EDGAR or otherwise true and complete
copies of the Filed Commission Documents prior to the Closing Date. As of its filing date, each Commission Document complied in all
material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other federal, state and local
laws, rules and regulations applicable to it, and, as of its filing date (or, if amended or superseded by a filing prior to the
Closing Date, on the date of such amended or superseded filing). Each Registration Statement, on the date it is filed with the
Commission, on the date it is declared effective by the Commission, on each Fixed Purchase Date, each VWAP Purchase Date and each
Additional VWAP Purchase Date, shall comply in all material respects with the requirements of the Securities Act (including, without
limitation, Rule 415 under the Securities Act) and shall not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the statements therein not misleading, except that this
representation and warranty shall not apply to statements in or omissions from such Registration Statement made in reliance upon and
in conformity with information relating to the Investor furnished to the Company in writing by or on behalf of the Investor
expressly for use therein. The Prospectus and each Prospectus Supplement required to be filed pursuant to this Agreement or the
Registration Rights Agreement after the Closing Date, when taken together, on its date, on each Fixed Purchase Date, each VWAP
Purchase Date and each Additional VWAP Purchase Date, shall comply in all material respects with the requirements of the Securities
Act (including, without limitation, Rule 424(b) under the Securities Act) and shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, except that this representation and warranty shall not apply to
statements in or omissions from the Prospectus or any Prospectus Supplement made in reliance upon and in conformity with information
relating to the Investor furnished to the Company in writing by or on behalf of the Investor expressly for use therein. Each
Commission Document to be filed with or furnished to the Commission after the Closing Date and filed as part of or incorporated by
reference in the Registration Statement, or the Prospectus included therein or any Prospectus Supplement thereto required to be
filed pursuant to this Agreement or the Registration Rights Agreement (including, without limitation, the Current Report), when such
document is filed with or furnished to the Commission and, if applicable, when such document becomes effective, as the case may be,
shall comply in all material respects with the requirements of the Securities Act or the Exchange Act, as applicable, and other
federal, state and local laws, rules and regulations applicable to it. 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. To the Company’s Knowledge, the Commission has not commenced any enforcement proceedings against the Company or any of
its Subsidiaries.
(b)
The financial statements and schedules of the Company and its consolidated Subsidiaries to be filed as part of or incorporated
by reference in the Registration Statement, or the Prospectus included therein or any Prospectus Supplement thereto, present fairly in
all material respects the financial condition, results of operations and cash flows of the Company and its consolidated Subsidiaries as
of the dates and for the periods indicated, comply as to form with the applicable accounting requirements of Regulation S-X, and have
been prepared in conformity with United States generally accepted accounting principles (“GAAP”) applied on
a consistent basis throughout the periods involved (except as otherwise noted therein). The interactive data in eXtensible Business Reporting
Language included or incorporated by reference in the Commission Documents, the Registration Statement fairly presents the information
called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
The statistical and market-related data included or incorporated by reference in the Commission Documents or any Registration Statement
are based on or derived from sources that the Company believes, after reasonable inquiry, to be reliable and accurate and, to the extent
required, the Company has obtained the written consent to the use of such data from such source, except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect.
(c) The Company and the
Subsidiaries have established and maintain disclosure controls and procedures (as such term is defined in Rule 13a-15 and 15d-15
under the Exchange Act). Such disclosure controls and procedures are designed to ensure that material information relating to the
Company and its Subsidiaries is made known to the Company’s Chief Executive Officer and its Chief Financial Officer by others
within those entities, and except as disclosed in the Commission Documents, such disclosure controls and procedures are effective to
perform the functions for which they were established. The Company and the Subsidiaries have established and maintain internal
control over financial reporting (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act). Except as disclosed in
Commission Documents, such internal control over financial reporting is designed to provide reasonable assurance that
(A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with management’s general or specific authorization; (D) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences; and (E) the interactive data in eXtensible Business Reporting Language in the Commission Documents
fairly presents the information called for in all material respects and are prepared in accordance with the Commission’s rules
and guidelines applicable thereto. The Company’s auditors and the Audit Committee of the Board of Directors of the Company
have been advised of: (i) any significant deficiencies and material weaknesses in the design or operation of internal controls
which could adversely affect the Company’s ability to record, process, summarize, and report financial data; and (ii) any
fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal
controls. Since the date of the most recent evaluation of such disclosure controls and procedures, except as disclosed in Commission
Documents, there have been (A) no material weakness in the Company’s internal control over financial reporting (whether
or not remediated) and (B) no significant changes in internal controls or in other factors that could significantly affect
internal controls, including any corrective actions with regard to significant deficiencies.
(d)
The Company is in compliance with all applicable provisions of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations
thereunder, which are applicable to it as of the date hereof.
(e)
The Company’s accountants are set forth in the Commission Documents and, to the Knowledge of the Company, such accountants
are an independent registered public accounting firm as required by the Securities Act.
Section 4.7.
Subsidiaries. The Filed Commission Documents set forth each subsidiary (each, a “Subsidiary,”
and collectively, the “Subsidiaries”), of the Company as of the Commencement Date, other than those that may
be omitted pursuant to Item 601 of Regulation S-K, showing its jurisdiction of incorporation or organization, and the Company does not
have any other Subsidiaries as of the Commencement Date. 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 or incorporate by reference in, or contemplated by,
the Registration Statement and the Prospectus, or as would not reasonably be expected to have a Material Adverse Effect.
Section 4.8. No
Material Adverse Effect or Material Adverse Change, No Undisclosed Liabilities. Except as otherwise disclosed in any
Commission Document, since the end of the Company’s most recent audited fiscal year: (i) the Company has not experienced or
suffered any Material Adverse Effect, and, to the Company’s Knowledge, there exists no current state of facts, condition or
event which would have a Material Adverse Effect; (ii) there has not occurred any material adverse change, or any development
that would reasonably be expected to result in a prospective material adverse change, in the condition, financial or otherwise, or
in the earnings, business or operations of the Company from that set forth in the Commission Documents, including, without
limitation, as a result of the outbreak of COVID-19, or as a result of any measures intended to contain the outbreak of COVID-19
imposed by any federal, state, local or foreign government or government agency in any country or region in which the Company, or
any of its agents, consultants, advisors or vendors, has assets or properties or conducts business, including, without limitation,
any limitations, curtailments, suspensions or closures of businesses, business offices or establishments, schools, properties and
other public areas due to quarantines, curfews, travel restrictions, workplace controls, “stay-at-home” orders, social
distancing requirements or guidelines or other public gathering restrictions or limitations; (iii) neither the Company nor any of
its Subsidiaries has incurred any material liability or obligation, direct or contingent, nor entered into any material transaction;
(iv) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary and customary dividends; and (v) there has not been any
material change in the capital stock, short-term debt or long-term debt of the Company.
Neither the Company nor any
of its Subsidiaries has any liabilities, obligations, claims or losses (whether liquidated or unliquidated, secured or unsecured, absolute,
accrued, contingent or otherwise) that would be required to be disclosed on a balance sheet of the Company or any Subsidiary (including
the notes thereto) in conformity with GAAP and are not disclosed in the Commission Documents, other than those incurred in the ordinary
course of the Company’s or its Subsidiaries respective businesses and which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
Section 4.9.
No Undisclosed Events or Circumstances. Except as set forth on Schedule 4.9, no event, liability, development
or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the Company, any of its Subsidiaries
or any of their respective businesses, properties, liabilities, prospects, operations (including results thereof) or condition (financial
or otherwise), that (i) would be required to be disclosed by the Company under applicable securities laws in the Registration Statement
or the Prospectus, which has not been disclosed or incorporated by reference in the Registration Statement and the Prospectus, or (ii)
would reasonably be expected to have a Material Adverse Effect.
Section 4.10.
Indebtedness. The Filed Commission Documents set forth all outstanding secured and unsecured Indebtedness of the Company
or any Subsidiary, or for which the Company or any Subsidiary has commitments through such date. For the purposes of this Agreement, “Indebtedness”
shall mean (a) any liabilities for borrowed money or amounts owed in excess of $100,000 (other than trade accounts payable incurred in
the ordinary course of business), (b) all guaranties, endorsements, indemnities and other contingent obligations in respect of Indebtedness
of others in excess of $100,000, whether or not the same are or should be reflected in the Company’s balance sheet (or the notes
thereto), except guaranties by endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary
course of business; and (c) the present value of any lease payments in excess of $100,000 due under leases required to be capitalized
in accordance with GAAP. Except as set forth on Schedule 4.10, there is no existing or continuing default or event of default in
respect of any Indebtedness of the Company or any of its Subsidiaries. The Company has not taken any steps, and does not currently expect
to take any steps, to seek protection pursuant to Title 11 of the United States Code or any similar federal or state bankruptcy law or
law for the relief of debtors, nor does the Company have any Knowledge that its creditors intend to initiate involuntary bankruptcy, insolvency,
reorganization or liquidation proceedings or other proceedings for relief under Title 11 of the United States Code or any other federal
or state bankruptcy law or any law for the relief of debtors.
Section 4.11. Title
to Assets. Except as disclosed in the Commission Documents, the Company and each of its Subsidiaries have good and
marketable title in fee simple to all real property and good and marketable title to all personal property owned by them which is
material to the business of the Company, in each case free and clear of all liens, encumbrances and defects except such as are
described or incorporated by reference in the Registration Statement and the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by it under valid,
subsisting and enforceable leases with such exceptions as are not material and do not interfere in any material respect with the use
made and proposed to be made of such property and buildings by the Company and its Subsidiaries, in each case except as described or
incorporated by reference in the Registration Statement and the Prospectus
Section 4.12.
Actions Pending. Except as disclosed in Commission Documents, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, government agency, self-regulatory organization or body pending or, to the Knowledge of the Company,
threatened against or affecting the Company or any of the Subsidiaries, or any of their respective officers or directors in their capacities
as such, which would reasonably be expected to have a Material Adverse Effect.
Section 4.13.
Compliance With Laws. During the 12-month period immediately preceding the date hereof, except as described in the Filed
Commission Documents, the Company and each of its Subsidiaries is and at all times has been in material compliance with all applicable
U.S. and foreign statutes, rules, or regulations applicable to Company and its Subsidiaries (“Applicable Laws”),
except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 4.14.
Certain Fees. Except as set forth on Schedule 4.14, no brokerage or finder’s fees or commissions are or
will be payable by the Company or of the Subsidiaries 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
4.14 incurred by the Company or of the Subsidiaries that may be due or payable in connection with the transactions contemplated by the
Transaction Documents.
Section 4.15.
Operation of Business. The Company and the Subsidiaries possess or have obtained, all material licenses, certificates,
consents, orders, approvals, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate
federal, state, local or foreign governmental entity that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as currently conducted, as described or incorporated by reference in the Registration Statement
and the Prospectus (the “Permits”), except where the failure to possess, obtain or make the same would not,
individually or in the aggregate, have a Material Adverse Effect. Neither the Company nor any Subsidiary has received written notice of
any proceeding relating to revocation or modification of any such Permit or has any reason to believe that such Permit will not be renewed
in the ordinary course, except where the failure to obtain any such renewal would not, individually or in the aggregate, have a Material
Adverse Effect. This Section 4.15 does not relate to environmental matters, such items being the subject of Section 4.16.
Section 4.16. Environmental
Compliance. Other than as set forth on Schedule 4.16, to the Knowledge of the Company, the Company and its
Subsidiaries are not in violation of any statute, any rule, regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances (collectively,
“Environmental Laws”), owns or operates any real property contaminated with any substance that is subject
to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or subject to
any claim relating to any Environmental Laws, which violation, contamination, liability or claim would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and the Company is not aware of any pending investigation which
might lead to such a claim. Other than as set forth or incorporated by reference in the Registration Statement and the Prospectus,
there is no judgment, decree, injunction, rule, writ or order of any governmental entity under any Environmental Laws outstanding
against the Company and its Subsidiaries which would, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
Section 4.17. Material
Agreements. Except as set forth in the Commission Documents, neither the Company nor any Subsidiary
of the Company is a party to any written or oral contract, instrument, agreement commitment, obligation, plan or arrangement (collectively,
“Material Agreements”). Each of the Material Agreements described in the
Commission Documents conform in all material respects to the descriptions thereof contained or incorporated by reference therein. Except
as set forth in Schedule 4.17, the Company and each of its Subsidiaries have performed in all material respects all the obligations
then required to be performed by them under the Material Agreements, have received no notice of default or an event of default by the
Company or any of its Subsidiaries thereunder and are not aware of any basis for the assertion thereof, and neither the Company or any
of its Subsidiaries nor, to the Knowledge of the Company, any other contracting party thereto are in default under any Material Agreement
now in effect, the result of which would have a Material Adverse Effect. Except as set forth in the Commission Documents, each of the
Material Agreements is in full force and effect, and constitutes a legal, valid and binding obligation enforceable in accordance with
its terms against the Company and/or any of its Subsidiaries and, to the Knowledge of the Company, each other contracting party thereto,
except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, liquidation, conservatorship,
receivership or similar laws relating to, or affecting generally the enforcement of, creditor’s rights and remedies or by other
equitable principles of general application.
Section 4.18.
Transactions With Affiliates. Except as disclosed in the Commission Documents, none of the Company’s, officers
or directors, or to the Company’s Knowledge, none of the Company’s stockholders or any family member or Affiliate of any of
the foregoing, has either directly or indirectly an interest in, or is a party to, any transaction that would be required to be disclosed
as a related party transaction pursuant to Item 404 of Regulation S-K promulgated under the Securities Act.
Section 4.19. Intellectual
Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material trademarks,
trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted,
except as would not reasonably be expected to have a Material Adverse Effect. None of the Company’s material trademarks, trade
names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, government authorizations, trade secrets or other intellectual property rights have expired or terminated, or, by the
terms and conditions thereof, will expire or terminate within two years from the date of this Agreement, except as would not
reasonably be expected to have a Material Adverse Effect. The Company has no Knowledge of any infringement by the Company or the
Subsidiaries of any material trademark, trade name rights, patents, patent rights, copyrights, inventions, licenses, service names,
service marks, service mark registrations, trade secret or other similar rights of others, or of any such development of similar or
identical trade secrets or technical information by others, and there is no claim, action or proceeding being made or brought
against, or to the Company’s Knowledge, being threatened against, the Company or the Subsidiaries regarding trademark, trade
name, patents, patent rights, invention, copyright, license, service names, service marks, service mark registrations, trade secret
or other infringement, which would reasonably be expected to have a Material Adverse Effect.
Section 4.20.
Use of Proceeds. The proceeds from the sale of the Shares by the Company to the Investor shall be used by the Company
in the manner as will be set forth in the Prospectus included in any Registration Statement (and any post-effective amendment thereto)
and any Prospectus Supplement thereto filed pursuant to the Registration Rights Agreement.
Section 4.21.
Investment Company Act Status. The Company is not required to be registered as, and immediately after receipt of payment
for the Shares will not be required to be registered as, an “investment company” within the meaning of the Investment Company
Act of 1940, as amended.
Section 4.22.
Benefit Plans; Labor Matters. Except as set forth on Schedule 4.22, each benefit and compensation plan, agreement,
policy and arrangement that is maintained, administered or contributed to by the Company for current or former employees or directors
of, or independent contractors with respect to, the Company has been maintained in material compliance with its terms and the requirements
of any applicable statutes, orders, rules and regulations, and the Company has complied in all material respects with all applicable statutes,
orders, rules and regulations in regard to such plans, agreements, policies and arrangements. Each stock option granted under any equity
incentive plan of the Company (each, a “Stock Plan”) was granted with a per share exercise price no less than
the market price per common share on the grant date of such option in accordance with the rules of the Trading Market, and no such grant
involved any “back-dating,” “forward-dating” or similar practice with respect to the effective date of such grant;
each such option (i) was granted in compliance in all material respects with Applicable Laws and with the applicable Stock Plan(s),
(ii) was duly approved by the Company’s Board of Directors, and (iii) has been properly accounted for in the Company’s
financial statements and disclosed, to the extent required, in the Company’s filings or submissions with the Commission, and the
Trading Market. Neither the Company nor any Subsidiary is in violation of or has received written notice of any violation with respect
to any federal or state law, regulation or rule relating to discrimination in the hiring, termination, promotion, employment or pay of
employees, nor any applicable federal or state wages and hours law, nor any state law, regulation or rule precluding the denial of credit
due to the neighborhood in which a property is situated, the violation of any of which, individually or in the aggregate, would reasonably
be expected to have a Material Adverse Effect. There are no existing or, to the Knowledge of the Company, threatened labor disputes with
the employees of the Company or any of the Subsidiaries that would reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
Section 4.23. Taxes.
Except as set forth on Schedule 4.23, each of the Company and the
Subsidiaries has filed on a timely basis (including in accordance with any applicable extensions) all material necessary federal, state,
local and foreign income and franchise tax returns required to be filed through the date hereof or have properly requested extensions
thereof, and have paid all taxes shown as due thereon, and if due and payable, any related or similar assessment, fine or penalty levied
against the Company or of the Subsidiaries. Except as disclosed in the Commission Documents, no material tax deficiency has been asserted
against any such entity, and the Company has no Knowledge of any tax deficiency that is likely to be asserted against any such entity
that, individually or in the aggregate, if determined adversely to any such entity, would reasonably be expected to have a Material Adverse
Effect. All material tax liabilities are adequately provided for on the respective books of the Company and the Subsidiaries.
Section 4.24.
Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against
such losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which
the Company and its Subsidiaries are engaged, including, but not limited to, insurance covering real and personal property owned or leased
by the Company and the Subsidiaries against theft, damage, destruction, environmental liabilities, acts of vandalism, terrorism, earthquakes,
flood and all other risks customarily insured against, all of which insurance is in full force and effect. Neither the Company nor any
such Subsidiary has been refused any insurance coverage sought or applied for and neither the Company nor any such Subsidiary has any
reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that would not reasonably be expected to have a
Material Adverse Effect.
Section 4.25.
Dilutive Effect. The Company is aware and acknowledges that issuance of the Securities could cause dilution to existing
stockholders and could significantly increase the outstanding number of shares of Common Stock. The Company further acknowledges that
its obligation to issue the Commitment Shares (if it elects to pay the Commitment Fee in Commitment Shares) and to issue the Shares pursuant
to the terms of a Fixed Purchase, VWAP Purchase or Additional VWAP Purchase in accordance with this Agreement is, in each case, unconditional
regardless of the dilutive effect that such issuance may have on the ownership interests of other stockholders of the Company.
Section 4.26. Manipulation
of Price. The Company has not, and to its Knowledge no Person acting on its behalf has, (i)
taken, directly or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security
of the Company 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 4.27. Securities
Act. The Company has complied and shall comply with all applicable federal and state securities laws in connection with the
offer, issuance and sale of the Securities hereunder, including, without limitation, the applicable requirements of the Securities
Act. Each Registration Statement, upon filing with the Commission and at the time it is declared effective by the Commission, shall
satisfy all of the requirements of the Securities Act to register the resale of the Registrable Securities included therein by the
Investor in accordance with the Registration Rights Agreement on a delayed or continuous basis under Rule 415 under the Securities
Act at then-prevailing market prices, and not fixed prices. The Company is not, and has not previously been at any time, an issuer
identified in, or subject to, Rule 144(i).
Section 4.28.
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 pursuant to the Exchange Act nor has the Company received any notification that the Commission is
currently contemplating terminating such registration. Except as disclosed in the Filed Commission Documents, the Company has not, in
the twelve (12) months preceding the date hereof, received any written notice from any Person to the effect that the Company is not in
compliance with the listing or maintenance requirements of the Trading Market. Except as disclosed in the Commission Documents, the Company
is in compliance with all such listing and maintenance requirements of the Trading Market. The Common Stock is eligible for participation
in the DTC book entry system and has shares on deposit at DTC for transfer electronically to third parties via DTC through its DWAC delivery
system. The Company has not received notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits
of the Common Stock, electronic trading or book-entry services by DTC with respect to the Common Stock is being imposed or is contemplated.
Section 4.29.
Application of Takeover Protections. The Company and its Board of Directors have taken all necessary action, if any,
in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights
agreement) or other similar anti-takeover provision under the Company’s Charter or the laws of the State of Delaware 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 4.30.
Foreign Corrupt Practices. Neither the Company or Subsidiary, nor to the Knowledge of the Company, any agent or other
Person acting on behalf of the Company, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment
or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government
officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully
any contribution made by the Company (or made by any Person acting on its behalf of which the Company is aware) which is in violation
of law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”).
Section 4.31. Money
Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar
rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money
Laundering Laws”); and no action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the Knowledge
of the Company, threatened.
Section 4.32.
OFAC. Neither the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any director, officer, agent,
employee or Affiliate of the Company or any of its Subsidiaries (i) is currently subject to any sanctions administered by the U.S. government,
including the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) or the U.S. Department
of State, the United Nations Security Council, the European Union, or the United Kingdom (including sanctions administered or controlled
by Her Majesty’s Treasury) (collectively, “Sanctions” and such persons, “Sanctioned Persons”)
or other relevant sanctions authority, and (ii) will use the proceeds of this offering, directly or indirectly, to fund or facilitate
the activities of any Sanctioned Persons or entity or any country, region or territory that is, at the time of such funding or facilitation,
subject to Sanctions or any person or entity located in a country, region or territory subject to Sanctions (including any administered
or enforced by OFAC or the U.S. Department of State), the United Nations Security Council, the European Union, or the United Kingdom (including
sanctions administered or controlled by Her Majesty’s Treasury). Neither the Company nor any of its Subsidiaries nor, to the Knowledge
of the Company, any director, officer, agent, employee or Affiliate of the Company or any of its Subsidiaries, is a Person that is, or
is 50% or more owned or otherwise controlled by a Person that is: (i) the subject of any Sanctions; or (ii) located, organized or resident
in a country, region or territory that is, or whose government is, the subject of Sanctions that broadly prohibit dealings with that country,
region or territory (including at the time of this agreement, Cuba, Iran, North Korea, Syria and Crimea) (collectively, “Sanctioned
Countries” and each, a “Sanctioned Country”). The Company and its Subsidiaries have not engaged
in any dealings or transactions with or for the benefit of Sanctioned Persons, or with or in a Sanctioned Country, in the preceding 3
years, nor does the Company or any of its Subsidiaries have any plans to deal or transact with Sanctioned Persons, or with or in Sanctioned
Countries.
