Exhibit
10.1
SECURITIES
PURCHASE AGREEMENT
This
Securities Purchase Agreement (this “Agreement”) is dated as of March 13, 2024, by and among Unicycive Therapeutics,
Inc., a Delaware corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including
its successors and assigns, a “Purchaser” and collectively, the “Purchasers”).
RECITALS
A. The
Company and each Purchaser is executing and delivering this Agreement in reliance upon the exemption from securities registration afforded
by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506 of Regulation D
(“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “Commission”)
under the Securities Act.
B. Each
Purchaser, severally and not jointly, wishes to purchase, and the Company wishes to sell, upon the terms and conditions stated in this
Agreement, that aggregate number of shares of Series B-1 Convertible Preferred Stock, par value $0.001 per share (the “Series
B-1 Preferred Stock”), of the Company, set forth below such Purchaser’s name on the signature page of this Agreement
(which aggregate amount for all Purchasers together shall be 50,000 shares of Series B-1 Preferred Stock and shall be collectively referred
to herein as the “Shares”)
C. Pursuant
to the Certificate of Designation of the Series B Convertible Preferred Stock, in substantially the form attached hereto as Exhibit
A (the “Certificate of Designation”), each Share is convertible into shares of common stock, par value $0.001
per share, of the Company (the “Common Stock”) and if applicable, shares of Series B-2 Preferred Stock, par value
$0.001 per share of the Company (the “Series B-2 Preferred Stock”), in lieu of Common Stock.
D. Pursuant
to the Certificate of Designation, each share of Series B-2 Preferred Stock issuable upon conversion of the Shares is convertible into
shares of Common Stock. The Shares of Common Stock issuable upon conversion of the Shares and the Series B-2 Preferred Stock collectively
are referred to herein as the “Conversion Shares.”
E. The
Shares, the Series B-2 Preferred Stock issuable upon conversion of the Shares and the Conversion Shares collectively are referred to
herein as the “Securities.”
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 the Purchasers hereby 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 shall have the
meanings indicated in this Section 1.1:
“Acquiring
Person” has the meaning set forth in Section 4.6.
“Action”
means any action, suit, inquiry, notice of violation, proceeding (including any partial proceeding such as a deposition) or investigation
pending or, to the Company’s Knowledge, threatened in writing against the Company, any Subsidiary or any of their respective properties
or any officer, director or employee of the Company or any Subsidiary acting in his or her capacity as an officer, director or employee
before or by any federal, state, county, local or foreign court, arbitrator, governmental or administrative agency, regulatory authority,
stock market, stock exchange or trading facility.
“Advance
Indemnification Payment” has the meaning set forth in Section 4.15(c)(iv).
“Affiliate”
means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is controlled
by or is under common control with such Person, as such terms are used in and construed under Rule 405 under the Securities Act. For
the avoidance of doubt, with respect to any Purchaser that is an investment fund or other investment vehicle, such Purchaser shall be
deemed not to be an Affiliate of (i) any portfolio company of such Purchaser or its Affiliates or (ii) any limited partner of any such
Purchaser or its Affiliates.
“Agreement”
has the meaning set forth in the Preamble.
“Board
of Directors ” means the board of directors of the Company.
“Business
Day” means any day except Saturday, Sunday, any day which is a federal legal holiday in the United States or any day on which
banking institutions in the State of New York are authorized or required by law or other governmental action to close.
“Buy-In”
has the meaning set forth in Section 4.1(f).
“Certificate
of Designation” has the meaning set forth in the Recitals.
“Closing”
means the closing of the purchase and sale of the Shares pursuant to this Agreement.
“Closing
Date” means the Trading Day when all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all of the conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 hereof are satisfied or waived,
as the case may be, or such other date as the parties may agree.
“Commission”
has the meaning set forth in the Recitals.
“Common
Stock” has the meaning set forth in the Recitals, and also includes any other class of securities into which the Common Stock
may hereafter be reclassified or changed into.
“Common
Stock Equivalents” means any securities of the Company or any Subsidiary which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that
is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or other securities
that entitle the holder to receive, directly or indirectly, Common Stock.
“Company”
has the meaning set forth in the Preamble.
“Company
Counsel” means Sheppard, Mullin, Richter & Hampton LLP, with offices located at 30 Rockefeller Center, New York, NY 10112.
“Company
Covered Person” means, with respect to the Company as an “issuer” for purposes of Rule 506 promulgated under the
Securities Act, any Person listed in the first paragraph of Rule 506(d)(1).
“Company
Deliverables” has the meaning set forth in Section 2.2(a).
“Company
Intellectual Property” has the meaning set forth in Section 3.1(p).
“Company’s
Knowledge” means with respect to any statement made to the Company’s Knowledge, that the statement is based upon the
actual or constructive knowledge of any director and executive officer (as defined in Rule 405 under the Securities Act) of the Company,
after due inquiry.
“Company
Party” has the meaning set forth in Section 4.15(c)(ii).
“Control”
(including the terms “controlling,” “controlled by” or “under common control with”) means the possession,
direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership
of voting securities, by contract or otherwise.
“Conversion
Shares” has the meaning set forth in the Recitals.
“Cut
Back Shares” has the meaning set forth in Section 4.15(b).
“Disclosure
Materials” has the meaning set forth in Section 3.1(h).
“Disclosure
Schedules” has the meaning set forth in Section 3.1.
“DTC”
has the meaning set forth in Section 4.1(c).
“Effective
Date” has the meaning set forth in Section 4.15(a)(vii).
“Effectiveness
Deadline” has the meaning set forth in Section 4.15(a)(ii).
“Engagement
Letters” means the Engagement Letters by and between the Company and each of the Placement Agents, dated February 4, 2024.
“Environmental
Laws” has the meaning set forth in Section 3.1(dd).
“Evaluation
Date” has the meaning set forth in Section 3.1(t).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated
thereunder.
“Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company pursuant
to any stock or option 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 and (b) shares
of Common Stock upon the exercise or exchange of or conversion of any Securities issued hereunder and/or 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.
“Filing
Date” has the meaning set forth in Section 4.15(a)(i).
“GAAP”
means U.S. generally accepted accounting principles, as applied by the Company.
“Irrevocable
Transfer Agent Instructions” means, with respect to the Company, the Irrevocable Transfer Agent Instructions, in the form of
Exhibit D, executed by the Company and delivered to and acknowledged in writing by the Transfer Agent.
“Legend
Removal Date” has the meaning set forth in Section 4.1(c).
“Losses”
has the meaning set forth in Section 4.15(c)(i).
“Lien”
means any lien, charge, claim, encumbrance, security interest, right of first refusal, preemptive right or other restrictions of any
kind.
“Material
Adverse Effect” means a material adverse effect on the results of operations, assets, prospects, properties, management, stockholders’
equity, business or financial condition of the Company and the Subsidiaries, taken as a whole.
“Material
Contract” means any contract of the Company that has been filed or was required to have been filed as an exhibit to the SEC
Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.
“Material
Permits” has the meaning set forth in Section 3.1(n).
“OFAC”
has the meaning set forth in Section 3.1(kk).
“Outside
Date” means the fifth (5th) Business Day following the date of this Agreement.
“Person”
means an individual, corporation, partnership, limited liability company, trust, business trust, association, joint stock company, joint
venture, sole proprietorship, unincorporated organization, governmental authority or any other form of entity not specifically listed
herein.
“Placement
Agents” means Leerink Partners LLC and Piper Sandler & Co.
“Press
Release” has the meaning set forth in Section 4.5.
“Principal
Trading Market” means the Trading Market on which the Common Stock is primarily listed on and quoted for trading, which, as
of the date of this Agreement and the Closing Date, shall be the Nasdaq Capital Market.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such
as a deposition), whether commenced or threatened.
“Proposal”
has the meaning set forth in Section 4.16.
“Purchase
Price” means $1,000 per Share.
“Purchaser”
or “Purchasers” has the meaning set forth in the Recitals.
“Purchaser
Deliverables” has the meaning set forth in Section 2.2(b).
“Purchaser
Party” has the meaning set forth in Section 4.9.
“Registrable
Shares” means (a) all Common Stock issuable upon the conversion of the Shares purchased pursuant to this Agreement and (b)
all Common Stock issuable upon conversion of the Series B-2 Preferred Stock, in each case of (a) and (b) without taking into account
any limitations upon conversion set forth in the Certificate of Designation; provided, however, that a security shall cease
to be a Registrable Share upon the earliest to occur of the following: (i) a Resale Registration Statement registering such security
under the Securities Act has been declared or becomes effective and such security has been sold or otherwise transferred by the holder
thereof pursuant to and in a manner contemplated by such effective Resale Registration Statement, (ii) such security is sold pursuant
to Rule 144 under circumstances in which any legend borne by such security relating to restrictions on transferability thereof, under
the Securities Act or otherwise, is removed by the Company, (iii) such security is eligible to be sold pursuant to Rule 144 without any
limitation as to volume of sales and without the holder complying with any method of sale requirements or notice requirements under Rule
144, or (iv) such security shall cease to be outstanding following its issuance.
“Regulation
D” has the meaning set forth in the Recitals.
“Required
Approvals” has the meaning set forth in Section 3.1(e).
“Resale
Registration Statement” means a registration statement or registration statements of the Company filed under the Securities
Act pursuant to Section 4.15 hereof, and shall include any preliminary prospectus, final prospectus, exhibit or amendment included
in or relating to such registration statements.
“Restriction
Termination Date” has the meaning set forth in Section 4.15(b).
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“Sanctioned
Country” means, at any time, a country, region or territory which is itself subject or target of any Sanctions (at the time
of this Agreement, Russia, Cuba, Iran, North Korea, Syria, the so-called People’s Republic of Donetsk, the so-called People’s
Republic of Luhansk, and the Crimea, Kherson and Zaporizhzhia regions of Ukraine).
“Sanctioned
Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons, (b) any Person operating,
organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing
clauses (a) or (b), or (d) any Person otherwise the subject or target of any Sanctions.
“Sanctions”
means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government,
including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of
State or (b) the United Nations Security Council, the European Union, any European Union member state, His Majesty’s Treasury of
the United Kingdom or other relevant sanctions authority.
“SEC
Reports” has the meaning set forth in Section 3.1(h).
“SEC
Restrictions” has the meaning set forth in Section 4.15(b)
“Secretary’s
Certificate” has the meaning set forth in Section 2.2(a)(vi).
“Securities
Act” has the meaning set forth in the Recitals.
“Series
B-1 Preferred Stock” has the meaning set forth in the Recitals.
“Series
B-2 Preferred Stock” has the meaning set forth in the Recitals.
“Shares”
has the meaning set forth in the Recitals.
“Short
Sales” include, without limitation, (i) all “short sales” as defined in Rule 200 promulgated under Regulation SHO
under the Exchange Act, whether or not against the box, and all types of direct and indirect stock pledges, forward sale contracts, options,
puts, calls, short sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar
arrangements (including on a total return basis), and (ii) sales and other transactions through non-U.S. broker dealers or foreign regulated
brokers (but shall not be deemed to include the location and/or reservation of borrowable shares of Common Stock).
“Staff”
means the staff of the Commission.
“Stock
Certificates” has the meaning set forth in Section 2.2(a)(ii).
“Stockholder
Approval” has the meaning set forth in Section 3.1(e).
“Subscription
Amount” means, with respect to each Purchaser, the aggregate amount to be paid for the Shares purchased hereunder as indicated
on such Purchaser’s signature page to this Agreement next to the heading “Aggregate Purchase Price (Subscription Amount)”
in United States dollars and in immediately available funds.
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, include any subsidiary of the
Company formed or acquired after the date hereof.
“Trading
Affiliate” has the meaning set forth in Section 3.2(g).
“Trading
Day” means (i) a day on which the Common Stock is listed or quoted and traded on its Principal Trading Market (other than the
OTC Bulletin Board), or (ii) if the Common Stock is not listed on a Trading Market (other than the OTC Bulletin Board), a day on which
the Common Stock is traded in the over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the Common Stock is not
quoted on any Trading Market, a day on which the Common Stock is quoted in the over-the-counter market as reported in the “pink
sheets” by Pink Sheets LLC (or any similar organization or agency succeeding to its functions of reporting prices); provided,
that in the event that the Common Stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day shall mean
a Business Day.
“Trading
Market” means whichever of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market, the NASDAQ
Global Market, the NASDAQ Capital Market or the OTC Bulletin Board on which the Common Stock is listed or quoted for trading on the date
in question.
“Transaction
Documents” means this Agreement, the schedules and exhibits attached hereto, the Certificate of Designation, the Irrevocable
Transfer Agent Instructions, and any other documents or agreements explicitly contemplated hereunder.
“Transfer
Agent” means Pacific Stock Transfer Company, the current transfer agent of the Company, with a mailing address of 6725 Via
Austi Pkwy, Suite 300, Las Vegas, NV 89119, and a facsimile number of 702-361-3033, or any successor transfer agent for the Company.
ARTICLE
II.
PURCHASE AND SALE
2.1 Closing.
(a) Amount.
