Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement
(this “Agreement”) is dated as of October 23, 2024, between CNS Pharmaceuticals, Inc., a Nevada corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined
below), the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from
the Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which are
hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I
DEFINITIONS
1.1.
Definitions. In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following
terms have the meanings set forth in this Section 1.1:
“Action”
shall have the meaning ascribed to such term in Section 3.1(m).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Applicable Laws”
shall have the meaning ascribed to such term in Section 3.1(qq).
“Auditor”
means Malone Bailey LLP.
“Authorizations”
shall have the meaning ascribed to such term in Section 3.1(qq).
“Beneficial Ownership
Limitation” shall have the meaning ascribed to such term in Section 2.1(a).
“BHCA”
shall have the meaning ascribed to such term in Section 3.1(nn).
“Board of Directors”
means the board of directors, or any authorized committee thereof, of the Company.
“Closing”
means the closing of the purchase and sale of the Securities pursuant to Section 2.1.
“Closing Date”
means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties thereto, and
all conditions precedent to (i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s obligations
to deliver the Securities, in each case, have been satisfied or waived, but in no event later than the first (1st) Trading
Day following the date hereof.
“Commission”
means the U.S. Securities and Exchange Commission.
“Common Stock”
means the common stock of the Company, par value $0.001 per share, and any other class of securities into which such securities may hereafter
be reclassified or changed.
“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 Counsel”
means ArentFox Schiff LLP, with offices located at 1301 Avenue of the Americas, 42nd Floor, New York, NY 10019 United States
“Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently herewith.
“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before midnight
(New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date hereof, unless
otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement is signed between midnight (New York City
time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof, unless otherwise
instructed as to an earlier time by the Placement Agent.
“DVP” shall
have the meaning ascribed to such term in Section 2.1(a).
“DWAC”
shall have the meaning ascribed to such term in Section 2.1(a).
“EDGAR”
means the Commission’s Electronic Data Gathering, Analysis and Retrieval System.
“Environmental Law”
shall have the meaning ascribed to such term in Section 3.1(p).
“Evaluation Date”
shall have the meaning ascribed to such term in Section 3.1(v).
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt Issuance”
means the issuance of (a) shares of Common Stock, options, restricted stock units, or other equity awards to employees, consultants, contractors,
advisors, officers, or directors of the Company pursuant to any equity incentive plan duly adopted for such purpose, by a majority of
the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for
such purpose for services rendered to the Company, (b) securities upon the exercise or exchange of or conversion of any Securities issued
hereunder and upon exercise of other securities exercisable or exchangeable for or convertible into shares of Common Stock issued and
outstanding on the date of this Agreement, provided that such securities 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 (other than in
connection with stock splits or combinations) or to extend the term of such securities, (c) shares of Common Stock or securities exercisable
or exchangeable for or convertible into shares of Common Stock sold to employees, directors, consultants, or any of their affiliated entities
in the ordinary course of business or pursuant to agreements or in connection with commitments in place as of the date hereof and (d)
securities issued pursuant to acquisitions, joint ventures, strategic alliances, or other strategic transactions, including without limitation
collaborations or arrangements involving research and development or the sale or licensing of intellectual property, approved by a majority
of the disinterested directors of the Company, except for 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 (for avoidance of doubt, securities issued to a venture
arm of a strategic investor shall be deemed an “Exempt Issuance”), provided in the case of each of clauses (c) and (d), that
such securities are issued as “restricted securities” (as defined in Rule 144) and carry no registration rights that require
or permit the filing of any registration statement in connection therewith during the prohibition period in Section 4.12(a) herein.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
“Federal Reserve”
shall have the meaning ascribed to such term in Section 3.1(nn).
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(k).
“Hazardous Substances”
shall have the meaning ascribed to such term in Section 3.1(p).
“Intellectual Property
Rights” shall have the meaning ascribed to such term in Section 3.1(s).
“Issuer Free Writing
Prospectus” shall have the meaning ascribed to such term in Section 3.1(f)(ii).
“IT Systems”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Lien”
means a lien, charge, mortgage, pledge, security interest, claim, right of first refusal, pre-emptive right, or other encumbrance of any
kind whatsoever.
“Lock-Up Agreements”
means the lock-up agreements, each dated as of the date hereof in substantially the form of Exhibit A.
“Material Adverse
Effect” shall have the meaning assigned to such term in Section 3.1(b).
“Material Permits”
shall have the meaning assigned to such term in Section 3.1(r).
“Money Laundering
Laws” shall have the meaning assigned to such term in Section 3.1(oo).
“OFAC”
means the Office of Foreign Assets Control of the U.S. Treasury Department
“Offering”
means the offering of the Securities hereunder.
“Per Pre-Funded Warrant
Purchase Price” means the Per Share Purchase Price minus $0.001.
“Per Share Purchase
Price” equals $0.17, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other
similar transactions of the Common Stock that occur after the date of this Agreement.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Personal Data”
shall have the meaning ascribed to such term in Section 3.1(pp).
“Placement Agent”
means A.G.P./Alliance Global Partners.
“Pre-Funded Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Pre-Funded Warrants”
means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in accordance with Section
2.3(a) hereof, in substantially the form of Exhibit B attached hereto.
“Pre-Settlement Period”
shall have the meaning ascribed to such term in Section 2.1(b).
“Pre-Settlement Securities”
shall have the meaning ascribed to such term in Section 2.1(b).
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition) pending or, to the Company’s knowledge, threatened in writing against the Company, a Subsidiary or any of
their respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal,
state, county, local or foreign).
“Prospectus”
means the final prospectus filed under the Registration Statement complying with Rule 424(b).
“Prospectus Supplement”
means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that will be filed with the Commission and delivered
by the Company to each Purchaser at or prior to the Closing.
“Purchaser Party”
shall have the meaning ascribed to such term in Section 4.9.
“Registration Statement”
means the effective registration statement with the Commission on Form S-3 (File No. 333-279285), as amended, including all information,
documents and exhibits filed with or incorporated by reference into such registration statement, which registers the sale of the Securities
and includes any Rule 462(b) Registration Statement.
“Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,
or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.
“Rule 462(b) Registration
Statement” means any registration statement prepared by the Company registering additional Securities, which was filed with
the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by the Commission
pursuant to the Securities Act.
“Sanctions”
shall have the meaning ascribed to such term in Section 3.1(kk).
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(j).
“Securities”
means for each Purchaser, the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares purchased pursuant to this Agreement.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include
locating and/or borrowing shares of Common Stock).
“Subscription Amount”
means, as to each Purchaser, the aggregate amount to be paid for Shares or Pre-Funded Warrants (in lieu of Shares) purchased hereunder
as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription Amount,”
in U.S. dollars and in immediately available funds.
“Subsidiary”
and “Subsidiaries” means any subsidiary of the Company as set forth on Schedule 3.1(a) and shall, where applicable,
also include any direct or indirect subsidiary of the Company formed or acquired after the date hereof.
“Trading Day”
means a day on which the Trading Market is open for trading.
“Trading Market”
means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however, that in the event the Company’s
Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market, The New York Stock Exchange, NYSE
American, NYSE Arca, the OTC Bulletin Board, or the OTCQX or the OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized
successor to any of the foregoing), then the “Trading Market” shall mean such other market or exchange on which the Company’s
Common Stock is then listed or traded.
“Transaction Documents”
means this Agreement, the Pre-Funded Warrants, and the Lock-Up Agreements, all exhibits and schedules thereto and hereto and any other
documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer Agent”
means Continental Stock Transfer and Trust, the current transfer agent of the Company, with a mailing address of 1 State Street 30th Floor,
New York, NY 10004-1561, and any successor transfer agent of the Company.
“Variable Rate Transaction”
shall have the meaning ascribed to such term in Section 4.12(b).
ARTICLE II
PURCHASE AND SALE
2.1.
Closing.
(a)
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution
and delivery of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees
to purchase, the number of shares of Common Stock set forth under the heading “Subscription Amount” on the Purchaser’s
signature page hereto, at the Per Share Purchase Price. Notwithstanding anything herein to the contrary, to the extent that a Purchaser
determines, in its sole discretion, that as a result of such Purchaser’s Subscription Amount, such Purchaser (together with such
Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates)
would beneficially own shares of Common Stock in excess of the Beneficial Ownership Limitation, the Purchaser may elect to purchase Pre-Funded
Warrants in lieu of the Shares as determined pursuant to Section 2.3(a). The “Beneficial Ownership Limitation” shall
be 4.99% (or, at the election of the Purchaser, 9.99%) of the number of shares of Common Stock outstanding immediately after giving effect
to the issuance of the Securities on the Closing Date. In each case, the election to receive Pre-Funded Warrants is solely at the option
of the Purchaser; provided, however, the Purchaser shall receive Pre-Funded Warrants at the option of the Company if necessary to avoid
a stockholder vote in connection with the purchase.
