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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): September 21, 2023 (September 18, 2023)
ELUTIA INC.
(Exact name of registrant as specified in its
charter)
Delaware |
|
001-39577 |
|
47-4790334 |
(State
or other jurisdiction of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
12510
Prosperity Drive, Suite 370,
Silver Spring, MD
20904
(Address
of principal executive offices) (Zip Code)
(240)
247-1170
(Registrant’s
telephone number, including area code)
N/A
(Former
name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Class A
Common Stock, $0.001 par value per share |
|
ELUT |
|
The Nasdaq Capital Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 1.01 | Entry into a Material Definitive Agreement. |
On September 18, 2023, Elutia Inc. (the “Company”)
entered into a Securities Purchase Agreement (the “Purchase Agreement”) with the purchasers named therein (the “Investors”).
Pursuant to the Purchase Agreement, the Company
agreed to sell an aggregate of (i) 6,852,811 units (the “Common Units”) to certain of the Investors, each comprised
of (a) one share of the Company’s Class A common stock, par value $0.001 per share (“Class A Common Stock”) and (b)
a warrant (a “Common Warrant”) to purchase one and one half shares of Class A Common Stock, and (ii) 503,058 units
(the “Prefunded Units”) to certain of the Investors, each comprised of (a) a prefunded warrant (a “Prefunded Warrant”)
to purchase one share of Class A Common Stock, and (b) a Common Warrant. The Common Units were sold at a purchase price of $1.4275 per
unit, and the Prefunded Units were sold at a purchase price of $1.4265 per unit, for aggregate gross proceeds of approximately $10.5 million,
before deducting offering expenses (the “Offering”). Each Common Warrant is exercisable at any time until the earlier
of (a) 30 trading days after the clearance by the U.S. Food & Drug Administration of the Company’s CanGaroo®RM antibiotic-eluting
biologic envelope or (b) five years from the date of the Offering, at an exercise price per share of $1.4275. Each Prefunded Warrant is
exercisable at any time at a nominal exercise price per share of $0.001 (with the remainder of the exercise price per share of Class
A Common Stock having been prefunded to the Company).
The closing of the Offering occurred on September 21, 2023.
On September 21, 2023, in connection with the
closing of the Offering, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”) with
the Investors. Pursuant to the Registration Rights Agreement, the Company agreed to prepare and file a registration statement with the
Securities and Exchange Commission (the “SEC”) within 60 days after the date of the closing of the Offering, for purposes
of registering the resale of the Class A Common Stock issued in the Offering and the shares of Class A Common Stock issuable upon exercise
of the Common Warrants and Prefunded Warrants issued in the Offering (the “Warrant Shares”), and any shares of Class A Common
Stock issued as a dividend or other distribution with respect to, in exchange for or in replacement of the Class A Common Stock or the
Warrant Shares. The Company agreed to use commercially reasonable efforts to cause this registration statement to be declared effective
by the SEC within 90 days after the date of the closing of the Offering, or 115 days after the date of the closing of the Offering if
the SEC reviews the registration statement.
The Company has also agreed, among other things,
to indemnify the Investors, their officers, directors, members, managers, partners, trustees, employees and agents and other representatives,
successors and assigns, and each other person, if any, who controls such Investors within the meaning of the Securities Act of 1933 under
the registration statement from certain liabilities and to pay all fees and expenses (excluding any legal fees of the selling holder(s),
and any underwriting discounts and selling commissions) incident to the Company’s obligations under the Registration Rights Agreement.
The Offering is exempt from registration pursuant
to Section 4(a)(2) of the Securities Act, as a transaction by an issuer not involving a public offering and Regulation D promulgated thereunder.
The Investors have represented that they have not acquired the securities with a view to or for sale in connection with any distribution
thereof in violation of the Securities Act of 1933, as amended, and appropriate legends have been affixed to the securities issued in
this transaction.
The foregoing summaries do not purport to be complete
and are qualified in their entirety by reference to the Purchase Agreement, the Registration Rights Agreement, the form of Common Warrant
and the form of Prefunded Warrant, which are filed as Exhibits 10.1, 10.2, 4.1 and 4.2, respectively, to this Current Report on Form 8-K.
| Item 3.02. | Unregistered Sales of Equity Securities. |
The information contained in Item 1.01 of this Current Report on Form
8-K is incorporated by reference into this Item 3.02.
| Item 7.01 | Regulation FD Disclosure. |
On September 19, 2023, the Company issued a press
release, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K, announcing the Purchase Agreement and the pricing
of the Offering.
The information in this Item 7.01 (including Exhibit
99.1) of this Current Report on Form 8-K is being furnished and shall not be deemed “filed” for purposes of Section 18 of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section,
nor shall it be deemed to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or
the Exchange Act, except as expressly set forth by specific reference in such filing.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
# The representations and warranties contained
in this agreement were made only for purposes of the transactions contemplated by the agreement as of specific dates and may have been
qualified by certain disclosures between the parties and a contractual standard of materiality different from those generally applicable
under securities laws, among other limitations. The representations and warranties were made for purposes of allocating contractual risk
between the parties to the agreement and should not be relied upon as a disclosure of factual information relating to the Company, the
Investors or the transactions described in this Current Report on Form 8-K.
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
|
ELUTIA INC. |
|
(Registrant) |
|
|
Date: September 21, 2023 |
By: |
/s/ Matthew Ferguson |
|
|
Matthew Ferguson |
|
Chief Financial Officer |
Exhibit 4.1
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER 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 ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
CLASS A
COMMON STOCK PURCHASE WARRANT
ELUTIA
INC.
Warrant Shares: ___________ |
Issue Date: September ____, 2023 |
|
|
THIS CLASS A COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and on or prior to 5:00 p.m. Eastern time on the earlier of (i) September ____,
2028 and (ii) 30 Trading Days following the Company's public release of receipt of the Clearance Notice (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Elutia Inc., a Delaware corporation (the “Company”),
up to _________ shares of Class A common stock, par value $0.001 per share (the “Common Stock”) (as subject to
adjustment hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2(b). The Warrant is being issued pursuant to that certain Securities Purchase
Agreement, dated as of September 18, 2023, among the Company and the purchasers signatory thereto, as amended and/or restated from
time to time (the “Purchase Agreement”). Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Purchase Agreement.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Day”
means any day except any Saturday, any 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.
“Clearance Notice”
means the written notice from the U.S. Secretary of Health and Human Services and/or the U.S. Food and Drug Administration (the “FDA”)
to the Company that the FDA has reviewed the Company’s premarket notification report filed under Section 510(k) of the
Federal Food, Drug and Cosmetic Act of 2022 (the “Act”) related to the Company’s CanGaroo RM Antibacterial Envelope
device, that the FDA has determined “substantial equivalence” with respect to such device, and that such device may be marketed
subject to the general controls provisions of the Act.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock Equivalents”
means any securities of the Company or its subsidiaries, which would entitle the holder thereof to acquire at any time shares of Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB
or OTCQX (or any successors to any of the foregoing).
“Transfer Agent”
means American Stock Transfer & Trust Company, LLC, the current transfer agent of the Company,
with a mailing address of 6201 15th Ave, Brooklyn, NY 11219, and any successor transfer agent of the Company.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as
defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on
the face hereof.
If at any time after the Initial
Exercise Date through the Termination Date, the Holder is unable to exercise this Warrant due to the restriction set forth in Section 2(e) restricting
exercise in the event that after giving effect to such issuance after exercise the Attribution Parties (as defined below) would beneficially
own in excess of the Beneficial Ownership Limitation (as defined below), or otherwise at the Holder’s election, the Holder may elect
to purchase a pre-funded warrant in lieu of this Warrant covering the amount of such Warrant Shares unable to be so purchased pursuant
to this Warrant in the form annexed hereto (the “Pre-Funded Warrant”), at a purchase price of $1.4265 per share (the “Pre-Funded
Warrant Price”) for each share of Common Stock under the Pre-Funded Warrant (the “Pre-Funded Warrant Shares”),
in which case the Warrant Shares available for purchase under this Warrant shall be reduced by the amount of the Pre-Funded Warrant Shares.
Exercise of the election to purchase the Pre-Funded Warrant represented by this Warrant shall be made by delivery to the Company of a
duly executed PDF copy submitted by e-mail (or e-mail attachment) of the Pre-Funded Warrant Notice in the form annexed hereto (the “Pre-Funded
Warrant Notice”). Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising
the Standard Settlement Period following the date of exercise as aforesaid, the Holder shall deliver the aggregate Pre-Funded Warrant
Price for the Pre-Funded Warrant Shares specified in the applicable Pre-Funded Warrant Notice by wire transfer or cashier’s check
drawn on a United States bank. The Company shall deliver the Pre-Funded Warrant registered in the name of the Holder to purchase the Pre-Funded
Warrant Shares with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein, to the address specified
by the Holder in the Pre-Funded Warrant Notice by the date that is the earlier of (i) two (2) Trading Days and (ii) the
number of Trading Days comprising the Standard Settlement Period after the delivery to the Company by the Holder of the Pre-Funded Warrant
Notice.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $1.4275, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. If, at any time after 115 calendar days after Issue Date, there is no effective registration statement registering, or no
current prospectus available for, the resale of the Warrant Shares by the Holder, then this Warrant may also be exercised, in whole or
in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
| (A) | = as applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable
Notice of Exercise if such Notice of Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day
that is not a Trading Day or (2) both executed and delivered pursuant to Section 2(a) hereof on a Trading Day prior to
the opening of “regular trading hours” (as defined in Rule 600(b) of Regulation NMS promulgated under the federal
securities laws) on such Trading Day, (ii) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of
Exercise or (iii) the VWAP on the date of the applicable Notice of Exercise if the date of such Notice of Exercise is a Trading Day
and such Notice of Exercise is both executed and delivered pursuant to Section 2(a) hereof after the close of “regular
trading hours” on such Trading Day; |
| (B) | = the Exercise Price, as adjusted hereunder; and |
(X) = the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (Eastern time) to 4:02 p.m. (Eastern time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Open
Market” published by OTC Markets Group, Inc. (or a similar organization or agency succeeding to its functions of reporting
prices), the most recent bid price per share of the Common Stock so reported, or (d) in all other cases, the fair market value of
a share of Common Stock as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the
Securities then outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
d) Mechanics
of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate,
registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which
the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment
of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery
Date and the Exercise Price has been paid in full (other than in the case of a cashless exercise), the Company shall pay to the Holder,
in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of
the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth
Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST
program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the
Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part or the Holder shall have elected to purchase a Pre-Funded
Warrant, the Company shall, at the request of a Holder and upon surrender of this Warrant certificate, at the time of delivery of the
Warrant Shares, deliver to the Holder a new Warrant evidencing the rights of the Holder to purchase the unpurchased Warrant Shares called
for by this Warrant, which new Warrant shall in all other respects be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise, including in the event of a Buy-In (as
defined below), as described in Section 2(d)(iv) below.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase
(in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying
(1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue
times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder (pursuant to notice to be sent by the Holder to the Company within ten (10) days following the Warrant Share Delivery Date;
if such notice is not provided by that date, the Company shall instead have the right to decide), either reinstate the portion of the
Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded)
or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder
shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the
Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’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 exercise of the Warrant as required pursuant to the terms
hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in
the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise (except as contemplated in Section 3(e)), to the extent that
after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is
in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed
in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise
shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Days confirm orally and
in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the
Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported.