Subject to the terms and conditions set forth in this Agreement, at the Closing, the Company shall issue and sell to each Purchaser,
and each Purchaser shall, severally and not jointly, purchase from the Company, such number of shares of Series B-1 Preferred Stock equal
to the quotient resulting from dividing (i) the Subscription Amount for such Purchaser by (ii) the Purchase Price, rounded to the nearest
whole Share, as set forth below the name of such Purchaser on the Purchaser signature page.
(b) Closing.
The Closing of the purchase and sale of the Shares shall take place at the offices of Cooley LLP, 3 Embarcadero Ctr, San Francisco, CA
94111 on the Closing Date or at such other locations or remotely by facsimile transmission or other electronic means as the parties may
mutually agree.
(c) Form
of Payment. On the Closing Date, each Purchaser shall wire its Subscription Amount, in United States dollars and in immediately available
funds, to the Company’s account pursuant to the wire instructions set forth on Exhibit G attached hereto. On the Closing
Date, the Company shall irrevocably instruct the Transfer Agent to deliver to each Purchaser one or more stock certificates, free and
clear of all restrictive and other legends (except as expressly provided in Section 4.1(b) hereof), evidencing the number of Shares
such Purchaser is purchasing as is set forth on such Purchaser’s signature page to this Agreement next to the heading “Number
of Shares to be Acquired,” within two (2) Trading Days after the Closing. Each Purchaser’s obligation to pay its Subscription
Amount shall be several and not joint. Notwithstanding anything to the contrary contained in this Agreement that refers to certificated
securities, each Purchaser shall be entitled to receive any securities under this Agreement, including the Shares, via book entry issuance
held at the Company’s Transfer Agent, instead of pursuant to the issuance of one or more certificates.
2.2 Closing
Deliveries. (a) On or prior to the Closing, the Company shall issue, deliver or cause to be delivered to each Purchaser the
following (the “Company Deliverables”):
(i) this
Agreement, duly executed by the Company;
(ii) facsimile
copies of one or more stock certificates, free and clear of all restrictive and other legends (except as provided in Section 4.1(b)
hereof), evidencing the Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser as set forth
on the Stock Certificate Questionnaire included as Exhibit B-2 hereto (the “Stock Certificate”), with the original
Stock Certificates delivered within two (2) Trading Days of Closing;
(iii) a
legal opinion of Company Counsel, dated as of the Closing Date and in substantially the form attached hereto as Exhibit C, executed
by such counsel and addressed to the Purchasers,;
(iv) the
Certificate of Designation shall have been filed with the Secretary of State of Delaware, which Certificate of Designation shall continue
to be in full force and effect as of the Closing Date;
(v) duly
executed Irrevocable Transfer Agent Instructions acknowledged in writing by the Transfer Agent instructing the Transfer Agent to deliver,
on an expedited basis, a certificate evidencing a number of Shares equal to such Purchaser’s Subscription Amount divided by the
Purchase Price, registered in the name of such Purchaser;
(vi) a
certificate of the Secretary of the Company (the “Secretary’s Certificate”), dated as of the Closing Date, (a)
certifying the resolutions adopted by the Board of Directors of the Company or a duly authorized committee thereof approving the transactions
contemplated by this Agreement and the other Transaction Documents, the filing of the Certificate of Designation and the issuance of
the Securities, (b) certifying the current versions of the certificate of incorporation, as amended, the Certificate of Designation and
by-laws of the Company and (c) certifying as to the signatures and authority of persons signing the Transaction Documents and related
documents on behalf of the Company, in the form attached hereto as Exhibit E;
(vii) the
Compliance Certificate referred to in Section 5.1(i);
(viii) a
certificate evidencing the formation and good standing of the Company issued by the Secretary of State (or comparable office) of the
State of Delaware, as of a date within three (3) Business Days of the Closing Date;
(ix) a
certificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State
(or comparable office) of each jurisdiction in which the Company is qualified to do business as a foreign corporation, as of a date within
three (3) Business Days of the Closing Date;
(x) a
certified copy of the certificate of incorporation and Certificate of Designation, each as certified by the Secretary of State (or comparable
office) of the State of Delaware, as of a date within three (3) Business Days of the Closing Date; and
(xi) evidence
that the Company has filed with The Nasdaq Capital Market the listing of additional shares application for the Conversion Shares.
(b) On
or prior to the Closing, each Purchaser shall deliver or cause to be delivered to the Company the following (the “Purchaser
Deliverables”):
(i) this
Agreement, duly executed by such Purchaser;
(ii) its
Subscription Amount, in United States dollars and in immediately available funds, in the amount set forth as the “Purchase Price”
indicated below such Purchaser’s name on the applicable signature page hereto under the heading “Aggregate Purchase Price
(Subscription Amount)” by wire transfer to the Company;
(iii) a
fully completed and duly executed Selling Stockholder Questionnaire in the form attached as Annex A attached hereto; and
(iv) a
fully completed and duly executed Accredited Investor Questionnaire, satisfactory to the Company, and Stock Certificate Questionnaire
in the forms attached hereto as Exhibits B-1 and B-2, respectively.
ARTICLE
III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except (i) as set forth in the schedules delivered herewith (the “Disclosure Schedules”),
which Disclosure Schedules shall be deemed a part hereof and shall qualify any representation made herein to the extent of the disclosure
contained in the corresponding section of the Disclosure Schedules, or (ii) disclosed in the SEC Reports, the Company hereby represents
and warrants as of the date hereof and the Closing Date (except for the representations and warranties that speak as of a specific date,
which shall be made as of such date), to each of the Purchasers and the Placement Agents:
(a) Subsidiaries.
The Company has no direct or indirect Subsidiaries other than those listed in Schedule 3.1(a) hereto. Except as disclosed in Schedule
3.1(a) hereto, the Company owns, directly or indirectly, all of the capital stock or comparable equity interests of each Subsidiary
free and clear of any and all Liens, and all the issued and outstanding shares of capital stock or comparable equity interest of each
Subsidiary are validly issued and are fully paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase
securities.
(b) Organization
and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite corporate
power and authority to own or lease and use its properties and assets and to carry on its business as currently conducted. Neither the
Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate of incorporation, bylaws
or other organizational or charter documents. The Company and each of its Subsidiaries is duly qualified to conduct business and is in
good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
would not have or reasonably be expected to result in a Material Adverse Effect, and no Proceeding has been instituted, is pending, or,
to the Company’s Knowledge, has been threatened in writing in any such jurisdiction revoking, limiting or curtailing or seeking
to revoke, limit or curtail such power and authority or qualification.
(c) Authorization;
Enforcement; Validity. The Company has the requisite corporate power and authority to enter into and to consummate the transactions
contemplated by each of the Transaction Documents to which it is a party and otherwise to carry out its obligations hereunder and thereunder.
The Company’s execution and delivery of each of the Transaction Documents to which it is a party and the consummation by it of
the transactions contemplated hereby and thereby (including, but not limited to, the sale and delivery of the Shares and the reservation
for issuance and the subsequent issuance of shares of Series B-2 Preferred Stock upon conversion of the Shares and the Conversion Shares)
have been duly authorized by all necessary corporate action on the part of the Company, and no further corporate action is required by
the Company, its Board of Directors or its stockholders in connection therewith other than in connection with the Required Approvals.
Each of the Transaction Documents to which it is a party has been (or upon delivery will have been) duly executed by the Company and
is, or when delivered in accordance with the terms hereof, will constitute the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except (i) as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’ rights
and remedies or by other equitable principles of general application, (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.
(d) No
Conflicts. The execution, delivery and performance by the Company of the Transaction Documents to which it is a party and the consummation
by the Company of the transactions contemplated hereby or thereby (including, without limitation, the issuance of the Shares and the
reservation for issuance of the shares of Series B-2 Preferred Stock upon conversion of the Shares and the Conversion Shares) do not
and will not (i) conflict with or violate any provisions of the Company’s or any Subsidiary’s certificate of incorporation,
bylaws or otherwise result in a violation of the organizational documents of the Company, (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would result in 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, acceleration or
cancellation (with or without notice, lapse of time or both) of, any Material Contract, 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 and
the rules and regulations, assuming the correctness of the representations and warranties made by the Purchasers herein, of any self-regulatory
organization to which the Company or its securities are subject, including all applicable Trading Markets), or by which any property
or asset of the Company or a Subsidiary is bound or affected, except in the case of clauses (ii) and (iii) such as would not, individually
or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(e) Filings,
Consents and Approvals. Neither the Company nor any of its Subsidiaries is 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, local or other governmental
authority or other Person in connection with the execution, delivery and performance by the Company of the Transaction Documents (including
the issuance of the Securities), other than (i) the filing with the Commission of one or more Resale Registration Statements in accordance
with the requirements hereof, (ii) filings required by applicable state securities laws, (iii) the filing of a Notice of Sale of Securities
on Form D with the Commission under Regulation D of the Securities Act, (iv) the filing of any requisite notices and/or application(s)
to the Principal Trading Market for the issuance and sale of the Securities and the listing of the Conversion Shares for trading or quotation,
as the case may be, thereon in the time and manner required thereby, (v) the filings required in accordance with Section 4.5 of
this Agreement, (vi) approval of the Proposal by the stockholders of the Company (the “Stockholder Approval”) and
(vii) those that have been made or obtained prior to the date of this Agreement (collectively, the “Required Approvals”).
(f) Issuance
of the Securities. The Shares have been duly authorized and, when issued and paid for in accordance with the terms of the Transaction
Documents, will be duly and validly issued, fully paid and nonassessable and free and clear of all Liens, other than restrictions on
transfer provided for in the Transaction Documents or imposed by applicable securities laws, and shall not be subject to preemptive or
similar rights. The shares of Series B-2 Preferred Stock issuable upon conversion of the Shares have been duly authorized and, when issued
in accordance with the terms of the Transaction Documents and the Certificate of Designation will be duly and validly issued, fully paid
and nonassessable, free and clear of all Liens, other than restrictions on transfer provided for in the Transaction Documents or imposed
by applicable securities laws, and shall not be subject to preemptive or similar rights of stockholders. The Conversion Shares issuable
upon conversion of the Shares and the Series B-2 Preferred Stock have been duly authorized and, when issued in accordance with the terms
of the Transaction Documents, will be duly and validly issued, fully paid and nonassessable and free and clear of all Liens, other than
restrictions on transfer provided for in the Transaction Documents or imposed by applicable securities laws, and shall not be subject
to preemptive or similar rights. Assuming the accuracy of the representations and warranties of the Purchasers in this Agreement, the
Securities will be issued in compliance with all applicable federal and state securities laws. As of the Closing Date, the Company shall
have reserved from its duly authorized capital stock the number of shares of (i) the maximum number of Series B-2 Preferred Stock issuable
upon conversion of the Shares; (ii) the maximum number of Conversion Shares issuable upon conversion of the Shares and (iii) the maximum
number of Conversion Shares issuable upon conversion of the Series B-2 Preferred Stock(without taking into account any limitations set
forth in the Certificate of Designation). The Company shall, so long as any of the Shares and the Series B-2 Preferred Stock are outstanding,
take all action necessary to reserve and keep available out of its authorized and unissued capital stock, solely for the purpose of effecting
the conversion of the Shares and the conversion of the Series B-2 Preferred Stock, the maximum number of shares of Common Stock issuable
upon the conversion thereof (without taking into account any limitations set forth in the Certificate of Designation).
(g) Capitalization.
The number of shares and type of all authorized, issued and outstanding capital stock, options and other securities of the Company (whether
or not presently convertible into or exercisable or exchangeable for shares of capital stock of the Company) is set forth in Schedule
3.1(g) hereto. The Company has not issued any capital stock since the date of its most recently filed SEC Report other than to reflect
stock option and warrant exercises that do not, individually or in the aggregate, have a material effect on the issued and outstanding
capital stock, options and other securities. No Person has any right of first refusal, preemptive right, right of participation, or any
similar right to participate in the transactions contemplated by the Transaction Documents that have not been effectively waived as of
the Closing Date. Except as set forth on Schedule 3.1(g) or a result of the purchase and sale of the Shares, there are no
outstanding options, warrants, scrip 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 shares of Common Stock, or contracts, commitments, understandings or arrangements by which the Company or any Subsidiary is or may
become bound to issue additional shares of Common Stock or Common Stock Equivalents. The issuance and sale of the Securities will not
obligate the Company to issue shares of 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.
All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance
with all applicable federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive
rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board
of Directors or others is required for the issuance and sale of the Securities. 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 Company’s
Knowledge, between or among any of the Company’s stockholders.
(h) SEC
Reports; Disclosure Materials. The Company has filed all reports, schedules, forms, statements and other documents required to be
filed by it under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being collectively referred to herein as the “SEC Reports”,
and the SEC Reports, together with the Disclosure Schedules, being collectively referred to as the “Disclosure Materials”)
on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration
of any such extension, except where the failure to file on a timely basis would not have or reasonably be expected to result in a Material
Adverse Effect (including, for this purpose only, any failure to qualify to register the Conversion Shares for resale on Form S-3 or
which would prevent any Purchaser from using Rule 144 to resell any Securities). As of their respective filing dates, or to the
extent corrected by a subsequent restatement, the SEC Reports complied in all material respects with the requirements of the Securities
Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, 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 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. Each of the Material Contracts to which the Company or any Subsidiary is a
party or to which the property or assets of the Company or any of its Subsidiaries are subject has been filed as an exhibit to the SEC
Reports.