Each Purchaser shall deliver
to the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the
signature page hereto executed by such Purchaser shall be made available for Delivery Versus Payment (“DVP”) settlement
with the Company or its designees. The Company shall deliver to each Purchaser its respective Shares and/or Pre-Funded Warrants as determined
pursuant to Section 2.3(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the
Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall occur remotely via the
exchange of documents and signatures or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement
Agent, settlement of the Shares shall occur via DVP (i.e., on the Closing Date, the Company shall issue the Shares registered in
the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified
by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable
Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). Unless otherwise
directed by the Placement Agent, the Pre-Funded Warrants shall be issued to each Purchaser in originally signed form.
(b)
Notwithstanding anything herein to the contrary, if at any time on or after the time of execution of this Agreement by the Company
and an applicable Purchaser through, and including the time immediately prior to, the Closing (the “Pre-Settlement Period”),
such Purchaser sells to any Person all, or any portion, of any Securities to be issued hereunder to such Purchaser at the Closing (collectively,
the “Pre-Settlement Securities”), such Person shall, automatically hereunder (without any additional required actions
by such Purchaser or the Company), be deemed to be a Purchaser under this Agreement unconditionally bound to purchase, and the Company
shall be deemed unconditionally bound to sell, such Pre-Settlement Securities to such Purchaser at the Closing; provided, that the Company
shall not be required to deliver any Pre-Settlement Securities to such Person prior to the Company’s receipt of the purchase price
for such Pre-Settlement Securities hereunder; and provided, further, that the Company hereby acknowledges and agrees (i) that the foregoing
shall not constitute a representation or covenant by such Purchaser as to whether or not such Purchaser will elect to sell any Pre-Settlement
Securities during the Pre-Settlement Period and (ii) that any such decision to sell any shares of Common Stock by such Purchaser shall
solely be made at the time such Purchaser elects to effect any such sale, if any.
2.2.
Deliveries.
(a)
On or prior to the Closing Date, the Company shall deliver or cause to be delivered to each Purchaser the following:
(i)
this Agreement duly executed by the Company;
(ii)
a legal opinion of Company Counsel, in form and substance reasonably satisfactory to the Placement Agent;
(iii)
[Reserved.];
(iv)
the Company’s wire instructions, on Company letterhead and executed by the Company’s Chief Executive Officer or Chief
Financial Officer;
(v)
subject to the penultimate sentence of Section 2.1(a), a copy of the irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver on an expedited basis via The Depository Trust Company Deposit or Withdrawal at Custodian system (“DWAC”)
Shares equal to the number of shares of Common Stock set forth on such Purchaser’s signature page hereto, registered in the name
of such Purchaser;
(vi)
[Reserved];
(vii)
[Reserved];
(viii)
if applicable, an originally signed Pre-Funded Warrant registered in the name of such Purchaser to purchase up to a number of shares
of Common Stock equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded Warrants divided by the Per
Pre-Funded Warrant Purchase Price, with an exercise price equal to $0.001, subject to adjustment therein;
(ix)
the Preliminary Prospectus and the Prospectus (which may be delivered in accordance with Rule 172 under the Securities Act);
(x)
Lock-up Agreements, in form and substance reasonably acceptable to the Placement Agent and the Purchasers, executed by each of
the Company’s executive officers, directors.
(xi)
an Officer’s Certificate, in form and substance reasonably satisfactory to the Placement Agent; and
(xii)
a Secretary’s Certificate, in form and substance reasonably satisfactory to the Placement Agent.
(b)
On or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company the following:
(i)
this Agreement duly executed by such Purchaser; and
(ii)
such Purchaser’s Subscription Amount, which shall be made available for DVP settlement with the Company or its designees.
2.3.
Closing Conditions.
(a)
The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect (as defined below), in all respects) when made and on the Closing Date of the representations and warranties of the Purchasers
contained herein (unless such representation or warranty is as of a specific date therein in which case they shall be accurate as of such
date);
(ii)
all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Closing Date shall have
been performed; and
(iii)
the delivery by each Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b)
The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being
met:
(i)
the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material
Adverse Effect, in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein
(unless such representation or warranty is as of a specific date therein in which case they shall be accurate as of such date);
(ii)
all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been
performed;
(iii)
the delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv)
there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v)
from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Trading
Market on which it is currently listed, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg
L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported
by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by U.S. or New York State authorities,
nor shall there have occurred after the date of this Agreement any material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case,
in the reasonable judgment of such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1.
Representations and Warranties of the Company. The Company hereby makes the following representations and warranties to
each Purchaser in addition to the information included in the Disclosure Schedules attached hereto, which Disclosure Schedules shall be
deemed a part hereof and shall qualify any representation or warranty made herein to the extent of the disclosure contained in the corresponding
section of the Disclosure Schedules:
(a)
Subsidiaries. All of the direct and indirect subsidiaries of the Company (each, a “Subsidiary”, and collectively,
the “Subsidiaries”) are as set forth on Schedule 3.1(a). The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any Liens, and all of the issued and outstanding shares of capital
stock or equity interests, as applicable, of each Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive
rights. There are no outstanding options, warrants, scrips or rights to subscribe to, calls or commitments of any character whatsoever
relating to, or securities, rights or obligations convertible into or exercisable or exchangeable for, or giving any Person any right
to subscribe for or acquire, any capital stock or equity interests, as applicable, of any Subsidiary, or contracts, commitments, understandings
or arrangements by which any Subsidiary is or may become bound to issue capital stock or equity interests, as applicable. If the Company
has no Subsidiaries, all other references to the Subsidiaries or any of them in the Transaction Documents shall be disregarded.
(b)
Organization and Qualification. Each of the Company and the Subsidiaries has been duly organized and validly exists as a
corporation, limited partnership or company in good standing (or the foreign equivalent thereof, if any) under the laws of its jurisdiction
of organization. The Company and each of the Subsidiaries is duly qualified to do business and is in good standing as a foreign or extra-provincial
corporation, partnership, company or limited liability company in each jurisdiction in which the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which (individually and in the aggregate) would not have a Material Adverse Effect. 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. 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. The term “Material Adverse Effect”
means a material adverse effect on (i) the business, general affairs, management, condition (financial or otherwise), results of operations,
stockholders’ equity, assets, properties or prospects of the Company and the Subsidiaries, taken as a whole, (ii) the legality,
validity or enforceability of any Transaction Document, or (iii) the Company’s ability to perform in any material respect on a timely
basis its obligations under any Transaction Document.
(c)
Authorization; Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate
the transactions contemplated by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder. The execution and delivery of this Agreement and each of the other Transaction Documents by the Company and
the consummation by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part
of the Company and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection
herewith or therewith other than in connection with the Required Approvals (as defined below). This Agreement and each other Transaction
Document to which the Company is a party has been (or upon delivery will have been) duly executed by the Company and, when delivered in
accordance with the terms hereof and thereof, will constitute the valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by general
equitable principles and laws relating to the availability of specific performance, injunctive relief or other equitable remedies, and
(iii) insofar as indemnification and contribution provisions may be limited by applicable law.
(d)
No Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents
to which it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and
thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as could
not have or reasonably be expected to result in a Material Adverse Effect.
(e)
Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state (including state blue sky law), local or other
governmental authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents,
other than: (i) the filings required pursuant to Section 4.5 of this Agreement, (ii) the filing with the Commission of the Prospectus,
and (iii) notices and/or application(s) to and approvals by each applicable Trading Market for the listing of the Shares and Pre-Funded
Warrant Shares for trading thereon in the time and manner required thereby, and (iv) filings required by the Financial Industry Regulatory
Authority (collectively, the “Required Approvals”).
(f)
Issuance of the Shares and Pre-Funded Warrant Shares; Qualification; Registration.
(i)
The Shares and Pre-Funded Warrant Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company, except
for restrictions set forth in the Transaction Documents. The Pre-Funded Warrants are duly authorized and, when issued in accordance with
this Agreement, will be binding obligations of the Company under the law of the jurisdiction governing the Pre-Funded Warrants, duly and
validly issued, and free and clear of all Liens imposed by the Company, except for restrictions set forth in the Transaction Documents.