The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company,
may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of the shares of Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue
to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with
the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding
anything in this Warrant to the contrary, the provisions of this Section 2(e) (and any other restrictions with respect to Beneficial
Ownership Limitations appearing in the Warrant) shall not apply to any Holder that, together with the Holder's Attribution Parties, beneficially
owns in excess of 9.99% of the number of shares of Common Stock outstanding on the date of the Purchase Agreement (prior to giving effect
to the transactions contemplated by such Purchase Agreement).
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of
shares of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged, provided that the Exercise Price per share shall in any case be no lower than the par value of the Common
Stock. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the
case of a subdivision, combination or re-classification.
b) Voluntary
Adjustment By Company. The Company may at any time during the term of this Warrant reduce the then current Exercise Price of this
Warrant to any amount and for any period of time deemed appropriate by the board of directors of the Company with the prior written consent
of holders of a majority of the then outstanding Warrants issued pursuant to the Purchase Agreement, provided that the Exercise Price
per underlying share of Common Stock shall be no lower than the par value of the Common Stock as of the relevant time.
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent
that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of the its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or
exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
shares of Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or
(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or
50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to
any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, in the
event of a Fundamental Transaction (excluding (x) transactions in which a Successor Entity (as defined below) whose common stock
is quoted or listed on a Trading Market assumes this Warrant such that the Warrant shall be exercisable for the publicly traded common
stock of such Successor Entity, and (y) other than with respect to asset transactions covered by subsection (ii) above, transactions
in which the Persons beneficially owning 50% or more of the Company prior to the transaction continue to hold 50% or more the Company
after the transaction, provided in such case the Warrant is exercisable for the capital stock owned by such Persons), the Company or any
Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days
after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental
Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined
below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided,
however, that if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s
board of directors, the Holder shall only be entitled to receive from the Company or any Successor Entity, the same type or form of consideration
(and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to
the holders of Common Stock of the Company in connection with the Fundamental Transaction, whether that consideration be in the form of
cash, stock or any combination thereof, or whether the holders of Common Stock are given the choice to receive from among alternative
forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders of Common Stock of the Company
are not offered or paid any consideration in such Fundamental Transaction, such holders of Common Stock will be deemed to have received
common stock of the Successor Entity (which entity may be the Company following such Fundamental Transaction) in such Fundamental Transaction.
“Black Scholes Value” means the value of this Warrant based on the Black-Scholes Option Pricing Model obtained from
the “OV” function on Bloomberg determined as of the day of consummation of the applicable contemplated Fundamental Transaction
for pricing purposes and reflecting (A) a risk-free interest rate corresponding to the U.S. Treasury rate for a period equal to the
time between the date of the public announcement of the applicable Fundamental Transaction and the Termination Date, (B) an expected
volatility equal to the greater of (1) the 30-day volatility, (2) the 100 day volatility or (3) the 365-day volatility,
each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365-day annualization factor) as of
the Trading Day immediately following the public announcement of the applicable contemplated Fundamental Transaction, (C) the underlying
price per share used in such calculation shall be the highest VWAP during the period beginning on the Trading Day immediately preceding
the public announcement of the applicable contemplated Fundamental Transaction (or the consummation of the applicable Fundamental Transaction,
if earlier) and ending on the Trading Day of the Holder’s request pursuant to this Section 3(e), (D) a remaining option
time equal to the time between the date of the public announcement of the applicable contemplated Fundamental Transaction and the Termination
Date, and (E) a zero cost of borrow. The payment of the Black Scholes Value will be made by wire transfer of immediately available
funds (or such other consideration) within the later of (i) five (5) Business Days of the Holder’s election and (ii) the
date of consummation of the Fundamental Transaction. The Company shall cause any successor entity in a Fundamental Transaction in which
the Company is not the survivor (the “Successor Entity”) to assume in writing all of the obligations of the Company
under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant to written
agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay) prior to
such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security of
the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities,
jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor
Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with
the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company
herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether
a Fundamental Transaction occurs prior to the Initial Exercise Date. For the further avoidance of doubt, the Holder shall not be entitled
to receive more than one of (i) the consideration receivable as a result of such Fundamental Transaction by a holder of the number
of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction, (ii) an amount
of cash (or other type or form of consideration as provided in this Section 3(d)) equal to the Black Scholes Value of the remaining
unexercised portion of this Warrant as calculated pursuant this Section 3(d), or (iii) the assumption by the Successor Entity
of all of the obligations of the Company under this Warrant and the option to receive a security of the Successor Entity evidenced by
a written instrument substantially similar in form and substance to this Warrant.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
shares of Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the shares of Common
Stock, (C) the Company shall authorize the granting to all holders of the shares of Common Stock rights or warrants to subscribe
for or purchase any capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the shares of Common Stock (other than a stock split), any consolidation or merger to which
the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange
whereby the shares of Common Stock are converted into other securities, cash or property, or (E) the Company shall authorize the
voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause
to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least
5 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the shares of Common Stock of record to be entitled to such dividend, distributions, redemption, rights
or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or stock exchange
is expected to become effective or close, and the date as of which it is expected that holders of the shares of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or stock exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice and provided, further
that no notice shall be required if the information is disseminated in a press release or document filed with the Securities and Exchange
Commission. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The issuance of a press release or the filing of a Form 8-K or other suitable filing with the Commission shall
satisfy this notice requirement. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of
such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant
and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning
this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
d) [Reserved].
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or
reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant
to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting Section 3, any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein,
or the Company’s rights with respect to fractional shares under Section 2(d)(v), in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the shares of Common Stock may
be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith,
be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in
respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which
would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of this Warrant shall be commenced
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an
action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be
reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the Holder’s
right to exercise this Warrant terminates on the Termination Date. If the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notices, consents, waivers or other document or communications required or permitted to be given or delivered under the terms of this
Warrant, including, without limitation, any Notice of Exercise, must be in writing and will be deemed to have been delivered: (i) upon
receipt, if delivered personally; (ii) when sent, if sent by e-mail (provided that such sent e-mail is kept on file (whether electronically
or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s
e-mail server that such e-mail could not be delivered to such recipient) and (iii) if sent by overnight courier service, one (1) Trading
Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to
receive the same. The addresses and e-mail addresses for such communications shall be:
If to the Company:
Elutia Inc.
12510 Prosperity Drive,
Suite 370
Silver Spring, MD 20904
Attention: Randy Mills
E-mail: rmills@aziyo.com
With a copy (for informational purposes
only) to:
Kilpatrick Townsend &
Stockton LLP
1100 Peachtree Street
N.E., Suite 2800
Atlanta, GA 30309
Attention: David Eaton
E-mail: deaton@kilpatricktownsend.com
If to a Holder, to its address or e-mail address
set forth herein or on the books and records of the Company.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors
of the Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
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EXHIBIT A-1
NOTICE OF EXERCISE
TO: ELUTIA INC.
(1) The undersigned hereby elects to purchase ________ Warrant
Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith payment of the exercise
price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check
applicable box):
¨ in lawful money of the United States; or
¨ if permitted, the cancellation of such number
of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect
to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the
name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
(4) Accredited Investor. The undersigned
is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
SIGNATURE OF HOLDER
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Signature of Authorized Signatory
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EXHIBIT A-2
NOTICE OF PRE-FUNDED WARRANT
TO: ELUTIA INC.
(1) The undersigned hereby elects to purchase
a Pre-Funded Warrant to purchase ________ Pre-Funded Warrant Shares of the Company pursuant to the terms of the attached Warrant, and
tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) The Pre-Funded Warrant shall be delivered
to the Holder at:
(3) Accredited Investor. The undersigned is an “accredited
investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
SIGNATURE OF HOLDER
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Signature of Authorized Signatory of Investing
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EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and
all rights evidenced thereby are hereby assigned to
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Exhibit 4.2
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER 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 ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PRE-FUNDED
CLASS A COMMON STOCK PURCHASE WARRANT
ELUTIA
INC.
Warrant Shares: ___________ | | Issue Date: September ____, 2023 |
THIS PRE-FUNDED CLASS A
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Elutia Inc., a Delaware corporation (the “Company”),
up to _________ shares of Class A common stock, par value $0.001 per share (the “Common Stock”) (as subject to
adjustment hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2(b). The Warrant is being issued pursuant to that certain Securities Purchase
Agreement, dated as of September 18, 2023, among the Company and the purchasers signatory thereto, as amended and/or restated from
time to time (the “Purchase Agreement”). Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Purchase Agreement.
Section 1.
Definitions. In addition to the terms defined elsewhere
in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Day”
means any day except any Saturday, any 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.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock Equivalents”
means any securities of the Company or its subsidiaries, which would entitle the holder thereof to acquire at any time shares of Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB
or OTCQX (or any successors to any of the foregoing).
“Transfer Agent”
means American Stock Transfer & Trust Company, LLC, the current transfer agent of the Company,
with a mailing address 6201 15th Ave, Brooklyn, NY 11219, and any successor transfer agent of the Company.
Section 2.
Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as
defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on
the face hereof.
b) Exercise
Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant Share, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise
price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining
unpaid exercise price per share of Common Stock under this Warrant shall be $0.001, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. This Warrant may also be exercised, in whole or in part, at any time by means of a “cashless exercise” in which
the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable: (i) the
VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both
executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in
Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the VWAP on the
Trading Day immediately preceding the date of the applicable Notice of Exercise or (iii) the VWAP on the date of the applicable Notice
of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B) = the Exercise Price, as adjusted
hereunder; and
(X) = the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (Eastern time) to 4:02 p.m. (Eastern time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Open
Market” (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
d) Mechanics
of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate,
registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which
the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment
of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery
Date and the Exercise Price has been paid in full (other than in the case of a cashless exercise), the Company shall pay to the Holder,
in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of
the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth
Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST
program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the
Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise, including in the event of a Buy-In (as
defined below), as described in Section 2(d)(iv) below.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase
(in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying
(1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue
times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder (pursuant to notice to be sent by the Holder to the Company within ten (10) days following the Warrant Share Delivery Date;
if such notice is not provided by that date, the Company shall instead have the right to decide), either reinstate the portion of the
Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded)
or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder
shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the
Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’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 exercise of the Warrant as required pursuant to the terms
hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in
the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise (except as contemplated in Section 3(e)), to the extent that
after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is
in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed
in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise
shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Days confirm orally and
in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the
Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported.
The “Beneficial Ownership Limitation” shall be 9.99% of the number of shares of Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company,
may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial Ownership
Limitation in no event exceeds 9.99% of the number of the shares of Common Stock outstanding immediately after giving effect to the issuance
of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall continue
to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such notice is delivered
to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in strict conformity with
the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective or inconsistent with
the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable to properly give
effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding
anything in this Warrant to the contrary, the provisions of this Section 2(e) (and any other restrictions with respect to Beneficial
Ownership Limitations appearing in the Warrant) shall not apply to any Holder that, together with the Holder's Attribution Parties, beneficially
owns in excess of 9.99% of the number of shares of Common Stock outstanding on the date of the Purchase Agreement (prior to giving effect
to the transactions contemplated by such Purchase Agreement).
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of
shares of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged, provided that the Exercise Price per share shall in any case be no lower than the par value of the Common
Stock. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the
case of a subdivision, combination or re-classification.
b) Voluntary
Adjustment By Company. The Company may at any time during the term of this Warrant reduce the then current Exercise Price of this
Warrant to any amount and for any period of time deemed appropriate by the board of directors of the Company with the prior written consent
of holders of a majority of the then outstanding Warrants issued pursuant to the Purchase Agreement, provided that the Exercise Price
per underlying share of Common Stock shall be no lower than the par value of the Common Stock as of the relevant time.
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent
that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of the its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or
exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
shares of Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or
(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or
50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to
any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in
a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all
of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities,
jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor
Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with
the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company
herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether
a Fundamental Transaction occurs prior to the Initial Exercise Date. For the further avoidance of doubt, the Holder shall not be entitled
to receive more than one of (i) the consideration receivable as a result of such Fundamental Transaction by a holder of the number
of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction, or (ii) the assumption
by the Successor Entity of all of the obligations of the Company under this Warrant and the option to receive a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Warrant.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
shares of Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the shares of Common
Stock, (C) the Company shall authorize the granting to all holders of the shares of Common Stock rights or warrants to subscribe
for or purchase any capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the shares of Common Stock (other than a stock split), any consolidation or merger to which
the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange
whereby the shares of Common Stock are converted into other securities, cash or property, or (E) the Company shall authorize the
voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause
to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least
5 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the shares of Common Stock of record to be entitled to such dividend, distributions, redemption, rights
or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or stock exchange
is expected to become effective or close, and the date as of which it is expected that holders of the shares of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or stock exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice and provided, further
that no notice shall be required if the information is disseminated in a press release or document filed with the Securities and Exchange
Commission. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The issuance of a press release or the filing of a Form 8-K or other suitable filing with the Commission shall
satisfy this notice requirement. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of
such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof, this Warrant
and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part, upon surrender
of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this Warrant substantially
in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable
upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant
or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument
of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant
shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender
this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant
to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning
this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant
Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
d) [Reserved].
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or
reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant
to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting Section 3, any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein,
or the Company’s rights with respect to fractional shares under Section 2(d)(v), in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the shares of Common Stock may
be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith,
be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in
respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which
would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of this Warrant shall be commenced
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an
action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be
reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the Holder’s
right to exercise this Warrant terminates on the Termination Date. If the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notices, consents, waivers or other document or communications required or permitted to be given or delivered under the terms of this
Warrant, including, without limitation, any Notice of Exercise, must be in writing and will be deemed to have been delivered: (i) upon
receipt, if delivered personally; (ii) when sent, if sent by e-mail (provided that such sent e-mail is kept on file (whether electronically
or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s
e-mail server that such e-mail could not be delivered to such recipient) and (iii) if sent by overnight courier service, one (1) Trading
Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to
receive the same. The addresses and e-mail addresses for such communications shall be:
If to the Company:
Elutia Inc.
12510 Prosperity Drive,
Suite 370
Silver
Spring, MD 20904
Attention:
Randy Mills
E-mail:
rmills@aziyo.com
With a copy (for informational purposes
only) to:
Kilpatrick Townsend &
Stockton LLP
1100 Peachtree Street
N.E., Suite 2800
Atlanta,
GA 30309
Attention:
David Eaton
E-mail:
deaton@kilpatricktownsend.com
If to a Holder, to its address or e-mail address
set forth herein or on the books and records of the Company.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors
of the Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
ELUTIA INC. |
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EXHIBIT A
NOTICE OF EXERCISE
TO: ELUTIA
INC.
(1) The undersigned hereby elects to purchase
________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith
payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check
applicable box):
¨ in lawful money of the United States; or
¨ if permitted, the cancellation of such number
of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to exercise this Warrant with respect
to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the
name of the undersigned or in such other name as is specified below:
______________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
______________________
______________________
______________________
(4) Accredited Investor. The undersigned
is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
SIGNATURE OF HOLDER
Name of Investing Entity:_____________________________________________________________________________________________________
Signature of Authorized Signatory of Investing Entity:_______________________________________________________________________________
Name of Authorized Signatory:_________________________________________________________________________________________________
Title of Authorized Signatory:__________________________________________________________________________________________________
Date: __________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and
all rights evidenced thereby are hereby assigned to
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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE
AGREEMENT (this “Agreement”) is made and entered into as of September 18, 2023 by and among Elutia Inc., a Delaware
corporation (the “Company”), and the Investors identified on Exhibit A attached hereto (each an “Investor”
and collectively the “Investors”).
Recitals
A. The
Company and each Investor 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 “1933 Act”), and/or Rule 506 of Regulation
D (“Regulation D”) as promulgated by the United States Securities and Exchange Commission (the “SEC”)
under the 1933 Act; and
B. The
Investors wish to purchase from the Company, and the Company wishes to sell and issue to the Investors, upon the terms and subject to
the conditions stated in this Agreement, Units of the Company as more fully described in this Agreement.
C. Contemporaneously
with the sale of the Units, (A) the parties hereto will execute and deliver a Registration Rights Agreement, in the form attached
hereto as Exhibit B (the “Registration Rights Agreement”), pursuant to which the Company will agree to
provide certain registration rights in respect of the Shares and the Warrant Shares under the 1933 Act, and the rules and regulations
promulgated thereunder, and applicable state securities laws, and (B) the Company and HighCape (as defined below) shall, concurrently
with the purchase and sale of the Units hereunder, enter into a registration rights waiver (the “Investor Rights Agreement Waiver”),
pursuant to which HighCape shall waive certain registration rights under the Investor Rights Agreement (as defined below) relating to
any registration statement filed by the Company pursuant to the Registration Rights Agreement covering the Shares and Warrant Shares.
In consideration of the mutual
promises made herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1 Definitions.
For the purposes of this Agreement, the following terms shall have the meanings set forth below:
“Affiliate”
means, with respect to any Person, any other Person which directly or indirectly through one or more intermediaries Controls, is controlled
by, or is under common Control with, such Person.
“Business Day”
means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
“Class A Common
Stock” means shares of the Company’s Class A Common Stock, par value $0.001 per share.
“Class B Common
Stock” means shares of the Company’s Class B Common Stock, par value $0.001 per share.
“Closing”
has the meaning set forth in Section 3.1.
“Closing Date”
has the meaning set forth in Section 3.1.
“Common Stock”
means the Class A Common Stock and the Class B Common Stock.
“Common Units”
means units consisting of one Share and one Common Warrant to be sold hereunder.
“Common Warrants”
means warrants to purchase one and one-half shares of Class A Common Stock, each in the form attached hereto as Exhibit D,
to be sold hereunder.
“Company’s Knowledge”
means the actual knowledge of any executive officer (as defined in Rule 405 under the 1933 Act) of the Company.
“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.
“Disclosure Time”
means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City time) and before
midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately following the date
hereof, and (ii) if this Agreement is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any
Trading Day, no later than 9:01 a.m. (New York City time) on the date hereof.
“Environmental Laws”
has the meaning set forth in Section 4.16.
“FCPA” means
the Foreign Corrupt Practices Act of 1977, as amended.
“FDA” has
the meaning set forth in Section 4.27.
“Fundamental Representations”
means the representations and warranties made by the Company in Sections 4.1, 4.2, 4.3(a), 4.3(c), 4.4, 4.5, 4.6, 4.8, 4.9, 4.19, 4.21,
4.22, 4.23, 4.24, 4.28, 4.30, 4.31, 4.32, 4.33, 4.34, 4.35, 4.36, 4.37, 4.38, 4.39 and 4.40, in the last sentence of Section 4.15
and in clause (i) of the first sentence of Section 4.18.
“GAAP” has
the meaning set forth in Section 4.18.
“Health Care Laws”
means all applicable laws, rules and regulations relating to the provision and/or administration of, and/or payment for, health
care services, items and supplies including, without limitation, applicable laws, rules and regulations related to: (a) fraud
and abuse, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)), the Anti-Inducement Law (42
U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the criminal False Claims Act
18 U.S.C. §§ 286 and 287, the administrative False Claims Law (42 U.S.C. Section 1320a-7b(a)), the False Statements Relating
to Health Care Matters Act (18 U.S.C. § 1035), the Health Care Fraud Act (18 U.S.C. § 1347), the Program Fraud Civil Remedies
Act (31 U.S.C. §§ 3801-3812), the Anti-Kickback Act of 1986 (41 U.S.C. §§ 51-58), the laws regarding Exclusion and
Civil Monetary Penalties (42 U.S.C. §§ 1320a-7, 1320a-7a and 1320a-7b), and any state, commonwealth or local laws similar to
any of the foregoing; (b) Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), CHAMPVA,
TRICARE, the State Children’s Health Insurance Program (Title XXI of the Social Security Act), and any other third party payor
programs; (c) HIPAA; (d) the Physician Payments Sunshine Act (42 U.S.C. Section 1320a-7h); and (e) the Federal Food
Drug and Cosmetic Act (21 U.S.C. §§ 301 et seq.), each of the laws, rules and regulations referred to in clauses (a) through
(e) as may be amended, modified or supplemented from time to time and any successor statutes thereto and regulations promulgated
thereunder from time to time.