(i) Financial
Statements. The financial statements of the Company included in the SEC Reports 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 (or to the extent
corrected by a subsequent restatement). Such financial statements have been prepared in accordance with 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 taken as a whole 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.
(j) Material
Changes. Since the date of the latest audited financial statements included within the SEC Reports, except as specifically disclosed
in a subsequent SEC Report filed prior to the date hereof, (i) there have been no events, occurrences or developments that have had or
would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, (ii) the Company has not incurred
any material 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 materially its method of accounting or the
manner in which it keeps its accounting books and records, (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 (other than in connection with repurchases of unvested stock issued to employees of the Company), and (v) the Company has not issued
any equity securities to any officer, director or Affiliate, except Common Stock issued in the ordinary course as dividends on outstanding
preferred stock or issued pursuant to existing Company stock option or stock purchase plans or executive and director compensation arrangements
disclosed in the SEC Reports. Except for the issuance of the Shares and the transactions contemplated by the Transaction Agreements,
no event, liability or development has occurred or exists with respect to the Company or its Subsidiaries or their respective business,
properties, operations or financial condition, that would be required to be disclosed by the Company under applicable securities laws
at the time this representation is made that has not been publicly disclosed at least one (1) Trading Day prior to the date that this
representation is made.
(k) Litigation.
There is no Action which (i) adversely affects or challenges the legality, validity or enforceability of any of the Transaction Documents
or the Securities or (ii) except as specifically disclosed in the SEC Reports, would, if there were an unfavorable decision, individually
or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor
to the Company’s Knowledge any director or 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. There has not been, and to the Company’s
Knowledge there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director
or 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 of its Subsidiaries under the Exchange Act or the Securities Act.
(l) Employment
Matters. No material labor dispute exists or, to the Company’s Knowledge, is imminent with respect to any of the employees
of the Company which would have or reasonably be expected to result in a Material Adverse Effect. None of the Company’s or any
Subsidiary’s employees is a member of a union that relates to such employee’s relationship with the Company, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and each Subsidiary believes
that its relationship with its employees is good. No executive officer of the Company (as defined in Rule 501(f) of the Securities Act)
has notified the Company or any such Subsidiary that such officer intends to leave the Company or any such Subsidiary or otherwise terminate
such officer’s employment with the Company or any such Subsidiary. To the Company’s Knowledge, no executive officer, to the Company’s
Knowledge, is, or is now expected to be, in violation of any term 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 a third party, and to the Company’s Knowledge, the continued employment of each such executive officer does not subject
the Company or any Subsidiary to any liability with respect to any of the foregoing matters. The Company and its Subsidiaries are in
compliance with all 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 would not, individually or in the aggregate,
have or reasonably be expected to result in a Material Adverse Effect.
(m) Compliance.
Neither the Company nor any of its Subsidiaries (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 of its Subsidiaries under), nor has
the Company or any of its Subsidiaries received written notice of a claim that it is in default under or that it is in violation of,
any Material Contract (whether or not such default or violation has been waived), (ii) is in violation of any order of any court, arbitrator
or governmental body having jurisdiction over the Company or its properties or assets, or (iii) is in violation of, or in receipt of
written notice that it is in violation of, any statute, rule or regulation of any governmental authority applicable to the Company, except
in each case as would not, individually or in the aggregate, have or reasonably be expected to result in a Material Adverse Effect.
(n) Regulatory
Permits. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
federal, state, local or foreign regulatory authorities necessary to conduct its respective business as currently conducted and as described
in the SEC Reports, except where the failure to possess such permits, individually or in the aggregate, has not and would not have or
reasonably be expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any
of its Subsidiaries has received any notice of Proceedings relating to the revocation or modification of any such Material Permits.
(o) Title
to Assets. The Company and its Subsidiaries have good and marketable title in fee simple to all real property owned by them. The
Company and its Subsidiaries have good and marketable title to all tangible personal property owned by them that is material to the business
of the Company and its Subsidiaries, taken as whole, in each case free and clear of all Liens except such as do not materially affect
the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and any of
its Subsidiaries. Any real property and facilities held under lease by the Company and any of its Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company and its Subsidiaries.
(p) Intellectual
Property.
(i) To
the Company’s Knowledge, the Company and the Subsidiaries own, possess, license or have other rights to use, all patents, patent
applications, trade and service marks, trade and service mark applications and registrations, trade names, trade secrets, inventions,
copyrights, licenses, technology, know-how and other intellectual property rights and similar rights described in the SEC Reports as
necessary or material for use in connection with their respective businesses and which the failure to so have would have or reasonably
be expected to result in a Material Adverse Effect (collectively, the “Company Intellectual Property”). Neither the
Company nor any Subsidiary has received a notice (written or otherwise) that any of the Intellectual Property Rights used by the Company
or any Subsidiary violates or infringes upon the rights of any Person. There is no pending or, to the Company’s Knowledge, threatened
action, suit, proceeding or claim by any Person that the Company’s business as now conducted infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of another. To the Company’s Knowledge, there is no existing
infringement by another Person of any of the Intellectual Property Rights that would have or would reasonably be expected to have a Material
Adverse Effect. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy, confidentiality and
value of all of their Intellectual Property Rights, except where failure to do so could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(ii) To
the Company’s Knowledge, all Company Intellectual Property is valid and enforceable and all maintenance/annuities fees have been
timely paid. The Company has complied with its duty of disclosure under 37 CFR 1.56(c). The validity and/or enforceability of the Company
Intellectual Property has not been challenged in any jurisdiction, and the Company is not aware of any facts that would give rise to
such a challenge.
(q) Insurance.
The Company and each of the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks
and in such amounts as the Company believes to be prudent and customary in the businesses and locations in which the Company and the
Subsidiaries are engaged, including, but not limited to, directors and officers insurance coverage and clinical trial liability coverage.
Neither the Company nor any of its Subsidiaries has received any notice of cancellation of any such insurance, nor, to the Company’s
Knowledge, will it or any Subsidiary be unable to renew their respective 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.
(r) Transactions
With Affiliates and Employees. Except as set forth in the SEC Reports or Schedule 3.1(r), none of the officers or directors
of the Company and, to the Company’s Knowledge, none of the employees of the Company is presently a party to any transaction with
the Company or any Subsidiary (other than for services as employees, officers and directors), that would be required to be disclosed
pursuant to Item 404 of Regulation S-K promulgated under the Securities Act.
(s) Internal
Accounting Controls. The Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to maintain asset and liability accountability, (iii) access
to assets or incurrence of liabilities is permitted only in accordance with management’s general or specific authorization, and (iv)
the recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and
appropriate action is taken with respect to any differences.
(t) Sarbanes-Oxley;
Disclosure Controls. The Company is in compliance in all material respects with all of the provisions of the Sarbanes-Oxley Act of
2002 which are applicable to it as of the Closing Date. The Company has established disclosure controls and procedures (as such term
is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act) for the Company 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 Company’s disclosure controls and procedures as of the end of the period
covered by the Company’s most recently filed periodic report 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. Since the Evaluation
Date, there have been no changes in the Company’s internal control over financial reporting (as such term is defined in the Exchange
Act) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(u) Certain
Fees. Except as set forth on Schedule 3.1(u) or with respect to the Placement Agents whose commissions and fees will be paid
by the Company, no person or entity will have, as a result of the transactions contemplated by this Agreement, any valid right, interest
or claim against or upon the Company or a Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement
or understanding entered into by or on behalf of the Company with respect to the offer and sale of the Shares. 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 paragraph (u) that may be due in connection with the transactions contemplated by the Transaction Documents. The Company shall
indemnify, pay, and hold each Purchaser harmless against, any liability, loss or expense (including, without limitation, attorneys’
fees and out-of-pocket expenses) arising in connection with any such right, interest or claim.
(v) Private
Placement. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2 of this
Agreement and the accuracy of the information disclosed in the Accredited Investor Questionnaires provided by the Purchasers, no registration
under the Securities Act is required for the offer and sale of the Securities by the Company to the Purchasers under the Transaction
Documents. The issuance and sale of the Securities hereunder does not contravene the rules and regulations of the Trading Market.
(w) Investment
Company The Company is not, and is not an Affiliate of, and immediately after receipt of payment for the Shares, will not be
or be an Affiliate of, 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 become an “investment company” subject to registration
under the Investment Company Act of 1940, as amended.
(x) Registration
Rights. Other than each of the Purchasers pursuant to Section 4.15 hereof or as set forth in Schedule 3.1(x) hereto,
no Person has any right to cause the Company to effect the registration under the Securities Act of any securities of the Company other
than those securities which are currently registered on an effective registration statement on file with the Commission.
(y) Listing
and Maintenance Requirements. The Company’s Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to terminate the registration of the Common Stock under the Exchange Act nor has the Company
received any notification that the Commission is contemplating terminating such registration. Except as set forth on Schedule 3.1(y),
the Company has not, in the twelve (12) months preceding the date hereof, received written notice from any Trading Market on which the
Common Stock is 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 on Schedule 3.1(y), the Company is in compliance with all listing and maintenance requirements
of the Principal Trading Market on the date hereof.
(z) Application
of Takeover Protections; Rights Agreements. 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 charter documents or the laws of its state of incorporation that is or could
reasonably be expected to become applicable to any of 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, the Company’s issuance of the Securities and
the Purchasers’ ownership of the Securities.
(aa) Disclosure.
The Company confirms that it has not provided, and to the Company’s Knowledge, none of its officers or directors nor any other
Person acting on its or their behalf has provided, any Purchaser or its respective agents or counsel with any information that it believes
constitutes material, non-public information except insofar as the existence, provisions and terms of the Transaction Documents and the
proposed transactions hereunder may constitute such information, all of which will be disclosed by the Company in the Press Release as
contemplated by Section 4.5 hereof. The Company understands and confirms that the Purchasers will rely on the foregoing representations
in effecting transactions in securities of the Company.
(bb) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
none of the Company, its Subsidiaries nor, to the Company’s Knowledge, any of its Affiliates or any Person acting on its behalf
has, directly or indirectly, made any offers or sales of any Company security or solicited any offers to buy any security under circumstances
that would (i) eliminate the availability of the exemption from registration under Regulation D under the Securities Act in connection
with the offer and sale by the Company of the Securities as contemplated hereby or (ii) cause the offering of the Securities pursuant
to the Transaction Documents to be integrated with prior offerings by the Company for purposes of any applicable law, regulation or stockholder
approval provisions, including, without limitation, under the rules and regulations of any Trading Market on which any of the securities
of the Company are listed or designated.
(cc) Tax
Matters. The Company and each of its Subsidiaries (i) has accurately and timely prepared and filed all foreign, federal and state
income and all other 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 that are material in amount, shown or determined to be due on such returns, reports and
declarations, except those being contested in good faith, with respect to which adequate reserves have been set aside on the books of
the Company and (iii) has set aside on its books provisions reasonably adequate for the payment of all taxes for periods subsequent to
the periods to which such returns, reports or declarations apply, except, in the case of clauses (i) and (ii) above, where the failure
to so pay or file any such tax, assessment, charge or return would not have or reasonably be expected to result in a Material Adverse
Effect. There are no unpaid taxes in any material amount claimed to be due by the Company or any of its Subsidiaries by the taxing authority
of any jurisdiction.
(dd) Environmental
Matters. To the Company’s Knowledge, neither the Company nor any of its Subsidiaries (i) is in violation of any statute, rule,
regulation, decision or order of any governmental agency or body or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous
or toxic substances (collectively, “Environmental Laws”), (ii) owns or operates any real property contaminated with
any substance that is in violation of any Environmental Laws, (iii) is liable for any off-site disposal or contamination pursuant to
any Environmental Laws, or (iv) is subject to any claim relating to any Environmental Laws; which violation, contamination, liability
or claim has had or would have, individually or in the aggregate, a Material Adverse Effect; and there is no pending investigation or,
to the Company’s Knowledge, investigation threatened in writing that might lead to such a claim.
(ee) No
General Solicitation. Neither the Company nor, to the Company’s Knowledge, any person acting on behalf of the Company has offered
or sold any of the Securities by any form of general solicitation or general advertising.
(ff) Foreign
Corrupt Practices. 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) taken any action that would reasonably be expected to
subject the Company to any damage or penalty in any criminal or governmental litigation or proceeding under any provision of the Foreign
Corrupt Practices Act of 1977, as amended.
(gg) Off
Balance Sheet Arrangements. There is no transaction, arrangement, or other relationship between the Company (or any Subsidiary) and
an unconsolidated or other off balance sheet entity that is required to be disclosed by the Company in SEC Reports and is not so disclosed
and would have or reasonably be expected to result in a Material Adverse Effect.