The Company has reserved from its duly authorized capital stock the maximum number of shares of Common Stock issuable pursuant to this
Agreement and the Pre-Funded Warrants. The Securities are not and will not be subject to the preemptive rights of any holders of any security
of the Company or similar contractual rights granted by the Company.
(ii)
The Shares and Pre-Funded Warrant Shares are duly authorized and, when issued and paid for in accordance with the applicable Transaction
Documents, will be duly and validly issued, fully paid and non-assessable, free and clear of all Liens imposed by the Company. The Pre-Funded
Warrants are duly authorized and, when issued in accordance with this Agreement, will be duly and validly issued and free and clear of
all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock the maximum number of shares of Common
Stock issuable pursuant to this Agreement and the Pre-Funded Warrants. The Company has prepared and filed the Registration Statement in
conformity with the requirements of the Securities Act, which Registration Statement became effective on May 17, 2024, including the Prospectus,
and such amendments and supplements thereto as may have been required to the date of this Agreement. The Registration Statement is effective
under the Securities Act and no stop order preventing or suspending the effectiveness of the Registration Statement or suspending or preventing
the use of the Prospectus or the Prospectus Supplement has been issued by the Commission and no proceedings for that purpose have been
instituted or, to the knowledge of the Company, are threatened by the Commission. The Company, if required by the rules and regulations
of the Commission, shall file the Prospectus and the Prospectus Supplement with the Commission pursuant to Rule 424(b). At the time the
Registration Statement and any amendments thereto became effective as determined under the Securities Act, at the date of this Agreement
and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform in all material respects to
the requirements of the Securities Act and did not and will not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, the Prospectus Supplement
and any amendments or supplements thereto, at the time the Prospectus and the Prospectus Supplement or any amendment or supplement thereto
was issued and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and
did not and will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The Company was at the time of the filing of the
Registration Statement eligible to use Form S-3. The Company is eligible to use Form S-3 under the Securities Act and it meets the transaction
requirements with respect to the aggregate market value of the common equity held by non-affiliates prior to this offering as set forth
in General Instruction I.B.1 of Form S-3.
Any “issuer free writing
prospectus” (as defined in Rule 433 under the Securities Act) relating to the Securities is hereafter referred to as an “Issuer
Free Writing Prospectus”. Any reference herein to the Preliminary Prospectus and the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein as of the date of filing thereof; and any reference herein to any “amendment”
or “supplement” with respect to any of the Preliminary Prospectus and the Prospectus shall be deemed to refer to and include
(i) the filing of any document with the Commission incorporated or deemed to be incorporated therein by reference after the date of filing
of such Preliminary Prospectus or Prospectus and (ii) any such document so filed.
All references in this Agreement
to the Registration Statement, the Preliminary Prospectus, the Prospectus, or any Issuer Free Writing Prospectus, or any amendments or
supplements to any of the foregoing, shall be deemed to include any copy thereof filed with the Commission on EDGAR.
(g)
Securities Act Compliance. The Registration Statement complies, and the Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus will comply, in all material respects, with the applicable provisions of the Securities
Act. Each part of the Registration Statement, when such part became effective, did not contain an 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 not misleading. The Prospectus,
as of its filing date, and any amendment thereof or supplement thereto, did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were
made, not misleading.
(h)
No Stop Orders. No order preventing or suspending the use of the Registration Statement, the Preliminary Prospectus or any
Issuer Free Writing Prospectus has been issued by the Commission.
(i)
Capitalization. The equity capitalization of the Company is as set forth in the Registration Statement and the SEC Reports
as of the dates indicated therein. All of the issued and outstanding shares of Common Stock are fully paid and non-assessable and have
been duly and validly authorized and issued, in compliance with all applicable federal and state securities laws and not in violation
of or subject to any preemptive or similar right that entitles any person to acquire from the Company any Common Stock or other security
of the Company or any security convertible into, or exercisable or exchangeable for, Common Stock or any other such security, except for
such rights as may have been fully satisfied or waived prior to the date hereof. Except as set forth on Schedule 3.1(i), or as
a result of the issuance and sale of the Securities, the Company has not issued any capital stock since its most recently filed SEC Report.
Except as set forth on Schedule 3.1(i), or as a result of the issuance and sale of the Securities, the Company has no outstanding
options, warrants, scrips or rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities, rights
or obligations convertible into or exercisable or exchangeable for, or giving any Person any right to subscribe for or acquire, any Common
Stock, or contracts, commitments, understandings or arrangements by which the Company is or may become bound to issue additional Common
Stock or Common Stock Equivalents and no Person has any right of first refusal, pre-emptive right, right of participation, or any similar
right to participate in the transactions contemplated by the Transaction Documents, except for such rights as may have been fully satisfied
or waived prior to the date hereof. Except as set forth on Schedule 3.1(i), the issuance and sale of the Securities will not obligate
the Company to issue Common Stock or other securities to any Person (other than the Purchasers) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or reset price under any of such securities. Except as set forth
in the SEC Reports, there are no outstanding securities or instruments of the Company with any provision that adjusts the exercise, conversion,
exchange or reset price of such security or instrument upon an issuance of securities by the Company (other than in connection with a
stock split, recapitalization, or similar transaction). There are no outstanding securities or instruments of the Company that contain
any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company is
or may become bound to redeem an equity security of the Company. The Company does not have any stock appreciation rights or “phantom
share” plans or agreements or any similar plan or agreement. All of the outstanding shares of the Company are duly authorized, validly
issued, fully paid and non-assessable, have been issued in compliance with all federal and state securities laws where applicable, and
none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities.
Except for the Required Approvals, no further approval or authorization of any shareholder, the Board of Directors or others is required
for the issuance and sale of Securities. Except as set forth in the SEC Reports, there are no stockholders agreements, voting agreements
or other similar agreements with respect to the Company’s capital stock to which the Company is a party or, to the knowledge of
the Company, between or among any of the Company’s stockholders.
(j)
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the
Company under the Securities Act and Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years preceding
the date hereof (or such shorter period as the Company was required by law or regulation to file such materials) (the foregoing materials,
including the exhibits thereto and documents incorporated by reference therein, together with the Preliminary Prospectus and the Prospectus,
being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension (or
waiver from the Commission) of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied in all material respects with the requirements of the Securities Act and the Exchange
Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities Act.
(k)
Financial Statements. The consolidated financial statements of the Company, including the notes thereto, included or incorporated
by reference in the Registration Statement and the Prospectus comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have
been prepared in accordance with accounting principles generally accepted in the United States (“GAAP”) applied on
a consistent basis during the periods involved, except as may be otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(l)
Material Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest consolidated financial statements
included in or incorporated by reference into the Registration Statement, the Preliminary Prospectus and the Prospectus, except as set
forth ion Schedule 3.1(l), (i) there has been no event, occurrence or development that has had or that could reasonably be expected to
result in a Material Adverse Effect, (ii) neither the Company nor any Subsidiary has incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the ordinary course of business consistent with past practice and (B) liabilities
not required to be reflected in the Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not altered its method of accounting in any material respect, (iv) the Company has not declared or made any dividend
or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any
shares of its capital stock and (v) the Company has not issued any equity securities to any executive officer, director or Affiliate,
except pursuant to existing Company stock option or omnibus incentive plans. The Company does not have pending before the Commission any
request for confidential treatment of information. Except for the issuance of the Securities contemplated by this Agreement, no event,
liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected to occur or exist with respect
to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations, assets or financial condition that
would be required to be disclosed by the Company under applicable securities laws at the time this representation is made or deemed made
that has not been publicly disclosed at the time that this representation is made.
(m)
Litigation. Except as set forth in on Schedule 3.1(m), there is no action, suit, inquiry, notice of violation, Proceeding
or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their
respective properties before or by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state,
county, local or foreign) (collectively, an “Action”) that (i) adversely affects or challenges the legality, validity
or enforceability of any of the Transaction Documents or the Securities or (ii) would, if there were an unfavorable decision, have or
reasonably be expected to result in a Material Adverse Effect. Except as set forth on Schedule 3.1(m), neither the Company nor any Subsidiary,
nor any director or executive officer thereof, is or has been the subject of any Action involving a claim of violation of or liability
under federal or state securities laws or a claim of breach of fiduciary duty, which could result in a Material Adverse Effect. There
has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving
the Company or any current or former director or executive officer of the Company. The Commission has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.