Section 4.33.
Information Technology; Compliance with Data Privacy Laws. To the best of the Company’s knowledge and as previously
disclosed under Commission Documents, (i) there have been no material breaches or violations of (or unauthorized access to) the Company,
or the Subsidiaries’ information technology assets and equipment, computers, systems, networks, hardware, software, websites, applications
and databases (collectively, the “IT Systems”) or any personal, personally identifiable, sensitive, confidential
or regulated data (collectively, “Personal Data”) processed or stored by or on behalf of the Company or the
Subsidiaries, except for those that have been remedied without material cost or liability or the duty to notify any regulator, nor are
there any pending internal investigations of the Company or the Subsidiaries relating to the same and (ii) the Company and the Subsidiaries
are presently in compliance in all material respects with all Applicable Laws, statutes and regulations and contractual obligations relating
to the privacy and security of IT Systems and Personal Data.
Section 4.34. No
Disqualification Events. None of the Company, any of their predecessors, any affiliated issuer, any director, general
partner 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 have exercised reasonable care to
determine whether any Issuer Covered Person is subject to a Disqualification Event.
Section 4.35.
ERISA. Except as set forth in the Commission Documents, the Company is not a party to an “employee benefit plan,”
as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), which:
(i) is subject to Title IV of ERISA and (ii) is or was at any time maintained, administered or contributed to by the Company or any of
its ERISA Affiliates (as defined hereafter). These plans are referred to collectively herein as the “Employee Plans.” An “ERISA
Affiliate” of any person or entity means any other person or entity which, together with that Person or entity, could be treated
as a single employer under Section 414(b), (c), (m) or (o) of the Code. Each Employee Plan has been maintained in material compliance
with its terms and the requirements of Applicable Law. Except as set forth or incorporated by reference in the Registration Statement
and the Prospectus, there is no liability in respect of post-retirement health and medical benefits for retired employees of the Company
or any of its ERISA Affiliates, other than medical benefits required to be continued under Applicable Law. No “prohibited transaction”
(as defined in either Section 406 of ERISA or Section 4975 of the Code) has occurred with respect to any Employee Plan; and each Employee
Plan that is intended to be qualified under Section 401(a) of the Code is so qualified, and nothing has occurred, whether by action or
by failure to act, which could cause the loss of such qualification.
Section 4.36.
No Other Similar Agreement. Except as disclosed in the Commission Documents, other than the Transaction Documents to
which it is a party, the Company is not a party to any agreement that is (or that contains any term, obligation or restriction that is)
in effect on the date hereof with any Person, other than the Investor, relating to any “at the market offering,” “equity
line of credit” or any other similar continuous offering in which the Company may offer, issue or sell Common Stock or Common Stock
Equivalents at a future determined price.
Section 4.37.
Acknowledgement Regarding Investor’s Acquisition of Securities. The Company acknowledges and agrees that the Investor
is acting solely in the capacity of an arm’s-length purchaser with respect to this Agreement and the transactions contemplated by
the Transaction Documents. The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the
Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated by the Transaction Documents, and
any advice given by the Investor or any of its representatives or agents in connection therewith is merely incidental to the Investor’s
acquisition of the Securities. The Company further represents to the Investor that the Company’s decision to enter into the Transaction
Documents to which it is a party has been based solely on the independent evaluation of the transactions contemplated thereby by the Company,
respectively, and their respective representatives. The Company acknowledges and agrees that the Investor has not made and does not make
any representations or warranties with respect to the transactions contemplated by the Transaction Documents other than those specifically
set forth in Article IV.
Article
V
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 5.1.
Securities Compliance. The Company shall notify the Commission and the Trading Market, if and as applicable, in accordance
with their respective rules and regulations, of the transactions contemplated by the Transaction Documents, and shall take all necessary
action, undertake all proceedings and obtain all registrations, permits, consents and approvals for the legal and valid issuance of the
Securities to the Investor in accordance with the terms of the Transaction Documents, as applicable.
Section 5.2.
Reservation of Common Stock. Following Stockholder Approval, the Company will have available and the Company will reserve
and keep available at all times, free of preemptive and other similar rights of stockholders, 150,000,000 shares of authorized but unissued
shares of Common Stock to enable the Company to timely effect the issuance, sale and delivery of all Shares pursuant to this Agreement.
As of the date of this Agreement the Company has reserved, and as of the Commencement Date shall have continued to reserve, out of its
authorized and unissued Common Stock, 147,750,000 shares of Common Stock solely for the purpose of effecting Fixed Purchases, VWAP Purchases
and Additional VWAP Purchases under this Agreement, and 2,250,000 shares of Common Stock solely for the purpose of issuing the Commitment
Shares. The number of shares of Common Stock so reserved for the purpose of issuing the Commitment Shares and effecting Fixed Purchases,
VWAP Purchases and Additional VWAP Purchases under this Agreement may be increased from time to time by the Company from and after the
Commencement Date, and such number of reserved shares may be reduced from and after the Commencement Date only by the number of Shares
actually issued, sold and delivered to the Investor pursuant to any Fixed Purchase, VWAP Purchase and Additional VWAP Purchase effected
from and after the Commencement Date pursuant to this Agreement.
Section 5.3. 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 by the Investor hereunder on the
Trading Market and to comply with the Company’s reporting, filing and other obligations under the rules and regulations of the
Trading Market. The Company shall not take any action which could be reasonably expected to result in the delisting or suspension of
the Common Stock on the Trading Market. If the Company receives any final and non-appealable notice that the listing or quotation of
the Common Stock on the Trading Market shall be terminated on a date certain, the Company shall promptly (and in any case within 24
hours) notify the Investor of such fact in writing and shall use its commercially reasonable efforts to cause the Common Stock to be
listed or quoted on another Eligible Market.
Section 5.4.
Compliance with Laws.
(i)
During the Investment Period, (a) the Company shall comply, and the Company shall cause each Subsidiary to comply, with all laws,
rules, regulations and orders applicable to the business and operations of the Company and the Subsidiaries, except as would not have
a Material Adverse Effect, and (b) the Company shall comply with all applicable provisions of the Securities Act and the Exchange Act,
including Regulation M thereunder, applicable state securities or “Blue Sky” laws, and applicable listing rules of the Trading
Market or Eligible Market, except as would not, individually or in the aggregate, prohibit or otherwise interfere with the ability of
the Company to enter into and perform its obligations under this Agreement in any material respect or for Investor to conduct resales
of Securities under the Registration Statement in any material respect. Without limiting the foregoing, none of the Company, or any of
the 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 respective businesses of the Company and the Subsidiaries, (1) use
any corporate funds for unlawful contributions, payments, gifts or entertainment or to make any unlawful expenditures relating to political
activity to government officials, candidates or members of political parties or organizations, (2) pay, accept or receive any unlawful
contributions, payments, expenditures or gifts, or (3) violate or operate in noncompliance with any export restrictions, anti-boycott
regulations, embargo regulations or other applicable domestic or foreign laws and regulations, including, without limitation, the FCPA
and the Money Laundering Laws.
(ii)
The Investor shall comply with all laws, rules, regulations and orders applicable to the performance by it of its obligations under
this Agreement and its investment in the Securities, except as would not, individually or in the aggregate, prohibit or otherwise interfere
with the ability of the Investor to enter into and perform its obligations under this Agreement in any material respect. Without limiting
the foregoing, the Investor shall comply with all applicable provisions of the Securities Act and the Exchange Act, including Regulation
M thereunder, and all applicable state securities or “Blue Sky” laws.
Section 5.5.
Keeping of Records and Books of Account; Due Diligence.
(i)
The Investor and the Company shall each maintain records showing the remaining the remaining Total Purchase Commitment, the remaining
Aggregate Limit and the dates and Fixed Purchase Share Amount, VWAP Purchase Share Amount and Additional VWAP Purchase Share Amount for
each Fixed Purchase, each VWAP Purchase and each Additional VWAP Purchase, respectively.
(ii) The
Investor shall have the right, from time to time as the Investor may reasonably deem appropriate, and upon reasonable advance notice
to the Company, to perform reasonable due diligence on the Company during normal business hours; provided, however,
that after the Closing Date, the Investor’s continued due diligence of the Company shall not be a condition precedent to, or
otherwise impair, delay or modify in any respect, the Company’s right to deliver to the Investor any Fixed Purchase Notice,
any VWAP Purchase Notice and any Additional VWAP Purchase Notice, or the Investor’s obligation to purchase the Shares subject
thereto, pursuant to this Agreement. The Company and its officers and employees shall provide information on a reasonably timely
basis and otherwise reasonably cooperate with the Investor in connection with any reasonable request by the Investor related to the
Investor’s due diligence of the Company.
Section 5.6.
No Frustration; Prohibition of Certain Issuances Before Settlement of Purchases; No Similar Transactions.
(i)
No Frustration. The Company shall not enter into, announce or recommend to the Company’s stockholders any agreement,
plan, arrangement or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability
or right of the Company to perform its obligations under the Transaction Documents to which it is a party, including, without limitation,
the obligation of the Company to deliver (i) the Commitment Shares to the Investor not later than 4:00 p.m. (New York time) on the later
of (A) January 2, 2025 and (B) the Trading Day following the date on which Stockholder Approval is obtained or, in its sole discretion,
to pay the Commitment Fee in cash, in accordance with Section 9(ii) of this Agreement, (ii) the Shares to the Investor in respect of a
Fixed Purchase as DWAC Shares not later than 10:00 a.m., New York City time, on the Trading Day immediately following the applicable Fixed
Purchase Date for such Fixed Purchase in accordance with Section 2.1 of this Agreement, (iii) the Shares to the Investor in respect of
a VWAP Purchase as DWAC Shares not later than 10:00 a.m., New York City time, on the Trading Day immediately following the applicable
VWAP Purchase Date for such VWAP Purchase in accordance with Section 2.2 of this Agreement, and (iv) Shares to the Investor in respect
of an Additional VWAP Purchase as DWAC Shares not later than 10:00 a.m., New York City time, on the Trading Day immediately following
the applicable Additional VWAP Purchase Date for such Additional VWAP Purchase in accordance with Section 2.3 of this Agreement. For the
avoidance of doubt, nothing in this Section 5.6(i) shall in any way limit the Company’s right to terminate this Agreement in accordance
with Section 7.2 (subject in all cases to Section 7.3).
(ii) No
Dilutive Issuances During Reference Periods. Neither the Company nor or any Subsidiary shall issue, sell or grant any right,
option or warrant to purchase, or issue, sell or grant any right to reprice (or reset the purchase price therefor), or otherwise
dispose of for cash (or enter into any agreement, plan or arrangement contemplating any of the foregoing, or seek to utilize any
existing agreement, plan or arrangement to effect any of the foregoing), or announce any offer, issuance, sale or grant of any
option or warrant to purchase or other disposition for cash (or any agreement, plan or arrangement therefor), at any time during the
following periods: (i) with respect to each Fixed Purchase for which the Company has delivered to the Investor a Fixed Purchase
Notice, the period beginning on the third (3rd) Trading Day immediately preceding the applicable Fixed Purchase Date for
such Fixed Purchase and ending on the third (3rd) Trading Day next following the Trading Day on which the Investor has
delivered to the Company the applicable total purchase price for all of the Shares to be purchased by the Investor in such Fixed
Purchase pursuant to Section 2.1, and (ii) with respect to each VWAP Purchase and Additional VWAP Purchase under this Agreement for
which the Company has delivered to the Investor a VWAP Purchase Notice and (if applicable) an Additional VWAP Purchase Notice,
respectively, the period beginning on the third (3rd) Trading Day immediately preceding the applicable VWAP Purchase Date
for such VWAP Purchase (and, with respect to each Additional VWAP Purchase effected on the same Trading Day as such VWAP Purchase
Date, the applicable Additional VWAP Purchase Date, if any, for such Additional VWAP Purchase) and ending on the third
(3rd) Trading Day next following the Trading Day on which the Investor has delivered to the Company the applicable total
purchase price for all of the Shares to be purchased by the Investor in such VWAP Purchase, and the applicable total purchase price
of all of the Shares to be purchased by the Investor in such Additional VWAP Purchase(s), as applicable, pursuant to Section 2.2 and
Section 2.3 (each such period referred to in clause (i) and (ii) above, a “Reference Period”), any Common
Stock or Common Stock Equivalents, at an effective price per share of Common Stock less than the applicable Fixed Purchase Price,
VWAP Purchase Price or Additional VWAP Purchase Price (as applicable) per Share (such price, the “Reference
Price”) to be sold to the Investor in the applicable Fixed Purchase, VWAP Purchase and Additional VWAP Purchase (as
applicable) to which such Reference Period relates (each such issuance, a “Dilutive Issuance”), other than
an Exempt Issuance (it being understood and agreed that if the holder of the Common Stock or Common Stock Equivalents so issued
shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange
prices or otherwise, or due to warrants, options or rights per share which are issued in connection with such issuance, be entitled
to receive shares of Common Stock at an effective price per share of Common Stock that is less than the applicable Reference Price,
such issuance shall be deemed to have occurred for less than the applicable Reference Price on such date of the Dilutive Issuance at
such effective price) and the applicable Fixed Purchase Price, VWAP Purchase Price or Additional VWAP Purchase Price (as applicable)
shall be reduced to equal the Reference Price. If the Company enters into a Variable Rate Transaction, the Company shall be deemed
to have issued Common Stock or Common Stock Equivalents at the lowest possible conversion or exercise price at which such securities
may be converted or exercised. The Investor shall be entitled to seek injunctive relief against the Company and the Subsidiaries to
preclude any such Dilutive Issuance that does not constitute an Exempt 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.
(iii)
Clearing Date. If the lowest trade price for the Common Stock on the Clearing Date is lower than that at the time
any Shares pursuant to a Fixed Purchase, VWAP Purchase, or Additional VWAP Purchase are actually issued, then the price per share at which
such Shares are issued shall be adjusted such that the price per share at which such Shares are issued shall be calculated from the closing
trade price on the Clearing Date, and the Company shall issue additional Shares to Investor to reflect such adjusted price per Share.
For purposes of this Agreement, “Clearing Date” shall be on the date on which any Shares pursuant to a Fixed Purchase,
VWAP Purchase, or Additional VWAP Purchase are deposited into Investor’s brokerage account and Investor’s broker has confirmed
with Investor that the Investor may execute trades of such Shares.
(iv) No Other
Similar Transactions. From and after the date of this Agreement until the termination of this Agreement pursuant to Section
7 (the “Similar Transaction Restricted Period”), none of the Company or any Subsidiary shall issue, sell
or grant any, or otherwise dispose of or issue (or enter into any agreement, plan or arrangement contemplating any of the foregoing,
or seek to utilize any existing agreement, plan or arrangement to effect any of the foregoing), or announce any offer, issuance,
sale or grant or other disposition or issuance of (or any agreement, plan or arrangement therefor) any Common Stock or Common Stock
Equivalents (or a combination of units thereof) in any “equity line of credit,” “at the market offering” or
other similar continuous offering in which the Company may offer, issue or sell Common Stock or Common Stock Equivalents (or any
combination of units thereof) at a future determined price, other than (a) Securities issued to the Investor pursuant to this
Agreement and any of the other Transaction Documents or pursuant to any other agreement entered into by the Company and the Investor
at any time after the date of this Agreement, and (b) any securities of the Company 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 (such similar transaction
other than those referred to clauses (a) and (b) hereof, a “Similar Transaction”). From and after the date
immediately following the last day of the Similar Transaction Restricted Period, the Company and/or any Subsidiary shall be
permitted to enter into an agreement, plan or arrangement to effect a Similar Transaction (and may publicly announce the same), and
the Company and/or any Subsidiary shall be permitted to take all such actions necessary or as contemplated thereby in order to
satisfy any conditions required thereunder to be satisfied by the Company and/or any Subsidiary in order to commence issuances and
sales of Common Stock or Common Stock Equivalents (or a combination of units thereof) thereunder, including, without limitation,
preparing and filing with the Commission one or more registration statements to register under the Securities Act the offer,
issuance and sale by the Company of Common Stock or Common Stock Equivalents (or a combination of units thereof) thereunder, or to
register the resale by any Person or Persons of Common Stock or Common Stock Equivalents (or a combination of units thereof) that
may be issued or sold by the Company and/or any Subsidiary to such Person or Persons thereunder; provided, however,
that none of the Company or Subsidiary may issue, sell or otherwise dispose of any shares of Common Stock or Common Stock
Equivalents (or a combination of units thereof) to or through any Person or Persons thereunder prior to the date of termination of
this Agreement pursuant to Section 7. The Investor shall be entitled to seek injunctive relief against the Company and the
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 5.7.
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 5.8, 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 5.7
shall in any way limit the Company’s right to terminate this Agreement in accordance with Section 7.2 (subject in all cases to Section
7.3).
Section 5.8.
Fundamental Transaction. If a Fixed Purchase Notice, a VWAP Purchase Notice or an Additional VWAP Purchase Notice has
been delivered by the Company to the Investor under Article II and the applicable Fixed Purchase, VWAP Purchase and Additional VWAP Purchase,
respectively, has or have not yet been fully settled in accordance with this Agreement (including, without limitation, the delivery by
the Investor to the Company of the applicable total purchase price for all of the Shares to be purchased by the Investor in such Fixed
Purchase, VWAP Purchase and Additional VWAP Purchase, respectively, as contemplated by Article II), the Company shall not effect any Fundamental
Transaction until the expiration of three (3) Trading Days following the Trading Day on which the Investor has delivered to the Company
the applicable total purchase price for all of the Shares to be purchased by the Investor in such Fixed Purchase, VWAP Purchase and Additional
VWAP Purchase, respectively.
Section 5.9. Selling Restrictions.
(i)
Except as expressly set forth below, the Investor covenants that from and after the Closing Date through and including the Trading
Day next following the expiration or termination of this Agreement (the “Restricted Period”), neither the Investor
nor any of its Affiliates nor any entity managed or controlled by the Investor (collectively, the “Restricted Persons”
and each of the foregoing is referred to herein as a “Restricted Person”) shall, directly or indirectly, (x)
engage in any Short Sales involving the Company’s securities or (y) grant any option to purchase, or acquire any right to dispose
of or otherwise dispose for value of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for
any shares of Common Stock, or enter into any swap, hedge or other similar agreement that transfers, in whole or in part, the economic
risk of ownership of the Common Stock. Notwithstanding the foregoing, it is expressly understood and agreed that nothing contained herein
shall (without implication that the contrary would otherwise be true) prohibit any Restricted Person during the Restricted Period
from: (1) selling “long” (as defined under Rule 200 promulgated under Regulation SHO) the Securities; or (2) selling a
number of shares of Common Stock equal to the number of Shares that such Restricted Person is or may be obligated to purchase under
a pending Fixed Purchase Notice, a pending VWAP Purchase Notice or a pending Additional VWAP Purchase Notice but has not yet taken
possession of so long as such Restricted Person (or the Broker-Dealer, as applicable) delivers the Shares purchased pursuant to such Fixed
Purchase Notice, such VWAP Purchase Notice or such Additional VWAP Purchase Notice (as applicable) to the purchaser thereof or the applicable
Broker-Dealer upon such Restricted Person’s receipt of such shares of Common Stock from the Company pursuant to this Agreement.
(ii)
In addition to the foregoing, in connection with any sale of Securities (including any sale permitted by paragraph (i) above),
the Investor shall comply in all respects with all applicable laws, rules, regulations and orders, including, without limitation, the
requirements of the Securities Act and the Exchange Act.
Section 5.10.
Effective Registration Statement. During the Investment Period, the Company shall use its commercially reasonable efforts
to maintain the continuous effectiveness of each 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 5.11.
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 5.11, (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 5.12. Non-Public
Information. None of the Company or of the Subsidiaries, nor any of their respective directors, officers, employees or agents
shall disclose any material non-public information about the Company or the Subsidiaries 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 of the 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 the Subsidiaries, or any of
their respective directors, officers, employees or agents. The Investor shall not have any liability to the Company, any of the Subsidiaries,
or any of their respective directors, officers, employees, stockholders or agents, for any such disclosure.
Section 5.13.
Broker/Dealer. The Investor shall use one or more broker-dealers to effectuate all sales, if any, of the Shares that
it may purchase or otherwise acquire from the Company pursuant to the Transaction Documents, as applicable, which (or whom) shall be unaffiliated
with the Investor and not then currently engaged or used by the Company, and a DTC participant (collectively, the “Broker-Dealer”).
The Investor shall, from time to time, provide the Company and the Transfer Agent with all information regarding the Broker-Dealer reasonably
requested by the Company. The Investor shall be solely responsible for all fees and commissions of the Broker-Dealer, 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 5.14.
Disclosure Schedules.