(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
hereby and 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) Regulation
M Compliance. The Company has not, and to the Company’s Knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or paid any compensation for soliciting purchases
of, any of the securities of the Company or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase
any other securities of the Company.
(jj) PFIC.
Neither the Company nor any Subsidiary is or intends to become a “passive foreign investment company” within the meaning
of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or a “controlled foreign
corporation” within the meaning of Section 957 of the Code.
(kk) Sanctions.
Neither the Company nor any Subsidiary nor, to the Company’s Knowledge, any director, officer, agent, employee, Affiliate or Person
acting on behalf of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department; and the Company will not directly or indirectly use the proceeds of the sale of the Securities,
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 or facilitating any activities, business or transaction with any Sanctioned Person or in any Sanctioned Country
or in any manner that would result in the violation of any Sanctions applicable to any party hereto.
(ll) No
Bad Actors. No “bad actor” disqualifying event described in Rule 506(d)(1)(i)-(viii) of the Securities Act (a “Disqualification
Event”) is applicable to the Company or, to the Company’s Knowledge, any Company Covered Person, except for a Disqualification
Event as to which Rule 506(d)(2)(ii–iv) or (d)(3) is applicable.
(mm) FDA. As
to each product subject to the jurisdiction of the U.S. Food and Drug Administration (“FDA”) under the Federal Food,
Drug and Cosmetic Act, as amended, and the regulations thereunder (“FDCA”) that is manufactured, packaged, labeled,
tested, distributed, sold, and/or marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold and/or marketed by the Company in compliance
with all applicable requirements under FDCA and similar laws, rules and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices, good laboratory practices, good clinical practices, product
listing, quotas, labeling, advertising, record keeping and filing of reports, except where the failure to be in compliance would not
have or reasonably be expected to result in a Material Adverse Effect. There is no pending, completed or, to the Company’s
Knowledge, threatened, action (including any lawsuit, arbitration, or legal or administrative or regulatory proceeding, charge, complaint,
or investigation) against the Company or any of its Subsidiaries, and none of the Company or any of its Subsidiaries has received any
notice, warning letter or other communication from the FDA or any other governmental entity, which (i) contests the premarket clearance,
licensure, registration, or approval of, the uses of, the distribution of, the manufacturing or packaging of, the testing of, the sale
of, or the labeling and promotion of any Pharmaceutical Product, (ii) withdraws its approval of, requests the recall, suspension, or
seizure of, or withdraws or orders the withdrawal of advertising or sales promotional materials relating to, any Pharmaceutical Product,
(iii) imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries, (iv) enjoins production at any
facility of the Company or any of its Subsidiaries, (v) enters or proposes to enter into a consent decree of permanent injunction with
the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the Company or any
of its Subsidiaries, and which, either individually or in the aggregate, would have or reasonably be expected to result in a Material
Adverse Effect. The properties, business and operations of the Company have been and are being conducted in all material respects
in accordance with all applicable laws, rules and regulations of the FDA. The Company has not been informed by the FDA that the FDA will
prohibit the marketing, sale, license or use in the United States of any product proposed to be developed, produced or marketed by the
Company nor has the FDA expressed any concern as to approving or clearing for marketing any product being developed or proposed to be
developed by the Company.
(nn) Healthcare
Laws. The Company and its Subsidiaries are, and during the last three (3) years, has been, in compliance with all Healthcare Laws,
except where failure to comply would not be expected, individually or in the aggregate, to result in a Material Adverse Effect. For purposes
of this Agreement, “Healthcare Laws” means: (i) the FDCA and the Public Health Service Act (42 U.S.C. Section 201
et seq.); (ii) all applicable federal, state, local and foreign health care fraud and abuse laws, including, without limitation, the
Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Civil False Claims Act (31 U.S.C. Section 3729 et seq.), the criminal false
statements law (42 U.S.C. Section 1320a-7b(a)), 18 U.S.C. Sections 286, 287, 1347 and 1349, the civil monetary penalties law (42 U.S.C.
Section 1320a-7a), the exclusion law (42 U.S.C. Section 1320a-7), the Physician Payments Sunshine Act (42 U.S.C. Section 1320-7h), and
applicable laws governing government funded or sponsored healthcare programs; (iii) the Health Insurance Portability and Accountability
Act (“HIPAA”), as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section
17921 et seq.); (iv) all other similar local, state, federal, national, supranational and foreign laws; and (v) the regulations promulgated
pursuant to such laws set forth in subparts (i) through (iv). Except as would not be expected, individually or in the aggregate, to result
in a Material Adverse Effect. During the last three (3) years, the Company has not received written notice of any claim, action, suit,
proceeding, hearing, enforcement, investigation, arbitration or other action from any court or arbitrator or governmental authority alleging
that any product, operation, or activity is in violation of any Healthcare Laws nor, to the Company’s Knowledge, is any such written
claim, action, suit, proceeding, hearing, enforcement, investigation, arbitration or other action threatened. Except as would not be
expected, individually or in the aggregate, to result in a Material Adverse Effect, during the last three (3) years, the Company has
filed, maintained or submitted all written reports, documents, forms, notices, applications, records, claims, submissions and supplements
or amendments (“Submissions”) as required by any Healthcare Laws, and all such Submissions were accurate on the date
filed (or were corrected or supplemented by a subsequent submission). The Company is not a party to any corporate integrity agreements,
deferred or non-prosecution agreements, monitoring agreements, consent decrees, settlement orders, or similar written agreements with
or imposed by any Governmental Entity. During the last three (3) years, neither the Company nor any of its respective employees, officers,
directors, or, to the Company’s Knowledge, agents has been excluded, suspended or debarred from participation in any U.S. federal
health care program or human clinical research.
(oo) Preclinical
Data, Clinical Trials and Regulatory Compliance. The preclinical tests and clinical trials, and other studies (collectively, “studies”)
that are described in, or the results of which are referred to in, the SEC Reports were and, if still pending, are being conducted in
all material respects in accordance with the protocols, procedures and controls designed and approved for such studies and with standard
medical and scientific research procedures; each description of the results of such studies is accurate and complete in all material
respects and fairly presents the data derived from such studies, and to the Company’s Knowledge no other studies the results of
which are inconsistent with, or otherwise call into question, the results described or referred to in the SEC Reports; the Company and
its Subsidiaries have made all such filings and obtained all such approvals as may be required by the FDA or the U.S. Department of Health
and Human Services or any committee thereof or from any other United States or foreign government or drug or medical device regulatory
agency, or health care facility Institutional Review Board (collectively, the “Regulatory Agencies”); neither the
Company nor any of its Subsidiaries has received any notice of, or correspondence from, any Regulatory Agency requiring the termination,
suspension or modification of any clinical trials or preclinical tests that are described or referred to in the SEC Reports; and the
Company and its Subsidiaries have each operated and currently are in compliance in all material respects with all applicable rules, regulations
and policies of the Regulatory Agencies.
(pp) No
Additional Agreements. The Company does not have any agreement or understanding with any Purchaser with respect to the transactions
contemplated by the Transaction Documents other than as specified in the Transaction Documents.
(qq) Use
of Form S-3. The Company meets the registration and transaction requirements for use of Form S-3 for the registration of the Conversion
Shares for resale by the Purchasers.
(rr) No
Side Letters. The Company does not have any agreement or understanding (including side letters) with any Purchaser with respect to
the transactions contemplated by the Transaction Documents other than as specified in the Transaction Documents.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser hereby, for itself and for no other Purchaser, represents and warrants as of the
date hereof and as of the Closing Date to the Company and the Placement Agents as follows:
(a) Organization;
Authority. Such Purchaser is an entity validly existing and in good standing under the laws of the jurisdiction of its organization
with the requisite corporate or partnership power and authority to enter into and to consummate the transactions contemplated by the
applicable Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this
Agreement by such Purchaser and performance by such Purchaser of the transactions contemplated by this Agreement have been duly authorized
by all necessary corporate or, if such Purchaser is not a corporation, such partnership, limited liability company or other applicable
like action, 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, will constitute the valid and legally binding obligation of
such Purchaser, enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of, creditors’
rights and remedies or by other equitable principles of general application.
(b) No
Conflicts. The execution, delivery and performance by such Purchaser of this Agreement and the consummation by such Purchaser of
the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such Purchaser,
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
such Purchaser is a party, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including federal
and state securities laws) applicable to such Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the
ability of such Purchaser to perform its obligations hereunder.
(c) Investment
Intent. Such Purchaser understands that the Securities are “restricted securities” and have not been registered under
the Securities Act or any applicable state securities law and is acquiring the Shares, and will acquire the shares of Series B-2 Preferred
Stock (upon conversion of the Shares) and the Conversion Shares (upon conversion of the Shares and the Series B-2 Preferred Stock) as
principal for its own account and not with a view to, or for distributing or reselling such Securities or any part thereof in violation
of the Securities Act or any applicable state securities laws, provided, however, that by making the representations herein, such
Purchaser does not agree to hold any of the Securities for any minimum period of time and reserves the right, subject to the provisions
of this Agreement, at all times to sell or otherwise dispose of all or any part of such Securities pursuant to an effective registration
statement under the Securities Act or under an exemption from such registration and in compliance with applicable federal and state securities
laws. Such Purchaser does not presently have any agreement, plan or understanding, directly or indirectly, with any Person to distribute
or effect any distribution of any of the Securities (or any securities which are derivatives thereof) to or through any person or entity;
such Purchaser is not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a business that would require
it to be so registered as a broker-dealer.
(d) Purchaser
Status. At the time such Purchaser was offered the Shares, it was, and at the date hereof it is, an “accredited investor”
as defined in Rule 501(a) under the Securities Act.
(e) General
Solicitation. Such Purchaser is not purchasing the Securities as a result of any advertisement, article, notice or other communication
regarding the Securities published in any newspaper, magazine or similar media or broadcast over television or radio or presented at
any seminar or any other general advertisement.
(f) Access
to Information. Such Purchaser acknowledges that it 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 the Subsidiaries
and their respective 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. Neither
such inquiries nor any other investigation conducted by or on behalf of such Purchaser or its representatives or counsel shall modify,
amend or affect such Purchaser’s right to rely on the truth, accuracy and completeness of the Disclosure Materials and the Company’s
representations and warranties contained in the Transaction Documents. Such Purchaser has sought such accounting, legal and tax advice
as it has considered necessary to make an informed decision with respect to its acquisition of the Securities.
(g) Certain
Trading Activities. Other than with respect to the transactions contemplated herein, since the time that such Purchaser was first
contacted by the Company or any other Person regarding the transactions contemplated hereby, neither the Purchaser nor any Affiliate
of such Purchaser which (x) had knowledge of the transactions contemplated hereby, (y) has or shares discretion relating to such Purchaser’s
investments or trading or information concerning such Purchaser’s investments, including in respect of the Securities, and (z)
is subject to such Purchaser’s review or input concerning such Affiliate’s investments or trading (collectively, “Trading
Affiliates”) has directly or indirectly, nor has any Person acting on behalf of or pursuant to any understanding with such
Purchaser or Trading Affiliate, effected or agreed to effect any purchases or sales of the securities of the Company (including, without
limitation, any Short Sales involving the Company’s securities). Notwithstanding the foregoing, in the case of a Purchaser and/or
Trading Affiliate that is, individually or collectively, a multi-managed investment bank or vehicle whereby separate portfolio managers
manage separate portions of such Purchaser’s or Trading Affiliate’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 or Trading Affiliate’s assets,
the representation set forth above shall apply only with respect to the portion of assets managed by the portfolio manager that have
knowledge about the financing transaction contemplated by this Agreement. Other than to other Persons party to this Agreement, 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 avoidance of doubt, nothing contained herein shall constitute a representation
or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to
borrow in order to effect short sales or similar transactions in the future.
(h) Brokers
and Finders. Except with respect to the Placement Agents whose commissions and fees will be paid by the Company, no Person will have,
as a result of the transactions contemplated by this Agreement, any valid right, interest or claim against or upon the Company or any
Purchaser for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on
behalf of the Purchaser.
(i) Independent
Investment Decision. Such Purchaser has independently evaluated the merits of its decision to purchase Securities pursuant to the
Transaction Documents, and such Purchaser confirms that it has not relied on the advice of any other Purchaser’s business and/or
legal counsel in making such decision. Such 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.
Such Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has deemed necessary or appropriate
in connection with its purchase of the Securities. Such Purchaser confirms that none of such Persons has made any representations or
warranties to such Purchaser in connection with the transactions contemplated by the Transaction Documents.
(j) Reliance
on Exemptions. Such Purchaser understands that the Securities being offered and sold to it in reliance on specific exemptions from
the registration requirements of United States federal and state securities laws and that the Company is relying in part upon the truth
and accuracy of, and such Purchaser’s compliance with, the representations, warranties, agreements, acknowledgements and understandings
of such Purchaser set forth herein in order to determine the availability of such exemptions and the eligibility of such Purchaser to
acquire the Securities.