(n)
Labor Relations. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees
of the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither the
Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe that
their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all applicable U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages and
hours, except where the failure to be in compliance could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(o)
Compliance. Neither the Company nor any Subsidiary: (i) is in default under or in violation of (and no event has occurred
that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture,
loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound
(whether or not such default or violation has been waived), (ii) is in violation of any judgment, decree or order of any court, arbitrator
or other governmental authority or (iii) is or has been in violation of any statute, rule, ordinance or regulation of any governmental
authority, including without limitation all foreign, federal, state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters, except in each case of (i), (ii) and (iii) as could not
have or reasonably be expected to result in a Material Adverse Effect.
(p)
Environmental Law. There has been no storage, generation, transportation, handling, use, treatment, disposal, discharge,
emission, contamination, release or other activity involving any kind of hazardous, toxic or other wastes, pollutants, contaminants, petroleum
products or other hazardous or toxic substances, chemicals or materials (“Hazardous Substances”) by, due to, on behalf
of, or caused by the Company or any Subsidiary (or, to the Company’s knowledge, any other entity for whose acts or omissions the
Company is or may be liable) upon any property now or previously owned, operated, used or leased by the Company or any Subsidiary, or
upon any other property, that would be a violation of or give rise to any liability under any applicable law, rule, regulation, order,
judgment, decree or permit, common law provision or other legally binding standard relating to pollution or protection of human health
and the environment (“Environmental Law”), except for violations and liabilities which, individually or in the aggregate,
would not have a Material Adverse Effect. There has been no disposal, discharge, emission contamination or other release of any kind at,
onto or from any such property or into the environment surrounding any such property of any Hazardous Substances with respect to which
the Company or any Subsidiary has knowledge, except as would not, individually or in the aggregate, have a Material Adverse Effect. There
is no pending or, to the best of the Company’s knowledge, threatened administrative, regulatory or judicial action, claim or notice
of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the Company or any Subsidiary, except
as would not, individually or in the aggregate, have a Material Adverse Effect. To the best of the Company’s knowledge, no property
of the Company or any Subsidiary is subject to any Lien under any Environmental Law, except as would not, individually or in the aggregate,
have a Material Adverse Effect. Except as disclosed in the Prospectus, neither the Company nor any Subsidiary is subject to any order,
decree, agreement or other individualized legal requirement related to any Environmental Law, that, in any case (individually or in the
aggregate), would have a Material Adverse Effect. The Company and each Subsidiary has all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with their requirements, except as would not, individually or in the
aggregate, have a Material Adverse Effect. In the ordinary course of its business, the Company periodically reviews the effect of Environmental
Laws on the business, operations and properties of the Company and the Subsidiaries and identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure or remediation of properties
or compliance with Environmental Laws, or any permit, license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably concluded that such associated costs and liabilities
would not, individually or in the aggregate, have a Material Adverse Effect.
(q)
Title to Assets. The Company and the Subsidiaries have good and marketable title in fee simple to all real property owned
by them and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries,
in each case free and clear of all Liens, except for (i) Liens as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment
of federal, state or other taxes, for which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which
is neither delinquent nor subject to penalties. Any real property and facilities currently held under lease by the Company and the Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and the Subsidiaries are in compliance in all material
respects.
(r)
Regulatory Permits. The Company and the Subsidiaries possess all certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the
SEC Reports, except where the failure to possess such permits would not reasonably be expected to result in a Material Adverse Effect
(“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to
the revocation or modification of any Material Permit.
(s)
Intellectual Property. Except as set forth in the Registration Statement, the Preliminary Prospectus and the Prospectus,
to the Company’s knowledge, the Company and the Subsidiaries have, or have rights to use (or can acquire on reasonable terms), all
patents, patent applications, trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses
and other intellectual property rights and similar rights necessary or required for use in connection with their respective businesses
as described in the Registration Statement, the Preliminary Prospectus and the Prospectus and which the failure to so have could reasonably
be expected to have a Material Adverse Effect (collectively, the “Intellectual Property Rights”). None of, and neither
the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property Rights has expired,
terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the date of this Agreement
except as would not reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received, since
the date of the latest financial statements included within or incorporated by reference into the Registration Statement, the Preliminary
Prospectus and the Prospectus, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person or is aware of any facts which would form a reasonable basis for any such claim, except as could
not have or reasonably be expected to not have a Material Adverse Effect. To the knowledge of the Company, all such Intellectual Property
Rights are enforceable and there is no existing infringement by another Person of any of the Intellectual Property Rights. The Company
and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and value of all of their intellectual
properties, except where failure to do so could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect. None of the Intellectual Property Rights used by the Company or any of its Subsidiaries in their respective businesses has been
obtained or is being used by the Company or such Subsidiary in violation of any contractual obligation binding on the Company or any of
its subsidiaries in violation of the rights of any person. The Company and its subsidiaries have taken all reasonable steps in accordance
with normal industry practice to protect and maintain the Intellectual Property Rights including, without limitation, the execution of
appropriate nondisclosure and invention assignment agreements. The consummation of the transactions contemplated by this Agreement will
not result in the loss or impairment of, or payment of, and additional amounts with respect to, nor require the consent of, any other
person regarding the Company’s or any of its subsidiaries’ right to own or use any of the Intellectual Property Rights as
owned or used in the conduct of such party’s business as currently conducted. To the knowledge of the Company and its Subsidiaries,
no employee of any of the Company or its subsidiaries is the subject of any pending claim or proceeding involving a violation of any term
of any employment contract, invention disclosure agreement, patent disclosure agreement, noncompetition agreement, non-solicitation agreement,
nondisclosure agreement or restrictive covenant to or with a former employer, where the basis of such violation relates to such employee’s
employment with the Company or its subsidiaries or actions undertaken by the employee while employed with the Company or its Subsidiaries.
The Company has no knowledge of any facts that would preclude it from having valid license rights or clear title to the Intellectual Property
Rights. The Company has no knowledge that it lacks or will be unable to obtain any rights or licenses to use all Intellectual Property
Rights that are necessary to conduct its business.
(t)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged,
including, but not limited to, directors and officers insurance coverage at least equal to the aggregate Subscription Amount. Neither
the Company nor any 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 without a significant
increase in cost.
(u)
Transactions With Affiliates and Employees. Except as set forth on Schedule 3.1(u), none of the executive officers or directors
of the Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently
a party to any transaction with the Company or any Subsidiary (other than for services as employees, executive officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or
from any executive officer, director or such employee or, to the knowledge of the Company, any entity in which any executive officer,
director, or any such employee has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each
case in excess of $120,000 other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company or a Subsidiary and (iii) other employee benefits, including stock option agreements under any stock
option or omnibus incentive plan of the Company.
(v)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance with all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, except as disclosed in the SEC Reports, the Registration Statement, the Preliminary Prospectus
and the Prospectus. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules
13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and
reported, within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated
the effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of applicable dates specified under
the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report
under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Except as set forth in the Registration Statement, the Preliminary Prospectus and the
Prospectus, since the Evaluation Date, there have been no changes in the internal control over financial reporting (as such term is defined
in the Exchange Act) of the Company and the Subsidiaries that have materially affected, or is reasonably likely to materially affect,
the internal control over financial reporting of the Company and the Subsidiaries.
(w)
Certain Fees. Except for fees payable to the Placement Agent, no brokerage or finder’s fees or commissions are or
will be payable by the Company or any Subsidiary 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. Other than to Persons engaged by any
Purchaser, the Purchasers 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 that may be due in connection with the transactions contemplated by the Transaction
Documents.
(x)
Investment Company. The Company is not, and immediately after receipt of payment for the Securities, will not be required
to register as an “investment company” within the meaning of the Investment Company Act of 1940, as amended. The Company shall
conduct its business in a manner so that it will not be required to register as an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(y)
Registration Rights. Except as set forth in the SEC Reports, the Registration Statement, the Preliminary Prospectus and
the Prospectus, no Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of
any securities of the Company or any Subsidiary that has not been satisfied or waived prior to the date hereof.