(i)
The Company may, from time to time, update the Disclosure Schedules as may be required to satisfy the conditions set forth in Section
6.2(i) and Section 6.3 (to the extent such condition set forth in Section 6.3 relates to the condition in Section 6.2(i) as of a specific
Notice Delivery Time). For purposes of this Section 5.14, any disclosure made in a schedule to the Compliance Certificate shall be deemed
to be an update of the Disclosure Schedule. Notwithstanding anything in this Agreement to the contrary, no update to the Disclosure Schedule
pursuant to this Section 5.14 shall cure any breach of a representation or warranty of the Company contained in this Agreement and made
prior to the update and shall not affect any of the Investor’s rights or remedies with respect thereto.
(ii) Notwithstanding
anything to the contrary contained in the Disclosure Schedule or in this Agreement, the information and disclosure contained in any
Schedule of the Disclosure Schedule shall be deemed to be disclosed and incorporated by reference in any other Schedule of the
Disclosure Schedule as though fully set forth in such Schedule for which applicability of such information and disclosure is
reasonably apparent. The fact that any item of information is disclosed in the Disclosure Schedule shall not be construed to mean
that such information is required to be disclosed by this Agreement. Except as expressly set forth in this Agreement, such
information and the thresholds (whether based on quantity, qualitative characterization, dollar amounts or otherwise) set forth
herein shall not be used as a basis for interpreting the terms “material” or “Material Adverse Effect” or
other similar terms in this Agreement.
Section 5.15.
Delivery of Bring Down Opinions and Compliance Certificates Upon Occurrence of Certain Events.
Within three (3) Trading Days immediately following the (i) filing of (A) a post-effective amendment to the Prospectus Supplement required
to be filed by the Company with the Commission pursuant to the Registration Rights Agreement, (B) a New Registration Statement required
to be filed by the Company with the Commission pursuant to Section 2(c) of the Registration Rights Agreement, or (C) a post-effective
amendment to a New Registration Statement required to be filed by the Company with the Commission pursuant to Section 2(c) of the Registration
Rights Agreement, in each case with respect to a fiscal year ending after the Commencement Date, to register the resale of Securities
by the Investor under the Securities Act pursuant to this Agreement and the Registration Rights Agreement, and (ii) the date the Company
files with the Commission (A) a Prospectus Supplement to the Prospectus contained in the Registration Statement under the Securities Act,
(B) an annual report on Form 10-K under the Exchange Act with respect to a fiscal year ending after the Commencement Date, (C) an amendment
on Form 10-K/A to an annual report on Form 10-K under the Exchange Act with respect to a fiscal year ending after the Commencement Date,
which contains amended material financial information (or a restatement of material financial information) or an amendment to other material
information contained in a previously filed Form 10-K, and (D) a Commission Document under the Exchange Act (other than those referred
to in clauses (ii)(A) and (ii)(B) of this Section 5.15), which contains amended material financial information (or a restatement of material
financial information) or an amendment to other material information contained or incorporated by reference in the Registration Statement,
or the Prospectus or any Prospectus Supplement contained in the Registration Statement (it being hereby acknowledged and agreed that the
filing by the Company with the Commission of a quarterly report on Form 10-Q that includes only updated financial information as of the
end of the Company’s most recent fiscal quarter shall not, in and of itself, constitute an “amendment” or “restatement”
for purposes of clause (ii) of this Section 5.15), in each case of this clause (ii) if the Company is not also then required under the
Securities Act to file a post-effective amendment to the Registration Statement or a post-effective amendment to any New Registration
Statement, in each case with respect to a fiscal year ending after the Commencement Date, to register the resale of Securities by the
Investor under the Securities Act pursuant to this Agreement and the Registration Rights Agreement, and in any case of this clause (ii),
not more than once per calendar quarter, the Company shall (I) deliver to the Investor a Compliance Certificate, dated such date, and
(II) cause to be furnished to the Investor an opinion “bring down” from outside counsel to the Company substantially in the
form mutually agreed to by the Company and the Investor prior to the date of this Agreement, modified, as necessary, to relate to such
Registration Statement or post-effective amendment, or the Prospectus contained therein as then amended or supplemented by such Prospectus
Supplement, as applicable (each such opinion, a “Bring Down Opinion”).
Section 5.16. DTC
Chill. If the Common stock is chilled for deposit at DTC, becomes chilled, or receives a Stop Sign
or other trading restrictions at any point while this Agreement remains outstanding, an additional 10% discount will be attributed to
the price per Share at which each Fixed Purchase, VWAP Purchase and Additional VWAP Purchase is made and the Investor shall be entitled
to deduct from such payment for the Shares an amount equal to $1,500 for each Fixed Purchase, VWAP Purchase
and Additional VWAP Purchase to cover costs associated with the deposit of chilled or otherwise trade restricted stocks for each issuance.
Section 5.17.
Use of Proceeds. Until such time as no shares of Preferred Stock remain outstanding, the
Company shall use twenty five percent (25%) of the proceeds from each Fixed Purchase, VWAP Purchase and Additional Purchase to redeem
the shares of Preferred Stock then outstanding in accordance with the terms of the respective certificates of designation for each such
class of Preferred Stock. As used herein, “Preferred Stock” shall mean, collectively,
the Company’s (i) Series C-1 Preferred Stock, par value $0.001 per share, (ii) Series B-1 Preferred Stock, par value $0.001 per
share, (iii) Series B-2 Preferred Stock, par value $0.001 per share, (iv) Series A-1 Preferred Stock, par value $0.001 per share.
Section 5.18.
Stockholder Approval. The Company shall hold an annual or special meeting of stockholders
on or prior to the date that is sixty (60) days following the date hereof for the purpose of obtaining Stockholder Approval, with the
recommendation of the Company’s board of directors that such proposals are approved, and the Company shall solicit proxies from
its stockholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed
proxyholders shall vote their proxies in favor of such proposals. If the Company does not obtain Stockholder Approval at the first meeting,
the Company shall call a meeting every sixty (60) days thereafter to seek Stockholder Approval until the earlier of the date on which
Stockholder Approval is obtained. Notwithstanding the foregoing, the Company shall include the proposal(s) required to obtain Stockholder
Approval in the first proxy statement filed by the Company following the date hereof, with the recommendation of the Company’s board
of director that such proposal(s) are approved.
Article
VI
CONDITIONS TO CLOSING AND CONDITIONS TO THE SALE AND
PURCHASE OF THE SHARES
Section 6.1.
Conditions Precedent to Closing. The Closing is subject to the satisfaction of each of the conditions set forth in this
Section 6.1 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)
[Reserved]
(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 1.2. Simultaneously with the execution and delivery of
this Agreement and the Registration Rights Agreement, the Investor’s counsel shall have received the closing certificate from the
Company, dated as of the Closing Date, in the form of Exhibit B hereto.
Section 6.2.
Conditions Precedent to Commencement. The right of the Company to commence delivering Fixed Purchase Notices, VWAP Purchase
Notices and Additional VWAP Purchase Notices under this Agreement, and the obligation of the Investor to accept Fixed Purchase Notices,
VWAP Purchase Notices and Additional VWAP Purchase Notices delivered to the Investor by the Company under this Agreement, are subject
to the initial satisfaction, at the time of Commencement, of each of the conditions set forth in this Section 6.2.
(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) No
Material Notices. None of the following events shall have occurred and be continuing: (a) receipt of any request by the
Commission or any other federal or state governmental authority for any additional information relating to the Prospectus
Supplement, or the Prospectus contained therein or any Prospectus Supplement thereto, or for any amendment of or supplement to the
Prospectus Supplement, the Prospectus contained therein or any Prospectus Supplement thereto; (b) the issuance by the Commission or
any other federal or state governmental authority of any stop order suspending the effectiveness of the Prospectus Supplement or
prohibiting or suspending the use of the Prospectus contained therein or any Prospectus Supplement thereto, or of the suspension of
qualification or exemption from qualification of the Securities for offering or sale in any jurisdiction, or the initiation or
contemplated initiation of any proceeding for such purpose; or (c) the occurrence of any event or the existence of any condition or
state of facts, which makes any statement of a material fact made in the Prospectus Supplement, 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 Prospectus Supplement, 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 Prospectus Supplement or a supplement to the Prospectus contained therein or any Prospectus Supplement
thereto to comply with the Securities Act or any other law. The Company shall not have any Knowledge of any event that would
reasonably be expected to have the effect of causing the suspension of the effectiveness of the Prospectus Supplement 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.
(iv)
Other Commission Filings. The Current Report shall have been filed with the Commission as required pursuant to Section
1.3. The final Prospectus included in any post-effective amendment to the Prospectus Supplement, and any Prospectus Supplement thereto,
required to be filed by the Company with the Commission pursuant to Section 1.3 and the Registration Rights Agreement after the Commencement
Date and prior to the applicable Fixed Purchase Date and the applicable VWAP Purchase Date and Additional VWAP Purchase Date (as applicable),
shall have been filed with the Commission in accordance with Section 1.3 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 1.3 and the Registration Rights Agreement after the Commencement Date and prior
to the applicable Fixed Purchase Date and the applicable VWAP Purchase Date and Additional VWAP Purchase Date (as applicable), shall have
been filed with the Commission in accordance with Section 1.3 and the Registration Rights Agreement. All reports, schedules, registrations,
forms, statements, information and other documents required to have been filed by the Company with the Commission pursuant to the reporting
requirements of the Exchange Act, including all material required to have been filed pursuant to Section 13(a) or 15(d) of the Exchange
Act, after the Commencement Date and prior to the applicable Fixed Purchase Date and the applicable VWAP Purchase Date and Additional
VWAP Purchase Date (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.
(v) No Suspension of
Trading in or Notice of Delisting of Common Stock. Trading in the Common Stock shall not have been suspended by the
Commission, the Trading Market or the FINRA (except for any suspension of trading of limited duration agreed to by the Company,
which suspension shall be terminated prior to the Commencement Date), the Company shall not have received any final and
non-appealable notice that the listing or quotation of the Common Stock on the Trading Market shall be terminated on a date certain
(unless, prior to such date certain, the Common Stock is listed or quoted on any other Eligible Market), nor shall there have been
imposed any suspension of, or restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry
services by DTC with respect to the Common Stock that is continuing, the Company shall not have received any notice from DTC to the
effect that a suspension of, or restriction on, accepting additional deposits of the Common Stock, electronic trading or book-entry
services by DTC with respect to the Common Stock is being imposed or is contemplated (unless, prior to such suspension or
restriction, DTC shall have notified the Company in writing that DTC has determined not to impose any such suspension or
restriction).
(vi)
Compliance with Laws. The Company shall have complied in all material respects 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).
(vii)
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.
(viii)
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.
(ix)
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 as of the Commencement Date, subject only to notice of issuance.
(x)
No Material Adverse Effect. No condition, occurrence, state of facts or event constituting a Material Adverse Effect
shall have occurred and be continuing.
(xi)
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 for all or substantially all of the Company’s 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 for all or substantially all of the Company’s
property, or (III) orders the liquidation of the Company or of the Subsidiaries.
(xii)
Stockholder Approval and Issuance of Commitment Shares. The Company shall have obtained Stockholder Approval and
not later than 4:00 p.m. (New York City time) on the later of (A) January 2, 2025 and (B) the Trading Day following the date on which
Stockholder Approval is obtained and, to the extent the Company elects to pay the Commitment Fee in Commitment Shares, the Company shall
deliver irrevocable instructions to the Transfer Agent to issue to the Investor 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 January 2, 2025), in consideration for the Investor’s execution and delivery of this Agreement; provided, that in
the event any issuance of Commitment Shares to the Investor would result in the Investor exceeding the Beneficial Ownership Limitation,
then any such Commitment Shares in excess of the Beneficial Ownership Limitation shall be held in abeyance for the Investor until such
time, if ever, as its rights thereto would not result in the Investor exceeding the Beneficial Ownership Limitation. Such certificate
or book-entry statement shall be delivered to the Investor by overnight courier at its address set forth in Section 9.4 hereof. For the
avoidance of doubt, all of the Commitment Shares shall be fully earned as of the Closing Date regardless of whether any Fixed Purchases,
VWAP Purchases or Additional VWAP Purchases are made hereunder or any subsequent termination of this Agreement.
(xiii)
Delivery of Commencement Irrevocable Transfer Agent Instructions and Notice of Effectiveness. The Commencement Irrevocable
Transfer Agent Instructions shall have been executed by the Company and delivered to and acknowledged in writing by the Transfer Agent,
and the Notice of Effectiveness relating to the Registration Statement shall have been executed by the Company’s outside counsel
and delivered to the Transfer Agent.
(xiv)
Reservation of Shares. As of the Commencement Date, the Company shall have reserved out of its authorized and unissued
Common Stock, 147,750,000 shares of Common Stock solely for the purpose of effecting Fixed Purchases, VWAP Purchases, and Additional VWAP
Purchases under this Agreement.
(xv)
Opinions of Company Counsel. On the Commencement Date, the Investor shall have received the opinion and negative
assurances from outside counsel to the Company, dated the Commencement Date, in the forms mutually agreed to by the Company and the Investor
prior to the date of this Agreement.
Section 6.3. Conditions
Precedent to Purchases by Investor. The right of the Company to deliver Fixed Purchase Notices, VWAP Purchase Notices and
Additional VWAP Purchase Notices under this Agreement after the Commencement Date, and the obligation of the Investor to accept
Fixed Purchase Notices, VWAP Purchase Notices and Additional VWAP Purchase Notices under this Agreement after the Commencement Date,
are subject to the satisfaction of each of the conditions set forth in this Section 6.3: (i) with respect to each Fixed Purchase
after the Commencement Date, at the time of delivery of the applicable Fixed Purchase Notice to the Investor on the applicable Fixed
Purchase Date for such Fixed Purchase, (ii) with respect to each VWAP Purchase after the Commencement Date, (A) at the time of
delivery of the applicable VWAP Purchase Notice to the Investor and (B) immediately prior to the applicable VWAP Purchase
Commencement Time on the applicable VWAP Purchase Date for such VWAP Purchase, and (iii) with respect to each Additional VWAP
Purchase after the Commencement Date, (A) at the time of delivery of the applicable Additional VWAP Purchase Notice to the Investor
and (B) immediately prior to the applicable Additional VWAP Purchase Commencement Time on the applicable Additional VWAP Purchase
Date for such Additional VWAP Purchase (each such time referred to in clauses (i), (ii) and (iii) hereof, a “Notice
Delivery Time”).
(i)
Satisfaction of Certain Prior Conditions. Each of the conditions set forth in subsections (i), (ii), and (vii) through
(xv) set forth in Section 6.2 shall be satisfied at the applicable Notice Delivery Time after the Commencement Date (with the terms “Commencement”
and “Commencement Date” in the conditions set forth in subsections (i) and (ii) of Section 6.2 replaced with “applicable
Notice Delivery Time”); provided, however, that the Company shall not be required to deliver the Compliance Certificate
after the Commencement Date, except as provided in Section 5.1 and Section 6.2(ii).
(ii)
Any Required New Registration Statement Effective. Any New Registration Statement covering the resale by the Investor
of the Registrable Securities, included therein, and any post-effective amendment thereto, required to be filed by the Company with the
Commission pursuant to the Registration Rights Agreement after the Commencement Date and prior to the applicable Fixed Purchase Date,
the applicable VWAP Purchase Date and the applicable Additional VWAP Purchase Date (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 then-issued Commitment
Shares (if any) included in such New Registration Statement, and any post-effective amendment thereto, (b) all of the Shares included
in such New Registration Statement, and any post-effective amendment thereto, that have been issued and sold to the Investor hereunder
pursuant to all Fixed Purchase Notices, all VWAP Purchase Notices and all Additional VWAP Purchase Notices (as applicable) delivered by
the Company to the Investor prior to such applicable Fixed Purchase Date, such applicable VWAP Purchase Date, and such applicable Additional
VWAP Purchase Date, respectively, and (c) all of the Shares included in such new Registration Statement, and any post-effective amendment
thereto, that are issuable pursuant to the applicable Fixed Purchase Notice, the applicable VWAP Purchase Notice, and the applicable Additional
VWAP Purchase Notice (as applicable) delivered by the Company to the Investor with respect to a Fixed Purchase, a VWAP Purchase, and an
Additional VWAP Purchase, respectively, to be effected hereunder on such applicable Fixed Purchase Date, such applicable VWAP Purchase
Date, and such Additional VWAP Purchase Date, respectively.
(iii)
Delivery of Subsequent Irrevocable Transfer Agent Instructions and Notice of Effectiveness. With respect to any post-effective
amendment to the Registration Statement or any post-effective amendment to any 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 Transfer Agent (a) irrevocable
instructions in the form substantially similar to the Commencement Irrevocable Transfer Agent Instructions executed by the Company and
acknowledged in writing by the Transfer Agent and (b) the Notice of Effectiveness, in each case modified as necessary to refer to such
Registration Statement or post-effective amendment and the Registrable Securities included therein, to issue the Registrable Securities
included therein as DWAC Shares in accordance with the terms of this Agreement and the Registration Rights Agreement.
(iv)
No Material Notices. None of the following events shall have occurred and be continuing: (a) receipt of any request
by the Commission or any other federal or state governmental authority for any additional information relating to the Registration Statement
or any post-effective amendment thereto, or any New Registration Statement or any post-effective amendment thereto, or the Prospectus
contained in any of the foregoing or any Prospectus Supplement thereto; (b) the issuance by the Commission or any other federal or state
governmental authority of any stop order suspending the effectiveness of any Registration Statement or any post-effective amendment thereto,
or prohibiting or suspending the use of the Prospectus contained in any of the foregoing or any Prospectus Supplement thereto, or of the
suspension of qualification or exemption from qualification of the Securities for offering or sale in any jurisdiction, or the initiation
or contemplated initiation of any proceeding for such purpose; or (c) the occurrence of any event or the existence of any condition or
state of facts, which makes any statement of a material fact made in the 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 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 or any post-effective amendment
thereto, any New Registration Statement or any post-effective amendment thereto, or the Prospectus contained in any of the foregoing or
any Prospectus Supplement thereto to comply with the Securities Act or any other law (other than the transactions contemplated by the
applicable Fixed Purchase Notice, the applicable VWAP Purchase Notice, and the applicable Additional VWAP Purchase Notice (as applicable)
delivered by the Company to the Investor with respect to a Fixed Purchase, a VWAP Purchase, and an Additional VWAP Purchase, respectively,
to be effected hereunder on such applicable Fixed Purchase Date, such applicable VWAP Purchase Date, and such applicable Additional VWAP
Purchase Date, respectively, and the settlement thereof). The Company shall not have any Knowledge of any event that would reasonably
be expected to have the effect of causing the suspension of the effectiveness of the 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.
(v) Other Commission
Filings. The final Prospectus included in any post-effective amendment to any Prospectus required to be filed by the Company
with the Commission pursuant to Section 1.3 and the Registration Rights Agreement after the Commencement Date and prior to the
applicable Fixed Purchase Date and the applicable VWAP Purchase Date and Additional VWAP Purchase Date (as applicable), shall have
been filed with the Commission in accordance with Section 1.3 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 1.3 and the Registration Rights Agreement after the Commencement Date
and prior to the applicable Fixed Purchase Date and the applicable VWAP Purchase Date and Additional VWAP Purchase Date (as
applicable), shall have been filed with the Commission in accordance with Section 1.3 and the Registration Rights Agreement. All
reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the Company
with the Commission pursuant to the reporting requirements of the Exchange Act, including all material required to have been filed
pursuant to Section 13(a) or 15(d) of the Exchange Act, after the Commencement Date and prior to the applicable Fixed Purchase Date
and the applicable VWAP Purchase Date and Additional VWAP Purchase Date (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.
(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 applicable Fixed Purchase Date, VWAP Purchase Date or Additional VWAP Purchase Date,
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 shall be terminated on a date certain (unless, prior to such date certain, the Common Stock is listed or quoted
on any other Eligible Market), nor shall there have been imposed any suspension of, or restriction on, accepting additional deposits of
the Common Stock, electronic trading or book-entry services by DTC with respect to the Common Stock that is continuing, the Company shall
not have received any notice from DTC to the effect that a suspension of, or restriction on, accepting additional deposits of the Common
Stock, electronic trading or book-entry services by DTC with respect to the Common Stock is being imposed or is contemplated (unless,
prior to such suspension or restriction, DTC shall have notified the Company in writing that DTC has determined not to impose any such
suspension or restriction).
(vii)
Certain Limitations. The issuance and sale of the Shares issuable pursuant to the applicable Fixed Purchase Notice,
applicable VWAP Purchase Notice, and applicable Additional VWAP Purchase Notice (as applicable) shall not (a) exceed the applicable Fixed
Purchase Maximum Amount, the applicable VWAP Purchase Maximum Amount and the applicable Additional VWAP Purchase Maximum Amount, respectively,
or (b) cause the Aggregate Limit or the Beneficial Ownership Limitation to be exceeded.
(viii)
Shares Authorized and Delivered. All of the Shares issuable pursuant to the applicable Fixed Purchase Notice, the
applicable VWAP Purchase Notice, and the applicable Additional VWAP Purchase Notice (as applicable) shall have been duly authorized by
all necessary corporate action of the Company. All Shares relating to all prior Fixed Purchase Notices, VWAP Purchase Notices, and Additional
VWAP Purchase Notices required to have been received by the Investor as DWAC Shares under this Agreement prior to the applicable Notice
Delivery Time for the applicable Fixed Purchase, applicable VWAP Purchase and applicable Additional VWAP Purchase (as applicable) shall
have been delivered to the Investor as DWAC Shares in accordance with this Agreement.