(k) Beneficial
Ownership. The purchase by such Purchaser of the Shares issuable to it at the Closing will not result in such Purchaser (individually
or together with any other Person with whom such Purchaser has identified, or will have identified, itself as part of a “group”
in a public filing made with the Commission involving the Company’s securities) acquiring, or obtaining the right to acquire, in
excess of 9.99% of the outstanding shares of Common Stock or the voting power of the Company on a post transaction basis that assumes
that such Closing shall have occurred. Such Purchaser does not presently intend to, alone or together with others, make a public filing
with the Commission to disclose that it has (or that it together with such other Persons have) acquired, or obtained the right to acquire,
as a result of such Closing (when added to any other securities of the Company that it or they then own or have the right to acquire),
in excess of 9.99% of the outstanding shares of Common Stock or the voting power of the Company on a post transaction basis that assumes
that each Closing shall have occurred. Notwithstanding the foregoing, in the case of a Purchaser and/or Trading Affiliate that is, individually
or collectively, a multi-managed investment bank or vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
or Trading Affiliate’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 or Trading Affiliate’s assets, the representation set forth above shall
apply only with respect to the portion of assets managed by the portfolio manager that has knowledge about the financing transaction
contemplated by this Agreement.
(l) Residency.
Such Purchaser’s residence (if an individual) or offices in which its investment decision with respect to the Securities was made
(if an entity) are located at the address immediately below such Purchaser’s name on its signature page hereto.
The
Company and each of the Purchasers acknowledge and agree that no party to this Agreement has made or makes any representations or warranties
with respect to the transactions contemplated hereby other than those specifically set forth in this Article III and the Transaction
Documents.
ARTICLE
IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Transfer
Restrictions.
(a) Compliance
with Laws. Notwithstanding any other provision of this Article IV, each Purchaser covenants that the Securities may be disposed
of only pursuant to an effective registration statement under, and in compliance with the requirements of, the Securities Act, or pursuant
to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, and in compliance
with any applicable state and federal securities laws. In connection with any transfer of the Securities other than (i) pursuant to an
effective registration statement, (ii) to the Company, (iii) pursuant to Rule 144 (provided that the Purchaser provides the Company
with reasonable assurances (in the form of seller and, if applicable, broker representation letters) that the securities may be sold
pursuant to such rule) or (iv) in connection with a bona fide pledge as contemplated in Section 4.1(b), the Company may require
the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company,
the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act. As a condition of a transfer other than pursuant to (i) through
(iv) above, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of a Purchaser
under this Agreement with respect to such transferred Securities.
(b) Legends.
Certificates evidencing the Securities shall bear any legend as required by the “blue sky” laws of any state and a restrictive
legend in substantially the following form, until such time as they are not required under Section 4.1(c):
NEITHER
THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON CONVERSION OF THESE SECURITIES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR
(B) AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AS EVIDENCED
BY A LEGAL OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES
LAWS OR BLUE SKY LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE SECURITIES ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES
MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
The
Company acknowledges and agrees that a Purchaser may from time to time pledge, and/or grant a security interest in, some or all of the
legended Securities in connection with applicable securities laws, pursuant to a bona fide margin agreement in compliance with a bona
fide margin loan. Such a pledge would not be subject to approval or consent of the Company and no legal opinion of legal counsel to the
pledgee, secured party or pledgor shall be required in connection with the pledge, but such legal opinion shall be required in connection
with a subsequent transfer or foreclosure following default by the Purchaser transferee of the pledge. No notice shall be required of
such pledge, but Purchaser’s transferee shall promptly notify the Company of any such subsequent transfer or foreclosure. Each
Purchaser acknowledges that the Company shall not be responsible for any pledges relating to, or the grant of any security interest in,
any of the Securities or for any agreement, understanding or arrangement between any Purchaser and its pledgee or secured party. At the
appropriate Purchaser’s expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party
of Securities may reasonably request in connection with a pledge or transfer of the Securities, including the preparation and filing
of any required prospectus supplement under Rule 424(b)(3) of the Securities Act or other applicable provision of the Securities Act
to appropriately amend the list of Selling Stockholders thereunder. Each Purchaser acknowledges and agrees that, except as otherwise
provided in Section 4.1(c), any Securities subject to a pledge or security interest as contemplated by this Section 4.1(b)
shall continue to bear the legend set forth in this Section 4.1(b) and be subject to the restrictions on transfer set forth
in Section 4.1(a).
(c) Removal
of Legends. The legend set forth in Section 4.1(b) above shall be removed and the Company shall issue a certificate without
such legend or any other legend to the holder of the applicable Securities upon which it is stamped or issue to such holder by electronic
delivery at the applicable balance account at the Depository Trust Company (“DTC”), if (i) such Securities are sold
or transferred pursuant to the effective registration statement registering the Securities for resale (during such time that such registration
statement is effective and not withdrawn or suspended, and only as permitted by such registration statement) or Rule 144 (if the transferor
is not an Affiliate of the Company), or (ii) such Securities are eligible for sale under Rule 144, without the requirement for the Company
to be in compliance with the current public information required under Rule 144 as to such securities and without volume or manner-of-sale
restrictions. Following the earliest of (i) one year from the Closing Date, (ii) Rule 144 becoming available for the resale of Securities,
without the requirement for the Company to be in compliance with the current public information required under Rule 144 as to such securities
and without volume or manner-of-sale restrictions and (iii) the date that the Resale Registration Statement has become effective with
respect to the resale of Registrable Securities, the Company shall cause Company Counsel to issue to the Transfer Agent the legal opinion
referred to in the Irrevocable Transfer Agent Instructions. Any fees (with respect to the Transfer Agent, Company Counsel or otherwise)
associated with the issuance of such opinion or the removal of such legend shall be borne by the Company. Following such time as a legend
is no longer required for certain Securities, the Company will no later than the earlier of (i) two (2) Trading Days and (ii) the Standard
Settlement Period (as defined in the Certificate of Designation), in each case following the delivery by a Purchaser to the Company (with
notice to the Company) of a legended certificate (or book entry certificate) representing Conversion Shares (endorsed or with stock powers
attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or transfer) (such earlier date, the “Legend
Removal Date”), deliver or cause to be delivered to such Purchaser a certificate representing such Securities that is free
from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent
that enlarge the restrictions on transfer set forth in this Section 4.1(c). Certificates for Conversion Shares subject to legend
removal hereunder may be transmitted by the Transfer Agent to the Purchasers by crediting the account of the Purchaser’s prime
broker with DTC as directed by such Purchaser.
(d) Irrevocable
Transfer Agent Instructions. The Company shall issue irrevocable instructions to its transfer agent, and any subsequent transfer
agent, in the form of Exhibit D attached hereto (the “Irrevocable Transfer Agent Instructions”). The Company
represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 4.1(d)
(or instructions that are consistent therewith) will be given by the Company to its transfer agent in connection with this Agreement,
and that the Securities shall otherwise be freely transferable on the books and records of the Company as and to the extent provided
in this Agreement and the other Transaction Documents and applicable law. The Company acknowledges that a breach by it of its obligations
under this Section 4.1(d) will cause irreparable harm to a Purchaser. Accordingly, the Company acknowledges that the remedy at
law for a breach of its obligations under this Section 4.1(d) will be inadequate and agrees, in the event of a breach or threatened
breach by the Company of the provisions of this Section 4.1(d), that a Purchaser shall be entitled, in addition to all other available
remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of
showing economic loss and without any bond or other security being required.
(e) Acknowledgement.
Each Purchaser hereunder acknowledges its primary responsibilities under the Securities Act and accordingly will not sell or otherwise
transfer the Securities or any interest therein without complying with the requirements of the Securities Act. [While the Resale Registration
Statement remains effective, each Purchaser hereunder may sell the Conversion Shares in accordance with the plan of distribution contained
in the Resale Registration Statement and if it does so it will comply therewith and with the related prospectus delivery requirements
unless an exemption therefrom is available. Each Purchaser, severally and not jointly with the other Purchasers, agrees that if it is
notified by the Company in writing at any time that the Resale Registration Statement registering the resale of the Conversion Shares
is not effective or that the prospectus included in such Resale Registration Statement no longer complies with the requirements of Section
10 of the Securities Act, the Purchaser will refrain from selling such Conversion Shares until such time as the Purchaser is notified
by the Company that such Resale Registration Statement is effective or such prospectus is compliant with Section 10 of the Securities
Act, unless such Purchaser is able to, and does, sell such Conversion Shares pursuant to an available exemption from the registration
requirements of Section 5 of the Securities Act. Both the Company and its Transfer Agent, and their respective directors, officers, employees
and agents, may rely on this Section 4.1(e) and each Purchaser hereunder will indemnify and hold harmless each of such persons
from any breaches or violations of this Section 4.1(e).
(f) Buy-In.
If the Company shall fail for any reason or for no reason to issue to a Purchaser unlegended securities within the earlier of (i) two
(2) Trading Days and (ii) the Standard Settlement Period, in each case after receipt of all documents necessary for the removal of the
legend set forth above, then, in addition to all other remedies available to such Purchaser, if on or after the Trading Day immediately
following such period, such Purchaser purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction
of a sale by the holder of shares of Common Stock that such Purchaser anticipated receiving from the Company without any restrictive
legend (a “Buy-In”), then the Company shall, within two (2) Trading Days after such Purchaser’s request and
in such Purchaser’s sole discretion, (A) pay in cash to such Purchaser the amount by which (x) such Purchaser’s total purchase
price (including any brokerage commissions) for the shares of Common Stock so purchased exceeds (y) the product of (1) the aggregate
number of shares of Common Stock that such Purchaser was entitled to receive from the conversion at issue multiplied by (2) the actual
sale price at which the sell order giving rise to such purchase obligation was executed (including any brokerage commissions) and (B)
at the option of such Purchaser, either reissue (if surrendered) the shares of Series B Preferred Stock equal to the number of shares
of Series B Preferred Stock submitted for conversion or deliver to such Purchaser the number of shares of Common Stock that would have
been issued if the Company had timely complied with its delivery requirements under this Section 4.1. The Purchaser shall provide
the Company written notice, within three (3) Trading Days after the occurrence of a Buy-In, indicating the amounts payable to such Purchaser
in respect of such Buy-In together with applicable confirmations and other evidence reasonably requested by the Company. Nothing herein
shall limit a Purchaser’s right to pursue any other remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver shares
of Common Stock upon conversion of the shares of Series B Preferred Stock as required pursuant to the terms hereof; provided,
however, that the Purchaser shall not be entitled to both (i) require the reissuance of the shares of Series B Preferred Stock
submitted for conversion for which such conversion was not timely honored and (ii) receive the number of shares of Common Stock that
would have been issued if the Company had timely complied with its delivery requirements under this Section 4.1.
4.2 Reservation
of Stock. The Company shall take all action necessary to at all times have authorized, and reserved for the purpose of issuance from
and after the Closing Date, for so long as any of the Shares and the Series B-2 Preferred Stock are outstanding, take all action necessary
to reserve and keep available out of its authorized and unissued capital stock, solely for the purpose of effecting the conversion of
the Shares and the conversion of the Series B-2 Preferred Stock, the maximum number of shares of Common Stock issuable upon the exercise
or conversion thereof (without taking into account any limitations set forth in the Certificate of Designation).
4.3 Furnishing
of Information. In order to enable the Purchasers to sell the Securities under Rule 144, until such time as the Purchasers may sell
the Securities without limitation under Rule 144,the Company shall use its commercially reasonable efforts 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 and, if during such period, , the Company is not required to file reports pursuant to the Exchange
Act, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such information as is
required for the Purchasers to sell the Securities under Rule 144.
4.4 Integration.
The Company shall not, and shall use its commercially reasonable efforts to ensure that no Affiliate of the Company shall, 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
will be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act
of the sale of the Securities to the Purchasers, or that will 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. By 9:00 A.M., New York City time, on the Trading Day immediately following the date hereof, the Company
shall issue a press release (the “Press Release”) reasonably acceptable to the Purchasers disclosing all material
terms of the transactions contemplated hereby. On or before 9:00 A.M., New York City time, on the second (2nd) Trading Day immediately
following the execution of this Agreement, the Company will file a Current Report on Form 8-K with the Commission describing the terms
of the Transaction Documents (and including as exhibits to such Current Report on Form 8-K the material Transaction Documents (including,
without limitation, this Agreement, the Certificate of Designation, and the Support Agreement)). Notwithstanding the foregoing, the Company
shall not publicly disclose the name of any Purchaser or an Affiliate of any Purchaser, or include the name of any Purchaser or an Affiliate
of any Purchaser in any press release or filing with the Commission (other than the Resale Registration Statement) or any regulatory
agency or Trading Market, without the prior written consent of such Purchaser, such consent not to be unreasonably withheld, except (i)
as required by federal securities law in connection with (A) any registration statement contemplated by Section 4.15 hereto and
(B) the filing of final Transaction Documents (including signature pages thereto) with the Commission and (ii) to the extent such disclosure
is required by law, request of the Staff or Trading Market regulations, in which case the Company shall provide the Purchasers with prior
written notice of such disclosure permitted under this subclause (ii). From and after the issuance of the Press Release, no Purchaser
shall be in possession of any material, non-public information received from the Company, any Subsidiary or any of their respective officers,
directors, employees or agents, that is not disclosed in the Press Release unless a Purchaser shall have executed a written agreement
regarding the confidentiality and use of such information. Each Purchaser, severally and not jointly with the other Purchasers, covenants
that until such time as the transactions contemplated by this Agreement are required to be publicly disclosed by the Company as described
in this Section 4.5, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction
(including the existence and terms of this transaction).