(z)
Listing and Maintenance Requirements. The Company is subject to the reporting requirements of Section 13 of the Exchange
Act and files periodic reports with the Commission; the Common Stock is registered with the Commission under Section 12(b) of the Exchange
Act and the Company is not in breach of any filing or other requirements under the Exchange Act. The Company has not received any notice
from that the Commission is contemplating terminating such registration. Except as set forth in the SEC Reports, the Registration Statement,
the Preliminary Prospectus and the Prospectus, the Company has not, in the 12 months preceding the date hereof, received notice from any
Trading Market on which the Common Stock are or have been listed or quoted to the effect that the Company is not in compliance with the
listing or maintenance requirements of such Trading Market. Except as set forth in the SEC Reports, the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company is, and has no reason to believe that it will not in the foreseeable future continue to be,
in compliance with all such listing and maintenance requirements. The Common Stock is currently eligible for electronic transfer through
The Depository Trust Company or another established clearing corporation and the Company is current in payment of the fees to The Depository
Trust Company (or such other established clearing corporation) in connection with such electronic transfer.
(aa)
Application of Takeover Protections. The Company and the 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 certificate of incorporation (or similar charter documents)
or the laws of its jurisdiction of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and
the Company fulfilling their obligations or exercising their rights under the Transaction Documents, including without limitation as a
result of the Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.
(bb)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction
Documents, the Company confirms that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their
agents or counsel with any information that it believes constitutes or might constitute material, non-public information that is not otherwise
disclosed in the Preliminary Prospectus or the Prospectus. The Company understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the Company. All of the disclosure furnished by or on behalf of the Company
to the Purchasers regarding the Company and its Subsidiaries, their respective businesses and the transactions contemplated hereby, including
pursuant to the SEC Reports and the Disclosure Schedules to this Agreement, is true and correct in all material respects and does not
contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the
twelve (12) months preceding the date of this Agreement taken as a whole do 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 and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section
3.2 hereof.
(cc)
No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section
3.2, neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any
offers or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the
Securities to be integrated with prior offerings by the Company for purposes of (i) the Securities Act, or (ii) except as set forth in
the SEC Reports, any applicable stockholder approval provisions of any Trading Market on which any of the securities of the Company are
listed or designated.
(dd)
Solvency. Based on the consolidated financial condition of the Company as of the Closing Date, after giving effect to the
receipt by the Company of the proceeds from the sale of the Securities hereunder, (i) the fair saleable value of the Company’s assets
exceeds the amount that will be required to be paid on or in respect of the Company’s existing debts and other liabilities (including
known contingent liabilities) as they mature, (ii) the Company’s assets do not constitute unreasonably small capital to carry on
its business as now conducted and as proposed to be conducted including its capital needs taking into account the particular capital requirements
of the business conducted by the Company, consolidated and projected capital requirements and capital availability thereof, and (iii)
the current cash flow of the Company, together with the proceeds the Company would receive, were it to liquidate all of its assets, after
taking into account all anticipated uses of the cash, would be sufficient to pay all amounts on or in respect of its liabilities when
such amounts are required to be paid. The Company does not intend to incur debts beyond its ability to pay such debts as they mature (taking
into account the timing and amounts of cash to be payable on or in respect of its debt). The Company has no knowledge of any facts or
circumstances that lead it to believe that it will file for reorganization or liquidation under the bankruptcy or reorganization laws
of any jurisdiction within one (1) year from the Closing Date. All outstanding secured and unsecured Indebtedness of the Company or any
Subsidiary, or for which the Company or any Subsidiary has commitments, is set forth on Schedule 3.1(dd). For the purposes of this
Agreement, “Indebtedness” means (x) any liabilities for borrowed money or amounts owed in excess of $50,000 (other
than trade accounts payable incurred in the ordinary course of business), (y) all guaranties, endorsements and other contingent obligations
in respect of indebtedness of others, whether or not the same are or should be reflected in the Company’s consolidated 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 (z) the present value of any lease payments in excess of $50,000 due under leases required to be
capitalized in accordance with GAAP. Neither the Company nor any Subsidiary is in default with respect to any Indebtedness.
(ee)
Tax Status. Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all U.S. federal, state and local income and
all foreign tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has paid all taxes and other
governmental assessments and charges, fines or penalties that are material in amount, shown or determined to be due on such returns, reports
and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material taxes for periods
subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material amount claimed
to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no basis for any such
claim.
(ff)
Foreign Corrupt Practices; Criminal Acts. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or
any Subsidiary, any agent or other person acting on behalf of the Company or any Subsidiary, 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 any Subsidiary (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 FCPA.
(gg)
Accountants. The Company’s independent registered public accounting firm is as set forth in the Prospectus. To the
knowledge and belief of the Company, such accounting firm is a registered public accounting firm as required by the Exchange Act.
(hh)
Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the
Purchasers is acting solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions
contemplated thereby. The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company
(or in any similar capacity) with respect to the Transaction Documents and the transactions contemplated thereby and any advice given
by any Purchaser or any of their respective representatives or agents in connection with the Transaction Documents and the transactions
contemplated thereby is merely incidental to the Purchasers’ purchase of the Securities. The Company further represents to each
Purchaser that the Company’s decision to enter into this Agreement and the other Transaction Documents has been based solely on
the independent evaluation of the transactions contemplated hereby by the Company and its representatives.
(ii)
Acknowledgment Regarding Purchaser’s Trading Activity. Anything in this Agreement or elsewhere herein to the contrary
notwithstanding (except for Sections 3.2(e) and 4.15 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers
has been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future securities offering transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties in “derivative”
transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short” position in the
Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Purchasers may engage
in hedging activities (in material compliance with applicable laws) at various times during the period that the Securities are outstanding,
and (z) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company at
and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities
do not constitute a breach of any of the Transaction Documents.
(jj)
Regulation M Compliance. The Company has not, and to its knowledge no one acting on its behalf (other than the Placement
Agent, as to which no representation is made) 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, other than, in the case of clauses
(ii) and (iii), compensation paid to the Placement Agent.
(kk)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any “Sanctions,” which
shall include but are not limited to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”) and the Company will not, directly or indirectly, use the proceeds of the Offering hereunder, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any Sanctions, including but not limited to U.S. sanctions administered by OFAC.
(ll)
Stock Option and Omnibus Incentive Plans. Each stock option granted by the Company under the Company’s stock option
or omnibus incentive plan, or as an inducement grant outside of such plan, was granted (i) in accordance with the terms of such plan,
or under its terms, respectively, and (ii) with an exercise price at least equal to the fair market value of the Common Stock on the date
such stock option would be considered granted under GAAP and applicable law. No stock option granted under the Company’s stock option
or omnibus incentive plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company policy or
practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the release or
other public announcement of material information regarding the Company or the Subsidiaries or their financial results or prospects.
(mm)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the U.S. Internal Revenue Code of 1986, as amended, and the Company shall so certify upon Purchaser’s
request.
(nn)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries owns or controls, directly or indirectly, five
percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total equity
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and to regulation
by the Federal Reserve.
(oo)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance
in all material respects with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (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 or any Subsidiary, threatened.
(pp)
Information Technology. The Company’s, the Subsidiaries’ information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate and
perform in all material respects as required in connection with the operation of the business of the Company and the Subsidiaries as currently
conducted. The Company, the Subsidiaries maintain commercially reasonable controls, policies, procedures, and safeguards to maintain and
protect their material confidential information and the integrity, continuous operation, redundancy and security of all IT Systems and
all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”) processed and stored
thereon, and to the knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises or unauthorized
uses of or accesses to same, except as would not reasonably be expected to have a Material Adverse Effect. The Company and the Subsidiaries
have implemented backup and disaster recovery technology consistent with industry standards and practices, and are presently in compliance
in all material respects with all applicable laws or statutes and all applicable judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating to the privacy and security
of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized use, access, misappropriation
or modification, except for any such noncompliance that would not reasonably be expected to have a Material Adverse Effect.
(qq)
Regulatory. Except as described on Schedule 3.1 (qq), the Company and its Subsidiaries (i) are and at all times have been
in material compliance with all statutes, rules and regulations applicable to the ownership, testing, development, manufacture, packaging,
processing, use, distribution, marketing, advertising, labeling, promotion, sale, offer for sale, storage, import, export or disposal
of any product manufactured or distributed by the Company including, without limitation the Federal Food, Drug and Cosmetic Act (21 U.S.C.