(ix) Bring Down
Opinions of Company Counsel. The Investor shall have received (a) all Bring Down Opinions from outside counsel to the
Company for which the Company was obligated to instruct their outside counsel to deliver to the Investor prior to the applicable
Notice Delivery Time for the applicable Fixed Purchase, applicable VWAP Purchase, and applicable Additional VWAP Purchase (as
applicable) and (b) all Compliance Certificates from the Company that the Company was obligated to deliver to the Investor prior to
the applicable Notice Delivery Time for the applicable Fixed Purchase, applicable VWAP Purchase and applicable Additional VWAP
Purchase (as applicable), in each case in accordance with Section 5.15.
Article
VII
TERMINATION
Section 7.1.
Automatic Termination; Termination by Consent. Unless earlier terminated as provided hereunder, this Agreement shall
terminate automatically, without any further action or notice by any Person, on the earliest to occur of (i) the expiration of the Registration
Statement pursuant to Rule 415(a)(5) of the Securities Act, (ii) the date on which the Investor shall have purchased the Aggregate Limit
of Shares pursuant to this Agreement, (iii) the date on which the Common Stock shall have failed to be listed or quoted on the Trading
Market or any Eligible Market, (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. Subject to Section 7.3, 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.
Section 7.2. Other
Termination. Subject to Section 7.3, the Company may terminate this Agreement after the Commencement Date effective upon one
(1) Trading Day’s prior written notice to the Investor in accordance with Section 9.4; provided, however, that
(i) the Company shall have issued all applicable Commitment Shares to the Investor and shall have paid all fees and amounts to the
Investor’s counsel required to be paid pursuant to Section 9.1 of this Agreement prior to such termination, and (ii) prior to
issuing any press release, or making any public statement or announcement, with respect to such termination, the Company shall
consult with the Investor and its counsel on the form and substance of such press release or other disclosure, which consent shall
not be unreasonably delayed or withheld. Subject to Section 7.3, 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 7.3, 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 9.4, 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
Registration Statement is not filed by the applicable Filing Deadline therefor or declared effective by the Commission by the
applicable Effectiveness Deadline (as defined in the Registration Rights Agreement) therefor, or the Company is otherwise in breach
or default in any material respect under any of the other provisions of the Registration Rights Agreement, and, if such failure,
breach or default is capable of being cured, such failure, breach or default is not cured within 10 Trading Days after notice of
such failure, breach or default is delivered to the Company pursuant to Section 9.4; (d) while a Registration Statement, or any
post-effective amendment thereto, is required to be maintained effective pursuant to the terms of the Registration Rights Agreement
and the Investor holds any Registrable Securities, the effectiveness of such Registration Statement, or any post-effective amendment
thereto, lapses for any reason (including, without limitation, the issuance of a stop order by the Commission) or such Registration
Statement or any post-effective amendment thereto, the Prospectus contained therein or any Prospectus Supplement thereto otherwise
becomes unavailable to the Investor for the resale of all of the Registrable Securities included therein in accordance with the
terms of the Registration Rights Agreement, and such lapse or unavailability continues for a period of 20 consecutive Trading Days,
other than due to acts of the Investor; (e) trading in the Common Stock on the Trading Market (or if the Common Stock is then listed
on an Eligible Market, trading in the Common Stock on such Eligible Market) shall have been suspended and such suspension continues
for a period of three (3) consecutive Trading Days; or (f) the Company is in material breach or default of this Agreement, and, if
such breach or default is capable of being cured, such breach or default is not cured within 10 Trading Days after notice of such
breach or default is delivered to the Company (as applicable) pursuant to Section 9.4. Unless notification thereof is required
elsewhere in this Agreement (in which case such notification shall be provided in accordance with such other provision), the Company
shall promptly (but in no event later than 24 hours) notify the Investor (and, if required under Applicable Law, including, without
limitation, Regulation FD promulgated by the Commission, or under the applicable rules and regulations of the Trading Market (or if
the Common Stock is then listed on an Eligible Market, the rules and regulations of such Eligible Market), the Company shall
publicly disclose such information in accordance with Regulation FD and the applicable rules and regulations of the Trading Market,
or the applicable rules and regulations of such Eligible Market, as applicable) upon becoming aware of any of the events set forth
in the immediately preceding sentence.
Section 7.3. Effect
of Termination. In the event of termination by the Company or the Investor (other than by mutual termination) pursuant to
Section 7.2, written notice thereof shall forthwith be given to the other party as provided in Section 9.4 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 7.1 or Section 7.2, this Agreement shall become void and of no further force and effect, except that (i) the
provisions of Article IV (Representations and Warranties of the Company), Article VIII (Indemnification), Article IX (Miscellaneous)
and this Article VII (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 V (Covenants) shall
remain in full force and effect for a period of six (6) months following such termination. Notwithstanding anything in this
Agreement to the contrary, no termination of this Agreement by any party shall (i) become effective prior to the first Trading Day
immediately following the settlement date related to any pending Fixed Purchase Notice, any pending VWAP Purchase Notice, or any
pending Additional VWAP Purchase Notice (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 parties’ respective rights or obligations under the Transaction Documents with respect to any
pending Fixed Purchase, pending VWAP Purchase, and pending Additional VWAP Purchase (as applicable), and that the parties shall
fully perform their respective obligations with respect to any such pending Fixed Purchase, any such pending VWAP Purchase, and any
such pending Additional VWAP Purchase (as applicable) under the Transaction Documents, provided all of the conditions to the
settlement thereof set forth in Article VI are timely satisfied), (ii) limit, alter, modify, change or otherwise affect the
parties’ respective rights or obligations under the Registration Rights Agreement, all of which shall survive any such
termination, (iii) affect the Investor Expense Reimbursement paid to the Investor, all of which shall be non-refundable when paid as
of the Closing Date pursuant to Section 9.1(i), regardless of whether any Fixed Purchases, VWAP Purchases, or Additional VWAP
Purchases are made or settled hereunder or any subsequent termination of this Agreement, or (iv) affect any Commitment Shares
previously issued or delivered, or any rights of any holder thereof, it being hereby acknowledged and agreed that all of the
Commitment Shares shall be fully earned as of the Closing Date, regardless of whether any Fixed Purchases, VWAP Purchases or
Additional VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement. Nothing in this Section 7.3
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 respective rights of the Company and the Investor to compel
specific performance by the other party of its obligations under the Transaction Documents to which it is a party.
Article
VIII
INDEMNIFICATION
Section 8.1.
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 other respective obligations of the Company under the Transaction Documents to
which it is a party, subject to the provisions of this Section 8.1, the Company shall indemnify and hold harmless the Investor, each of
its directors, officers, shareholders, members, partners, employees, representatives, agents and advisors (and any other Persons with
a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title), each Person,
if any, who controls the Investor (within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act), and the
respective directors, officers, shareholders, members, partners, employees, representatives, agents and advisors (and any other Persons
with a functionally equivalent role of a Person holding such titles notwithstanding the lack of such title or any other title) of such
controlling Persons (each, an “Investor Party”), from and against all losses, liabilities, obligations, claims,
contingencies, damages, costs and expenses (including all judgments, amounts paid in settlement, court costs, reasonable attorneys’
fees and costs of defense and investigation) (collectively, “Damages”) that any Investor Party may suffer or
incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company
in this Agreement or in the other Transaction Documents to which it is a party or (b) any action, suit, claim or proceeding (including
for these purposes a derivative action brought on behalf of the Company) instituted against such Investor Party arising out of or resulting
from the execution, delivery, performance or enforcement of the Transaction Documents, other than claims for indemnification within the
scope of Section 6 of the Registration Rights Agreement; provided, however, that (x) the foregoing indemnity shall not apply
to any Damages to the extent, but only to the extent, that such Damages resulted directly and primarily from any acts or failures to act,
undertaken or omitted to be taken by such Investor Party through its fraud, bad faith, gross negligence, or willful or reckless misconduct.
The Company shall
reimburse any Investor Party promptly upon demand (with accompanying presentation of documentary evidence) for all legal and other
costs and expenses reasonably incurred by such Investor Party in connection with (i) any action, suit, claim or proceeding, whether
at law or in equity, to enforce compliance by the Company with any provision of the Transaction Documents to which it is a party 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 8.1; 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 to which it is a party shall not in any way be affected by any investigation or knowledge of such Investor
Party. Such representations, warranties, covenants and agreements shall not be affected or deemed waived by reason of the fact that an
Investor Party knew or should have known that any representation or warranty might be inaccurate or that the Company failed to comply
with any agreement or covenant. Any investigation by such Investor Party shall be for its own protection only and shall not affect or
impair any right or remedy hereunder.
To the extent that the foregoing
joint and several undertakings by the Company set forth in this Section 8.1 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 8.2.
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 8.1, 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 8.1, 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 8.1, 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 VIII are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Investor Party
at law or in equity.
Article
IX
MISCELLANEOUS
Section 9.1.
Certain Fees and Expenses; Commitment Shares; Commencement Irrevocable Transfer Agent Instructions.
(i)
Certain Fees and Expenses. Each party shall bear its own fees and expenses related to the transactions contemplated
by this Agreement; provided, however, that immediately following the execution of this Agreement, the Company shall pay,
by wire transfer of immediately available funds to an account designated by the Investor, an amount equal to $25,000 to be applied against
the Investor’s reasonable out-of-pocket expenses, including the legal fees and disbursements of the Investor’s legal counsel,
incurred by the Investor in connection with the preparation, negotiation, execution and delivery of the Transaction Documents by the Investor
and its due diligence investigation of the Company (such amount, the “Investor Expense Reimbursement”). For
the avoidance of doubt, the Investor Expense Reimbursement, shall be non-refundable when paid as of the Closing Date, regardless of whether
any Fixed Purchases, VWAP Purchases or Additional VWAP Purchases are made or settled hereunder or any subsequent termination of this Agreement.
The Company shall pay all U.S. federal, state and local stamp and other similar transfer and other taxes and duties levied in connection
with issuance of the Securities pursuant hereto.
(ii)
Commitment Fee. In consideration for the Investor’s execution and delivery of this Agreement, the Company shall
pay the Commitment Fee (which may be paid in the sole discretion of the Company in the form of cash or Commitment Shares) to the Investor
or its designee (in which case such designee name shall have been provided to the Company prior to January 2, 2025) not later than 4:00
p.m. (New York City time) on the later of (A) January 2, 2025 and (B) the Trading Day following the date on which Stockholder Approval
is obtained. All of the Commitment Shares, if any, shall be included in the Registration Statement. For the avoidance of doubt, the Commitment
Fee shall be fully earned as of the Closing Date regardless of whether any Fixed Purchases or VWAP Purchases are effected hereunder regardless
of any subsequent termination of this Agreement; provided, that in the event that any issuance of Commitment Shares to the Investor
would result in the Investor exceeding the Beneficial Ownership Limitation, then any such Commitment Shares in excess of the Beneficial
Ownership Limitation shall be held in abeyance for the Investor until such time, if ever, as its rights thereto would not result in the
Investor exceeding the Beneficial Ownership Limitation.
(iii) Irrevocable
Transfer Agent Instructions; Notice of Effectiveness. On the later of (A) January 2, 2025 and (B) the Trading Day following
the date on which Stockholder Approval is obtained, provided that the Company has elected to pay the Commitment Fee in Commitment
Shares, the Company shall cause the 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
9.1(ii). The Company shall take all actions to carry out the intent and accomplish the purposes of the immediately preceding
sentence, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions to
the 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. Upon the
effectiveness of the Registration Statement, the Company shall deliver or cause to be delivered to the 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 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”), in each case directing the Transfer Agent to issue to the
Investor or its designee all of the Commitment Shares as DWAC Shares in accordance with this Agreement and the Registration Rights
Agreement. With respect to any post-effective amendment to the 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 the 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 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. For the avoidance of doubt, all Shares and Commitment Shares to be issued from and after Commencement to or for
the benefit of the Investor pursuant to this Agreement shall be issued to the Investor or its designee only as DWAC Shares. The
Company represents and warrants to the Investor that, while this Agreement is effective, no instruction other than those referred to
in this Section 9.1(iii) will be given by the Company to the Transfer Agent, or any successor transfer agent of the Company, with
respect to the Shares and the Commitment Shares from and after Commencement, and the Shares and the Commitment Shares (as
applicable) covered by 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 9.1(iii) 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 the Transfer Agent, the Company shall, at the Investor’s written instruction, purchase from the
Investor all shares of Common Stock purchased or acquired by the Investor pursuant to this Agreement that contain restrictive
legends 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.
Section 9.2.
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
the Company, on the one hand, and the Investor, on the other hand, 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 9.2 shall affect or limit
any right to serve process in any other manner permitted by law.
(iii)
EACH OF THE COMPANY AND THE INVESTOR HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR DISPUTES RELATING HERETO. EACH OF THE COMPANY AND THE INVESTOR (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN TO ENTER INTO THIS AGREEMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.2.
Section 9.3.
Entire Agreement. The Transaction Documents set forth the entire agreement and understanding of the parties with respect
to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations and understandings between the parties,
both oral and written, with respect to such matters. There are no promises, undertakings, representations or warranties by either party
relative to subject matter hereof not expressly set forth in the Transaction Documents. The Disclosure Schedule and all exhibits to this
Agreement are hereby incorporated by reference in, and made a part of, this Agreement as if set forth in full herein.
Section 9.4.
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:
Aditxt, Inc.
737 N. Fifth Street, Suite 200
Richmond, VA 23219
Attention:
Email:
With a copy (which shall not
constitute notice) to:
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, NY 10112
Attention: Richard A. Friedman, Esq.
If to the Investor:
Seven Knots, LLC
400 E. 66th Street
New York, NY 10065
Telephone Number: (516) 946-1288
Email: mjw@7-knots.com
Attention: Marissa J. Welner
With a copy (which shall not
constitute notice) to:
Pryor Cashman LLP
7 Times Square
New York, NY 10036
Attention: M. Ali
Panjwani, Esq.
Either party hereto may from time to time change
its address for notices by giving at least five (5) days’ advance written notice of such changed address to the other party hereto.
Section 9.5.
Waivers. No provision of this Agreement may be waived by the parties from and after the date that is one (1) Trading
Day immediately preceding the filing of the Registration Statement with the Commission. Subject to the immediately preceding sentence,
no provision of this Agreement may be waived other than in a written instrument signed by the party against whom enforcement of such waiver
is sought. No failure or delay in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or privilege preclude other or further exercises thereof or of any other right,
power or privilege.
Section 9.6.
Amendments. No provision of this Agreement may be amended by the parties from and after the date that is one (1) Trading
Day immediately preceding the filing of the Registration Statement with the Commission. Subject to the immediately preceding sentence,
no provision of this Agreement may be amended other than by a written instrument signed by both parties hereto.
Section 9.7. 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 9.8.
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 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 9.9.
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 9.10.
No Third Party Beneficiaries. Except as expressly provided in Article VIII, 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 9.11.
Governing Law. This Agreement shall be governed by and construed in accordance with the internal procedural and substantive
laws of the State of New York, without giving effect to the choice of law provisions of such state that would cause the application of
the laws of any other jurisdiction.
Section 9.12.
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 IV (Representations and Warranties of the Company), Article VII (Termination), Article VIII (Indemnification)
and this Article IX (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 V (Covenants),
shall remain in full force and effect notwithstanding such termination for a period of six (6) months following such termination.
Section 9.13. 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 9.14.
Publicity. The Company shall afford the Investor and its counsel with a reasonable opportunity to review and comment
upon, shall consult with the Investor and its counsel on the form and substance of, and shall give due consideration to all such comments
from the Investor or its counsel on, any press release, Commission filing or any other public disclosure made by or on behalf of the Company
relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby,
prior to the issuance, filing or public disclosure thereof. For the avoidance of doubt, the Company shall not be required to submit for
review any such disclosure (i) contained in periodic reports filed with the Commission under the Exchange Act if it shall have previously
provided the same disclosure to the Investor or its counsel for review in connection with a previous filing or (ii) any Prospectus Supplement
if it contains disclosure that does not reference the Investor, its purchases hereunder or any aspect of the Transaction Documents or
the transactions contemplated thereby.
Section 9.15.
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 9.16.
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]
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.
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THE COMPANY: |
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ADITXT, INC.: |
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By: |
/s/ Amro Albanna |
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Name: |
Amro Albanna |
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Title: |
Chief Executive Officer |
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THE INVESTOR: |
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SEVEN KNOTS, LLC: |
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By: |
/s/ Marissa Welner |
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Name: |
Marissa Welner |
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Title: |
Authorized Signatory |
ANNEX I TO THE
COMMON STOCK PURCHASE AGREEMENT
DEFINITIONS
“Additional VWAP
Purchase” shall have the meaning assigned to such term in Section 2.3.
“Additional VWAP
Purchase Commencement Time” means, the latest of (A) the applicable VWAP Purchase Termination Time with respect to the corresponding
VWAP Purchase on such Additional VWAP Purchase Date, (B) the applicable Additional VWAP Purchase Termination Time with respect to the
most recently completed prior Additional VWAP Purchase on such Additional VWAP Purchase Date, as applicable, and (C) the time at which
all shares of Common Stock subject to all prior VWAP Purchases and Additional VWAP Purchases (as applicable), including, without limitation,
those that have been effected on the same business day as the applicable Additional VWAP Purchase.
“Additional VWAP
Purchase Confirmation” shall have the meaning assigned to such term in Section 2.3 and shall be in the form attached hereto
as Annex 2.3C.
“Additional VWAP
Purchase Date” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, the Trading Day (i) that
is also the VWAP Purchase Date for the corresponding VWAP Purchase referred to in clause (i) of the second sentence of Section 2.3 and
(ii) on which the Investor receives, prior to 2:00 p.m., New York City time, on such Trading Day, a valid Additional VWAP Purchase Notice
for such Additional VWAP Purchase in accordance with this Agreement.
“Additional VWAP
Purchase Maximum Amount” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, a number of shares
of Common Stock equal to the lesser of (i) 300% of the number of Shares directed by the Company to be purchased by the Investor pursuant
to the corresponding Fixed Purchase Notice for the corresponding Fixed Purchase referred to in clause (i) of the second sentence of Section
2.3 and (ii) a number of Shares equal to (A) the Additional VWAP Purchase Share Percentage multiplied by (B) the trading volume of shares
of Common Stock traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) during
the applicable Additional VWAP Purchase Period on the applicable Additional VWAP Purchase Date for such Additional VWAP Purchase.
“Additional VWAP
Purchase Notice” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, an irrevocable written
notice delivered by the Company to the Investor, prior to 2:00 p.m., New York City time, on the applicable Additional VWAP Purchase Date
for such Additional VWAP Purchase, directing the Investor to purchase an Additional VWAP Purchase Share Amount (such specified Additional
VWAP Purchase Share Amount subject to adjustment as set forth in Section 2.3 as necessary to give effect to the Additional VWAP Purchase
Maximum Amount), at the applicable Additional VWAP Purchase Price therefor on the applicable Additional VWAP Purchase Date for such Additional
VWAP Purchase in accordance with this Agreement.
“Additional VWAP
Purchase Period” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, the period on the applicable
Additional VWAP Purchase Date for such Additional VWAP Purchase beginning at the applicable Additional VWAP Purchase Commencement Time
and ending at the applicable Additional VWAP Purchase Termination Time.
“Additional VWAP
Purchase Price” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, the purchase price per
Share to be purchased by the Investor in such Additional VWAP Purchase equal to ninety-five percent (95%) of the lower of (i) the VWAP
for the applicable Additional VWAP Purchase Period during the applicable Additional VWAP Purchase Date for such Additional VWAP Purchase,
and (ii) the Closing Sale Price of the Common Stock on such applicable Additional VWAP Purchase Date for such Additional VWAP Purchase
(to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction).
“Additional VWAP
Purchase Share Amount” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, the number of Shares
to be purchased by the Investor in such Additional VWAP Purchase as specified by the Company in the applicable Additional VWAP Purchase
Notice, which number of Shares shall not exceed the applicable Additional VWAP Purchase Maximum Amount.
“Additional VWAP
Purchase Share Percentage” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, thirty percent
(30%).
“Additional VWAP
Purchase Share Volume Maximum” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, a number
of shares of Common Stock equal to (i) the number of Shares specified by the Company in the applicable Additional VWAP Purchase Notice
as the Additional VWAP Purchase Share Amount to be purchased by the Investor in such Additional VWAP Purchase, divided by (ii) the Additional
VWAP Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split,
reverse stock split or other similar transaction).
“Additional VWAP
Purchase Termination Time” means, with respect to an Additional VWAP Purchase made pursuant to Section 2.3, the earliest
of (i) 2:00 p.m., New York City time, on the applicable Additional VWAP Purchase Date, or such other time publicly announced by the Trading
Market as the official close of trading on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, by such Eligible
Market as the official close of trading on such Eligible Market) on such applicable Additional VWAP Purchase Date, (ii) such time, from
and after the Additional VWAP Purchase Commencement Time for such Additional VWAP Purchase, that the trading volume of shares of Common
Stock traded on the Trading Market (or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market) has exceeded
the applicable Additional VWAP Purchase Share Volume Maximum and (iii) such time, from and after the Additional VWAP Purchase Commencement
Time for such Additional VWAP Purchase, that any sale price of the Common Stock traded on the Trading Market (or, if the Common Stock
is then listed on an Eligible Market, on such Eligible Market) has fallen below the applicable Floor Price for such applicable Additional
VWAP Purchase.