4.6 Shareholder
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, in either case solely by virtue of receiving Securities under
the Transaction Documents or under any other written agreement between the Company and the Purchasers; provided, however,
that no such Purchaser owns any equity in the Company prior to its purchase of the Securities hereunder.
4.7 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
including this Agreement, or as expressly required by any applicable securities law, 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 regarding the Company
that the Company believes constitutes material non-public information without the express written consent of such Purchaser, unless prior
thereto such Purchaser shall have executed a written agreement regarding the confidentiality and use of such information. 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 or any of its officers,
directors, agents, employees, Subsidiaries or Affiliates, or a duty to the Company or any of its officers, directors, agents, employees,
Subsidiaries or Affiliates not to trade on the basis of, such material, non-public information, provided that the Purchaser shall remain
subject to applicable law. 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. The Company shall use the net proceeds from the sale of the Shares hereunder for working capital and general corporate
purposes and shall not use such proceeds for: (a) the satisfaction of any portion of the Company’s debt (other than payment
of trade payables in the ordinary course of the Company’s business and prior practices), (b) the redemption of any Common
Stock or Common Stock Equivalents or (c) the settlement of any outstanding litigation.
4.9 Indemnification
of Purchasers. Subject to the provisions of this Section 4.9 (and in addition to the indemnification provisions set forth
in Section 4.15), the Company will indemnify and hold each Purchaser and its directors, officers, shareholders, 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, shareholders, 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 as a result of or relating to (a) any
breach of any of the representations, warranties, covenants or agreements made by the Company in this Agreement or in the other Transaction
Documents or (b) any action instituted against a Purchaser 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, with respect to any of the transactions contemplated by the Transaction
Documents (unless such action is based solely upon a material breach of such Purchaser’s representations, warranties or covenants
under the Transaction Documents or any agreements or understandings such Purchaser may have with any such stockholder or any violations
by the Purchaser of state or federal securities laws or any conduct by such Purchaser which constitutes fraud, gross negligence or willful
misconduct). Promptly after receipt by any Person (the “Indemnified Person”) of notice of any demand, claim or circumstances
which would or might give rise to a claim or the commencement of any action, proceeding or investigation in respect of which indemnity
may be sought pursuant to this Section 4.9, such Indemnified Person shall promptly notify the Company in writing and the Company
shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Person, and shall assume
the payment of all fees and expenses; provided, however, that the failure of any Indemnified Person so to notify the Company
shall not relieve the Company of its obligations hereunder except to the extent that the Company is actually and materially prejudiced
by such failure to notify. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person shall
have mutually agreed to the retention of such counsel; (ii) the Company shall have failed promptly to assume the defense of such proceeding
and to employ counsel reasonably satisfactory to such Indemnified Person in such proceeding; or (iii) in the reasonable judgment of counsel
to such Indemnified Person, representation of both parties by the same counsel would be inappropriate due to actual or potential differing
interests between them. The Company shall not be liable for any settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld, delayed or conditioned. Without the prior written consent of the Indemnified Person, which
consent shall not be unreasonably withheld, delayed or conditioned, the Company shall not effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Person from all liability arising
out of such proceeding.
4.10 Principal
Trading Market Listing. In the time and manner required by the Principal Trading Market, the Company shall prepare and file with
such Principal Trading Market an additional shares listing application covering all of the Conversion Shares and shall use its commercially
reasonable efforts to take all steps necessary to cause all of the Conversion Shares to be approved for listing on the Principal Trading
Market as promptly as possible thereafter. The Company shall use commercially reasonable efforts to maintain the Company’s listing
on the Principal Trading Market.
4.11 Form D;
Blue Sky. The Company agrees to timely file a Form D with respect to the Securities as required under Regulation D and
to provide a copy thereof, promptly upon the written request of any Purchaser. The Company, on or before the Closing Date, shall take
such action as the Company shall reasonably determine is necessary in order to obtain an exemption for or to qualify the Securities for
sale to the Purchasers under applicable securities or “Blue Sky” laws of the states of the United States (or to obtain an
exemption from such qualification) and shall provide evidence of such actions promptly upon the written request of any Purchaser.
4.12 Delivery
of Shares After Closing. The Company shall deliver, or cause to be delivered, the respective Shares purchased by each Purchaser to
such Purchaser within two (2) Trading Days of the Closing Date.
4.13 Short
Sales and Confidentiality After The Date Hereof. Such Purchaser shall not, and shall cause its Trading Affiliates not to, engage,
directly or indirectly, in any transactions in the Company’s securities (including, without limitation, any Short Sales involving
the Company’s securities) during the period from the date hereof until the earlier of such time as (i) the transactions contemplated
by this Agreement are first publicly announced as required by and described in Section 4.5 or (ii) this Agreement is terminated
in full pursuant to Section 6.19. 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 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 the Transaction
Documents and Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby
that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement
are first publicly announced as described in Section 4.5; provided, however, each Purchaser agrees, severally and not jointly
with any Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing
Date and ending on the earliest of (x) the Effective Date of the initial Resale Registration Statement, (y) the twenty-four (24) month
anniversary of the Closing Date or (z) the date that such Purchaser no longer holds any Securities. For purposes of this Section 4.13,
a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short
sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes
of determining whether there is an equivalent offsetting position in Common Stock held by the Purchaser, Conversion Shares that have
not yet been issued pursuant to the conversion of the Shares or Series B-2 Preferred Stock shall be deemed held long by the Purchaser,
and the amount of shares of Common Stock held in a long position shall be all unconverted Conversion Shares (ignoring any conversion
limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or Common Stock Equivalents otherwise
then held by such Purchaser. Notwithstanding the foregoing, in the event that a Purchaser 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 apply only with respect to the portion of assets managed by the portfolio manager that have knowledge about the financing
transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities
pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver certificates
without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section
4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into
Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.
4.14 Subsequent
Equity Sales. Except for an Exempt Issuance, from the date hereof until sixty (60) days after the Effective Date, neither the Company
nor any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents; provided, however, the sixty (60) day period
set forth in this Section 4.14 shall be extended for the number of Trading Days during such period in which (i) trading in the
Common Stock is suspended by any Trading Market, or (ii) following the Effective Date, the Resale Registration Statement is not effective
or the prospectus included in the Resale Registration Statement may not be used by the Purchasers for the resale of the Conversion Shares.
4.15 Registration
Rights.
(a) Registration
Procedures and Expenses. The Company shall:
(i) as
soon as practicable following receipt of the Stockholder Approval (the “Filing Date”), but, in any event, not later
than 15 days thereafter, file a Resale Registration Statement with the Commission to register all of the Registrable Shares on Form S-3
under the Securities Act (providing for shelf registration of such Registrable Shares under Commission Rule 415). In the event that Form
S-3 is not available for the registration of the Registrable Shares, the Company shall register the resale of the Registrable Shares
on such other form as is available to the Company;
(ii) use
its commercially reasonable efforts to cause such Resale Registration Statement required by Section 4.15(a)(i) to be declared
effective within thirty (30) days following the Filing Date (or, in the event the Staff reviews and has written comments to the Resale
Registration Statement, within ninety (90) days following the Filing Date) (the earlier of the foregoing or the applicable date set forth
in Section 4.15(vi), the “Effectiveness Deadline”), such efforts to include, without limiting the generality
of the foregoing, preparing and filing with the Commission any financial statements or other information that is required to be filed
prior to the effectiveness of such Resale Registration Statement;
(iii) prepare
and file with the Commission such amendments and supplements to any Resale Registration Statements and the prospectus used in connection
therewith as may be necessary to keep such Resale Registration Statements continuously effective and free from any material misstatement
or omission to state a material fact therein until termination of such obligation as provided in Section 4.15(e) below, subject
to the Company’s right to suspend pursuant to Section 4.15(d);
(iv) furnish
to the Purchasers such number of copies of prospectuses in conformity with the requirements of the Securities Act and such other documents
as the Purchasers may reasonably request, in order to facilitate the public sale or other disposition of all or any of the Registrable
Shares by the Purchasers;
(v) file
such documents as may be required of the Company for normal securities law clearance for the resale of the Registrable Shares in such
states of the United States as may be reasonably requested by the Purchasers and use its commercially reasonable efforts to maintain
such blue sky qualifications during the period the Company is required to maintain effectiveness of the Resale Registration Statements;
provided, however, that the Company shall not be required in connection with this Section 4.15(a)(v) to qualify
as a foreign corporation or execute a general consent to service of process in any jurisdiction in which it is not now so qualified or
has not so consented;
(vi) upon
notification by the Commission that the Resale Registration Statement will not be reviewed or is not subject to further review by the
Commission, within three (3) Trading Days following the date of such notification, request acceleration of such Resale Registration Statement
(with the requested Effectiveness Deadline to be not more than two (2) Trading Days later);
(vii) upon
notification by the Commission that that the Resale Registration Statement has been declared effective (the date of such notification,
the “Effective Date”) by the Commission, file the final prospectus under Rule 424 within the applicable time period
prescribed by Rule 424;
(viii) advise
the Purchasers promptly, and in any event within twenty-four (24) hours of (A) the effectiveness of the Resale Registration Statement
or any post-effective amendments thereto, (B) any request by the Commission for amendments to the Resale Registration Statement or amendments
to the prospectus or for additional information relating thereto, (C) the issuance by the Commission of any stop order suspending the
effectiveness of the Resale Registration Statement under the Securities Act or of the suspension by any state securities commission of
the qualification of the Registrable Shares for offering or sale in any jurisdiction, or the initiation of any proceeding for any of
the preceding purposes and (D) the existence of any fact and the happening of any event that makes any statement of a material fact made
in the Resale Registration Statement, the prospectus and amendment or supplement thereto, or any document incorporated by reference therein,
untrue, or that requires the making of any additions to or changes in the Resale Registration Statement or the prospectus in order to
make the statements therein not misleading;
(ix) cause
all Registrable Shares to be listed on each securities exchange on which equity securities by the Company are then listed, if any; and
(x) bear
all expenses in connection with the procedures in paragraphs (i) through (ix) of this Section 4.15(a) and the registration of
the Registrable Shares on such Resale Registration Statement and the satisfaction of the blue sky laws of such states.
(b) Rule
415 Cutback. If at any time the Staff takes the position that the offering of some or all of the Registrable Shares in a Resale Registration
Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the Securities Act or requires
any Purchaser to be named as an “underwriter,” the Company shall use its commercially reasonable efforts to persuade the
Commission that the offering contemplated by such Resale Registration Statement is a valid secondary offering and not an offering “by
or on behalf of the issuer” as defined in Rule 415 and that none of the Purchasers is an “underwriter.” The Purchasers
shall have the right to review and oversee any registration or matters pursuant to this Section 4.15, including any participation
in meetings or discussions with the Commission regarding the Commission’s position and to comment on any written submission made
to the Commission with respect thereto. In the event that, despite the Company’s commercially reasonable efforts and compliance
with the terms of this Section 4.15, the Staff refuses to alter its position, the Company shall (A) remove from the Resale Registration
Statement such portion of the Registrable Shares (the “Cut Back Shares”) and/or (B) agree to such restrictions and
limitations on the registration and resale of the Registrable Shares as the Commission may require to assure the Company’s compliance
with the requirements of Rule 415 (collectively, the “SEC Restrictions”); provided, however, that the
Company shall not agree to name any Purchaser as an “underwriter” in such Resale Registration Statement without the prior
written consent of such Purchaser. Any cutback imposed on the Purchasers pursuant to this Section 4.15 shall be allocated among
the Purchasers on a pro rata basis and shall be applied first to any of the Registrable Securities of such Purchaser as such Purchaser
shall designate, unless the SEC Restrictions otherwise require or provide or the Purchasers otherwise agree. No damages shall accrue
as to any Cut Back Shares until such date as the Company is able to effect the registration of such Cut Back Shares in accordance with
any SEC Restrictions (such date, the “Restriction Termination Date” of such Cut Back Shares). From and after the Restriction
Termination Date applicable to any Cut Back Shares, all of the provisions of this Section 4.15 shall again be applicable to such
Cut Back Shares; provided, however, that (x) the filing deadline for the Resale Registration Statement including such Cut
Back Shares shall be ten (10) Trading Days after such Restriction Termination Date, and (y) the Effectiveness Deadline with respect to
such Cut Back Shares shall be the 90th day immediately after the Restriction Termination Date or the 120th day if the Staff reviews such
Resale Registration Statement (but in any event no later than three (3) Trading Days from the Staff indicating it has no further comments
on such Resale Registration Statement).
(c) Indemnification.