§ 301 et seq.), the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the Health Insurance Portability and Accountability
Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009, and the Patient Protection
and Affordable Care Act of 2010, as amended by the Health Care and Education Affordability Reconciliation Act of 2010, the regulations
promulgated pursuant to such laws, and any successor government programs and comparable state laws, regulations relating to Good Clinical
Practices and Good Laboratory Practices and all other local, state, federal, national, supranational and foreign laws, manual provisions,
policies and administrative guidance relating to the regulation of the Company (collectively, the “Applicable Laws”);
(ii) have not received any notice from any court or arbitrator or governmental or regulatory authority or third party alleging or asserting
noncompliance with any Applicable Laws or any licenses, exemptions, certificates, approvals, clearances, authorizations, permits, registrations
and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”); (iii) possess all material
Authorizations and such Authorizations are valid and in full force and effect and are not in violation of any term of any such Authorizations;
(iv) have not received written notice of any claim, action, suit, proceeding, hearing, enforcement, investigation arbitration or other
action from any court or arbitrator or governmental or regulatory authority or third party alleging that any product operation or activity
is in violation of any Applicable Laws or Authorizations nor is any such claim, action, suit, proceeding, hearing, enforcement, investigation,
arbitration or other action threatened; (v) have not received any written notice that any court or arbitrator or governmental or regulatory
authority has taken, is taking or intends to take, action to limit, suspend, materially modify or revoke any Authorizations nor is any
such limitation, suspension, modification or revocation threatened; (vi) have filed, obtained, maintained or submitted all material reports,
documents, forms, notices, applications, records, claims, submissions and supplements or amendments as required by any Applicable Laws
or Authorizations and that all such reports, documents, forms, notices, applications, records, claims, submissions and supplements or
amendments were complete and accurate on the date filed (or were corrected or supplemented by a subsequent submission); and (vii) are
not a party to any corporate integrity agreements, monitoring agreements, consent decrees, settlement orders, or similar agreements with
or imposed by any governmental or regulatory authority.
(rr)
Promotional Stock Activities. Neither the Company nor any Subsidiary of the Company and none of their respective officers,
directors, managers, affiliates or agents have engaged in any stock promotional activity that could give rise to a complaint, inquiry,
or trading suspension by the SEC alleging: (i) a violation of the anti-fraud provisions of the federal securities laws; (ii) violations
of the anti-touting provisions; (iii) improper “gun-jumping”; or (iv) promotion without proper disclosure of compensation.
3.2.
Representations and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents
and warrants as of the date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which
case they shall be accurate as of such date):
(a)
Organization; Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited
liability company or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents
and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance
by such Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate,
partnership, limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which
it is a party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof or thereof,
will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except:
(i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally; (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies; and (iii) insofar as indemnification and contribution provisions may be limited
by applicable law.
(b)
Understandings or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct
or indirect arrangement or understandings with any other persons to distribute or regarding the distribution of such Securities (this
representation and warranty not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or
otherwise in compliance with applicable federal and state securities laws).
(c)
Experience of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication
and experience in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment
in the Securities, and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an
investment in the Securities and, at the present time, is able to afford a complete loss of such investment.
(d)
Access to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including
all exhibits and schedules thereto) and the SEC Reports, the Registration Statement and the Preliminary Prospectus, and has been afforded:
(i) the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of the Company concerning
the terms and conditions of the offering of the Securities and the merits and risks of investing in the Securities; (ii) access to information
about the Company and its financial condition, results of operations, business, properties, management and prospects sufficient to enable
it to evaluate its investment; and (iii) the opportunity to obtain such additional information that the Company possesses or can acquire
without unreasonable effort or expense that is necessary to make an informed investment decision with respect to the investment. Such
Purchaser acknowledges and agrees that neither of the Placement Agent, nor any Affiliate of the Placement Agent, has provided such Purchaser
with any information or advice with respect to the Securities nor is such information or advice necessary or desired. Neither the Placement
Agent nor any Affiliate has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent
and any Affiliate may have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided
to it. In connection with the issuance of the Securities to such Purchaser, neither the Placement Agent, nor any of its Affiliates has
acted as a financial advisor or fiduciary to such Purchaser.
(e)
Certain Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Purchaser first received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the
material terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty against, or a prohibition
of, any actions with respect to the borrowing of, arrangement to borrow, identification of the availability of, and/or securing of, securities
of the Company in order for such Purchaser (or its broker or other financial representative) to effect Short Sales or similar transactions
in the future.
(f)
No Voting Agreements. The Purchaser is not a party to any agreement or arrangement, whether written or oral, between the
Purchaser and any other Purchaser and any of the Company’s stockholders as of the date hereof, regulating the management of the
Company, the stockholders’ rights in the Company, the transfer of shares in the Company, including any voting agreements, stockholder
agreements or any other similar agreement, even if its title is different or has any other relations or agreements with any of the Company’s
stockholders, directors or officers.
(g)
Brokers. Except as set forth in the Prospectus, no agent, broker, investment banker, person or firm acting in a similar
capacity on behalf of or under the authority of the Purchaser is or will be entitled to any broker’s or finder’s fee or any
other commission or similar fee, directly or indirectly, for which the Company or any of its Affiliates after the Closing could have any
liabilities in connection with this Agreement, any of the transactions contemplated by this Agreement, or on account of any action taken
by the Purchaser in connection with the transactions contemplated by this Agreement.
(h)
Independent Advice. Each Purchaser understands that nothing in this Agreement or any other materials presented by or on
behalf of the Company to the Purchaser in connection with the purchase of the Securities constitutes legal, tax or investment advice.
(i)
Purchaser Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, and on
each date on which it exercises any Pre-Funded Warrants, it will be either (i) an “accredited investor” as defined in Rule
501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12) or (a)(13) under the Securities Act, or (ii) a “qualified institutional
buyer” as defined in Rule 144A(a) under the Securities Act.
The Company acknowledges and
agrees that the representations contained in this Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on
the Company’s representations and warranties contained in this Agreement or any representations and warranties contained in any
other Transaction Document or any other document or instrument executed and/or delivered in connection with this Agreement or the consummation
of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of doubt, nothing contained herein shall constitute
a representation or warranty, or preclude any actions, except as set forth in this Agreement, with respect to locating or borrowing shares
in order to effect Short Sales or similar transactions in the future.
ARTICLE IV
OTHER AGREEMENTS OF THE PARTIES
4.1.
Legends.
(a) The
Shares, Pre-Funded Warrants and Pre-Funded Warrant Shares shall be issued free of legends.
(b) The
Shares and, if all or any portion of a Pre-Funded Warrant is exercised at a time when there is an effective registration statement to
cover the issuance of the Pre-Funded Warrant Shares or if the Pre-Funded Warrant is exercised via cashless exercise, the Pre-Funded Warrant
Shares shall be issued free of all restrictive legends. If at any time following the date hereof the Registration Statement (or any subsequent
registration statement registering the sale or resale of the Pre-Funded Warrant Shares) is not effective or is not otherwise available
for the initial sale by the Company of the Shares, the Pre-Funded Warrants or the Pre-Funded Warrant Shares, the Company shall immediately
notify the holders of the Pre-Funded Warrants in writing that such registration statement is not then effective and thereafter shall promptly
notify such holders when the registration statement is effective again and available for the initial sale by the Company of the Shares,
the Pre-Funded Warrants or the Pre-Funded Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability
of the Company to issue, or any Purchaser to sell, any of the Shares, the Pre-Funded Warrants or the Pre-Funded Warrant Shares in compliance
with applicable federal and state securities laws). The Company shall use commercially reasonable efforts to keep a registration statement
(including the Registration Statement) registering the issuance of the Pre-Funded Warrant Shares effective during the term of the Pre-Funded
Warrants.
4.2.
[Reserved].
4.3.
Furnishing of Information; Public Information. Until the time that no Purchaser owns Securities, the Company covenants to
maintain the registration of the Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain extensions
in respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act, even if the Company is not then subject to the reporting requirements of the Exchange Act, except in the
event that the Company consummates (in each case on or after the date as of which the Purchasers may sell all of their Securities without
restriction or limitation pursuant to Rule 144) (a) any transaction or series of related transactions as a result of which any Person
(together with its Affiliates) acquires then outstanding securities of the Company representing more than fifty percent (50%) of the voting
control of the Company; (b) a merger or reorganization of the Company with one or more other entities in which the Company is not the
surviving entity; or (c) a sale of all or substantially all of the assets of the Company, where the consummation of such transaction results
in the Company no longer subject to the reporting requirements of the Exchange Act.
4.4.