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control
with a Person, as such terms are used in and construed under Rule 144. With respect to the Investor, without limitation, any Person owning,
owned by, or under common ownership with the Investor, and any investment fund or managed account that is managed on a discretionary basis
by the same investment manager as the Investor will be deemed to be an Affiliate.
“Aggregate Limit”
shall have the meaning assigned to such term in Section 2.4(a).
“Agreement”
shall have the meaning assigned to such term in the preamble of this Agreement.
“Applicable Laws”
shall have the meaning assigned to such term in Section 4.13.
“Bankruptcy Law”
means Title 11, U.S. Code, or any similar U.S. federal or state law for the relief of debtors.
“Beneficial Ownership
Limitation” shall have the meaning assigned to such term in Section 2.5.
“Bloomberg”
means Bloomberg, L.P.
“Bring Down Opinion”
shall have the meaning assigned to such term in Section 5.15.
“Broker-Dealer”
shall have the meaning assigned to such term in Section 5.13.
“Bylaws”
shall have the meaning assigned to such term in Section 4.4.
“Charter”
shall have the meaning assigned to such term in Section 3.3.
“Closing”
shall have the meaning assigned to such term in Section 1.2
“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 the Eligible Market.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Commencement”
shall have the meaning assigned to such term in Section 2.1
“Commencement
Date” shall have the meaning assigned to such term in Section 2.1.
“Commencement
Irrevocable Transfer Agent Instructions” shall have the meaning assigned to such term in Section 9.1(iii).
“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, and which hereafter shall be filed with or furnished
to the Commission by the Company, including, without limitation, the Current Report, (2) each Registration Statement, as the same may
be amended from time to time, the Prospectus contained therein and each Prospectus Supplement thereto and (3) all information contained
in such filings and all documents and disclosures that have been and heretofore shall be incorporated by reference therein.
“Commitment Fee”
means $2,250,000, which, in the sole discretion of the Company, may be payable in cash or shares of the Company’s Common Stock (the
“Commitment Shares”), which Commitment Shares (if the Company elects to pay the Commitment Fee in Commitment
Shares) shall be issuable on the later of (i) January 2, 2025 and (ii) the Trading Day following the date on which Stockholder Approval
is obtained.
“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 the Subsidiaries which would entitle the holder thereof to acquire at
any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant 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 6.2(ii).
“Current Report”
shall have the meaning assigned to such term in Section 1.3.
“Custodian”
shall mean any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
“Damages”
shall have the meaning assigned to such term in Section 8.1.
“Dilutive Issuance”
shall have the meaning assigned to such term in Section 5.6(ii).
“Disclosure Schedule”
shall have the meaning assigned to such term in Section 4.1.
“Disqualification
Event” shall have the meaning assigned to such term in Section 4.37.
“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 2.6.
“DWAC Shares”
means shares of Common Stock issued pursuant to this Agreement that are (i) issued in electronic form, (ii) freely tradable and transferable
and without restriction on resale and without stop transfer instructions maintained against the transfer thereof and (iii) timely credited
by the Company to the Investor’s or its designated Broker-Dealer at which the account or accounts to be credited with the Securities
being purchased by Investor are maintained specified DWAC account with DTC under its Fast Automated Securities Transfer (FAST) Program,
or any similar program hereafter adopted by DTC performing substantially the same function.
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“Effective Date”
means, with respect to the 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 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 New York Stock Exchange American, Nasdaq Capital Market (“NCM”), The Nasdaq Global Market, or The Nasdaq Global
Select Market (or any nationally recognized successor to any of the foregoing).
“Environmental
Laws” shall have the meaning assigned to such term in Section 4.16 hereof.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder.
“Exempt
Issuance” means the issuance of (a) Common Stock, options or other equity incentive awards to employees, officers,
directors or vendors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by the Company’s
Board of Directors or a majority of the members of a committee of the Board of Directors established for such purpose, (b) (1) any
Securities issued to the Investor pursuant to this Agreement, (2) any securities issued upon the exercise or exchange of or
conversion of any shares of Common Stock or Common Stock Equivalents held by the Investor at any time, or (3) any securities issued
upon the exercise or exchange of or conversion of any Common Stock Equivalents that are (x) issued and outstanding on the date of
this Agreement, or (y) issued subsequent to the date hereof on substantially equivalent terms as those outstanding as of the date
hereof, provided that such securities referred to in this clause (3) have not been amended since the date of this Agreement to
increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c)
securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved
by the Company’s Board of Directors or a majority of the members of a committee of directors established for such purpose,
which acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions can have a Variable Rate
Transaction component, provided that any such issuance shall only be to a Person (or to the equity holders of a Person) which is,
itself or through its subsidiaries, an operating company or an asset in a business synergistic with the business of the Company and
shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction in
which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is
investing in securities, or (d) Common Stock issued by the Company by any method deemed to be an “at the market
offering” as defined in Rule 415(a)(4) under the Securities Act, exclusively through a registered broker-dealer, as the
Company’s sales agent, pursuant to one or more written agreements between the Company and such registered broker-dealer.
“FCPA”
shall have the meaning assigned to such term in Section 4.33.
“Filed Commission
Document” shall have the meaning assigned to such term in Section 4.6.
“Filing Deadline”
shall have the meaning assigned to such term in the Registration Rights Agreement.
“FINRA”
means the Financial Industry Regulatory Authority.
“Fixed Purchase”
shall have the meaning assigned to such term in Section 2.1.
“Fixed Purchase
Date” means, with respect to a Fixed Purchase made pursuant to Section 2.1, the Trading Day on which the Investor receives,
after 4:00 p.m., New York City time, but prior to 5:30 p.m., New York City time, on such Trading Day, a valid Fixed Purchase Notice for
such Fixed Purchase in accordance with this Agreement.
“Fixed Purchase
Maximum Amount” means, with respect to a Fixed Purchase made pursuant to Section 2.1, the lesser of 100,000 shares of Common
Stock or $200,000.
“Fixed Purchase
Notice” means, with respect to a Fixed Purchase pursuant to Section 2.1, an irrevocable written notice delivered by the
Company to the Investor directing the Investor to purchase a Fixed Purchase Share Amount (such specified Fixed Purchase Share Amount subject
to adjustment as set forth in Section 2.1 as necessary to give effect to the Fixed Purchase Maximum Amount), at the applicable Fixed Purchase
Price therefor on the applicable Fixed Purchase Date for such Fixed Purchase in accordance with this Agreement.
“Fixed
Purchase Price” means, with respect to a Fixed Purchase made pursuant to Section 2.1, the purchase price per Share to
be purchased by the Investor in such Fixed Purchase equal to the lesser of 95% (i) of the daily volume weighted average price of the
Company’s Common Stock on the NCM, as reported by Bloomberg Financial LP using the AQR function for the five (5) Trading Days
immediately preceding the applicable Fixed Purchase Date for such Fixed Purchase and (ii) the lowest trading price of a share of
Common Stock on the applicable Fixed Purchase Date for such Fixed Purchase during the full Trading Day on the NCM on such applicable
Purchase Date (in each case, to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split
or other similar transaction that occurs on or after the date of this Agreement); provided, however, that if the closing
price of the Common Stock on the date such Fixed Purchase Share Amount corresponding to a Fixed Purchase Notice is delivered, then
the Fixed Purchase Price for such Fixed Purchase Price Share Amount shall be reduced to equal such closing price.
“Fixed Purchase
Share Amount” means, with respect to a Fixed Purchase made pursuant to Section 2.1, the number of Shares to be purchased
by the Investor in such Fixed Purchase as specified by the Company in the applicable Fixed Purchase Notice, which number of Shares shall
not exceed the applicable Fixed Purchase Maximum Amount (calculated as of the applicable Fixed Purchase Date).
“Floor Price”
means a price equal to 85% of the Closing Price on the Trading Day the applicable Additional VWAP Purchase Notice or VWAP Purchase Notice
is delivered to Investor along with the Fixed Purchase Notice.
“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 the Company’s Voting Stock representing more than 50% of the total voting power of the
Company’s Voting Stock (excluding any Voting 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 Voting Stock of the Company representing more than 50% of the total voting power of
the Company’s Voting Stock (not including any Voting 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 Voting Stock of the Company representing more than 50% of the total voting power
of the Company’s Voting Stock.
“GAAP”
shall have the meaning assigned to such term in Section 4.6(b).
“Investment Period”
means the period commencing on the Effective Date of the Registration Statement and expiring on the date this Agreement is terminated
pursuant to Article VII.
“Investor”
shall have the meaning assigned to such term in the preamble of this Agreement.
“Investor Expense
Reimbursement” shall have the meaning assigned to such term in Section 9.1(i).
“Investor Party”
shall have the meaning assigned to such term in Section 8.1.
“Issuer Covered
Person” shall have the meaning assigned to such term in Section 4.37.
“IT Systems”
shall have the meaning assigned to such term in Section 4.36.
“Knowledge”
means, with respect to the Company, the actual knowledge of the Company’s Chief Executive Officer Chief Medical Officer, and President,
its Chief Financial Officer and Treasurer, and its General Counsel, in each case after reasonable inquiry of all officers, directors and
employees of the Company and its Subsidiaries under their direct supervision who would reasonably be expected to have knowledge or information
with respect to the matter in question.
“Material Adverse
Effect” means any material adverse effect on (i) the enforceability of any Transaction Document, (ii) the results of operations,
assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other than any material adverse effect
that resulted primarily from (A) any change in the United States or foreign economies or securities or financial markets in general, (B)
any change that generally affects the industry in which the Company and its Subsidiaries operate, (C) any change 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, (D) any action taken by the Investor,
its Affiliates or its or their successors and assigns with respect to the transactions contemplated by this Agreement and the Registration
Rights Agreement, (E) the effect of any change in applicable laws or accounting rules, or (F) any change resulting from compliance with
terms of this Agreement or the Registration Rights Agreement or the consummation of the transactions contemplated by this Agreement and
the Registration Rights Agreement, or (iii) the Company’s ability to perform in any material respect on a timely basis its obligations
under any Transaction Document to which it is a party to be performed as of the date of determination.
“Material Agreements”
shall have the meaning assigned to such term in Section 4.17.
“Money Laundering
Laws” shall have the meaning assigned to such term in Section 4.34.
“New Registration
Statement” shall have the meaning assigned to such term in the Registration Rights Agreement.
“Notice Delivery
Time” shall have the meaning assigned to such term in Section 6.3.
“Notice of Effectiveness”
shall have the meaning assigned to such term in Section 9.1(iii).
“OFAC”
shall have the meaning assigned to such term in Section 4.35.
“Person”
means any person or entity, whether a natural person, trustee, corporation, partnership, limited partnership, limited liability company,
trust, unincorporated organization, business association, firm, joint venture, governmental agency or authority.
“Personal Data”
shall have the meaning assigned to such term in Section 4.36.
“Prospectus”
means the prospectus in the form included in a Registration Statement, as supplemented from time to time by any Prospectus Supplement,
including the documents incorporated by reference therein.
“Prospectus Supplement”
means any prospectus supplement to the Prospectus filed with the Commission from time to time pursuant to Rule 424(b) under the Securities
Act, including the documents incorporated by reference therein.
“Reference Period”
shall have the meaning assigned to such term in Section 5.6(ii).
“Reference Price”
shall have the meaning assigned to such term in Section 5.6(ii).
“Registrable Securities”
shall have the meaning assigned to such term in the Registration Rights Agreement, and shall include all of the Commitment Shares, if
any.
“Registration
Rights Agreement” shall have the meaning assigned to such term in the recitals hereof.
“Regulation D”
shall have the meaning assigned to such term in the recitals of this Agreement.
“Restricted Period”
shall have the meaning assigned to such term in Section 5.9(i).
“Restricted Person”
shall have the meaning assigned to such term in Section 5.9(i).
“Restricted Persons”
shall have the meaning assigned to such term in Section 5.9(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 executed on the Trading Market (or if the Common Stock is then traded on an Eligible
Market, on such Eligible Market) between 9:30 a.m., New York City time, or such other time publicly announced by the Trading Market or
such other Eligible Market, as the case may be, and ending at 4:00 p.m., New York City time, on the applicable Purchase Date, as reported
by Bloomberg.
“Sanctioned Countries”
shall have the meaning assigned to such term in Section 4.35.
“Sanctioned Country”
shall have the meaning assigned to such term in Section 4.35.
“Sanctioned Persons”
shall have the meaning assigned to such term in Section 4.35.
“Sanctions”
shall have the meaning assigned to such term in Section 4.35.
“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 Share,if any.
“Securities Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder.
“Shares”
shall mean the shares of Common Stock that are and/or may be purchased by the Investor under this Agreement pursuant to one or more Fixed
Purchase Notices, VWAP Purchase Notices or Additional VWAP Purchase Notices, but not including the Commitment Shares, if any.
“Short Sales”
shall mean “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange Act.
“Stock Plan”
shall have the meaning assigned to such term in Section 4.22.
“Subsidiary”
and “Subsidiaries” shall have the meanings assigned to such terms in Section 4.7.
“Total Purchase
Commitment” shall have the meaning assigned to such term in Section 1.1.
“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 trading, including any day on which the Trading Market (or such Eligible Market, as applicable) is open for trading for a period of
time less than the customary time.
“Trading Market”
means the Nasdaq Capital Market (or any nationally recognized successor thereto).
“Transaction Documents”
means, collectively, this Agreement (as qualified by the Disclosure Schedule) and the exhibits hereto, the Registration Rights Agreement
and each of the other agreements, documents, certificates and instruments entered into or furnished by the parties hereto in connection
with the transactions contemplated hereby and thereby.
“Transfer Agent”
means VStock Transfer, LLC, or such other Person who is then serving as the transfer agent for the Company in respect of the Common Stock.
“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 with any Person other than the Investor or an Affiliate of the Investor, 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.
“Voting Stock”
means securities of any class or kind having the power to vote generally for the election of directors, managers or other voting members
of the governing body of the Company or any successor thereto.
“VWAP”
means, for the Common Stock for a specified period, the dollar volume-weighted average price for the Common Stock on the Trading Market
(or, if the Common Stock is then listed on an Eligible Market, on such Eligible Market), for such period, as reported by Bloomberg through
its “AQR” function. All such determinations shall be appropriately adjusted for any stock dividend, stock split, stock combination,
recapitalization or other similar transaction during such period.
“VWAP Purchase”
shall have the meaning assigned to such term in Section 2.2.
“VWAP Purchase
Commencement Time” means, with respect to a VWAP Purchase made pursuant to Section 2.2, 9:30 a.m., New York City time, on
the applicable VWAP Purchase Date, or such other 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 open (or commencement) of trading on the Trading Market (or such Eligible
Market, as applicable) on such applicable VWAP Purchase Date.
“VWAP Purchase
Confirmation” shall have the meaning assigned to such term in Section 2.2 and shall be in the form attached hereto as Annex
2.2B.
“VWAP Purchase
Date” means, with respect to a VWAP Purchase made pursuant to Section 2.2, the Trading Day immediately following the applicable
Fixed Purchase Date with respect to the corresponding Fixed Purchase referred to in clause (i) of the second sentence of Section 3.2,
on which the Investor receives, concurrently with the receipt of the applicable Fixed Purchase Notice for such corresponding Fixed Purchase,
after 4:00 p.m., New York City time, but prior to 5:30 p.m., New York City time, on such applicable Fixed Purchase Date, a valid VWAP
Purchase Notice for such VWAP Purchase in accordance with this Agreement.
“VWAP
Purchase Maximum Amount” means, with respect to a VWAP Purchase made pursuant to Section 3.2, a number of shares of
Common Stock equal to the lesser of (i) 300% of the number of Shares directed by the Company to be purchased by the Investor
pursuant to the corresponding Fixed Purchase Notice for the corresponding Fixed Purchase referred to in clause (i) of the second
sentence of Section 2.2 and (ii) 30% of the trading volume in the Company’s Common Stock on the NCM during the applicable VWAP
Purchase Period on the applicable VWAP Purchase Date.
“VWAP Purchase
Notice” means, with respect to a VWAP Purchase made pursuant to Section 2.2, an irrevocable written notice delivered by
the Company to the Investor (concurrently with the delivery of the applicable Fixed Purchase Notice by the Company to the Investor on
the applicable Fixed Purchase Date with respect to the corresponding Fixed Purchase referred to in clause (i) of the second sentence of
Section 2.2) directing the Investor to purchase a VWAP Purchase Share Amount (such specified VWAP Purchase Share Amount subject to adjustment
as set forth in Section 3.2 as necessary to give effect to the VWAP Purchase Maximum Amount), at the applicable VWAP Purchase Price therefor
on the applicable VWAP Purchase Date for such VWAP Purchase in accordance with this Agreement.
“VWAP Purchase
Period” means, with respect to a VWAP Purchase made pursuant to Section 2.2, the period on the applicable VWAP Purchase
Date for such VWAP Purchase beginning at the applicable VWAP Purchase Commencement Time and ending at the applicable VWAP Purchase Termination
Time.
“VWAP Purchase
Price” means, with respect to a VWAP Purchase made pursuant to Section 2.2, the purchase price per Share to be purchased
by the Investor in such VWAP Purchase equal to the lesser of ninety-five percent (95%) of (i) the Closing Sale Price of the Common Stock
on the applicable VWAP Purchase Date and (ii) the VWAP during the applicable VWAP Purchase Period.
“VWAP Purchase
Share Amount” means, with respect to a VWAP Purchase made pursuant to Section 2.2, the number of Shares to be purchased
by the Investor in such VWAP Purchase as specified by the Company in the applicable VWAP Purchase Notice, which number of Shares shall
not exceed the applicable VWAP Purchase Maximum Amount.
“VWAP Purchase
Share Percentage” means, with respect to a VWAP Purchase made pursuant to Section 2.2, thirty percent (30%).
“VWAP Purchase
Share Volume Maximum” means, with respect to a VWAP Purchase made pursuant to Section 2.2, a number of shares of Common
Stock equal to (i) the number of Shares specified by the Company in the applicable VWAP Purchase Notice as the VWAP Purchase Share Amount
to be purchased by the Investor in such VWAP Purchase, divided by (ii) the VWAP Purchase Share Percentage (to be appropriately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
“VWAP Purchase
Termination Time” means, with respect to a VWAP Purchase made pursuant to Section 2.2, the earliest of (i) 2:00 p.m., New
York City time, on the applicable VWAP Purchase Date, or such other 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 trading on the Trading Market on such applicable
VWAP Purchase Date, (ii) such time, from and after the VWAP Purchase Commencement Time for such VWAP Purchase, that the trading volume
of shares of Common Stock traded on the Trading Market (or, if the Common Stock is then listed on
an Eligible Market, on such Eligible Market) has
exceeded the applicable VWAP Purchase Share Volume Maximum and (iii) such time, from and after the VWAP Purchase Commencement Time for
such VWAP Purchase, that any sale price of the Common Stock traded on the Trading Market (or, if the Common Stock is then listed on an
Eligible Market, on such Eligible Market) has fallen below the applicable Floor Price for such applicable VWAP Purchase.
EXHIBIT A TO THE
COMMON STOCK PURCHASE AGREEMENT
REGISTRATION RIGHTS AGREEMENT
[TO BE FURNISHED SEPARATELY]
EXHIBIT B TO THE
COMMON STOCK PURCHASE AGREEMENT
CERTiFICATE OF THE COMPANY
CLOSING CERTIFICATE
__, 2024
The undersigned, the [●]
of Aditxt, Inc., a Delaware corporation (the “Company”), delivers this certificate in connection with the Common
Stock Purchase Agreement, dated as of [●], 2024 (the “Agreement”), by and between the Company and Seven
Knots, LLC, a Montana limited liability company (the “Investor”), and hereby certifies on the date hereof that
(capitalized terms used herein without definition have the meanings assigned to them in the Agreement):
1. Attached
hereto as Exhibit A is a true, complete and correct copy of the Certificate of Incorporation of the Company, as amended through
the date hereof, as filed with the State of Delaware. The Certificate of Incorporation of the Company has not been further amended or
restated, and no document with respect to any amendment to the Certificate of Incorporation of the Company has been filed in the State
of Delaware since the date shown on the face of the state certification relating to the Company’s Certificate of Incorporation,
which is in full force and effect on the date hereof, and no action has been taken by the Company in contemplation of any such amendment
or the dissolution, merger or consolidation of the Company.
2. Attached
hereto as Exhibit B is a true and complete copy of the Bylaws of the Company, as amended and restated through, and as in full force
and effect on, the date hereof, and no proposal for any amendment, repeal or other modification to the Bylaws of the Company has been
taken or is currently pending before the Board of Directors or stockholders of the Company.
3. The
Board of Directors of the Company has approved the transactions contemplated by the Transaction Documents; said approval has not been
amended, rescinded or modified and remains in full force and effect as of the date hereof. Attached hereto as Exhibit C are true,
correct and complete copies of the resolutions duly adopted by the Board of Directors of the Company via unanimous written consent on
[●], 2024.
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.
EXHIBIT C TO THE
COMMON STOCK PURCHASE AGREEMENT
COMPLIANCE CERTIFICATE
The undersigned, the [●]
of Aditxt, Inc., a Delaware corporation (the “Company”), delivers this certificate in connection with the Common
Stock Purchase Agreement, dated as of [●], 2024 (the “Agreement”), by and between the Company and Seven
Knots, LLC, a Montana 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 IV 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. Each
of 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, respectively, [at or prior
to Commencement][on or prior to the date hereof].
4. The
Shares issuable in respect of each Fixed Purchase Notice, each VWAP Purchase Notice, and each Additional VWAP Purchase Notice effected
pursuant to the Agreement shall be delivered to the Investor electronically as DWAC Shares, and shall be freely tradable and transferable
and without restriction on resale and without any stop transfer instructions maintained against such Shares.