(i) The
Company agrees to indemnify and hold harmless each Purchaser Party, to the fullest extent permitted by applicable law, from and against
any losses, claims, damages or liabilities (collectively, “Losses”), joint or several, to which they may become subject
(under the Securities Act or otherwise) insofar as such Losses (or actions or proceedings in respect thereof) arise out of, or are based
upon, any material breach of this Agreement by the Company or any untrue or alleged untrue statement of a material fact contained in
the Resale Registration Statement or any omission or alleged omission to state a material fact required to be stated in the prospectus
contained therein or necessary to make the statements in the prospectus contained therein, in light of the circumstances under which
they were made, not misleading or arise out of any failure by the Company to fulfill any undertaking included in the Resale Registration
Statement and the Company will, as incurred, reimburse the Purchaser Parties for any legal or other expenses reasonably incurred in investigating,
defending or preparing to defend any such action, proceeding or claim; provided, however, that the Company shall not be
liable in any such case to the extent that such Loss arises out of, or is based upon: (A) an untrue statement or omission made in such
Resale Registration Statement in reliance upon and in conformity with written information furnished to the Company by or on behalf of
such Purchaser specifically for inclusion in the Resale Registration Statement or (B) any breach of this Agreement by such Purchaser;
provided further, however, that the Company shall not be liable to any Purchaser Party (or any partner, member, officer,
director or controlling Person of the Purchasers) to the extent that any such Loss is caused by an untrue statement or omission made
in any preliminary prospectus if either (1) (a) such Purchaser failed to send or deliver a copy of the final prospectus with or prior
to, or such Purchaser failed to confirm that a final prospectus was deemed to be delivered prior to (in accordance with Rule 172 of the
Securities Act), the delivery of written confirmation of the sale by such Purchaser to the Person asserting the claim from which such
Loss resulted and (b) the final prospectus corrected such untrue statement or omission, (2) (x) such untrue statement or omission is
corrected in an amendment or supplement to the prospectus and (y) having previously been furnished by or on behalf of the Company with
copies of the prospectus as so amended or supplemented or notified by the Company that such amended or supplemented prospectus has been
filed with the Commission, in accordance with Rule 172 of the Securities Act, such Purchaser thereafter fails to deliver such prospectus
as so amended or supplemented, with or prior to or a Purchaser fails to confirm that the prospectus as so amended or supplemented was
deemed to be delivered prior to (in accordance with Rule 172 of the Securities Act), the delivery of written confirmation of the sale
by such Purchaser to the Person asserting the claim from which such Loss resulted or (3) such Purchaser sold Registrable Shares in violation
of such Purchasers’ covenants contained in Article IV of this Agreement.
(ii) Each
Purchaser agrees, severally and not jointly, to indemnify and hold harmless the Company and its officers, directors, affiliates, agents
and representatives and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (each a “Company Party” and collectively the “Company Parties”), from and
against any Losses to which the Company Parties may become subject (under the Securities Act or otherwise), insofar as such Losses (or
actions or proceedings in respect thereof) arise out of, or are based upon, any material breach of this Agreement by such Purchaser or
untrue statement of a material fact contained in the Resale Registration Statement (or any omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading in each case, on the effective date thereof), if, and only to the extent, such untrue statement or omission was made in
reliance upon and in conformity with written information furnished by or on behalf of such Purchaser specifically for inclusion in the
Resale Registration Statement, and each Purchaser, severally and not jointly, will reimburse each Company Party for any legal or other
expenses reasonably incurred in investigating, defending or preparing to defend any such action, proceeding or claim; provided,
however, that in no event shall any indemnity under this Section 4.15(c)(ii) be greater in amount than the dollar amount
of the proceeds (net of all expenses paid by such Purchaser in connection with any claim relating to this Section 4.15 and the
amount of any damages such Purchaser has otherwise been required to pay by reason of such untrue statement or omission) received by such
Purchaser upon its sale of the Registrable Shares included in the Resale Registration Statement giving rise to such indemnification obligation.
(iii) Promptly
after receipt by any indemnified Person of a notice of a claim or the beginning of any action in respect of which indemnity is to be
sought against an indemnifying Person pursuant to this Section 4.15(c), such indemnified Person shall notify the indemnifying
Person in writing of such claim or of the commencement of such action, and, subject to the provisions hereinafter stated, in case any
such action shall be brought against an indemnified Person and such indemnifying Person shall have been notified thereof, such indemnifying
Person shall be entitled to participate therein, and, to the extent that it shall wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified Person. After notice from the indemnifying Person to such indemnified Person of its election to assume
the defense thereof, such indemnifying Person shall not be liable to such indemnified Person for any legal expenses subsequently incurred
by such indemnified Person in connection with the defense thereof; provided, however, that if there exists or shall exist
a conflict of interest that would make it inappropriate in the reasonable judgment of the indemnified Person for the same counsel to
represent both the indemnified Person and such indemnifying Person or any affiliate or associate thereof, the indemnified Person shall
be entitled to retain its own counsel at the expense of such indemnifying Person; provided, further, that no indemnifying
Person shall be responsible for the fees and expense of more than one separate counsel for all indemnified parties. The indemnifying
party shall not settle an action without the consent of the indemnified party, which consent shall not be unreasonably withheld.
(iv) If
after proper notice of a claim or the commencement of any action against the indemnified party, the indemnifying party does not choose
to participate, then the indemnified party shall assume the defense thereof and upon written notice by the indemnified party requesting
advance payment of a stated amount for its reasonable defense costs and expenses, the indemnifying party shall advance payment for such
reasonable defense costs and expenses (the “Advance Indemnification Payment”) to the indemnified party. In the event
that the indemnified party’s actual defense costs and expenses exceed the amount of the Advance Indemnification Payment, then upon
written request by the indemnified party, the indemnifying party shall reimburse the indemnified party for such difference; in the event
that the Advance Indemnification Payment exceeds the indemnified party’s actual costs and expenses, the indemnified party shall
promptly remit payment of such difference to the indemnifying party.
(v) If
the indemnification provided for in this Section 4.15(c) is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or liabilities referred to herein, the indemnifying party, in lieu of indemnifying
such indemnified party thereunder, shall to the extent permitted by applicable law contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other, as well as any other relevant equitable considerations;
provided, that in no event shall any contribution by an indemnifying party hereunder be greater in amount than the dollar amount
of the proceeds received by such indemnifying party upon the sale of such Registrable Shares. No person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Securities Act shall be entitled to contribution from any person not guilty of such fraudulent
misrepresentation.
(d) Prospectus
Suspension. Each Purchaser acknowledges that there may be times when the Company must suspend the use of the prospectus forming a
part of a Resale Registration Statement until such time as an amendment to such Resale Registration Statement has been filed by the Company
and declared effective by the Commission, or until such time as the Company has filed an appropriate report with the Commission pursuant
to the Exchange Act. Each Purchaser hereby covenants that it will not sell any Registrable Shares pursuant to said prospectus during
the period commencing at the time at which the Company gives the Purchasers notice of the suspension of the use of said prospectus and
ending at the time the Company gives the Purchasers notice that the Purchasers may thereafter effect sales pursuant to said prospectus;
provided, that such suspension periods shall in no event exceed thirty (30) consecutive days or a total of sixty (60) days in
any 12-month period and that, in the good faith judgment of the Company’s Board of Directors, the Company would, in the absence
of such delay or suspension hereunder, be required under state or federal securities laws to disclose any corporate development, a potentially
significant transaction or event involving the Company, or any negotiations, discussions, or proposals directly relating thereto, in
either case the disclosure of which would reasonably be expected to have a Material Adverse Effect upon the Company or its stockholders.
(e) Termination
of Obligations. The obligations of the Company pursuant to Section 4.15(a) hereof shall cease and terminate, with respect
to any Registrable Shares, upon the earlier to occur of (i) such time such Registrable Shares have been resold, or (ii) such time as
such Shares no longer remain Registrable Shares.
(f) Reporting
Requirements. With a view to making available the benefits of certain rules and regulations of the Commission that may at any time
permit the sale of the Registrable Shares to the public without registration or pursuant to a registration statement on Form S-3, the
Company agrees to:
(i) make
and keep public information available, as those terms are understood and defined in Rule 144; and
(ii) so
long as a Purchaser owns Registrable Shares, to furnish to such Purchaser upon request (A) a written statement by the Company as to whether
it is in compliance with the reporting requirements of Rule 144 and the Exchange Act, or whether it is qualified as a registrant whose
securities may be resold pursuant to Commission Form S-3 and (B) such other information as may be reasonably requested to permit the
Purchaser to sell such securities pursuant to Rule 144.
(g) Liquidated
Damages. The Company further agrees that, in the event that (i) the Initial Registration Statement has not been filed with the SEC
by the Filing Date, (ii) the Resale Registration Statement has not been declared effective by the SEC by the Effectiveness Deadline,
or (iii) after such Resale Registration Statement is declared effective by the SEC, is suspended by the Company or ceases to remain continuously
effective as to all Registrable Shares for which it is required to be effective, other than, in each case, within the time period(s)
permitted by Section 6.7(b) (each such event referred to in clauses (i), (ii) and (iii), (a “Registration Default”)), for
more than 20 consecutive days or more than 40 days in any period of 365 days during which the Registration Default remains uncured, the
Company shall pay, as liquidated damages and not a penalty, to each Purchaser 1.0% of such Purchaser’s Subscription Amount for
each 20-day period (a “Penalty Period”) (provided the payment amount shall increase by 1.0% of such Purchaser’s Subscription
Amount for each subsequent 20-day period following the initial 20-day period), or pro rata for any portion thereof, during which the
Registration Default remains uncured; provided, however, that if a Purchaser fails to provide the Company with any information that is
required to be provided in such Resale Registration Statement with respect to such Purchaser as set forth herein, then the commencement
of the Penalty Period described above shall be extended until two business days following the date of receipt by the Company of such
required information; and provided, further, that in no event shall the Company be required hereunder to pay to any Purchaser pursuant
to this Agreement more than 3.0% of such Purchaser’s Subscription Amount in any Penalty Period and in no event shall the Company
be required hereunder to pay to any Purchaser pursuant to this Agreement an aggregate amount that exceeds 10.0% of the Subscription Amount
paid by such Purchaser for such Purchaser’s Securities. The Company shall deliver said cash payment to the Purchaser by the fifth
business day after the end of such Penalty Period. Interest shall accrue at the rate of one percent (1.0%) per month on any such liquidated
damages payments that shall not be paid by the applicable payment date until such amount is paid in full.
4.16 Stockholder
Approval. The Company shall, as soon as practicable following the Closing, but not more than forty-five (45) days thereafter, file
a preliminary proxy statement for a vote of its stockholders to approve the issuance of Conversion Shares in excess of 19.99% of the
issued and outstanding Common Stock on the Closing Date upon conversion of the Shares, (collectively, “Proposal”).
The Company shall, as soon as practicable following notification from the Staff that it has completed its review of the preliminary proxy
statement or that it will not review the preliminary proxy statement, file and mail a definitive proxy statement for the vote of its
stockholders to approve the Proposal. The Company covenants and agrees that its Board of Directors shall unanimously recommend that the
Proposal be approved by the Company’s stockholders at all meetings in which such Proposal is considered and promptly file the necessary
amendments to the Company’s certificate of incorporation after the Proposal is approved. If the Company’s stockholders do
not approve such Proposal at the first meeting in which they are voted on by stockholders, the Company covenants and agrees that it will
submit the Proposal for approval of the Company’s stockholders at least every ninety (90) days until such approval is obtained.
4.17 Acknowledgements
Regarding Placement Agents.
(a) Each
Purchaser acknowledges that each of the Placement Agents is acting as a placement agent on a “best efforts” basis for the
Shares being offered hereby and will be compensated by the Company for acting in such capacity. Each Purchaser represents that such Purchaser
was contacted regarding the sale of the Shares by a Placement Agent or the Company (or an authorized agent or representative thereof)
with whom the Purchaser entered into a verbal or written confidentiality agreement.
(b) Each
Purchaser represents that it is making this investment based on the results of its own due diligence investigation of the Company, and
has not relied on any information or advice furnished by or on behalf of either of the Placement Agents in connection with the transactions
contemplated hereby. Each Purchaser acknowledges that neither of the Placement Agents has made, and will not make, any representations
and warranties with respect to the Company or the transactions contemplated hereby, and the Purchaser will not rely on any statements
made by either of the Placement Agents, orally or in writing, to the contrary.
ARTICLE
V.
CONDITIONS
PRECEDENT TO CLOSING
5.1 Conditions
Precedent to the Obligations of the Purchasers to Purchase Securities. The obligation of each Purchaser to acquire Shares at the
Closing is subject to the fulfillment to such Purchaser’s satisfaction, on or prior to the Closing Date, of each of the following
conditions, any of which may be waived by such Purchaser (as to itself only):
(a) Representations
and Warranties. The representations and warranties of the Company contained herein shall be true and correct in all material respects
(except for those representations and warranties which are qualified as to materiality, in which case such representations and warranties
shall be true and correct in all respects) as of the date when made and as of the Closing Date, as though made on and as of such date,
except for such representations and warranties that speak as of a specific date.