“HIPAA”
means the (a) Health Insurance Portability and Accountability Act of 1996; (b) the Health Information Technology for Economic
and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009); and (c) any federal, state and local
laws regulating the privacy and/or security of individually identifiable health information, including, without limitation, state laws
providing for notification of breach of privacy or security of individually identifiable health information, in each case with respect
to the applicable laws described in clauses (a), (b) and (c) of this definition, as the same may be amended, modified or supplemented
from time to time, any successor statutes thereto, any and all rules or regulations promulgated from time to time thereunder.
“HighCape”
means, collectively, HighCape Partners QP, LP, HighCape Co-Investment Vehicle I, LLC, HighCape Co-Investment Vehicle II, LLC, HighCape
Capital, L.P. and HighCape Partners, LP.
“Intellectual Property”
means all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, trade secrets, licenses,
domain names, information and proprietary rights and processes.
“Investor Rights Agreement”
means that certain Second Amended and Restated Investors’ Rights Agreement, dated as of September 14, 2020, by and among the
Company and the investors party thereto.
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, mortgage, claim, easement, right-of-way, option,
title retention agreement, preemptive right or other restriction.
“Material Adverse
Effect” means any change, event, condition, effect, development, state of facts, circumstance or occurrence (each, an “Effect”)
that, individually or when taken together with all other Effects, has had or would be reasonably likely to have, a material adverse effect
on (i) the assets, liabilities, results of operations, condition (financial or otherwise), earnings, business, prospects or properties
of the Company and its Subsidiaries taken as a whole, (ii) the legality or enforceability of any of the Transaction Documents or
(iii) the ability of the Company to perform its obligations under the Transaction Documents; provided, however, that in no event
shall any of the following Effects after the date hereof, alone or in combination with one another, be deemed to constitute, a Material
Adverse Effect: (1) any Effect resulting directly or indirectly from general business or economic conditions, except to the extent
such general business or economic conditions have a materially disproportionate effect on the Company as compared to companies in the
Company’s industry, (2) any change in the Company’s stock price or trading volume in and of itself (but not the underlying
causes thereof), or (3) any Effect caused by the announcement or pendency of the transactions contemplated by the Transaction Documents,
or the identity of any Investor or any of its Affiliates as the purchaser in connection with the transactions contemplated by this Agreement
or the Registration Rights Agreement (provided that this clause (3) shall not apply to the representations and warranties and related
conditions contained in the Transaction Documents that, by their terms, speak of the consequences arising out of the execution or performance
of any of the Transaction Documents or the consummation of the transactions contemplated thereby).
“Material Contract”
means any contract, instrument or other agreement (including any amendment) to which the Company is a party or by which it is bound which
is material to the business of the Company and has been, was required to be, or will be required to be, filed as an exhibit to the SEC
Filings pursuant to Item 601(b)(10) of Regulation S-K.
“Nasdaq”
means The Nasdaq Global Market.
“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.
“Prefunded Units”
means units consisting of one Prefunded Warrant and one Common Warrant to be sold hereunder.
“Prefunded Warrants”
means warrants to purchase one share of Class A Common Stock, each in the form attached hereto as Exhibit E, to be sold
hereunder.
“Press Release”
has the meaning set forth in Section 9.7.
“Prior Registration
Rights Agreement” means that certain registration rights agreement dated December 5, 2021 by and among the Company and
the investors named in that certain securities purchase agreement dated December 5, 2021 by and among the Company and the investors
named therein.
“Registration Rights
Agreement” has the meaning set forth in the Recitals.
“Required Investors”
has the meaning set forth in the Registration Rights Agreement.
“SEC Filings”
has the meaning set forth in Section 4.
“Securities”
has the meaning set forth in Section 4.2.
“Selling Securityholder
Questionnaire” has the meaning set forth in Section 3.1.
“Shares”
means the shares of Class A Common Stock to be sold hereunder.
“Short Sales”
means all “short sales” as defined in Rule 200 of Regulation SHO under the 1934 Act (but shall not be deemed to include
the location and/or reservation of borrowable shares of Common Stock).
“Subscription Amount”
means, as to an Investor, the aggregate amount to be paid for the Units purchased hereunder as specified opposite such Investor’s
name on Exhibit A attached hereto, under the column entitled “Aggregate Purchase Price of Units,” in U.S. Dollars
and in immediately available funds.
“Subsidiaries”
has the meaning set forth in Section 4.1.
“Trading Day”
means a day on which Nasdaq is open for trading.
“Transaction Documents”
means this Agreement, the Registration Rights Agreement and the Warrants.
“Transfer Agent”
has the meaning set forth in Section 7.5.
“Units”
means the Common Units and Prefunded Units to be sold hereunder.
“Unit Securities”
means the Shares, Prefunded Warrants and Common Warrants to be sold hereunder.
“Warrants”
means the Prefunded Warrants and Common Warrants to be sold hereunder.
“Warrant Shares”
has the meaning set forth in Section 4.2.
“1933 Act”
has the meaning set forth in the Recitals.
“1934 Act”
means the Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
2 Purchase
and Sale of the Units. On the Closing Date, upon the terms and subject to the conditions set forth herein, the Company will
issue and sell to the Investors, and the Investors will purchase, severally and not jointly, the number and type of Units set forth
opposite the name of such Investor under the headings “Number of Units to be Purchased” and “Type of Units to be
Purchased”, respectively, on Exhibit A attached hereto at a price per Unit equal to $1.4275 per Common Unit and
$1.4265 per Prefunded Unit (the “Purchase Price”).
3 Closing.
3.1 The
closing of the purchase and sale of the Units (which Units are set forth in the Schedule of Investors) pursuant to this Agreement (the
“Closing”) shall be held no later than 10:00 AM (Eastern Time) on September 21, 2023 at the offices of Kilpatrick
Townsend & Stockton LLP, 1100 Peachtree Street N.E., Atlanta, Georgia 30309, or on such other date and place as may be agreed
to by the Company and the Investors (the “Closing Date”). On the Closing Date, the Company shall issue the Shares
registered in each Investor’s name and address in book-entry form with the Transfer Agent (or, at the request of any Investor,
the Company shall deliver to such Investor (or its designee) a stock certificate in such Investor’s name, duly executed on behalf
of the Company, representing the Shares purchased thereby), and payment therefor shall be made by each Investor by wire transfer to the
Company’s designated bank account, the details of which are provided in accordance with Section 3.3(c). On the Closing Date,
the Company shall deliver or cause to be delivered the Warrants to the Investors. All Unit Securities shall be delivered to the Investors
hereunder free and clear of all Liens, other than restrictions on transferability arising under applicable federal securities laws. At
or prior to the Closing, each Investor shall execute any related agreements or other documents required to be executed hereunder, dated
on or before the Closing Date, including but not limited to the Selling Securityholder Notice and Questionnaire in the forms attached
hereto as Appendix II (the “Selling Securityholder Questionnaire”).
3.2 At
or before 12:00 p.m. (noon) (Eastern Time) on the Closing Date, each Investor shall deliver or cause to be delivered to the Company
such Investor’s Subscription Amount via wire transfer of immediately available funds pursuant to the wire instructions delivered
to such Investor by the Company prior to the Closing Date.
3.3 At
or before the Closing, the Company shall deliver or cause to be delivered to each Investor:
(a) the
Unit Securities purchased by such Investor, as set forth in Section 3.1;
(b) a
legal opinion of Company Counsel, in the form of Exhibit C, dated as of the Closing Date, executed by such counsel and delivered
to the Investors;
(c) the
Company’s wire instructions, on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(d) the
Registration Rights Agreement, in the form of Exhibit B, executed by a duly authorized officer of the Company;
(e) a
certificate, signed by a duly elected officer of the Company, certifying as of the Closing Date as to the satisfaction of each of the
conditions set forth in Section 6.1;
(f) a
certificate evidencing the formation and good standing of the Company issued by the Secretary of State of the State of Delaware, as of
a date within three (3) days of the Closing Date;
(g) a
copy of the Company’s Certificate of Incorporation, as amended, certified by the Secretary of State of the State of Delaware within
five (5) days of the Closing Date;
(h) a
certificate executed by the Secretary of the Company and dated as of the Closing Date, certifying as to the resolutions adopted by the
Company’s board of directors approving the Transaction Documents; and
(i) a
letter from the Company’s Transfer Agent certifying the number of shares of Class A Common Stock outstanding as of a date
within three (3) days of the Closing Date.
4 Representations
and Warranties of the Company. The Company hereby represents and warrants to the Investors that, except (other than for purposes
of the Fundamental Representations) as otherwise described in the Company’s filings pursuant to the 1934 Act after December 31,
2022 and at least five (5) Business Days prior to the date hereof (collectively, the “SEC Filings”), but excluding
any disclosures set forth under the headings “Risk Factors,” or disclosure of risks set forth in any “forward-looking
statements” disclaimer, or disclosures in any other statements that are similarly cautionary or predictive in nature, as of the
date hereof and as of the Closing Date:
4.1 Organization,
Good Standing and Qualification. The Company is an entity duly incorporated, validly existing and in good standing under the laws
of the State of Delaware, with the requisite corporate power and authority to own or lease and use its properties and assets, to execute
and deliver the Transaction Documents, to carry out the provisions of the Transaction Documents, to issue and sell the Unit Securities
and to carry on its business as presently conducted as described in the SEC Filings. Each of the Company’s subsidiaries required
to be disclosed pursuant to Item 601(b)(21) of Regulation S-K in an exhibit to its annual report on Form 10-K filed with the SEC
for the year ended December 31, 2022 or that has been formed as of the date hereof and will required to be disclosed pursuant to
Item 601(b)(21) of Regulation S-K in an exhibit to its annual report on Form 10-K filed with the SEC for the year ended December 31,
2023 (the “Subsidiaries”) is an entity duly incorporated or otherwise organized, validly existing and in good standing
(to the extent such concept exists in the relevant jurisdiction) under the laws of the jurisdiction of its incorporation or organization,
as applicable, and has all requisite power and authority to carry on its business to own and use its properties. Neither the Company
nor any of its Subsidiaries is in violation or default in any material respect of any of the provisions of its respective articles of
association, charter, certificate of incorporation, bylaws, limited partnership agreement or other organizational or constitutive documents.