5. As
of [the Commencement Date][the date hereof], the Company does not possess any material non-public information.
6. As
of [the Commencement Date][the date hereof], the Company has reserved out of its authorized and unissued Common Stock, [●] shares
of Common Stock solely for the purpose of effecting Fixed Purchases, VWAP Purchases and Additional VWAP Purchases under the Agreement.
7. No
stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus under the Securities Act has been issued
and no proceedings for such purpose or pursuant to Section 8A of the Securities Act are pending before or, to the Knowledge of the Company,
threatened by the Commission.
The undersigned has executed
this Certificate this [●] day of [●], 2024.
DISCLOSURE SCHEDULEs
RELATING TO THE COMMON STOCK
PURCHASE AGREEMENT, DATED AS OF [●], 2024
BY AND AMONG ADITXT, INC. AND SEVEN KNOTS, LLC
This disclosure schedules
are made and given pursuant to Article IV of the Common Stock Purchase Agreement, dated as of [●], 2024 (the “Agreement”),
by and between Aditxt, Inc., a Delaware corporation (the “Company”), and Seven Knots, LLC, a Montana limited
liability company (the “Investor”). 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.
ANNEX 2.1 TO THE
COMMON STOCK PURCHASE AGREEMENT FORM OF FIXED
PURCHASE NOTICE
Reference is made to the
Common Stock Purchase Agreement dated as of [__] 2024, (the “Purchase Agreement”) between Aditxt, Inc., a
Delaware corporation (the “Company”), and Seven Knots, LLC, a Montana limited liability company. Capitalized
terms used and not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement.
In accordance
with and pursuant to Section 2.1 of the Purchase Agreement, the Company hereby issues this Fixed Purchase Notice to exercise a Fixed Purchase
for the Fixed Purchase Share Amount indicated below.
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Fixed Purchase
Share Amount (number of Shares): |
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Fixed Purchase Exercise Date: Fixed |
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Purchase Price (per Share): |
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Total Aggregate Fixed Purchase Price: Fixed |
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Purchase Share Delivery Date: Fixed Purchase |
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Settlement
Date: |
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Dollar Amount of Common Stock |
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Currently Available under the Aggregate Limit: |
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By: |
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Name: |
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Title: |
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Address:
Email |
AGREED AND ACCEPTED:
SEVEN KNOTS, LLC
ANNEX 2.2 TO THE
COMMON STOCK PURCHASE AGREEMENT FORM OF VWAP
PURCHASE NOTICE
Reference is
made to the Common Stock Purchase Agreement dated as of [__], 2024, (the “Purchase Agreement”) between Aditxt, Inc.,
a Delaware corporation (the “Company”), and Seven Knots, LLC, a Montana limited liability company. Capitalized terms
used and not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement.
In accordance
with and pursuant to Section 2.2 of the Purchase Agreement, the Company hereby issues this VWAP Purchase Notice to exercise a VWAP Purchase
for the VWAP Purchase Share Amount indicated below.
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VWAP Purchase Share Amount (number
of Shares): |
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VWAP Purchase Exercise Date: VWAP Purchase Date: |
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VWAP Purchase Share Delivery Date: |
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VWAP Purchase Settlement Date: |
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Dollar Amount of Common Stock Currently
Available under the Aggregate Limit: |
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By: |
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Name: |
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Title: |
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Address:
Email: |
AGREED AND ACCEPTED:
SEVEN KNOTS, LLC
ANNEX 2.2B TO THE
COMMON STOCK PURCHASE AGREEMENT FORM OF VWAP
PURCHASE CONFIRMATION
Reference is made
to the Common Stock Purchase Agreement dated as of [__], 2024, (the “Purchase Agreement”) between Aditxt, Inc., a Delaware
corporation (the “Company”), and Seven Knots, LLC, a Montana limited liability company. Capitalized terms used and
not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement.
In accordance
with and pursuant to Section 2.2 of the Purchase Agreement, the Investor hereby issues this VWAP Purchase Confirmation for the VWAP Purchase
Share Amount indicated below.
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VWAP Purchase Share Amount (number of Shares): |
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VWAP Purchase Exercise Date: |
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VWAP Purchase Date: |
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VWAP Purchase Commencement Time: |
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VWAP Purchase Termination Time: VWAP during the VWAP Purchase Period: |
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Closing Sale Price on the VWAP Purchase Date: |
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VWAP Purchase Price (per Share) (90% of lower of two line items immediately above): |
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Total Aggregate VWAP Purchase Price: |
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VWAP Purchase Share Delivery Date: |
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VWAP Purchase Settlement Date: |
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By: |
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AGREED AND ACCEPTED:
Aditxt, Inc.
ANNEX 2.3
TO THE
COMMON STOCK
PURCHASE AGREEMENT FORM OF ADDITIONAL VWAP
PURCHASE NOTICE
Reference is made
to the Common Stock Purchase Agreement dated as of [__], 2024 (the “Purchase Agreement”) between Aditxt, Inc., a Delaware
corporation (the “Company”), and Seven Knots, LLC, a Montana limited liability company. Capitalized terms used and
not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement.
In accordance
with and pursuant to Section 2.3 of the Purchase Agreement, the Company hereby issues this Additional VWAP Purchase Notice to exercise
an Additional VWAP Purchase for the Additional VWAP Purchase Share Amount indicated below.
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Additional VWAP Purchase Share Amount (number of Shares): |
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Additional VWAP Purchase Date (indicate whether this is for the first, second, third, etc. Additional VWAP exercised by the Company on such Additional VWAP Purchase Date): |
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Additional VWAP Purchase Share Delivery Date: |
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Additional VWAP Purchase Settlement Date: |
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Dollar Amount of Common Stock Currently Available under the Aggregate Limit: |
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By: |
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AGREED AND ACCEPTED:
SEVEN KNOTS, LLC
ANNEX 2.3B TO THE
COMMON STOCK PURCHASE AGREEMENT
FORM OF ADDITIONAL VWAP PURCHASE
CONFIRMATION
Reference is
made to the Common Stock Purchase Agreement dated as of [__], 2024, (the “Purchase Agreement”) between Aditxt, Inc.,
a Delaware corporation (the “Company”), and Seven Knots, LLC, a Montana limited liability company. Capitalized terms
used and not otherwise defined herein shall have the meanings given such terms in the Purchase Agreement.
In accordance
with and pursuant to Section 2.3 of the Purchase Agreement, the Investor hereby issues this Additional VWAP Purchase Confirmation for
the Additional VWAP Purchase Share Amount indicated below.
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Additional VWAP Purchase Share Amount (number of Shares): |
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Additional VWAP Purchase Date (indicate whether this is for the first, second, third, etc. Additional VWAP exercised by the Company on such Additional VWAP Purchase Date): |
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Additional VWAP Purchase Commencement Time: |
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Additional VWAP Purchase Termination Time: |
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VWAP during the Additional VWAP Purchase Period: |
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Closing Sale Price on the Additional VWAP Purchase Date: |
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Additional VWAP Purchase Price (per Share) (90% of lower of two line items immediately above): |
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Total Aggregate Additional VWAP Purchase Price: |
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Additional VWAP Purchase Share Delivery Date: |
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Additional VWAP Purchase Settlement Date: |
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AGREED AND ACCEPTED:
Aditxt, Inc.
Exhibit 10.2
REGISTRATION
RIGHTS AGREEMENT
This
REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of May 2, 2024, is by and between Seven Knots,
LLC, a Delaware limited liability company (the “Investor”), and Aditxt, Inc., a Delaware corporation (the “Company”).
RECITALS
A. The
Company and the Investor have entered into that certain Common Stock Purchase Agreement, dated as of the date hereof (the “Purchase
Agreement”), pursuant to which the Company may issue to the Investor, from time to time, up to the lesser of (a) $150,000,000
and (b) 19.99% of the Company’s outstanding common stock, par value $0.001 per share (the “Common Stock”)
as of the date of this Agreement, unless shareholder approval is obtained to issue more than such 19.99%.
B. Pursuant
to the terms of, and in consideration for the Investor entering into, the Purchase Agreement, the Company shall cause to be issued to
the Investor the Commitment Shares in accordance with the terms of the Purchase Agreement.
C. Pursuant
to the terms of, and in consideration for the Investor entering into, the Purchase Agreement, and to induce the Investor to execute and
deliver the Purchase Agreement, the Company has agreed to provide the Investor with certain registration rights with respect to the Registrable
Securities (as defined herein) as set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the representations, warranties, covenants and agreements contained herein and in the Purchase Agreement,
and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, intending to be legally bound
hereby, the Company and the Investor hereby agree as follows:
Capitalized
terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(a) “Agreement”
shall have the meaning assigned to such term in the preamble of this Agreement
(b) “Allowable
Grace Period” shall have the meaning assigned to such term in Section 3(n).
(c) “Blue
Sky Filing” shall have the meaning assigned to such term in Section 6(a).
(d) “Business
Day” means any day other than Saturday, Sunday or any other day on which commercial banks in New York, New York are authorized
or required by law to remain closed.
(e) “Claims”
shall have the meaning assigned to such term in Section 6(a).
(f) “Commission”
means the U.S. Securities and Exchange Commission or any successor entity.
(g) “Common
Stock” shall have the meaning assigned to such term in the recitals to this Agreement.
(h) “Company”
shall have the meaning assigned to such term in the preamble of this Agreement.
(i) “Effective
Date” means the date that the applicable Registration Statement has been declared effective by the Commission.
(j) “Effectiveness
Deadline” means (i) with respect to any Registration Statement that may be required to be filed by the Company pursuant
to this Agreement, the earlier of (A) the sixtieth (60th) calendar day following the date on which the Company was required
to file such Registration Statement, if such Registration Statement is subject to review by the Commission, and (B) the third (3rd)
Business Day following the date the Company is notified (orally or in writing, whichever is earlier) by the Commission that such Registration
Statement will not be reviewed.
(k) “Filing
Deadline” means (i) with respect to the initial Registration Statement required to be filed pursuant to Section 2(c), the
later of (x) the 30th calendar day after the Closing Date and (y) the 2nd Business Day following the Stockholder
Approval (as defined in the Purchase Agreement) and (ii) with respect to any New Registration Statements that may be required to be filed
by the Company pursuant to this Agreement,), the tenth (10th) Business Day following the sale of substantially all of the
Registrable Securities covered by, as applicable, the Initial Registration Statement or the most recent prior New Registration Statement..
(l) “Indemnified
Damages” shall have the meaning assigned to such term in Section 6(a).
(m)
“Investor” shall have the meaning assigned to such term in the preamble of this Agreement.
(n) “Investor
Party” and “Investor Parties” shall have the meaning assigned to such terms in Section 6(a).
(o) “Legal
Counsel” shall have the meaning assigned to such term in Section 2(b).
(p) “New
Registration Statement” shall have the meaning assigned to such term in Section 2(a).
(q) “Person”
means any person or entity, whether a natural person, trustee, corporation, partnership, limited partnership, limited liability company,
trust, unincorporated organization, business association, firm, joint venture, governmental agency or authority.
(r) “Prospectus”
means the prospectus in the form included in the Registration Statement, as supplemented from time to time by any Prospectus Supplement,
including the documents incorporated by reference therein.
(s) “Prospectus
Supplement” means any prospectus supplement to the Prospectus filed with the Commission from time to time pursuant to Rule
424(b) under the Securities Act, including the documents incorporated by reference therein.
(t) “Purchase
Agreement” shall have the meaning assigned to such term in the recitals to this Agreement.
(u) “register,”
“registered,” and “registration” refer to a registration effected by preparing and
filing one or more Registration Statements in compliance with the Securities Act and pursuant to Rule 415 and the declaration of effectiveness
of such Registration Statement(s) by the Commission.
(v) “Registrable
Securities” means all of (i) the Shares, (ii) the Commitment Shares, as fully earned as of the date hereof and (iii) any
securities of the Company issued or issuable with respect to such Shares or Commitment Shares, including, without limitation, (1) as
a result of any stock split, stock dividend, recapitalization, exchange or similar event or otherwise and (2) shares of capital stock
of the Company into which the Common Stock are converted or exchanged and shares of a successor entity into which the Common Stock are
converted or exchanged, in each case until such time as such securities cease to be Registrable Securities pursuant to Section 2(f).
(w) “Registration
Period” shall have the meaning assigned to such term in Section 3(a).
(x) “Registration
Statement” means any registration statement on Form S-1 (or any successor form) required to be filed by the Company under
the Securities Act that registers the Registrable Securities, as such registration statement or registration statements may be amended
and supplemented from time to time, including all documents filed as part thereof or incorporated by reference therein.
(y) “Rule
144” means Rule 144 promulgated by the Commission under the Securities Act, as such rule may be amended from time to time,
or any other similar or successor rule or regulation of the Commission that may at any time permit the Investor to sell securities of
the Company to the public without registration.
(z) “Rule
415” means Rule 415 promulgated by the Commission under the Securities Act, as such rule may be amended from time to time,
or any other similar or successor rule or regulation of the Commission providing for offering securities on a delayed or continuous basis.
(aa) “Staff”
shall have the meaning assigned to such term in Section 2(e).
(bb) “Violations”
shall have the meaning assigned to such term in Section 6(a).
(a) Mandatory
Registration. The Company shall prepare and, as soon as practicable, but in no event later than the Filing Deadline, file with the
Commission a Registration Statement covering (i) all of the Commitment Shares and (ii) the maximum number of additional Registrable Securities
as shall be permitted to be included thereon in accordance with applicable Commission rules, regulations and interpretations so as to
permit the resale of such Registrable Securities by the Investor under Rule 415 under the Securities Act at then prevailing market prices
(and not fixed prices) (the “Initial Registration Statement”). The Prospectus included in the Initial Registration
Statement shall contain the “Selling Shareholder” and “Plan of Distribution” sections in substantially the form
attached hereto as Exhibit B.
(b) Legal
Counsel. Subject to Section 5 hereof, the Investor shall have the right to select one legal counsel to review and oversee, solely
on its behalf, any registration pursuant to this Section 2 (“Legal Counsel”), which shall be Pryor Cashman
LLP, or such other counsel as thereafter designated by the Investor. Except as provided under Section 9.1(i) of the Purchase Agreement,
the Company shall have no obligation to reimburse the Investor for any and all legal fees and expenses of the Legal Counsel incurred
in connection with each registration contemplated hereby.
(c) Sufficient
Number of Shares Registered. If at any time all Registrable Securities are not covered by the Initial Registration Statement filed
pursuant to Section 2(a) as a result of Section 2(e) or otherwise, and if the Company desires to sell additional Shares to the Investor
under the Agreement, the Company shall then use its best efforts to file with the Commission one or more additional Registration Statements
on Form S-1 (or any successor form) so as to cover all of the Registrable Securities not covered by such Initial Registration Statement
(each, a “New Registration Statement”), in each case, as soon as practicable (taking into account any position
of the staff of the Commission (“Staff”) with respect to the date on which the Staff will permit such additional
New Registration Statement(s) to be filed with the Commission and the rules and regulations of the Commission). The Company shall use
its commercially reasonable efforts to cause each such New Registration Statement to become effective as soon as practicable following
the filing thereof with the Commission, but in no event later than the applicable Effectiveness Deadline for such New Registration Statement.
(d) No
Inclusion of Other Securities. In no event shall the Company include any securities other than Registrable Securities on any Registration
Statement pursuant to Section 2(a) or Section 2(c) without consulting the Investor and Legal Counsel prior to filing such Registration
Statement with the Commission.
(e) Offering.
If the Staff or the Commission seeks to characterize any offering pursuant to a Registration Statement filed pursuant to this Agreement
as constituting an offering of securities that does not permit such Registration Statement to become effective and be used for resales
by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing market prices (and not fixed prices), or if after
the filing of any Registration Statement pursuant to Section 2(a) or Section 2(c), the Company is otherwise required by the Staff or
the Commission to reduce the number of Registrable Securities included in such Registration Statement, then the Company shall reduce
the number of Registrable Securities to be included in such Registration Statement (after consultation with the Investor and Legal Counsel
as to the specific Registrable Securities to be removed therefrom) until such time as the Staff and the Commission shall so permit such
Registration Statement to become effective and be used as aforesaid. Notwithstanding anything in this Agreement to the contrary, if after
giving effect to the actions referred to in the immediately preceding sentence, the Staff or the Commission does not permit such Registration
Statement to become effective and be used for resales by the Investor on a delayed or continuous basis under Rule 415 at then-prevailing
market prices (and not fixed prices), the Company shall not request acceleration of the Effective Date of such Registration Statement,
the Company shall promptly (but in no event later than 48 hours) request the withdrawal of such Registration Statement pursuant to Rule
477 under the Securities Act. In the event of any reduction in Registrable Securities pursuant to this paragraph, if the Company desires
to sell any Shares to the Investor that are not covered by an Initial Registration Statement or New Registration Statement, the Company
shall then use its commercially reasonable efforts to file one or more New Registration Statements with the Commission in accordance
with Section 2(c) until such time as all Registrable Securities have been included in Registration Statements that have been declared
effective and the Prospectuses contained therein are available for use by the Investor.
(f) Any
Registrable Security shall cease to be a “Registrable Security” at the earliest of the following: (i) when a Registration
Statement covering such Registrable Security becomes or has been declared effective by the Commission and such Registrable Security has
been sold or disposed of pursuant to such effective Registration Statement; (ii) when such Registrable Security is held by the Company
or one of its subsidiaries; and (iii) the date that is the later of (A) the first (1st) anniversary of the date of termination
of the Purchase Agreement in accordance with Article VII of the Purchase Agreement and (B) the first (1st) anniversary of
the date of the last sale of any Registrable Securities to the Investor pursuant to the Purchase Agreement.
The
Company shall use its commercially reasonable efforts to effect the registration of the Registrable Securities in accordance with the
terms of this Agreement and the intended method of disposition thereof, and, pursuant thereto, during the term of this Agreement, the
Company shall have the following obligations:
(a) The
Company shall promptly prepare and file with the Commission the Initial Registration Statement pursuant to Section 2(a) hereof and, as
required, one or more New Registration Statements pursuant to Section 2(c) hereof with respect to the Registrable Securities, but in
no event later than the applicable Filing Deadline therefor, and the Company use its commercially reasonable efforts to cause each such
Registration Statement to become effective as soon as practicable after such filing, but in no event later than the applicable Effectiveness
Deadline therefor. Subject to Allowable Grace Periods (as defined below), the Company shall keep each Registration Statement effective
(and the Prospectus contained therein available for use) pursuant to Rule 415 for issuances and sales of the Registrable Securities by
the Company to the Investor and for resales by the Investor on a continuous basis at then-prevailing market prices (and not fixed prices)
at all times until the earlier of (i) the date on which the Investor shall have sold all of the Registrable Securities covered by such
Registration Statement and (ii) the date of termination of the Purchase Agreement if as of such termination date the Investor holds no
Registrable Securities (or, if applicable, the date on which such securities cease to be Registrable Securities after the date of termination
of the Purchase Agreement) (the “Registration Period”). Notwithstanding anything to the contrary contained
in this Agreement (but subject to the provisions of Section 3(o) hereof), the Company shall ensure that, when filed and at all times
while effective, each Registration Statement (including, without limitation, all amendments and supplements thereto) and the Prospectus
(including, without limitation, all amendments and supplements thereto) used in connection with such Registration Statement shall not
contain any untrue statement of a material fact or omit to state a material fact required to be stated therein, or necessary to make
the statements therein (in the case of Prospectuses, in the light of the circumstances in which they were made) not misleading. The Company
shall submit to the Commission, as soon as reasonably practicable after the date that the Company learns that no review of a particular
Registration Statement will be made by the Staff or that the Staff has no further comments on a particular Registration Statement (as
the case may be), a request for acceleration of effectiveness of such Registration Statement to a time and date as soon as reasonably
practicable in accordance with Rule 461 under the Securities Act.