(b) Performance.
The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by it at or prior to the Closing.
(c) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.
(d) Consents.
The Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary for
consummation of the purchase and sale of the Securities (including all Required Approvals), all of which shall be and remain so long
as necessary in full force and effect.
(e) Adverse
Changes. Since the date of execution of this Agreement, no event or series of events shall have occurred that has had or would reasonably
be expected to have a Material Adverse Effect.
(f) Listing.
The Company shall have filed with The Nasdaq Capital Market the listing of additional shares application for the Conversion Shares.
(g) No
Suspensions of Trading in Common Stock. The Common Stock shall not have been suspended, as of the Closing Date, by the Commission
or the Principal Trading Market from trading on the Principal Trading Market nor shall suspension by the Commission or the Principal
Trading Market have been threatened, as of the Closing Date, either (i) in writing by the Commission or the Principal Trading Market
or (ii) by falling below the minimum listing maintenance requirements of the Principal Trading Market, except as disclosed on Schedule
3.1(y).
(h) Company
Deliverables. The Company shall have delivered the Company Deliverables in accordance with Section 2.2(a).
(i) Compliance
Certificate. The Company shall have delivered to each Purchaser a certificate, dated as of the Closing Date and signed by its Chief
Executive Officer or its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfillment of the conditions specified
in Sections 5.1(a) and (b) in the form attached hereto as Exhibit F.
(j) Due
Diligence. The Company shall have provided the Purchasers with all documents and materials reasonably requested by the Purchasers
in connection with their due diligence review.
(k) Termination.
This Agreement shall not have been terminated as to such Purchaser in accordance with Section 6.19 herein.
5.2 Conditions
Precedent to the Obligations of the Company to sell Securities. The Company’s obligation to sell and issue the Shares at the Closing
to the Purchasers is subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of the following conditions,
any of which may be waived by the Company:
(a) Representations
and Warranties. The representations and warranties made by the Purchasers in Section 3.2 hereof shall be true and correct
in all material respects (except for those representations and warranties which are qualified as to materiality, in which case such representations
and warranties shall be true and correct in all respects) as of the date when made, and as of the Closing Date as though made on and
as of such date, except for representations and warranties that speak as of a specific date.
(b) Performance.
Such Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the Closing Date.
(c) No
Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated
or endorsed by any court or governmental authority of competent jurisdiction that prohibits the consummation of any of the transactions
contemplated by the Transaction Documents.
(d) Consents.
The Company shall have obtained in a timely fashion any and all consents, permits, approvals, registrations and waivers necessary for
consummation of the purchase and sale of the Securities, all of which shall be and remain so long as necessary in full force and effect.
(e) Purchasers
Deliverables. Such Purchaser shall have delivered its Purchaser Deliverables in accordance with Section 2.2(b).
(f) Listing.
The Nasdaq Capital Market shall have approved the listing of additional shares application for the Conversion Shares.
(g) Termination. This
Agreement shall not have been terminated as to such Purchaser in accordance with Section 6.19 herein.
ARTICLE
VI.
MISCELLANEOUS
6.1 Fees
and Expenses. The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and duties levied in connection with the
sale and issuance of the Securities to the Purchasers and all expenses in connection with obtaining Stockholder Approval and the registration
of the Conversion Shares. The Company shall reimburse the Purchasers for all reasonable costs and expenses incurred in connection with
the transactions contemplated by the Transaction Documents, including without limitation reasonable and documented legal fees and expenses
of the Purchasers.
6.2 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements, understandings, discussions and representations, oral or
written, with respect to such matters, which the parties acknowledge have been merged into such documents, exhibits and schedules. At
or after the Closing, and without further consideration, the Company and the Purchasers will execute and deliver to the other such further
documents as may be reasonably requested in order to give practical effect to the intention of the parties under the Transaction Documents.
6.3 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 electronic
mail at the e-mail address specified in this Section 6.3 prior to 5:00 P.M., New York City time, on a Trading Day, (b) the next
Trading Day after the date of transmission, if such notice or communication is delivered via electronic mail at the e-mail address specified
in this Section 6.3 on a day that is not a Trading Day or later than 5:00 P.M., New York City time, on any Trading Day, (c) the
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service with next day delivery specified,
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 follows:
| |
If
to the Company: |
Unicycive
Therapeutics, Inc. |
| |
|
4300
El Camino Real, Suite 210 |
| |
|
Los
Altos, CA 94022 |
| |
|
Attention:
Shalabh Gupta, M.D. |
| |
|
E-mail:
shalabh.gupta@unicycive.com |
| |
|
|
| |
With
a copy to: |
Sheppard,
Mullin, Richter & Hampton LLP |
| |
|
30
Rockefeller Plaza |
| |
|
New
York, NY 10112 |
| |
|
Attention:
Jeffrey Fessler |
| |
|
E-mail:
jfessler@sheppardmullin.com |
| |
|
|
| |
If
to a Purchaser: |
To
the address set forth under such Purchaser’s name on the signature page hereof; |
or
such other address as may be designated in writing hereafter, in the same manner, by such Person.
6.4 Amendments;
Waivers; No Additional Consideration. 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 each Purchaser, if prior to the Closing Date, or if after
the Closing Date, the Company and the Purchasers of at least a majority in interest of the Securities still held by Purchasers or, in
the case of a waiver, by the party against whom enforcement of any such waiver is sought. 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 either party to exercise
any right hereunder in any manner impair the exercise of any such right.
6.5 Equal
Treatment of Purchasers. No consideration shall be offered or paid to any Purchaser to amend or consent to a waiver or modification of
any provision of any Transaction Document unless the same consideration is also offered to all Purchasers who then hold Securities. 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.
6.6 Construction.
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. The language used in this Agreement will be deemed to be the language chosen by the parties to express their
mutual intent, and no rules of strict construction will be applied against any party. This Agreement shall be construed as if drafted
jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship
of any provisions of this Agreement or any of the Transaction Documents.
6.7 Successors
and Assigns. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties and their successors
and permitted assigns. This Agreement, or any rights or obligations hereunder, may not be assigned by the Company without the prior written
consent of each Purchaser. Any Purchaser may assign its rights hereunder in whole or in part to any Person to whom such Purchaser assigns
or transfers any Securities in compliance with the Transaction Documents and applicable law, provided such transferee shall agree in
writing to be bound, with respect to the transferred Securities, by the terms and conditions of this Agreement that apply to the “Purchasers.”
6.8 No
Third-Party Beneficiaries. 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 set forth in Sections
4.9, 4.14 and 6.19. The Placement Agents shall be the third-party beneficiaries of the representations and warranties
of the Company and the Purchasers in Article III.
6.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of
law thereof. Each party agrees that all 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, employees
or agents) shall be commenced exclusively in the Delaware Court of Chancery. Each party hereto hereby irrevocably submits to the exclusive
jurisdiction of the Delaware Court of Chancery 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 Proceeding, any claim that it is not personally subject to the jurisdiction of any such Delaware
Court, or that such Proceeding has been commenced in an improper or inconvenient forum. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such 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 manner permitted by law. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
6.10 Survival.
Subject to applicable statute of limitations, the representations, warranties, agreements and covenants contained herein shall survive
the Closing and the delivery of the Securities.
6.11 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 the other party, it being understood that
both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission, or by e-mail
delivery of a “.pdf” format data file, 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 facsimile signature page or .pdf were an original
thereof.
6.12 Severability.
If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Agreement shall not in any way be affected or impaired thereby and the parties will attempt to agree upon
a valid and enforceable provision that is a reasonable substitute therefor, and upon so agreeing, shall incorporate such substitute provision
in this Agreement.
6.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) the
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.
6.14 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, or in lieu of and substitution therefor,
a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company and the Transfer Agent of such
loss, theft or destruction and the execution by the holder thereof of a customary lost certificate affidavit of that fact and an agreement
to indemnify and hold harmless the Company and the Transfer Agent for any losses in connection therewith or, if required by the Transfer
Agent, a bond in such form and amount as is required by the Transfer Agent. The applicants for a new certificate or instrument under
such circumstances shall also pay any reasonable third-party costs associated with the issuance of such replacement Securities. If a
replacement certificate or instrument evidencing any Securities is requested due to a mutilation thereof, the Company may require delivery
of such mutilated certificate or instrument as a condition precedent to any issuance of a replacement.
6.15 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 described in the foregoing sentence and hereby
agree to waive in any action for specific performance of any such obligation (other than in connection with any action for a temporary
restraining order) the defense that a remedy at law would be adequate.
6.16 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.
6.17 Adjustments
in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Common Stock
(or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares of Common Stock),
combination or other similar recapitalization or event occurring after the date hereof and prior to the Closing, each reference in any
Transaction Document to a number of shares or a price per share shall be deemed to be amended to appropriately account for such event.
6.18 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 of the obligations
of any other Purchaser under any Transaction Document. The decision of each Purchaser to purchase Securities pursuant to the Transaction
Documents has been made by such Purchaser independently of any other Purchaser and independently of any information, materials, statements
or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company or any Subsidiary which may have been made or given by any other Purchaser or by any agent or
employee of any other Purchaser, and no Purchaser and any of its agents or employees shall have any liability to any other Purchaser
(or any other Person) relating to or arising from any such information, materials, statement or opinions. Nothing contained herein or
in any Transaction Document, and no action taken by any Purchaser pursuant 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 acknowledges that no other Purchaser has acted as agent for such Purchaser in connection with making its investment hereunder
and that no Purchaser will be acting as agent of such Purchaser in connection with monitoring its investment in the Securities or enforcing
its rights under 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. 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 Purchaser.
6.19 Termination.
This Agreement may be terminated and the sale and purchase of the Shares abandoned at any time prior to the Closing by either the Company
or any Purchaser (with respect to itself only) upon written notice to the other, if the Closing has not been consummated on or prior
to 5:00 P.M., New York City time, on the Outside Date; provided, however, that the right to terminate this Agreement under this
Section 6.19 shall not be available to any Person whose failure to comply with its obligations under this Agreement has been the
cause of or resulted in the failure of the Closing to occur on or before such time. Nothing in this Section 6.19 shall be deemed
to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or the other Transaction
Documents or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement
or the other Transaction Documents. In the event of a termination pursuant to this Section 6.19, the Company shall promptly notify
all non-terminating Purchasers. Upon a termination in accordance with this Section 6.19, the Company and the terminating Purchaser(s)
shall not have any further obligation or liability (including arising from such termination) to the other, and no Purchaser will have
any liability to any other Purchaser under the Transaction Documents as a result therefrom.
6.20 Exculpation
of the Placement Agents. Each party hereto agrees for the express benefit of the Placement Agents and their respective Affiliates
and representatives that:
(a) The
Placement Agents and their respective Affiliates and representatives (i) have no duties or obligations other than those specifically
set forth herein or in their respective Engagement Letters; (ii) shall not be liable for any improper payment made in accordance with
the information provided by the Company; (iii) make no representation or warranty, and have no responsibilities as to the validity, accuracy,
value or genuineness of any information, certificates or documentation delivered by or on behalf of the Company pursuant to this Agreement
or in connection with any of the transactions contemplated hereby, including any offering or marketing materials; and (iv) shall not
be liable (A) for any action taken, suffered or omitted by any of them in good faith and reasonably believed to be authorized or within
the discretion or rights or powers conferred upon them by this Agreement or any Transaction Document, or (B) for anything which any of
them may do or refrain from doing in connection with this Agreement or any Transaction Document, except in each case for such Person’s
own gross negligence, willful misconduct or bad faith.
(b) The
Placement Agents and their respective Affiliates and representatives shall be entitled to (1) rely on, and shall be protected in acting
upon, any certificate, instrument, notice, letter or any other document or security delivered to any of them by or on behalf of the Company,
and (2) be indemnified by the Company for acting as a Placement Agent hereunder pursuant to the indemnification provisions set forth
in their respective Engagement Letters.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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.
| |
UNICYCIVE THERAPEUTICS, INC. |
| |
|
| |
By: |
|
| |
|
Name: |
Shalabh Gupta |
| |
|
Title: |
CEO |
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
| |
NAME OF PURCHASER: __________________ |
| |
|
| |
By: ________________________________ |
| |
Name: |
| |
Title: |
| |
|
| |
Aggregate Purchase Price (Subscription Amount): $_____________ |
| |
|
| |
Number of Shares to be Acquired: ______________________ |
| |
|
| |
Tax ID No.: ____________________ |
| |
|
| |
Address for Notice: |
| |
|
| |
__________________________________ |
| |
__________________________________ |
| |
__________________________________ |
| |
|
| |
Telephone No.: _______________________ |
| |
|
| |
Facsimile No.: ________________________ |
| |
|
| |
E-mail Address: ________________________ |
| |
|
| |
Attention: _______________________ |
| Delivery Instructions: |
|
| (if different than above) |
|
| |
|
| c/o _______________________________ |
|
| |
|
| Street: ____________________________ |
|
| |
|
| City/State/Zip: ______________________ |
|
| |
|
| Attention: __________________________ |
|
| |
|
| Telephone No.: __________________________ |
|