Each of the Company and its Subsidiaries is duly qualified to do business as a foreign entity and is in good standing (to the extent
such concept exists in the relevant jurisdiction) in each jurisdiction in which the conduct of its business or its ownership or leasing
of property makes such qualification necessary, except to the extent any failure to so qualify has not had and would not reasonably be
expected to have a Material Adverse Effect.
4.2 Authorization.
The Company has the requisite corporate power and authority and has taken all requisite corporate action necessary for, and no further
action on the part of the Company, its officers, directors and stockholders is necessary for, (i) the authorization, execution and
delivery of the Transaction Documents, (ii) the authorization of the performance of any obligations of the Company hereunder or
thereunder, or (iii) the authorization, issuance and delivery of the Unit Securities or the shares of Class A Common Stock
issuable upon exercise of the Warrants (the “Warrant Shares” and, together with the Unit Securities, the “Securities”).
Each of the Transaction Documents has been duly executed and delivered by the Company and, assuming due authorization, execution and
delivery by the Investors, constitutes a valid and binding obligation of the Company enforceable in accordance with its terms, except
(a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement
of creditors’ rights, (b) general principles of equity that restrict the availability of equitable remedies and (c) to
the extent that the enforceability of indemnification provisions may be limited by applicable laws.
4.3 Capitalization.
(a) As
of June 30, 2023, the capitalization of the Company was in all material respects as set forth in the Company’s quarterly report
on Form 10-Q filed with the SEC for the quarter ended June 30, 2023. Since June 30, 2023, the Company has not issued any
capital stock, other than pursuant to the exercise of employee stock options or settlement of restricted stock units under the Company’s
equity incentive plans. All of the issued and outstanding shares of the Company’s capital stock have been duly authorized and validly
issued and are fully paid, nonassessable and none of such shares were issued in violation of any pre-emptive rights and such shares were
issued in compliance in all material respects with applicable state and federal securities law and any rights of third parties. No Person
is entitled to pre-emptive or similar statutory or contractual rights with respect to the issuance by the Company of the Securities or
of any other securities of the Company.
(b) There
are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which
the Company is or may be obligated to issue any equity securities of any kind, except as contemplated by this Agreement. There are no
voting agreements, buy-sell agreements, option or right of first purchase agreements or other similar agreements among the Company and
any of the security holders of the Company relating to the securities of the Company held by them. Except as provided in the Registration
Rights Agreement, the Prior Registration Rights Agreement or the Investor Rights Agreement, no Person has the right to require the Company
to register any securities of the Company under the 1933 Act, whether on a demand basis or in connection with the registration of securities
of the Company for its own account or for the account of any other Person.
(c) Neither
the issuance and sale of the Unit Securities hereunder nor the issuance of the Warrant Shares upon exercise of the Warrants will obligate
the Company to issue shares of Common Stock or other securities to any other Person (other than the Investors) or will result in the
adjustment of the exercise, conversion, exchange or reset price of any outstanding security. The Company does not have outstanding stockholder
purchase rights or “poison pill” or any similar arrangement in effect giving any Person the right to purchase any equity
interest in the Company upon the occurrence of certain events.
(d) All
of the outstanding shares of capital stock of, or other equity interests in, each Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable, and none of such securities were issued in violation of any pre-emptive rights and such securities
were issued in compliance in all material respects with applicable state and federal securities law and any rights of third parties.
The Company owns, directly or indirectly, the outstanding capital stock or other ownership interests of each of the Subsidiaries. No
options, warrants, or other rights to purchase, or other obligations to issue or to convert any obligation into, shares of capital stock
of, or other equity interest in, the Subsidiaries are outstanding.
4.4 Valid
Issuance. The Shares have been duly and validly authorized and, when issued and paid for pursuant to this Agreement, will be validly
issued, fully paid and nonassessable, and shall be free and clear of all Liens, except for restrictions on transfer imposed by applicable
securities laws. The Warrant Shares have been duly and validly authorized and, when issued upon exercise of the Warrants, will be validly
issued, fully paid and nonassessable, and shall be free and clear of all Liens, except for restrictions on transfer imposed by applicable
securities laws.
4.5 Consents.
The execution, delivery and performance by the Company of the Transaction Documents and the offer, issuance and sale of the Securities
require no consent of, action by or in respect of, or filing with, any Person, governmental body, agency, or official other than (i) filings
that have been made pursuant to the rules and regulations of Nasdaq, (ii) filings that have been made pursuant to applicable
state securities laws, and (iii) post-sale filings pursuant to applicable state and federal securities laws, which the Company undertakes
to file within the applicable time periods, and other than the registration statement required to be filed by the Registration Rights
Agreement.
4.6 Delivery
of SEC Filings. True and complete copies of the SEC Filings have been made available by the Company to the Investors through the
Electronic Data Gathering, Analysis, and Retrieval system (the “EDGAR System”) (other than any information for which
the Company has received confidential treatment from the SEC).
4.7 No
Material Adverse Change. Since June 30, 2023, there has not been:
(i) any
change in the assets, liabilities, financial condition or operating results of the Company from that reflected in the financial statements
included in the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2023, except for changes in the
ordinary course of business which have not had and would not reasonably be expected, individually or in the aggregate, to have a Material
Adverse Effect;
(ii) any
declaration or payment by the Company of any dividend, or any authorization or payment by the Company of any distribution, on any of
the capital stock of the Company, or any redemption or repurchase by the Company of any securities of the Company;
(iii) any
material damage, destruction or loss, whether or not covered by insurance, to any assets or properties of the Company;
(iv) any
waiver, not in the ordinary course of business, by the Company of a material right or of a material debt owed to it;
(v) any
satisfaction or discharge of a material lien, claim or encumbrance or payment of any obligation by the Company, except in the ordinary
course of business;
(vi) any
change or amendment to the Company’s Certificate of Incorporation or Bylaws, or termination of or material amendment to any Material
Contract;
(vii) any
material labor difficulties or, to the Company’s Knowledge, labor union organizing activities with respect to employees of the
Company;
(viii) any
material transaction entered into by the Company other than in the ordinary course of business;
(ix) the
loss of the services of any executive officer (as defined in Rule 405 under the 1933 Act) of the Company; or
(x) any
other event or condition that, to the Company’s Knowledge, has had or would reasonably be expected to have a Material Adverse Effect.
4.8 SEC
Filings. The Company has timely filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under 1933 Act and the 1934 Act, including pursuant to Section 13(a) or 15(d) thereof, for the 18-month period preceding
the date hereof. At the time of filing thereof, each such report, schedule, form, statement or other document complied as to form in
all material respects with the requirements of the 1933 Act or 1934 Act, as applicable, and, as of its respective date, did not contain
any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which they were made, not misleading.
4.9 No
Conflict, Breach, Violation or Default. The execution, delivery and performance of the Transaction Documents by the Company, the
issuance and sale of the Unit Securities in accordance with the provisions thereof and the issuance of the Warrant Shares upon exercise
of the Warrants do not and will not (i) conflict with or result in a breach or violation of (a) any of the terms and provisions
of, or constitute a default under, the Company’s Certificate of Incorporation or Bylaws, both as in effect on the date hereof (true
and complete copies of which have been made available to the Investors through the EDGAR system), or (b) assuming the accuracy of
the representations and warranties in Section 5, any applicable statute, rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the Company or its Subsidiaries, or any of their assets or properties,
or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under,
result in the creation of any Lien upon any of the properties or assets of the Company or its Subsidiaries 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 except,
in the case of clauses (i)(b) and (ii) only, for such conflicts, breaches, violations and defaults as have not and would not
reasonably be expected to have a Material Adverse Effect.
4.10 Compliance.
(a) Neither
the Company nor any of its Subsidiaries is (i) 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 under), nor, during the past three years,
has the Company received written notice of a claim that it is in default under or that it is in violation of, its charter, bylaws or
similar organizational documents as in effect on the date hereof or any Material Contract (whether or not such default or violation has
been waived), (ii) in violation of any judgment, decree or order of any court, arbitrator or governmental body or (iii) in
violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all Health Care Laws
and all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as would not have or reasonably be expected to result in a Material
Adverse Effect.
(b) Except
in each case as would not have or reasonably be expected to result in a Material Adverse Effect: (i) during the past three (3) years,
there has not been any violation of any applicable Health Care Laws by the Company or any of its Subsidiaries; (ii) to the Company’s
knowledge, there are no civil or criminal proceedings relating to the Company, any of its Subsidiaries or any officer, director or employee
of the Company or any of its Subsidiaries that involve a matter within or related to any governmental or regulatory authority’s
jurisdiction or any allegations of non-compliance with Health Care Laws; and (iii) during the past three (3) years, neither
the Company nor any of its Subsidiaries nor any Affiliate thereof has received any written adverse notice from any governmental or regulatory
authority (including without limitation the United States Food and Drug Administration or any foreign equivalent, the U.S. Federal Trade
Commission, the United States Centers for Medicare & Medicaid Services, HHS’s Office of Inspector General, the U.S. Department
of Justice and state Attorneys General or similar agencies) alleging non-compliance with Health Care Laws.
4.11 Tax
Matters. The Company and its Subsidiaries have timely filed all tax returns required to have been filed by the Company or its Subsidiaries
with all appropriate governmental agencies and have timely paid all taxes shown thereon or otherwise owed by them. The Company has made
adequate charges, accruals and reserves in the applicable financial statements referred to in Section 4.18 below in respect of all
federal, state and foreign income and franchise taxes for all periods as to which the tax liability of the Company or its Subsidiaries
has not been finally determined, except to the extent of any inadequacy that would not reasonably be expected to result in a Material
Adverse Effect. There are no material tax liens or claims pending or, to the Company’s Knowledge, threatened against the Company
or any of its Subsidiaries or any of their respective material assets or property.