(b) Subject
to Section 3(c) of this Agreement, the Company shall use its commercially reasonable efforts to prepare and file with the Commission
such amendments (including, without limitation, post-effective amendments) and supplements to each Registration Statement and the Prospectus
used in connection with each such Registration Statement, which Prospectus is to be filed pursuant to Rule 424 promulgated under the
Securities Act, as may be necessary to keep each such Registration Statement effective (and the Prospectus contained therein current
and available for use) at all times during the Registration Period for such Registration Statement, and, during such period, comply with
the provisions of the Securities Act with respect to the disposition of all Registrable Securities of the Company required to be covered
by such Registration Statement until such time as all of such Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the Investor. Without limiting the generality of the foregoing, the Company covenants and agrees that
(i) at or before 5:30 p.m. (New York City time) on the second (2nd) Trading Day immediately following the Effective Date of
the Initial Registration Statement and any New Registration Statement (or any post-effective amendment thereto), the Company shall file
with the Commission in accordance with Rule 424(b) under the Securities Act the final Prospectus to be used in connection with sales
pursuant to such Registration Statement (or post-effective amendment thereto), and (ii) if the transactions contemplated by any Fixed
Purchase are material to the Company (individually or collectively with all other prior Fixed Purchases, VWAP Purchase, or Additional
VWAP Purchase, as applicable, the consummation of which have not previously been reported in any Prospectus filed with the Commission
under Rule 424(b) under the Securities Act or in any report, statement or other document filed by the Company with the Commission under
the Exchange Act), or if otherwise required under the Securities Act (or the interpretations of the Commission thereof), in each case
as reasonably determined by the Company and the Investor, then, within the time period prescribed under Rule 424(b) under the Securities
Act, the Company shall file with the Commission a Prospectus pursuant to Rule 424(b) under the Securities Act with respect to the applicable
Fixed Purchase(s), VWAP Purchase(s) and Additional VWAP Purchase(s), as applicable, disclosing the total number of Shares that are to
be (and, if applicable, have been) issued and sold to the Investor pursuant to such purchase(s), the total purchase price for the Shares
subject to such purchase(s), the applicable purchases price(s) for such Shares and the net proceeds that are to be (and, if applicable,
have been) received by the Company from the sale of such Shares. To the extent not previously disclosed in the Prospectus, the Company
shall disclose in its Quarterly Reports on Form 10-Q and in its Annual Reports on Form 10-K the information described in the immediately
preceding sentence relating to all purchase(s) consummated during the relevant fiscal quarter and shall file such Quarterly Reports and
Annual Reports with the Commission within the applicable time period prescribed for such report under the Exchange Act. In the case of
amendments and supplements to any Registration Statement or Prospectus related thereto which are required to be filed pursuant to this
Agreement (including, without limitation, pursuant to this Section 3(b)) by reason of the Company filing a report on Form 8-K, Form 10-Q
or Form 10-K or any analogous report under the Exchange Act, the Company shall file such amendments or supplements to the Registration
Statement or Prospectus with the Commission on the same day on which the Exchange Act report is filed which created the requirement for
the Company to amend or supplement such Registration Statement or Prospectus, for the purpose of including such report into such Registration
Statement and Prospectus. The Company consents to the use of the Prospectus (including, without limitation, any supplement thereto) included
in each Registration Statement in accordance with the provisions of the Securities Act and with the securities or “Blue Sky”
laws of the jurisdictions in which the Registrable Securities may be sold by the Investor, in connection with the resale of the Registrable
Securities and for such period of time thereafter as such Prospectus (including, without limitation, any supplement thereto) (or in lieu
thereof, the notice referred to in Rule 173(a) under the Securities Act) is required by the Securities Act to be delivered in connection
with resales of Registrable Securities.
(c) The
Company shall (A) permit Legal Counsel an opportunity to review and comment upon (i) each Registration Statement at least two (2) Business
Days prior to its filing with the Commission and (ii) all amendments and supplements to each Registration Statement (including, without
limitation, the Prospectus contained therein) (except for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports
on Form 8-K, and any similar or successor reports the contents of which is limited to that set forth in such reports) within a reasonable
number of days prior to their filing with the Commission, and (B) shall reasonably consider any comments of the Investor and Legal Counsel
on any such Registration Statement or amendment or supplement thereto or to any Prospectus contained therein. The Company shall promptly
furnish to Legal Counsel, without charge, (i) electronic copies of any correspondence from the Commission or the Staff to the Company
or its representatives relating to each Registration Statement (which correspondence shall be redacted to exclude any material, non-public
information regarding the Company or any of its Subsidiaries), (ii) after the same is prepared and filed with the Commission, one
(1) electronic copy of each Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial
statements and schedules, all documents incorporated therein by reference, if requested by the Investor, and all exhibits and (iii) upon
the effectiveness of each Registration Statement, one (1) electronic copy of the Prospectus included in such Registration Statement and
all amendments and supplements thereto; provided, however, the Company shall not be required to furnish any document (other than the
Prospectus, which may be provided in .PDF format) to Legal Counsel to the extent such document is available on EDGAR).
(d) Without
limiting any obligation of the Company under the Purchase Agreement, if requested by an Investor, the Company shall promptly furnish
to such Investor, without charge, (i) after the same is prepared and filed with the Commission, at least one (1) electronic copy of each
Registration Statement and any amendment(s) and supplement(s) thereto, including, without limitation, financial statements and schedules,
all documents incorporated therein by reference, if requested by the Investor, all exhibits thereto, (ii) upon the effectiveness of each
Registration Statement, one (1) electronic copy of the Prospectus included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as the Investor may reasonably request from time to time) and (iii) such other documents, including,
without limitation, copies of any final Prospectus, as the Investor may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by the Investor; provided, however, the Company shall not be required to furnish any
document (other than the Prospectus, which may be provided in .PDF format) to the Investor to the extent such document is available on
EDGAR).
(e) The
Company shall take such action as is reasonably necessary to (i) register and qualify, unless an exemption from registration and qualification
applies, the resale by the Investor of the Registrable Securities covered by a Registration Statement under such other securities or
“Blue Sky” laws of all applicable jurisdictions in the United States, (ii) prepare and file in those jurisdictions, such
amendments (including, without limitation, post-effective amendments) and supplements to such registrations and qualifications as may
be necessary to maintain the effectiveness thereof during the Registration Period, (iii) take such other actions as may be reasonably
necessary to maintain such registrations and qualifications in effect at all times during the Registration Period, and (iv) take all
other actions reasonably necessary or advisable to qualify the Registrable Securities for sale in such jurisdictions; provided,
however, 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 3(e), (y) subject itself to general taxation
in any such jurisdiction, or (z) file a general consent to service of process in any such jurisdiction. The Company shall promptly notify
Legal Counsel and the Investor of the receipt by the Company of any notification with respect to the suspension of the registration or
qualification of any of the Registrable Securities for sale under the securities or “Blue Sky” laws of any jurisdiction in
the United States or its receipt of actual notice of the initiation or threatening of any proceeding for such purpose.
(f) The
Company shall notify Legal Counsel and the Investor in writing of the happening of any event, as promptly as reasonably practicable after
becoming aware of such event, as a result of which the Prospectus included in a Registration Statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not misleading (provided that in no event shall such notice contain
any material, non-public information regarding the Company or any of its Subsidiaries), and, subject to Section 3(c), promptly prepare
a supplement or amendment to such Registration Statement and such Prospectus contained therein to correct such untrue statement or omission
and, if requested by such Legal Counsel or Investor, deliver one (1) electronic copy of such supplement or amendment to Legal Counsel
and the Investor (or such other number of copies as Legal Counsel or the Investor may reasonably request). The Company shall also promptly
notify Legal Counsel and the Investor in writing (i) when a Prospectus or any Prospectus Supplement or post-effective amendment has been
filed, when a Registration Statement or any post-effective amendment has become effective (notification of such effectiveness shall be
delivered to Legal Counsel and the Investor by facsimile or e-mail on the same day of such effectiveness and by overnight mail), and
when the Company receives written notice from the Commission that a Registration Statement or any post-effective amendment will be reviewed
by the Commission, (ii) of any request by the Commission for amendments or supplements to a Registration Statement or related Prospectus
or related information, (iii) of the Company’s reasonable determination that a post-effective amendment to a Registration Statement
would be appropriate and (iv) of the receipt of any request by the Commission or any other federal or state governmental authority for
any additional information relating to the Registration Statement or any amendment or supplement thereto or any related Prospectus. The
Company shall respond as promptly as reasonably practicable to any comments received from the Commission with respect to a Registration
Statement or any amendment thereto. Nothing in this Section 3(f) shall limit any obligation of the Company under the Purchase Agreement.
(g) The
Company shall (i) use its commercially reasonable efforts to prevent the issuance of any stop order or other suspension of effectiveness
of a Registration Statement or the use of any Prospectus contained therein, or the suspension of the qualification, or the loss of an
exemption from qualification, of any of the Registrable Securities for sale in any jurisdiction and, if such an order or suspension is
issued, to obtain the withdrawal of such order or suspension at the earliest possible time and (ii) notify Legal Counsel and the Investor
of the issuance of such order and the resolution thereof or its receipt of actual notice of the initiation or threat of any proceeding.
(h) The
Company shall hold in confidence and not make any disclosure of information concerning the Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state securities laws, (ii) the disclosure of such information
is necessary to avoid or correct a misstatement or omission in any Registration Statement or is otherwise required to be disclosed in
such Registration Statement pursuant to the Securities Act, (iii) the release of such information is ordered pursuant to a subpoena or
other final, non-appealable order from a court or governmental body of competent jurisdiction, or (iv) such information has been made
generally available to the public other than by disclosure in violation of this Agreement or any other Transaction Document. The Company
agrees that it shall, upon learning that disclosure of such information concerning the Investor is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt written notice to the Investor and allow the Investor, at the Investor’s
expense, to undertake appropriate action to prevent disclosure of, or to obtain a protective order for, such information.
(i) The
Company shall cooperate with the Investor and, to the extent applicable, facilitate the timely preparation and delivery of Registrable
Securities, as DWAC Shares, to be offered pursuant to a Registration Statement and enable such DWAC Shares to be in such denominations
as the Investor may reasonably request from time to time and registered in such names as the Investor may request. Investor hereby agrees
that it shall cooperate with the Company, its counsel and Transfer Agent in connection with any issuances of DWAC Shares, and hereby
represents, warrants and covenants to the Company that that it will resell such DWAC Shares only pursuant to the Registration Statement
in which such DWAC Shares are included, in a manner described under the caption “Plan of Distribution” in such Registration
Statement, and in a manner in compliance with all applicable U.S. federal and state securities laws, rules and regulations, including,
without limitation, any applicable prospectus delivery requirements of the Securities Act. DWAC Shares shall be free from all restrictive
legends and may be transmitted by the transfer agent to the Investor by crediting an account at DTC as directed in writing by the Investor.
(j) Upon
the written request of the Investor, the Company shall as soon as reasonably practicable after receipt of notice from the Investor and
subject to Section 3(n) hereof, (i) incorporate in a Prospectus Supplement or post-effective amendment such information as the Investor
reasonably requests to be included therein relating to the sale and distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being offered or sold, the purchase price being paid therefor and any
other terms of the offering of the Registrable Securities to be sold in such offering; (ii) make all required filings of such Prospectus
Supplement or post-effective amendment after being notified of the matters to be incorporated in such Prospectus Supplement or post-effective
amendment; and (iii) supplement or make amendments to any Registration Statement or Prospectus contained therein if reasonably requested
by the Investor.
(k) The
Company shall use its commercially reasonable efforts to cause the Registrable Securities covered by a Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be necessary to consummate the disposition of such Registrable
Securities.
(l) The
Company shall otherwise use its commercially reasonable efforts to comply with all applicable rules and regulations of the Commission
in connection with any registration hereunder.
(m) Within
one (1) Business Day after each Registration Statement which covers Registrable Securities is declared effective by the Commission, the
Company shall deliver, and shall cause legal counsel for the Company to deliver, to the transfer agent for such Registrable Securities
(with copies to the Investor) confirmation that such Registration Statement has been declared effective by the Commission in a form to
be provided by counsel to the Company and reasonably acceptable to the Investor.
(n) Notwithstanding
anything to the contrary contained herein (but subject to the last sentence of this Section 3(n)), at any time after the Effective Date
of a particular Registration Statement, the Company may, upon written notice to Investor, suspend Investor’s use of any prospectus
that is a part of any Registration Statement (in which event the Investor shall discontinue sales of the Registrable Securities pursuant
to such Registration Statement contemplated by this Agreement, but may, in its sole discretion, settle any previously made sales of Registrable
Securities) if the Company (x) is pursuing an acquisition, merger, tender offer, reorganization, disposition or other similar transaction
and the Company determines in good faith that (A) the Company’s ability to pursue or consummate such a transaction would be materially
adversely affected by any required disclosure of such transaction in such Registration Statement or other registration statement or (B)
such transaction renders the Company unable to comply with Commission requirements, in each case under circumstances that would make
it impractical or inadvisable to cause any Registration Statement (or such filings) to be used by Investor or to promptly amend or supplement
any Registration Statement contemplated by this Agreement on a post effective basis, as applicable, or (y) has experienced some other
material non-public event the disclosure of which at such time, in the good faith judgment of the Company, would materially adversely
affect the Company (each, an “Allowable Grace Period”); provided, however, that in no event shall the
Investor be suspended from selling Registrable Securities pursuant to any Registration Statement for a period that exceeds twenty (20)
consecutive Trading Days or an aggregate of sixty (60) days in any 365-day period; and provided, further, the Company shall not
effect any such suspension during (A) the first 10 consecutive Trading Days after the Effective Date of the particular Registration Statement
or (B) the five-Trading Day period following each settlement date for a Fixed Purchase, VWAP Purchase, or Additional VWAP Purchase, as
applicable. Upon disclosure of such information or the termination of the condition described above, the Company shall provide prompt
notice, but in any event within one Business Day of such disclosure or termination, to the Investor and shall promptly terminate any
suspension of sales it has put into effect and shall take such other reasonable actions to permit registered sales of Registrable Securities
as contemplated in this Agreement (including as set forth in the first sentence of Section 3(f) with respect to the information giving
rise thereto unless such material, non-public information is no longer applicable). Notwithstanding anything to the contrary contained
in this Section 3(n), if the Company is obligated in accordance with the terms of the Purchase Agreement to deliver DWAC Shares to a
transferee of the Investor in connection with any resale of Registrable Securities with respect to which the Investor has entered into
a contract for sale, and delivered a copy of the Prospectus included as part of the particular Registration Statement to the extent applicable,
in each case prior to the Investor’s receipt of the notice of an Allowable Grace Period and for which the Investor has not yet
settled, the Company shall deliver DWAC Shares to such transferee in accordance with the terms of the Purchase Agreement.
| 4. | Obligations
of the Investor. |
(a) At
least two (2) Business Days prior to the first anticipated filing date of each Registration Statement (or such shorter period to which
the parties agree), the Company shall notify the Investor in writing of the information the Company requires from the Investor with respect
to such Registration Statement. It shall be a condition precedent to the obligations of the Company to complete the registration pursuant
to this Agreement with respect to the Registrable Securities of the Investor that the Investor shall promptly furnish to the Company
such information regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities
held by it, as shall be reasonably required to effect and maintain the effectiveness of the registration of such Registrable Securities,
and shall promptly execute such documents in connection with such registration as the Company may reasonably request.
(b) The
Investor agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of
each Registration Statement hereunder, unless the Investor has notified the Company in writing of the Investor’s election to exclude
all of the Investor’s Registrable Securities from such Registration Statement.
(c) The
Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 3(l)
or the first sentence of 3(f), the Investor shall immediately discontinue disposition of Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until the Investor’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(l) or the first sentence of Section 3(f) or receipt of notice that no supplement or amendment is required.
Notwithstanding anything to the contrary in this Section 4(c), the Company shall cause its transfer agent to deliver DWAC Shares to a
transferee of the Investor in accordance with the terms of the Purchase Agreement in connection with any sale of Registrable Securities
with respect to which the Investor has entered into a contract for sale prior to the Investor’s receipt of a notice from the Company
of the happening of any event of the kind described in Section 3(l) or the first sentence of Section 3(f) and for which the Investor
has not yet settled.
(d) The
Investor covenants and agrees that it shall comply with the prospectus delivery and other requirements of the Securities Act as applicable
to it in connection with sales of Registrable Securities pursuant to a Registration Statement.
| 5. | Expenses
of Registration. |
Except
as provided in the Purchase Agreement, all reasonable expenses incurred in connection with registrations, filings or qualifications pursuant
to Sections 2 and 3, including, without limitation, all registration, listing and qualifications fees, printers and accounting fees,
and fees and disbursements of counsel for the Company, shall be paid by the Company, except that sales or brokerage commissions and fees
and disbursements of counsel for, and other expenses of, the Investor shall be paid by the Investor.
(a) In
the event any Registrable Securities are included in any Registration Statement under this Agreement, to the fullest extent permitted
by law, the Company will, and hereby does, indemnify, hold harmless and defend the Investor, each of its directors, officers, shareholders,
members, partners, employees, agents, advisors, representatives (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) and each Person, if any, who controls the Investor within
the meaning of the Securities Act or the Exchange Act and each of the directors, officers, shareholders, members, partners, employees,
agents, advisors, representatives (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” and collectively,
the “Investor Parties”), against any losses, obligations, claims, damages, liabilities, contingencies, judgments,
fines, penalties, charges, costs (including, without limitation, court costs, reasonable attorneys’ fees, costs of defense and
investigation), amounts paid in settlement or expenses, joint or several, (collectively, “Claims”) reasonably
incurred in investigating, preparing or defending any action, claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other regulatory agency, body or the Commission, whether pending
or threatened, whether or not an Investor Party is or may be a party thereto (“Indemnified Damages”), to which
any of them may become subject insofar as such Claims (or actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon: (i) any untrue statement or alleged untrue statement of a material fact in a Registration Statement or
any post-effective amendment thereto or in any filing made in connection with the qualification of the offering under the securities
or other “Blue Sky” laws of any jurisdiction in which Registrable Securities are offered (“Blue Sky Filing”),
or the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein
not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Prospectus (as amended or
supplemented) or in any Prospectus Supplement or the omission or alleged omission to state therein any material fact necessary to make
the statements made therein, in light of the circumstances under which the statements therein were made, not misleading (the matters
in the foregoing clauses (i) and (ii) being, collectively, “Violations”). Subject to Section 6(c), the Company
shall reimburse the Investor Parties, promptly as such expenses are incurred and are due and payable, for any legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall not apply to a Claim by an Investor Party arising out
of or based upon a Violation which occurs in reliance upon and in conformity with information furnished in writing to the Company by
such Investor Party for such Investor Party expressly for use in connection with the preparation of such Registration Statement, Prospectus
or Prospectus Supplement or any such amendment thereof or supplement thereto (it being hereby acknowledged and agreed that the written
information set forth on Exhibit C attached hereto is the only written information furnished to the Company by or on behalf of
the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement); (ii) shall not be available to the
Investor to the extent such Claim is based on a failure of the Investor to deliver or to cause to be delivered the Prospectus (as amended
or supplemented) made available by the Company (to the extent applicable), including, without limitation, a corrected Prospectus, if
such Prospectus (as amended or supplemented) or corrected Prospectus was timely made available by the Company pursuant to Section 3(d)
and then only if, and to the extent that, following the receipt of the corrected Prospectus no grounds for such Claim would have existed;
and (iii) shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent
of the Company, which consent shall not be unreasonably withheld or delayed. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Investor Party and shall survive the transfer of any of the Registrable Securities by
the Investor pursuant to Section 9.
(b) In
connection with any Registration Statement in which the Investor is participating, the Investor agrees to severally and not jointly indemnify,
hold harmless and defend, to the same extent and in the same manner as is set forth in Section 6(a), the Company, each of its directors,
each of its officers who signs the Registration Statement and each Person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act (each, an “Company Party”), against any Claim or Indemnified Damages to
which any of them may become subject, under the Securities Act, the Exchange Act or otherwise, insofar as such Claim or Indemnified Damages
arise out of or are based upon any Violation, in each case, to the extent, and only to the extent, that such Violation occurs in reliance
upon and in conformity with written information relating to the Investor furnished to the Company by the Investor expressly for use in
connection with such Registration Statement, the Prospectus included therein or any Prospectus Supplement thereto (it being hereby acknowledged
and agreed that the written information set forth on Exhibit C attached hereto is the only written information furnished to the
Company by or on behalf of the Investor expressly for use in any Registration Statement, Prospectus or Prospectus Supplement); and, subject
to Section 6(c) and the below provisos in this Section 6(b), the Investor shall reimburse a Company Party any legal or other expenses
reasonably incurred by such Company Party in connection with investigating or defending any such Claim; provided, however,
the indemnity agreement contained in this Section 6(b) and the agreement with respect to contribution contained in Section 7 shall not
apply to amounts paid in settlement of any Claim if such settlement is effected without the prior written consent of the Investor, which
consent shall not be unreasonably withheld or delayed; and provided, further that the Investor shall be liable under this Section
6(b) for only that amount of a Claim or Indemnified Damages as does not exceed the net proceeds to the Investor as a result of the applicable
sale of Registrable Securities pursuant to such Registration Statement, Prospectus or Prospectus Supplement. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of such Company Party and shall survive the transfer of
any of the Registrable Securities by the Investor pursuant to Section 9.
(c) Promptly
after receipt by an Investor Party or Company Party (as the case may be) under this Section 6 of notice of the commencement of any action
or proceeding (including, without limitation, any governmental action or proceeding) involving a Claim, such Investor Party or Company
Party (as the case may be) shall, if a Claim in respect thereof is to be made against any indemnifying party under this Section 6, deliver
to the indemnifying party a written notice of the commencement thereof, and the indemnifying party shall have the right to participate
in, and, to the extent the indemnifying party so desires, jointly with any other indemnifying party similarly noticed, to assume control
of the defense thereof with counsel mutually satisfactory to the indemnifying party and the Investor Party or the Company Party (as the
case may be); provided, however, an Investor Party or Company Party (as the case may be) shall have the right to retain
its own counsel with the fees and expenses of such counsel to be paid by the indemnifying party if: (i) the indemnifying party has agreed
in writing to pay such fees and expenses; (ii) the indemnifying party shall have failed promptly to assume the defense of such Claim
and to employ counsel reasonably satisfactory to such Investor Party or Company Party (as the case may be) in any such Claim; or (iii)
the named parties to any such Claim (including, without limitation, any impleaded parties) include both such Investor Party or Company
Party (as the case may be) and the indemnifying party, and such Investor Party or such Company Party (as the case may be) shall have
been advised by counsel that a conflict of interest is likely to exist if the same counsel were to represent such Investor Party or such
Company Party and the indemnifying party (in which case, if such Investor Party or such Company Party (as the case may be) notifies the
indemnifying party in writing that it elects to employ separate counsel at the expense of the indemnifying party, then the indemnifying
party shall not have the right to assume the defense thereof on behalf of the indemnified party and such counsel shall be at the expense
of the indemnifying party, provided further that in the case of clause (iii) above the indemnifying party shall not be responsible
for the reasonable fees and expenses of more than one (1) separate legal counsel for all Investor Parties or Company Parties (as the
case may be). The Company Party or Investor Party (as the case may be) shall reasonably cooperate with the indemnifying party in connection
with any negotiation or defense of any such action or Claim by the indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Company Party or Investor Party (as the case may be) which relates to such action or Claim. The
indemnifying party shall keep the Company Party or Investor Party (as the case may be) reasonably apprised at all times as to the status
of the defense or any settlement negotiations with respect thereto. No indemnifying party shall be liable for any settlement of any action,
claim or proceeding effected without its prior written consent; provided, however, the indemnifying party shall not unreasonably
withhold, delay or condition its consent. No indemnifying party shall, without the prior written consent of the Company Party or Investor
Party (as the case may be), consent to entry of any judgment or enter into any settlement or other compromise which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such Company Party or Investor Party (as the case may be)
of a release from all liability in respect to such Claim or litigation, and such settlement shall not include any admission as to fault
on the part of the Company Party. For the avoidance of doubt, the immediately preceding sentence shall apply to Sections 6(a) and 6(b)
hereof. Following indemnification as provided for hereunder, the indemnifying party shall be subrogated to all rights of the Company
Party or Investor Party (as the case may be) with respect to all third parties, firms or corporations relating to the matter for which
indemnification has been made. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement
of any such action shall not relieve such indemnifying party of any liability to the Investor Party or Company Party (as the case may
be) under this Section 6, except to the extent that the indemnifying party is materially and adversely prejudiced in its ability to defend
such action.