Integration. The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes
of the rules and regulations of any Trading Market such that it would require stockholder approval prior to the closing of such other
transaction unless stockholder approval is obtained before the closing of such subsequent transaction.
4.5.
Securities Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time issue a press release disclosing the
material terms of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents
as exhibits thereto as deemed by Company Counsel, with the Commission within the time required by the Exchange Act. From and after the
issuance of such press release, the Company represents to the Purchasers that it shall have publicly disclosed all material, non-public
information delivered to any of the Purchasers by the Company or any of the Subsidiaries or Affiliates, or any of their respective officers,
directors, employees or agents in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon
the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under
any agreement, whether written or oral, between the Company, any of the Subsidiaries or any of their respective officers, directors, agents,
employees or Affiliates, including without limitation, the Placement Agent, on the one hand, and any of the Purchasers or any of their
Affiliates on the other hand, with respect to the transactions contemplated hereby shall terminate and be of no further force or effect.
The Company and each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated
hereby, and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without
the prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser,
with respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure
is required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or applicable Trading Market, without the prior written consent
of such Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with
the Commission and (b) to the extent such disclosure is required by applicable law or Trading Market regulations, in which case the Company
shall provide the Purchasers with prior notice of such disclosure permitted under this clause (b).
4.6.
Stockholder Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other
Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill
(including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the
Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities
under the Transaction Documents or under any other agreement between the Company and the Purchasers.
4.7.
Non-Public Information. Except with respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, which shall be disclosed pursuant to Section 4.5, the Company covenants and agrees that neither it, nor any other
Person acting on its behalf will provide any Purchaser or its agents or counsel with any information that constitutes, or the Company
reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented to the receipt
of such information and agreed with the Company to keep such information confidential. The Company understands and confirms that each
Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. To the extent that the Company
delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants and
agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of the Subsidiaries, or any of their respective
officers, directors, agents, employees or Affiliates, or a duty to the Company, any of the Subsidiaries or any of their respective officers,
directors, agents, employees or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser
shall remain subject to applicable law. To the extent that any notice provided pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously with the delivery of such
notice file such material non-public information on with the Commission pursuant to a Current Report on Form 8-K. The Company understands
and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company.
4.8.
Use of Proceeds. Except as set forth in the Preliminary Prospectus or the Prospectus, the Company shall use the net proceeds
from the sale of the Securities hereunder for working capital and general corporate purposes and shall not use such proceeds: (a) for
the satisfaction of any portion of the Company’s debt (other than payment of trade payables and accrued liabilities in the ordinary
course of the Company’s business and repayment of obligations outstanding as of the date of this Agreement and consistent with prior
practices), (b) for the redemption of any Common Stock or Common Stock Equivalents, (c) for the settlement of any outstanding litigation,
or (d) in violation of FCPA or OFAC regulations.
4.9.
Indemnification of Purchasers. Subject to the provisions of this Section 4.9, the Company will indemnify and hold each Purchaser
and its directors, officers, stockholders, members, partners, employees and agents (and any other Persons with a functionally equivalent
role of a Person holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, stockholders,
agents, members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer or incur
caused by or based upon (a) any material breach of any of the representations or warranties made by the Company in this Agreement or in
the other Transaction Documents (b) any action instituted against a Purchaser Party in any capacity, or any of them or their respective
Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser Party, with respect to any of the transactions
contemplated by the Transaction Documents (except to the extent such action is solely based upon a material breach of such Purchaser Party’s
representations, warranties or covenants under the Transaction Documents or any agreements or understandings such Purchaser Party may
have with any such stockholder or any violations by such Purchaser Party of state or federal securities laws or any conduct by such Purchaser
Party that is finally judicially determined to constitute fraud, gross negligence or willful misconduct). If any action shall be brought
against any Purchaser Party in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Purchaser Party. Any Purchaser Party shall have the right to employ separate counsel in any such action and participate
in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent
that (x) the employment thereof has been specifically authorized by the Company in writing, (y) the Company has failed after a reasonable
period of time to assume such defense and to employ counsel or (z) in such action there is, in the reasonable opinion of counsel to the
applicable Purchaser Party, a material conflict on any material issue between the position of the Company and the position of such Purchaser
Party, in which case the Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
The Company will not be liable to any Purchaser Party under this Agreement (1) for any settlement by a Purchaser Party effected without
the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (2) to the extent, but only to the
extent that a loss, claim, damage or liability is attributable to any Purchaser Party’s breach of any of the representations, warranties,
covenants or agreements made by such Purchaser Party in this Agreement or in the other Transaction Documents. The indemnification required
by this Section 4.9 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 are incurred; provided, that if any Purchaser Party is finally judicially determined not to be entitled to
indemnification or payment under this Section 4.9, such Purchaser Party shall promptly reimburse the Company for any payments that are
advanced under this sentence. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of
any Purchaser Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.10.
Reservation of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and
keep available at all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the
Company to issue the Shares pursuant to this Agreement and the Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants.
4.11.
Listing of Common Stock. For as long as any Pre-Funded Warrants are outstanding and exercisable, the Company hereby agrees
to use commercially reasonable best efforts to maintain the listing or quotation of the Common Stock on the Trading Market on which it
is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the Shares and Pre-Funded Warrant
Shares on such Trading Market and promptly secure the listing of all of the Shares and Pre-Funded Warrant Shares on such Trading Market
to the extent required by the rules of such Trading Market; provided, however, that the Purchasers acknowledge that the Common Stock is
currently subject to delisting by the Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded
on any other Trading Market, it will then include in such application all of the Shares and Pre-Funded Warrant Shares, and will take such
other action as is necessary to cause all of the Shares and Pre-Funded Warrant Shares to be listed or quoted on such other Trading Market
as promptly as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common
Stock on a Trading Market and will comply in all respects with the Company’s reporting, filing and other obligations under the bylaws
or rules of the Trading Market. For so long as the Company maintains a listing or quotation of the Common Stock on a Trading Market, the
Company agrees to use commercially reasonable efforts to maintain the eligibility of the Common Stock for electronic transfer through
the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to
the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.12.
Subsequent Equity Sales.
(a)
From the date hereof until thirty (30) days after the Closing Date, except as permitted pursuant Section 4.12(b), to neither the
Company nor any Subsidiary shall (i) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any shares
of Common Stock or Common Stock Equivalents or (ii) file any registration statement or amendment or supplement thereto, other than filing
the final Prospectus and a registration statement on Form S-8 in connection with any employee benefit plan.
(b)
From the date hereof until ninety (90) days after the Closing Date, the Company shall be prohibited from effecting or entering
into an agreement to effect any issuance by the Company or any of its Subsidiaries of shares of Common Stock or Common Stock Equivalents
(or a combination of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction
in which the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or
include the right to receive additional shares of Common Stock either (A) at a conversion price, exercise price or 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 debt or equity 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 debt or equity security (other than in connection with a stock split or stock dividend or similar
event) 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, or (ii) enters into, or effects a transaction under, any agreement, including, but not limited to, an equity line
of credit or an “at-the-market offering”, whereby the Company may issue securities at a future determined price regardless
of whether shares pursuant to such agreement have actually been issued and regardless of whether such agreement is subsequently cancelled.
Notwithstanding the foregoing (including Section 4.12(a)), commencing five days following the Closing Date, the Company will be permitted
to make sales pursuant to that certain Sales Agreement, dated July 26, 2024, by and between the Company and the Placement Agent.
(c)
Notwithstanding the foregoing, this Section 4.12 shall not apply in respect of an Exempt Issuance, except that no Variable Rate
Transaction shall be an Exempt Issuance.
4.13.
Equal Treatment of Purchasers. No consideration (including any modification of any Transaction Document) shall be offered
or paid to any Person to amend or consent to a waiver or modification of any provision of the Transaction Documents unless the same consideration
is also offered to all of the parties to such Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the
Purchasers as a class and shall not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase,
disposition or voting of Shares or otherwise.
4.14.
Certain Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including
Short Sales, of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at
such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.5. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions
contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.5,
such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in this Agreement,
including the schedules hereto. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary,
the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will
not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated by this Agreement
are first publicly announced pursuant to the initial press release as described in Section 4.5, (ii) no Purchaser shall be restricted
or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and
after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release
as described in Section 4.5 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade in the securities of the
Company to the Company or the Subsidiaries after the issuance of the initial press release as described in Section 4.5. Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate
portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect
to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this
Agreement.
4.15.