4.12 Title
to Properties. The Company and its Subsidiaries have good and marketable title to all real properties and all other tangible properties
and assets owned by them as described in the SEC Filings, in each case free from Liens and defects, except such as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company and its Subsidiaries hold any leased
real or personal property under valid, subsisting and enforceable leases with which the Company are in compliance and with no exceptions,
except such as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect .
4.13 Certificates,
Authorities and Permits. The Company and its Subsidiaries possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now operated by them, except where failure to so possess would not
reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries have
not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that,
if determined adversely to the Company or its Subsidiaries, would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
4.14 Labor
Matters.
(a) Neither
the Company nor its Subsidiaries are parties to or bound by any collective bargaining agreements or other agreements with labor organizations.
(b) No
labor dispute with the employees of the Company or any of its Subsidiaries, or with the employees of any principal supplier, manufacturer,
customer or contractor of the Company, exists or, to the Knowledge of the Company, is threatened or imminent that would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
4.15 Intellectual
Property. The Company and its Subsidiaries own, possess, license or have other rights to use, the patents and patent applications,
copyrights, trademarks, service marks, trade names, service names and trade secrets necessary or material for use in connection with
its businesses as currently conducted as described in the SEC Filings (collectively, the “Intellectual Property Rights”).
There is no pending or, to the Company’s Knowledge, threatened action, suit, proceeding, claim or basis for a claim by any Person
that the Company’s Intellectual Property Rights or its business or the business of its Subsidiaries 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 its Intellectual Property Rights, except where the failure to do so would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. All material licenses or other material agreements under which
the Company is granted rights to Intellectual Property are, to the Company’s Knowledge, in full force and effect and, to the Company’s
Knowledge, there is no material default by any other party thereto, except as would not reasonably be expected to have a Material Adverse
Effect. The Company has no reason to believe that the licensors under such licenses and other agreements do not have and did not have
all requisite power and authority to grant the rights to the Intellectual Property purported to be granted thereby. The consummation
of the transactions contemplated hereby and by the other Transaction Documents will not result in the alteration, loss, impairment of
or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any Intellectual Property that is material
to the conduct of the Company’s business as currently conducted.
4.16 Environmental
Matters. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, neither
the Company nor any of its Subsidiaries 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”), has released any hazardous substances regulated by Environmental Law on to any real property that it owns or operates,
or has received any written notice or claim it is liable for any off-site disposal or contamination pursuant to any Environmental Laws;
and to the Company’s Knowledge, there is no pending or threatened investigation that would reasonably be expected to lead to such
a claim.
4.17 Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage at least equal to the sum of the aggregate Subscription Amount. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
4.18 Legal
Proceedings. Except as set forth in the SEC Filings, there is no claim, complaint, action, arbitration, charge, hearing, inquiry,
litigation, suit, inquiry, notice of violation, audit, examination, investigation or any other proceeding or any settlement, judgment,
order, award, injunction or decree pending or other proceeding (whether civil, criminal, administrative, investigative or informal),
including, without limitation, an informal investigation or partial proceeding, such as a deposition, whether commenced or threatened,
to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties, at
Law or in equity, before or by any Governmental Authority, or brought by any third party (collectively, an “Action”)
which (i) adversely affects or challenges the legality, validity or enforceability of the transactions contemplated by any of the
Transaction Documents or the legality, validity or enforceability of the shares of the Company’s Common Stock; or (ii) if
adversely determined, could reasonably be expected to have a Material Adverse Effect, nor to the Company’s knowledge does there
exist any basis for any such Action. Neither the Company, any Subsidiary, nor, to the Company’s knowledge, any of their respective
officers, directors or employees is a party or is named as subject to the provisions of any Action involving a claim of violation of
or liability under federal or state laws or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company,
there is not pending or contemplated, any investigation by the SEC involving the Company or, to the knowledge of the Company, any current
or former director or officer of the Company relating to the Company or its business. The SEC has not issued any stop order or other
order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the 1934 Act or the 1933
Act. There is no Action by the Company or any Subsidiary pending or which the Company or any Subsidiary intends to initiate, which if
adversely determined, could reasonably be expected to have a Material Adverse Effect. The foregoing includes, without limitation, Actions
pending or threatened in writing (or any basis therefor known to the Company) involving the prior employment of any of the Company’s
employees, their services provided in connection with the Company’s business, any information or techniques allegedly proprietary
to any of their former employers or their obligations under any agreements with prior employers.
4.19 Financial
Statements. The financial statements included in each SEC Filing, together with the related notes, comply in all material respects
with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of
filing (or to the extent corrected by a subsequent restatement) and present fairly, in all material respects, the consolidated financial
position of the Company and its Subsidiaries as of the dates shown and its results of operations and cash flows for the periods shown,
subject in the case of unaudited financial statements to normal, immaterial year-end audit adjustments, and such financial statements
have been prepared in conformity with United States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”) (except as may be disclosed therein or in the notes thereto, and except that the unaudited
financial statements may not contain all footnotes required by GAAP, and, in the case of quarterly financial statements, as permitted
by Form 10-Q under the 1934 Act).
4.20 Compliance
with Nasdaq Continued Listing Requirements. The Class A Common Stock is registered pursuant to Section 12(b) or 12(g) of
the 1934 Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating
the registration of the Class A Common Stock under the 1934 Act nor has the Company received any notification that the SEC is contemplating
terminating such registration. Except as set forth in the SEC Filings, the Company has not, in the 12 months preceding the date hereof,
received notice from any trading market on which the Class A Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of such trading market. Except as set forth in the SEC Filings,
the Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company and
the Company is current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection
with such electronic transfer. The Company is in compliance with applicable Nasdaq continued listing requirements. Except as set forth
in the SEC Filings, there are no proceedings pending or, to the Company’s Knowledge, threatened against the Company relating to
the continued listing of the Class A Common Stock on Nasdaq and the Company has not received any notice of, nor to the Company’s
Knowledge is there any reasonable basis for, the delisting of the Class A Common Stock from Nasdaq.
4.21 Brokers
and Finders. Other than Lake Street Street Capital Markets, LLC, no Person will have, as a result of the transactions contemplated
by the Transaction Documents, any valid right, interest or claim against or upon the Company or, to the Company’s Knowledge, an
Investor for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on
behalf of the Company. To the Company’s Knowledge, the Investors shall have no obligation with respect to any fees or with respect
to any claims made by or on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection
with the transactions contemplated by the Transaction Documents.
4.22 No
General Solicitation. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any Person acting on
its behalf has conducted any general solicitation or general advertising (as those terms are used in Regulation D) in connection with
the offer or sale of any of the Securities.
4.23 No
Integrated Offering. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, 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 Company security,
under circumstances that would adversely affect reliance by the Company on Section 4(a)(2) for the exemption from registration
for the transactions contemplated hereby or would require registration of any of the Securities under the 1933 Act or that would be integrated
with the offer or sale of the Unit Securities for purposes of the rules and regulations of Nasdaq such that it would require stockholder
approval of the issuance of any of the Securities.
4.24 Private
Placement. The offer and sale of the Securities to the Investors as contemplated hereby are exempt from the registration requirements
of the 1933 Act.
4.25 Questionable
Payments. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of the current
or former directors, officers, employees, agents or other Persons acting on behalf of the Company or its Subsidiaries, has on behalf
of the Company or its Subsidiaries: (a) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment
or other unlawful expenses relating to foreign or domestic political activity; (b) made any direct or indirect unlawful payments
to any foreign or domestic governmental officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds; (c) established or maintained any unlawful or unrecorded fund of corporate monies or other assets which is in violation of
law; (d) made any false or fictitious entries on the books and records of the Company; or (e) made any unlawful rebate, payoff,
influence payment, kickback, bribe or other unlawful payment of any nature; (f) 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 (f) violated or is in violation of any provision of the FCPA.
4.26 Transactions
with Affiliates. Except as disclosed in the SEC Filings, 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
as holders of stock options and/or warrants, and for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such employee or, to the Company’s Knowledge, any entity in
which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.
4.27 Internal
Controls. The Company is in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 currently applicable
to the Company. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in 1934 Act
Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that material
information relating to the Company, including the Subsidiaries, is made known to the certifying officers by others within those entities,
particularly during the period in which the Company’s most recently filed periodic report under the 1934 Act, as the case may be,
is being prepared. The Company has established internal control over financial reporting (as defined in 1934 Act Rules 13a-15(f) and
15d-15(f)) to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP. The Company’s certifying officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures and the Company’s internal control over financial reporting (collectively, “internal
controls”) as of the end of the period covered by the most recently filed periodic report under the 1934 Act (such date, the
“Evaluation Date”). The Company presented in its most recently filed periodic report under the 1934 Act the conclusions
of the certifying officers about the effectiveness of such internal controls based on their evaluations as of the Evaluation Date. Since
the Evaluation Date, there have been no significant changes in the Company’s internal controls or, to the Company’s Knowledge,
in other factors that could significantly affect the Company’s internal controls. The Company maintains and will continue to maintain
a standard system of accounting established and administered in accordance with GAAP and the applicable requirements of the 1934 Act.
4.28 Investment
Company. Neither the Company nor any Subsidiary is required to be registered as, and immediately following the Closing will not be
required to register as, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
4.29 Tests
and Preclinical and Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or, to the Company’s
Knowledge, on behalf of the Company or its Subsidiaries were and, if still pending, are being, conducted in all material respects in
accordance with the protocols submitted to the U.S. Food and Drug Administration (the “FDA”) or any foreign governmental
body exercising comparable authority over such studies, tests and trials (together, the “Regulatory Authorities”),
standard medical and scientific research standards and procedures for products or product candidates comparable to those being developed
by the Company, all applicable Health Care Laws and any applicable rules and regulations enforced by the FDA or other Regulatory
Authorities and applicable Good Clinical Practice and Good Laboratory Practice requirements; the descriptions of the studies, tests and
preclinical and clinical trials conducted by or, to the Company’s Knowledge, on behalf of the Company or its Subsidiaries, contained
in the SEC Filings are accurate in all material respects; the Company has no Knowledge of any other studies, tests or preclinical and
clinical trials, the results of which call into question the results described in the SEC Filings; and the Company has not received any
written notices or correspondence from the Regulatory Authorities or any Institutional Review Board requiring the termination, suspension,
or clinical hold of any studies, tests or preclinical or clinical trials conducted by or on behalf of the Company.