(d) No
Person involved in the sale of Registrable Securities who is guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) in connection with such sale shall be entitled to indemnification from any Person involved in such sale of Registrable
Securities who is not guilty of fraudulent misrepresentation.
(e) The
indemnification required by this Section 6 shall be made by periodic payments of the amount thereof during the course of the investigation
or defense, as and when bills are received or Indemnified Damages are incurred; provided that any Person receiving any payment
pursuant to this Section 6 shall promptly reimburse the Person making such payment for the amount of such payment to the extent a court
of competent jurisdiction determines that such Person receiving such payment was not entitled to such payment.
(f) The
indemnity and contribution agreements contained herein shall be in addition to (i) any cause of action or similar right of the Company
Party or Investor Party against the indemnifying party or others, including any rights under the Purchase Agreement, and (ii) any liabilities
the indemnifying party may be subject to pursuant to the law.
To
the extent any indemnification by an indemnifying party is prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however: (i) no contribution shall be made under circumstances where the maker would not have been liable for
indemnification under the fault standards set forth in Section 6 of this Agreement, (ii) no Person involved in the sale of Registrable
Securities which Person is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) in connection
with such sale shall be entitled to contribution from any Person involved in such sale of Registrable Securities who was not guilty of
fraudulent misrepresentation; and (iii) contribution by any seller of Registrable Securities shall be limited in amount to the amount
of net proceeds received by such seller from the applicable sale of such Registrable Securities pursuant to such Registration Statement.
Notwithstanding the provisions of this Section 7, the Investor shall not be required to contribute, in the aggregate, any amount in excess
of the amount by which the net proceeds actually received by the Investor from the applicable sale of the Registrable Securities subject
to the Claim exceeds the amount of any damages that the Investor has otherwise been required to pay, or would otherwise be required to
pay under Section 6(b), by reason of such untrue or alleged untrue statement or omission or alleged omission.
| 8. | Reports
Under the Exchange Act. |
With
a view to making available to the Investor the benefits of Rule 144, the Company agrees to:
(a) so
long as the Investor owns Registrable Securities, use its reasonable best efforts to make and keep public information available, as those
terms are understood and defined in Rule 144;
(b) so
long as the Investor owns Registrable Securities, use its reasonable best efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and the Exchange Act so long as the Company remains subject
to such requirements (it being understood that nothing herein shall limit any of the Company’s obligations under the Purchase Agreement)
and the filing of such reports and other documents is required for the applicable provisions of Rule 144;
(c) furnish
to the Investor so long as the Investor owns Registrable Securities, promptly upon request, (i) a written statement by the Company, if
true, that it has complied with the reporting, submission and posting requirements of Rule 144 and the Exchange Act, if applicable (ii)
a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company with
the Commission if such reports are not publicly available via EDGAR, and (iii) such other information as may be reasonably requested
to permit the Investor to sell such securities pursuant to Rule 144 without registration; and
(d) take
such additional action as is reasonably requested by the Investor to enable the Investor to sell the Registrable Securities pursuant
to Rule 144, including, without limitation, delivering all such legal opinions, consents, certificates, resolutions and instructions
to the Company’s Transfer Agent as may be reasonably requested from time to time by the Investor and otherwise fully cooperate
with Investor and Investor’s broker to effect such sale of securities pursuant to Rule 144.
| 9. | Assignment
of Registration Rights. |
The
Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of the Investor; provided,
however, that any transaction, whether by merger, reorganization, restructuring, consolidation, financing or otherwise, whereby the Company
remains the surviving entity immediately after such transaction shall not be deemed an assignment. The Investor may not assign its rights
under this Agreement without the prior written consent of the Company, other than to an affiliate of the Investor controlled by Marissa
Welner, in which case the assignee must agree in writing to be bound by the terms and conditions of this Agreement.
No
provision of this Agreement may be amended or waived by the parties from and after the date that is one (1) Trading Day immediately preceding
the filing of the New Registration Statement with the Commission. Subject to the immediately preceding sentence, no provision of this
Agreement may be (i) amended other than by a written instrument signed by both parties hereto or (ii) waived other than in a written
instrument signed by the party against whom enforcement of such waiver is sought. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right or remedy, shall not operate as a waiver thereof.
(a) Solely
for purposes of this Agreement, a Person is deemed to be a holder of Registrable Securities whenever such Person owns or is deemed to
own of record such Registrable Securities. If the Company receives conflicting instructions, notices or elections from two or more Persons
with respect to the same Registrable Securities, the Company shall act upon the basis of instructions, notice or election received from
such record owner of such Registrable Securities.
(b) Any
notices, consents, waivers or other communications required or permitted to be given under the terms of this Agreement shall be given
in accordance with Section 9.4 of the Purchase Agreement.
(c) Failure
of any party to exercise any right or remedy under this Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof. 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.
(d) All
questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws
of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the federal courts sitting in The City of New York, Borough of
Manhattan, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION
OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(e) The
Transaction Documents set forth the entire agreement and understanding of the parties solely with respect to the subject matter thereof
and supersedes all prior and contemporaneous agreements, negotiations and understandings between the parties, both oral and written,
solely with respect to such matters. There are no promises, undertakings, representations or warranties by either party relative to subject
matter hereof not expressly set forth in the Transaction Documents. Notwithstanding anything in this Agreement to the contrary and without
implication that the contrary would otherwise be true, nothing contained in this Agreement shall limit, modify or affect in any manner
whatsoever (i) the conditions precedent to a Fixed Purchase, a VWAP Purchase or an Additional VWAP Purchase contained in the Purchase
Agreement or (ii) any party’s obligations under the Purchase Agreement.
(f) This
Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors. This Agreement is not
for the benefit of, nor may any provision hereof be enforced by, any Person, other than the parties hereto, their respective successors
and the Persons referred to in Sections 6 and 7 hereof.
(g) The
headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning 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.
(h) 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.
(i) Each
party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such
other agreements, certificates, instruments and documents as any other party may reasonably request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(j) The
language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
[Signature
Pages Follow]
IN
WITNESS WHEREOF, Investor and the Company have caused their respective signature page to this Registration Rights Agreement to be
duly executed as of the date first written above.
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COMPANY: |
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ADITXT, INC. |
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By: |
/s/ Amro Albanna |
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Name: |
Amro Albanna |
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Title: |
Chief Executive Officer |
IN
WITNESS WHEREOF, Investor and the Company have caused their respective signature page to this Registration Rights Agreement to be
duly executed as of the date first written above.
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INVESTOR: |
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SEVEN KNOTS, LLC |
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By: |
/s/ Marissa Welner |
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Name: |
Marissa Welner |
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Title: |
Authorized Signatory |
EXHIBIT
A
FORM
OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
[●]
[●]
[●]
Re: Aditxt,
Inc.
Ladies
and Gentlemen:
We
are counsel to Aditxt, Inc., a Delaware corporation (the “Company”), and have represented the Company in connection
with that certain Common Stock Purchase Agreement, dated April 25, 2024 (the “Purchase Agreement”), entered
into by and among the Company and the Investor named therein (the “Holder”) pursuant to which the Company will
issue to the Holder from time to time the Company’s common stock (the ”Common Stock”). Pursuant
to the Purchase Agreement, the Company also has entered into a Registration Rights Agreement, dated April 25, 2024, with the Holder (the
“Registration Rights Agreement”), pursuant to which the Company agreed, among other things, to register the
offer and sale by the Holder of the Registrable Securities (as defined in the Registration Rights Agreement) under the Securities Act
of 1933, as amended (the “Securities Act”). In connection with the Company’s obligations under the Registration
Rights Agreement, on [●], 2024, the Company filed a Registration Statement on Form S-1 (File No. 333-[●]) (the “Registration
Statement”) with the Securities and Exchange Commission (the “Commission”) relating to the Registrable
Securities which names the Holder as an underwriter and a selling shareholder thereunder.
In
connection with the foregoing, based solely on our review of the Commission’s EDGAR website, we advise you that the Registration
Statement became effective under the Securities Act on [●], 2024. In addition, based solely on our review of the information made
available by the Commission at http://www.sec.gov/litigation/stoporders.shtml, we confirm that the Commission has not issued any stop
order suspending the effectiveness of the Registration Statement. To our knowledge, based solely on our participation in the conferences
mentioned above regarding the Registration Statement and our review of the information made available by the Commission at http://www.sec.gov/litigation/stoporders.shtml,
no proceedings for that purpose are pending or have been instituted or threatened by the Commission.
This
letter shall serve as our standing opinion to you that the Common Stock is freely transferable by the Holder pursuant to the Registration
Statement, provided the Registration Statement remains effective.
This
opinion letter is limited to the federal securities laws of the United States of America. We express no opinion as to matters relating
to state securities laws or Blue Sky laws.
We
assume no obligation to update or supplement this opinion letter to reflect any facts or circumstances which may hereafter come to our
attention with respect to the opinion and statements expressed above, including any changes in applicable law that may hereafter occur.
This
opinion letter is being delivered solely for the benefit of the person to whom it is addressed; accordingly, it may not be quoted, filed
with any governmental authority or other regulatory agency or otherwise circulated or utilized for any purposes without our prior written
consent.
|
Very truly yours, |
|
|
|
[_________________________] |
|
|
|
By:_____________________ |
EXHIBIT
B
SELLING
STOCKHOLDER
This
prospectus relates to the possible resale from time to time by Seven Knots of any or all of the common stock that may be issued by us
to Seven Knots under the Purchase Agreement. For additional information regarding the issuance of common stock covered by this prospectus,
see the section entitled “Seven Knots Committed Equity Financing” above. We are registering the common stock pursuant to
the provisions of the Registration Rights Agreement we entered into with Seven Knots on April 25, 2024 in order to permit the selling
shareholder to offer the shares for resale from time to time. Except for the transactions contemplated by the Purchase Agreement and
the Registration Rights Agreement, Seven Knots has not had any material relationship with us within the past three years. As used in
this prospectus, the term “selling shareholder” means Seven Knots, LLC.
The
table below presents information regarding the selling shareholder and the common stock that it may offer from time to time under this
prospectus. This table is prepared based on information supplied to us by the selling shareholder, and reflects holdings as of [●],
2024. The number of shares in the column “Maximum Number of Common Stock to be Offered Pursuant to this Prospectus” represents
all of the common stock that the selling shareholder may offer under this prospectus. The selling shareholder may sell some, all or none
of its shares in this offering. We do not know how long the selling shareholder will hold the shares before selling them, and we currently
have no agreements, arrangements or understandings with the selling shareholder regarding the sale of any of the shares.
Beneficial
ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act, and includes common stock with
respect to which the selling shareholder has voting and investment power. The percentage of common stock beneficially owned by the selling
shareholder prior to the offering shown in the table below is based on an aggregate of [●] of our common stock outstanding on [●],
2024. Because the purchase price of the common stock issuable under the Purchase Agreement is determined on each Fixed Purchase Date,
with respect to a Fixed Purchase, on the applicable VWAP Purchase Date, with respect to a VWAP Purchase, and on the applicable Additional
VWAP Purchase Date, with respect to an Additional VWAP Purchase, the number of shares that may actually be sold by the Company to Seven
Knots under the Purchase Agreement may be fewer than the number of shares being offered by this prospectus. The fourth column assumes
the sale of all of the shares offered by the selling shareholder pursuant to this prospectus.
Name of Selling Shareholder |
|
Number of Shares of Common Stock Owned Prior to Offering |
|
Maximum Number of Shares of Common Stock to be Offered Pursuant to this |
|
Number of Shares of Common Stock Owned After Offering |
|
|
|
Number(1) |
|
Percent(2) |
|
|
Prospectus |
|
Number(3) |
|
|
Percent(2) |
|
Seven Knots, LLC(4) |
|
[_________] |
|
|
* |
|
|
[●] |
|
|
0 |
|
|
|
-- |
|
* | Represents
beneficial ownership of less than [_]% of our outstanding common stock. |
(1) | This
number represents the [________] shares of common stock we issued to Seven Knots on [ ], 2024 as Commitment Shares in consideration
for entering into the Purchase Agreement with us. [ANYTHING ISSUABLE WITHIN 60 DAYS SHOULD BE INCLUDED IN THE TABLE]. In accordance
with Rule 13d-3(d) under the Exchange Act, we have excluded from the number of shares beneficially owned prior to the offering all of
the shares that Seven Knots may be required to purchase under the Purchase Agreement, because the issuance of such shares is solely at
our discretion and is subject to conditions contained in the Purchase Agreement, the satisfaction of which are entirely outside of Seven
Knots’s control, including the registration statement that includes this prospectus becoming and remaining effective. Furthermore,
the Fixed Purchases, VWAP Purchase, or Additional VWAP Purchase, as applicable, of common stock is subject to certain agreed upon maximum
amount limitations set forth in the Purchase Agreement. Also, the Purchase Agreement prohibits us from issuing and selling any of our
common stock to Seven Knots to the extent such shares, when aggregated with all other common stock then beneficially owned by Seven Knots,
would cause Seven Knots’s beneficial ownership of our common stock to exceed the 4.99% Beneficial Ownership Cap. |
| (2) | Applicable
percentage ownership is based on [●] of our common stock outstanding as of [●],
2024. |
| (3) | Assumes
the sale of all shares being offered pursuant to this prospectus. |
| (4) | The
business address of Seven Knots, LLC is 400 E 66th Street, New York, NY 10065.
Seven Knots, LLC’s principal business is that of a private investor. Marissa J. Welner
is the beneficial owner of 50% of the membership interests in Seven Knots LLC. Marissa
J. Welner has sole voting control and investment discretion over securities beneficially
owned directly by Seven Knots, LLC. We have been advised that neither Ms. Welner nor Seven
Knots LLC is a member of the Financial Industry Regulatory Authority, or FINRA, or an independent
broker-dealer, or an affiliate or associated person of a FINRA member or independent broker-dealer.
The foregoing should not be construed in and of itself as an admission by Ms. Welner as to
beneficial ownership of the securities beneficially owned directly by Seven Knots, LLC. |
PLAN
OF DISTRIBUTION
The
common stock offered by this prospectus are being offered by the selling shareholder, Seven Knots, LLC. The shares may be sold
or distributed from time to time by the selling shareholder directly to one or more purchasers or through brokers, dealers, or underwriters
who may act solely as agents at market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated
prices, or at fixed prices, which may be changed. The sale of our common stock offered by this prospectus could be effected in one or
more of the following methods:
| ● | ordinary
brokers’ transactions; |
| ● | transactions
involving cross or block trades; |
| ● | through
brokers, dealers, or underwriters who may act solely as agents; |
| ● | “at
the market” into an existing market for our common stock; |
| ● | in
other ways not involving market makers or established business markets, including direct
sales to purchasers or sales effected through agents; |
| ● | in
privately negotiated transactions; or |
| ● | any
combination of the foregoing. |
In
order to comply with the securities laws of certain states, if applicable, the shares may be sold only through registered or licensed
brokers or dealers. In addition, in certain states, the shares may not be sold unless they have been registered or qualified for sale
in the state or an exemption from the state’s registration or qualification requirement is available and complied with.
Seven
Knots, LLC is an “underwriter” within the meaning of Section 2(a)(11) of the Securities Act.
Seven
Knots has informed us that it intends to use one or more registered broker-dealers to effectuate all sales, if any, of our common stock
that it has acquired and may in the future acquire from us pursuant to the Purchase Agreement. Such sales will be made at prices
and at terms then prevailing or at prices related to the then current market price. Each such registered broker-dealer will be
an underwriter within the meaning of Section 2(a)(11) of the Securities Act. Seven Knots has informed us that each such broker-dealer
will receive commissions from Seven Knots that will not exceed customary brokerage commissions.
Brokers,
dealers, underwriters or agents participating in the distribution of our common stock offered by this prospectus may receive compensation
in the form of commissions, discounts, or concessions from the purchasers, for whom the broker-dealers may act as agent, of the shares
sold by the selling shareholder through this prospectus. The compensation paid to any such particular broker-dealer by any such purchasers
of our common stock sold by the selling shareholder may be less than or in excess of customary commissions. Neither we nor the
selling shareholder can presently estimate the amount of compensation that any agent will receive from any purchasers of our common stock
sold by the selling shareholder.
We
know of no existing arrangements between the selling shareholder or any other shareholder, broker, dealer, underwriter or agent relating
to the sale or distribution of our common stock offered by this prospectus.
We
may from time to time file with the SEC one or more supplements to this prospectus or amendments to the registration statement of which
this prospectus forms a part to amend, supplement or update information contained in this prospectus, including, if and when required
under the Securities Act, to disclose certain information relating to a particular sale of shares offered by this prospectus by the selling
shareholder, including the names of any brokers, dealers, underwriters or agents participating in the distribution of such shares by
the selling shareholder, any compensation paid by the selling shareholder to any such brokers, dealers, underwriters or agents, and any
other required information.
We
will pay the expenses incident to the registration under the Securities Act of the offer and sale of our common stock covered by this
prospectus by the selling shareholder. As consideration for its irrevocable commitment to purchase our common stock under the Purchase
Agreement, we have issued to Seven Knots ________ shares of common stock as Commitment Shares in accordance with the Purchase Agreement.
We have also paid to Seven Knots $25,000 in cash as reimbursement for the reasonable, out-of-pocket expenses incurred by Seven Knots,
including the legal fees and disbursements of Seven Knots’s legal counsel, in connection with its due diligence investigation of
the Company and in connection with the preparation, negotiation and execution of the Purchase Agreement.
We
also have agreed to indemnify Seven Knots and certain other persons against certain liabilities in connection with the offering of our
common stock offered hereby, including liabilities arising under the Securities Act or, if such indemnity is unavailable, to contribute
amounts required to be paid in respect of such liabilities. Seven Knots has agreed to indemnify us against liabilities under the
Securities Act that may arise from certain written information furnished to us by Seven Knots specifically for use in this prospectus
or, if such indemnity is unavailable, to contribute amounts required to be paid in respect of such liabilities. Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons, we have been advised
that in the opinion of the SEC this indemnification is against public policy as expressed in the Securities Act and is therefore, unenforceable.
We
estimate that the total expenses for the offering will be approximately $[●].
Seven
Knots has represented to us that at no time prior to the date of the Purchase Agreement has Seven Knots or its agents, representatives
or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly, any short sale (as such term is defined in Rule
200 of Regulation SHO of the Exchange Act) of our common stock or any hedging transaction, which establishes a net short position with
respect to our common stock. Seven Knots has agreed that during the term of the Purchase Agreement, neither Seven Knots, nor any
of its agents, representatives or affiliates will enter into or effect, directly or indirectly, any of the foregoing transactions.
We
have advised the selling shareholder that it is required to comply with Regulation M promulgated under the Exchange Act. With certain
exceptions, Regulation M precludes the selling shareholder, any affiliated purchasers, and any broker-dealer or other person who participates
in the distribution from bidding for or purchasing, or attempting to induce any person to bid for or purchase any security which is the
subject of the distribution until the entire distribution is complete. Regulation M also prohibits any bids or purchases made in order
to stabilize the price of a security in connection with the distribution of that security. All of the foregoing may affect the marketability
of the securities offered by this prospectus.
This
offering will terminate on the date that all of our common stock offered by this prospectus have been sold by the selling shareholder.
Our
common stock is currently listed on The Nasdaq Capital Market under the symbol “ADTX”.
EXHIBIT
C
The
business address of Seven Knots, LLC is 400 E 66th Street, New York, NY 10065. Seven Knots, LLC’s principal business
is that of a private investor. Marissa J. Welner is the beneficial owner of 50% of the membership interests in Seven Knots LLC.
Marissa J. Welner has sole voting control and investment discretion over securities beneficially owned directly by Seven Knots, LLC.
We have been advised that neither Ms. Welner nor Seven Knots LLC is a member of the Financial Industry Regulatory Authority, or FINRA,
or an independent broker-dealer, or an affiliate or associated person of a FINRA member or independent broker-dealer. The foregoing should
not be construed in and of itself as an admission by Ms. Welner as to beneficial ownership of the securities beneficially owned directly
by Seven Knots, LLC.
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