Exercise Procedures. The form of Notice of Exercise included in the Pre-Funded Warrants sets forth the totality of the procedures
required of the Purchasers in order to exercise the Pre-Funded Warrants. No additional legal opinion, other information, or instructions
shall be required of the Purchasers to exercise their Pre-Funded Warrants. Without limiting the preceding sentences, no ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
form be required in order to exercise the Pre-Funded Warrants. The Company shall honor exercises of the Pre-Funded Warrants and shall
deliver the Pre-Funded Warrant Shares in accordance with the terms, conditions, and time periods set forth in the Transaction Documents.
4.16.
[Reserved].
4.17.
Lock-Up Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements
except to extend the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms.
If any party to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its best efforts to
seek specific performance of the terms of such Lock-Up Agreement.
ARTICLE V
MISCELLANEOUS
5.1.
Termination. This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only
and without any effect whatsoever on the obligations between the Company and the other Purchasers, by written notice to the other parties,
if the Closing has not been consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however,
that no such termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2.
Fees and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the
fees and expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident
to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees
(including, without limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise
notice delivered by a Purchaser). The Company shall pay any issuance, stamp or documentary taxes (other than transfer taxes) or charges
imposed by any governmental body, agency or official (other than income taxes) by reason of the issuance of Shares to the Purchasers.
5.3.
Entire Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Preliminary Prospectus,
and the Prospectus contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged
into such documents, exhibits and schedules.
5.4.
Notices. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall
be in writing and shall be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication
is delivered via email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New
York City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day or later
than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the date of mailing, if
sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom such notice is required to
be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto.
5.5.
Amendments; Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written
instrument signed, in the case of an amendment, by the Company and Purchasers that purchased at least 50.1% in interest of the Securities
based on the initial Subscription Amounts hereunder (or, prior to the Closing, the Company and each Purchaser) or, in the case of a waiver,
by the party against whom enforcement of any such waived provision is sought, provided that if any amendment, modification or waiver disproportionately
and adversely impacts a Purchaser (or group of Purchasers), the consent of such disproportionately impacted Purchaser (or at least 50.1%
in interest of such group of Purchasers) shall also be required. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver
of any other provision, condition or requirement hereof, nor shall any delay or omission of any party to exercise any right hereunder
in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately, materially and adversely
affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the other Purchasers shall require
the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with this Section 5.5 shall be binding
upon each Purchaser and holder of Securities and the Company. To the extent that any notice provided pursuant to any Transaction Document
constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the Company shall simultaneously
file such notice with the Commission pursuant to a Current Report on Form 8-K.
5.6.
Headings. The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed
to limit or affect any of the provisions hereof.
5.7.
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors
and permitted assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent
of each Purchaser (other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom
such Purchaser assigns or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred
Securities, by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8.
Third-Party Beneficiaries. The Placement Agent shall be the third-party beneficiary of the representations and warranties
of the Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended for
the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other Person, except as otherwise set forth in Section 4.9 and this Section 5.8.
5.9.
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents
shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles
of conflicts of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective
affiliates, directors, officers, stockholders, partners, members, employees or agents) shall be commenced exclusively in the state and
federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and 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 (including with respect to the enforcement of any of the Transaction Documents),
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 improper or is an inconvenient venue for such proceeding.
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 via registered or certified mail or overnight delivery (with evidence of delivery) 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 contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If any party shall commence an suit, action or proceeding to enforce any provisions of the Transaction Documents, then, in addition
to the obligations of the Company under Section 4.9, the prevailing party in such suit, action or proceeding shall be reimbursed by the
non-prevailing party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such suit, action or proceeding.
5.10.
Survival. The representations and warranties contained herein shall survive the Closing and the delivery of the Securities
for the applicable statue of limitations.
5.11.
Execution. This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered
one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to each other party,
it being understood that the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery
of a “.pdf” format data file, by other electronic signing created on an electronic platform (such as DocuSign) or by digital
signing (such as Adobe Sign), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such
signature is executed) with the same force and effect as if such “.pdf” or other electronic or digital signature page were
an original thereof.
5.12.
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by
such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.
5.13.
Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar
provisions of) any of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction
Document and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may
rescind or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election
in whole or in part without prejudice to its future actions and rights provided, however, that in the case of a rescission of an exercise
of a Pre-Funded Warrant, the applicable Purchaser shall be required to return any shares of Common Stock subject to any such rescinded
exercise notice concurrently (if such shares were delivered to the applicable Purchaser) with the return to such Purchaser of the aggregate
exercise price paid to the Company for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant
to such Purchaser’s Pre-Funded Warrant (including, issuance of a replacement warrant certificate evidencing such restored right).
5.14.
Replacement of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also
pay any reasonable third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15.
Remedies. In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of
damages, each of the Purchasers and the Company will be entitled to specific performance under the Transaction Documents. The parties
agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach of obligations contained in
the Transaction Documents and hereby agree to waive and not to assert in any action for specific performance of any such obligation the
defense that a remedy at law would be adequate.
5.16.
Payment Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction
Document or a Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement
or exercise or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law
(including, without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent
of any such restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force
and effect as if such payment had not been made or such enforcement or setoff had not occurred.
5.17.
Independent Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction
Document are several and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the
performance or nonperformance of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in
any other Transaction Document, and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers
as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any
way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Documents. Each
Purchaser shall be entitled to independently protect and enforce its rights including, without limitation, the rights arising out of this
Agreement or out of the other Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an additional
party in any proceeding for such purpose. Each Purchaser has been represented by its own separate legal counsel in its review and negotiation
of the Transaction Documents. For reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to
communicate with the Company through Sullivan & Worcester LLP, the legal counsel of the Placement Agent, and Sullivan & Worcester
LLP, as legal counsel of the Placement Agent, does not represent any of the Purchasers and only represents the Placement Agent. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because
it was required or requested to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in
this Agreement and in each other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and
the Purchasers collectively and not between and among the Purchasers.
5.18.
Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the
Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and
other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages
or other amounts are due and payable shall have been canceled.
5.19.
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right
required or granted herein shall not be a Trading Day, then such action may be taken or such right may be exercised on the next succeeding
Trading Day.
5.20.
Currency. Unless otherwise stated, all dollar amounts and references to “$” in this Agreement refer to the lawful
currency of the United States.
5.21.
Construction. The parties agree that each of them and/or their respective counsel have 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 or any amendments thereto. In addition,
each and every reference to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse
and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the
date Of this Agreement.
5.22.
WAIVER OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY,
THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
| |
|
|
| CNS PHARMACEUTICALS, INC. |
| |
|
| By: |
|
|
| Name: |
|
Christopher S. Downs |
| Title: |
|
Chief Financial Officer |
Address for Notice:
2100 West Loop South Suite 900
Houston, TX 77027
Email: Cdowns@CNSPharma.com
With a copy to (which shall not constitute notice):
Cavas Pavri
ArentFox Schiff LLP
1717 K Street, NW
Washington, DC 20006
Email: cavas.pavri@afslaw.com
[PURCHASER SIGNATURE PAGES TO CNSP
SECURITIES PURCHASE AGREEMENT]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser:
Signature of Authorized Signatory of Purchaser:
___________________________________________
Name of Authorized
Signatory:
___________________________________________
Title of Authorized Signatory:
___________________________________________
Email Address of Authorized Signatory:
___________________________________________
Address for Notice to Purchaser:
Address for Delivery of Securities to Purchaser (if not same as address
for notice):
_______________________
DWAC for Shares:
Subscription Amount: $
Shares:__________________
Pre-Funded Warrant Shares: ___________ Beneficial Ownership Blocker
☐ 4.99% or ☐
9.99%
EIN Number: ____________________
☐
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the above-signed to
purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the obligations of the Company
to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall be disregarded, (ii) the Closing
shall occur on the first (1st) Trading Day following the date of this Agreement and (iii) any condition to Closing contemplated
by this Agreement (but prior to being disregarded by clause (i) above) that required delivery by the Company or the above-signed of any
agreement, instrument, certificate or the like or purchase price (as applicable) shall no longer be a condition and shall instead be an
unconditional obligation of the Company or the above-signed (as applicable) to deliver such agreement, instrument, certificate or the
like or purchase price (as applicable) to such other party on the Closing Date.
Exhibit A
Form of Lock-Up Agreement
(See attached)
Exhibit B
Form of Pre-Funded Warrant
(See attached)