4.30 Manipulation
of Price. The Company has not, and, to the Company’s Knowledge, no Person acting on its behalf has 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.
4.31 Bad
Actor Disqualification. None of the Company, any predecessor or affiliated issuer of the Company nor, to the Company’s Knowledge,
any director or executive officer of the Company or any promoter connected with the Company in any capacity, is subject to any of the
“bad actor” disqualifications within the meaning of Rule 506(d) under the 1933 Act, except for a disqualification
event covered by Rule 506(d)(2) or (d)(3).
4.32 Shell
Company Status. The Company is not, and has never been, an issuer identified in Rule 144(i)(1).
4.33 Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Investors as a result of the Investors and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s issuance
of the Securities and the Investors’ ownership of the Securities.
4.34 Acknowledgment
Regarding Investors’ Purchase of Unit Securities. The Company acknowledges and agrees that each of the Investors is acting
solely in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated
thereby. The Company further acknowledges that no Investor 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 Investor or
any of their respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby
is merely incidental to the Investors’ purchase of the Unit Securities. The Company further represents to each Investor 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.
4.35 Acknowledgment
Regarding Investor’s Trading Activity. Anything in this Agreement or elsewhere herein or any other Transaction Document to
the contrary notwithstanding, it is understood and acknowledged by the Company that (i) none of the Investors has been asked by
the Company to agree, nor has any Investor agreed, to desist from purchasing or selling, long and/or short, securities of the Company,
or “derivative” securities based on securities issued by the Company or to hold any of the Securities for any specified term;
or (ii) past or future open market or other transactions by any Investor, specifically including, without limitation, Short Sales
or “derivative” transactions, before or after the closing of this or future private placement transactions, may negatively
impact the market price of the Company’s publicly-traded securities; (iii) any Investor, and counter-parties in “derivative”
transactions to which any such Investor is a party, directly or indirectly, presently may have a “short” position in the
Common Stock; and (iv) each Investor shall not be deemed to have any affiliation with or control over any arm’s length counter-party
in any “derivative” transaction. The Company further understands and acknowledges that (y) one or more Investors may
engage in hedging activities at various times during the period that the Securities are outstanding, and (z) such hedging activities
(if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging
activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of any
of the Transaction Documents.
4.36 Regulation
M Compliance. The Company has not, and to its 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, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company.
4.37 Office
of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director, officer, agent,
employee or Affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department.
4.38 U.S.
Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within the meaning
of Section 897 of the Internal Revenue Code of 1986, as amended.
4.39 Bank
Holding Company Act. Neither the Company nor any of its Subsidiaries or Affiliates is subject to the Bank Holding Company Act of
1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the “Federal
Reserve”). Neither the Company nor any of its Subsidiaries or Affiliates owns or controls, directly or indirectly, five percent
(5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity of a bank
or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries or
Affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
4.40 Money
Laundering. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance in all material
respects with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively, the “Money
Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority or body or any arbitrator
involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or any
Subsidiary, threatened.
4.41 Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company
confirms that neither it nor, to the Company’s Knowledge, any other Person acting on its behalf has provided any of the Investors
with any information that it believes constitutes material, non-public information. The Company understands and confirms that the Investors
will rely on the foregoing representation in effecting transactions in securities of the Company. All of the disclosure furnished by
or on behalf of the Company to the Investors regarding the Company and its Subsidiaries, their respective businesses and the transactions
contemplated hereby, is true and correct in all material respects and does not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they
were made, not misleading.
5 Representations
and Warranties of the Investors. Each of the Investors hereby, severally and not jointly, represents and warrants to the Company
as to itself that:
5.1 Organization
and Existence. If such Investor is an entity, such Investor is a validly existing corporation, limited partnership or limited liability
company and has all requisite corporate, partnership or limited liability company power and authority to enter into and consummate the
transactions contemplated by the Transaction Documents and to carry out its obligations hereunder and thereunder, and to invest in the
Securities pursuant to this Agreement. If such Investor is a natural person, such Investor has full legal capacity to enter into and
consummate the transactions contemplated by the Transaction Documents and to carry out his or her obligations hereunder and thereunder,
and to invest in the Securities pursuant to this Agreement.
5.2 Authorization.
The execution, delivery and performance by such Investor of the Transaction Documents to which such Investor is a party have been duly
authorized and each has been duly executed and when delivered will constitute the valid and legally binding obligation of such Investor,
enforceable against such Investor in accordance with their respective terms, except: (i) as limited by general equitable principles
and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’
rights generally, (ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law.
5.3 Purchase
Entirely for Own Account. The Securities to be received by such Investor hereunder will be acquired for such Investor’s own
account, not as nominee or agent, and not with a view to the resale or distribution of any part thereof in violation of the 1933 Act,
and such Investor has no present intention of selling, granting any participation in, or otherwise distributing the same in violation
of the 1933 Act without prejudice, however, to such Investor’s right at all times to sell or otherwise dispose of all or any part
of such Securities in compliance with applicable federal and state securities laws. Nothing contained herein shall be deemed a representation
or warranty by Investor to hold any of the Securities for any period of time. Such Investor is not a broker-dealer registered with the
SEC under the 1934 Act or an entity engaged in a business that would require it to be so registered.
5.4 Investment
Experience. Such Investor acknowledges that it can bear the economic risk and complete loss of its investment in the Securities and
has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment
contemplated hereby.
5.5 Access
to Information. Such Investor acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Filings and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Such Investor has completed its own independent
due diligence. Based on the information such Investor has deemed appropriate, it has independently made its own analysis and decision
to enter into the Transaction Documents. Such Investor is relying exclusively on its own investment analysis and due diligence (including
professional advice it deems appropriate) with respect to the execution, delivery and performance of the Transaction Documents and the
purchase of the Securities. Neither such review and inquiries nor any other due diligence investigation conducted by such Investor shall
modify, limit or otherwise affect such Investor’s right to rely on the Company’s representations, warranties, covenants and
agreements contained in the Transaction Documents.
5.6 Restricted
Securities. Such Investor understands that the Securities are characterized as “restricted securities” under the U.S.
federal securities laws inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that
under such laws and applicable regulations such securities may be resold without registration under the 1933 Act only pursuant to Rule 144
and other exemptions from such registration requirement.
5.7 Legends.
It is understood that, except as provided below, certificates evidencing the Securities may bear the following or any similar legend:
“The
securities represented hereby have not been registered with the Securities and Exchange Commission or the securities commission of any
state in reliance upon an exemption from registration under the Securities Act of 1933, as amended, and, accordingly, may not be transferred
unless (i) such securities have been registered for sale pursuant to the Securities Act of 1933, as amended, (ii) such securities
may be sold pursuant to Rule 144, or (iii) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO IT THAT
such transfer may lawfully be made without registration under the Securities Act of 1933, as amended. 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.”
If required by the authorities of any state in connection
with the issuance of sale of the Securities, the legend required by such state authority.
5.8 Accredited
Investor. At the time such Investor was offered the Securities, it was and, as of the date hereof, such Investor is an “accredited
investor” within the meaning of Rule 501 under the 1933 Act. Such investor is a sophisticated investor with sufficient knowledge,
sophistication and experience in business, including transactions involving private placements in public equity, to properly evaluate
the risks and merits of its purchase of the Securities.
5.9 No
General Solicitation. Such Investor did not learn of the investment in the Securities as a result of any general solicitation or
general advertising.
5.10 Brokers
and Finders. No Person will have, as a result of the transactions contemplated by the Transaction Documents, any valid right, interest
or claim against or upon the Company or any other Investor for any commission, fee or other compensation pursuant to any agreement, arrangement
or understanding entered into by or on behalf of such Investor.
5.11 Short
Sales and Confidentiality Prior to the Date Hereof. Other than consummating the transactions contemplated hereunder, such Investor
has not, nor has any Person acting on behalf of or pursuant to any understanding with such Investor, directly or indirectly executed
any purchases or sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such
Investor was first contacted by the Company on or after September 18, 2023 or any other Person on behalf of the Company regarding
the transactions contemplated hereby and ending immediately prior to the date hereof. Notwithstanding the foregoing, in the case of an
Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s
assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other
portions of such Investor’s assets, the representation set forth above shall only apply with respect to the portion of assets managed
by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. The Investor, and its
Affiliates and authorized representatives and advisors who are aware of the transactions contemplated hereby, 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.
5.12 No
Government Recommendation or Approval. Such Investor understands that no United States federal or state agency, or similar agency
of any other country, has reviewed, approved, passed upon, or made any recommendation or endorsement of the Company or the purchase of
the Securities.
5.13 No
Intent to Effect a Change of Control; Ownership. Such Investor has no present intent to effect a “change of control”
of the Company as such term is understood under the rules promulgated pursuant to Section 13(d) of the 1934 Act and under
the rules of Nasdaq. Except as set forth in its Selling Securityholder Questionnaire, as of the date hereof, neither the Investor
nor any of its Affiliates is the owner of record or the beneficial owner of shares of Class A Common Stock or securities convertible
into or exchangeable for Class A Common Stock.
5.14 No
Conflicts. The execution, delivery and performance by such Investor of the Transaction Documents and the consummation by such Investor
of the transactions contemplated hereby and thereby will not (i) result in a violation of the organizational documents of such Investor
or (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 material agreement, indenture or instrument
to which such Investor 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 Investor, 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 Investor to perform its obligations hereunder.
5.15 Residency.
Such Investor is a resident of or an entity organized under the jurisdiction specified below its address on the Schedule of Investors.
The Company acknowledges and agrees that the
representations contained in this Section 5 shall not modify, amend or affect such Investor’s right to rely on the Company’s
representations, warranties, covenants and agreements contained in this Agreement and any representations, warranties, covenants and
agreements contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection with
this Agreement or the consummation of the transactions contemplated hereby.
6 Conditions
to Closing; Termination.
6.1 Conditions
to the Investors’ Obligations. The obligation of each Investor to purchase Units at the Closing is subject to the fulfillment
to such Investor’s satisfaction, on or prior to the Closing Date, of the following conditions, any of which may be waived by such
Investor (as to itself only):
(a) The
representations and warranties made by the Company in Section 4 hereof shall be true and correct in all material respects (or, to
the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) as of the date hereof
and on the Closing Date, except to the extent any such representation or warranty expressly speaks as of an earlier date, in which case
such representation or warranty shall be true and correct in all material respects (or, to the extent representations or warranties are
qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date. The Company shall have performed in all
material respects all obligations and covenants herein required to be performed by it on or prior to the Closing Date.
(b) The
Company shall have obtained any and all consents, permits, approvals, registrations and waivers necessary for consummation of the purchase
and sale of the Units and the consummation of the other transactions contemplated by the Transaction Documents, including the waiver
of any applicable registration rights that could affect the rights of the Investors under the Registration Rights Agreement, all of which
shall be in full force and effect.
(c) The
Company shall have executed and delivered the Registration Rights Agreement.
(d) Each
of the Company and HighCape shall have executed the Investor Rights Agreement Waiver (which shall have become effective).
(e) The
Company shall have filed with Nasdaq a Listing of Additional Shares notification form for the listing of the Shares, a copy of which
shall have been made available to the Investors upon request.
(f) No
judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court
or judge, or any order of or by any governmental authority, shall have been issued, and no action or proceeding shall have been instituted
by any governmental authority, enjoining or preventing the consummation of the transactions contemplated hereby or in the other Transaction
Documents.
(g) No
stop order or suspension of trading shall have been imposed by Nasdaq, the SEC or any other governmental or regulatory body with respect
to public trading in the Class A Common Stock nor shall a banking moratorium have been declared either by the United States or New
York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international
calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable
judgment of such Investor, makes it impracticable or inadvisable to purchase the Units at the Closing.
(h) There
shall have been no Material Adverse Effect with respect to the Company since the date hereof.
6.2 Conditions
to Obligations of the Company. The Company’s obligation to sell and issue Unit Securities at the Closing 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) The
representations and warranties made by the Investors in Section 5 hereof shall be true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date with the same force and effect as if they had been made
on and as of said date. The Investors shall have performed in all material respects all obligations and covenants herein required to
be performed by them on or prior to the Closing Date.
(b) Each
Investor shall have executed and delivered the Registration Rights Agreement and a Selling Securityholder Questionnaire.
(c) HighCape
shall have executed the Investor Rights Agreement Waiver (which shall have become effective).
(d) Any
Investor purchasing Units at the Closing shall have paid in full its Subscription Amount to the Company.
6.3 Termination
of Obligations to Effect Closing; Effects.
(a) The
obligations of the Company, on the one hand, and the Investors, on the other hand, to effect the Closing shall terminate as follows:
(i) Upon
the mutual written consent of the Company and Investors that agreed to purchase a majority of the Units to be issued and sold pursuant
to this Agreement;
(ii) By
the Company if any of the conditions set forth in Section 6.2 shall have become incapable of fulfillment, and shall not have been
waived by the Company; or
(iii) By
an Investor (with respect to itself only) if any of the conditions set forth in Section 6.1 shall have become incapable of fulfillment,
and shall not have been waived by the Investor;
provided, however,
that, except in the case of clause (i) above, the party seeking to terminate its obligation to effect the Closing shall not then
be in breach of any of its representations, warranties, covenants or agreements contained in this Agreement or the other Transaction
Documents if such breach has resulted in the circumstances giving rise to such party’s seeking to terminate its obligation to effect
the Closing.
(b) In
the event of termination by the Company or any Investor of its obligations to effect the Closing pursuant to this Section 6.3, written
notice thereof shall be given to the other Investors by the Company and the other Investors shall have the right to terminate their obligations
to effect the Closing upon written notice to the Company and the other Investors. Nothing in this Section 6.3 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 prior to the termination of this Agreement in respect of such party 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.
7 Covenants
and Agreements of the Company.
7.1 Information.
From the date hereof until the Closing, the Company will make reasonably available to each Investor’s representatives, consultants
and their respective counsels for inspection, such information and documents as the Investor reasonably requests, and will make available
at reasonable times and to a reasonable extent officers and employees of the Company to discuss the business and affairs of the Company;
provided, however, that in no event shall the Company be required to disclose material nonpublic information to the Investors,
or to advisors to or representatives of the Investors.
7.2 Nasdaq
Listing. The Company hereby agrees to use reasonable best efforts to maintain the listing or quotation of the Class A Common
Stock on either Nasdaq or the Nasdaq Capital Market, and to file a Nasdaq Listing of Additional Shares notification form with respect
to the Shares with Nasdaq. The Company further agrees, if the Company applies to have the Class A Common Stock traded on any other
trading market, it will then include in such application all of the Shares and will take such other action as is reasonably necessary
to cause all of the Shares to be listed or quoted on such other trading market as promptly as possible. The Company will then take all
action reasonably necessary to continue the listing and trading of its Class A Common Stock on such trading market and will comply
in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules of such trading market.
The Company agrees to use reasonable best efforts to maintain the eligibility of the Class A Common Stock for electronic transfer
through the Depository Trust Company, including, without limitation, by timely payment of fees to the Depository Trust Company in connection
with such electronic transfer.
7.3 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 Investor
could be deemed to trigger the provisions of 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, solely by virtue
of receiving Securities under the Transaction Documents or Warrant Shares upon exercise of Warrants.
7.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release in form and substance reasonably
acceptable to the Required Investors disclosing the material terms of the transactions contemplated hereby, and (b) file a Current
Report on Form 8-K, describing the terms of the transactions contemplated by the Transaction Documents in the form required by the
1934 Act and attaching the material Transaction Documents (without redaction) as exhibits thereto, with the SEC within the time required
by the 1934 Act. The Company hereby represents and warrants to each Investor that, from and after the issuance of such press release,
the Company shall have publicly disclosed all material, non-public information delivered to such Investor by the Company or any of its
Subsidiaries, or any of their respective officers, directors, employees, agents, including, without limitation, any placement agent,
or Affiliates in connection with the transactions contemplated by the Transaction Documents. In addition, effective upon the issuance
of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations under any agreement,
whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, agents, including,
without limitation, any placement agent, employees or Affiliates on the one hand, and any of the Investors or any of their Affiliates
on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms that each Investor shall
rely on the foregoing covenant in effecting transactions in securities of the Company. The Company shall consult with Investors and consider
in good faith any comments Investors may have on, the Form 8-K filing. The Company and each Investor shall consult with each other
in issuing any other press releases with respect to the transactions contemplated hereby, and neither the Company nor any Investor shall
issue any such press release nor otherwise make any such public statement without the prior consent of the Company, with respect to any
press release of any Investor, or without the prior consent of the Required Investors, with respect to any press release of the Company,
which consent shall not unreasonably be withheld or delayed, except if such disclosure is required by law, in which case the disclosing
party shall promptly provide the other party with prior notice of such public statement or communication. Notwithstanding the foregoing,
the Company shall not publicly disclose the name of any Investor, or include the name of any Investor in any filing with the SEC or any
regulatory agency or trading market, without the prior written consent of such Investor, except (a) in connection with the filing
of final Transaction Documents with the SEC and (b) to the extent such disclosure is required by law or trading market regulations,
in which case the Company shall use commercially reasonable efforts to provide the Investors with prior notice of such disclosure permitted
under this clause (b) and reasonably cooperate with such Investor regarding such disclosure.
7.5 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 7.4, the Company covenants and agrees that neither it, nor any other Person acting
on its behalf at the Company’s direction, will provide any Investor or its agents or counsel with any information that constitutes,
or the Company reasonably believes constitutes, material non-public information, unless prior thereto such Investor shall have consented
in writing to the receipt of such information and agreed in writing with the Company to keep such information confidential. The Company
understands and confirms that each Investor 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 an Investor without such Investor’s consent
or the Company fails to timely publicly disclosure of any material, non-public information required to be publicly disclosed pursuant
to Section 7.4, the Company hereby covenants and agrees that such Investor shall not have any duty of trust or confidentiality to
the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or Affiliates, or a duty to the
Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates not to trade while aware
of, such material, non-public information, provided that the Investor shall remain subject to applicable law. To the extent that any
notice provided pursuant to any Transaction Document constitutes, or contains, material, non-public information regarding the Company
or any Subsidiaries, the Company shall simultaneously with the delivery of such notice file such notice with the SEC pursuant to a Current
Report on Form 8-K.
7.6 Form D.
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 request of an Investor.
7.7 Removal
of Legends. In connection with any sale or disposition of the Securities by an Investor pursuant to Rule 144 or pursuant to
any other exemption under the 1933 Act such that the purchaser acquires freely tradable Securities and upon compliance by the Investor
with the requirements of this Agreement, if requested by the Investor, the Company shall cause the transfer agent for the Class A
Common Stock (the “Transfer Agent”) to timely remove any restrictive legends related to the book entry account holding
such Securities and make a new, unlegended entry for such book entry Securities sold or disposed of without restrictive legends, provided
that the Company has received customary representations and other documentation reasonably acceptable to the Company in connection therewith.
Subject to receipt by the Company of customary representations and other documentation reasonably acceptable to the Company in connection
therewith, upon the earlier of such time as the Securities (i) have been sold pursuant to an effective registration statement, (ii) have
been sold pursuant to Rule 144, or (iii) are eligible for resale under Rule 144(b)(1) or any successor provision
(without the requirement for the Company to comply with the current public information obligations of Rule 144(c)), the Company
shall (A) deliver to the Transfer Agent irrevocable instructions that the Transfer Agent shall make a new, unlegended entry for
such book entry Securities, and (B) use reasonably best efforts to cause its counsel to deliver to the Transfer Agent one or more
blanket opinions to the effect that the removal of such legends in such circumstances may be effected under the 1933 Act. From and after
the earlier of such dates, upon an Investor’s written request, the Company shall promptly cause certificates or book entries evidencing
the Investor’s Securities to be replaced with certificates or book entries, as the case may be, which do not bear such restrictive
legends, provided the provisions of either clauses (i), (ii) or (iii) above, as applicable, are satisfied with respect to such
Securities. Further, the Company shall, at its sole expense: (i) upon a resale registration statement becoming effective, cause
the removal of legends pursuant to the effective resale registration statement, and (ii) provide all opinions as may reasonably
be required by the Transfer Agent in connection with the removal of legends pursuant to the preceding sentences. The Company shall be
responsible for the fees of its Transfer Agent associated with issuances.
7.8 Pledge
of Securities. The Company acknowledges and agrees that its Shares may be pledged by an Investor in connection with a bona fide margin
agreement or other loan or financing arrangement that is secured by the Shares. The pledge of Shares shall not be deemed to be a transfer,
sale or assignment of the Shares hereunder, and no Investor effecting a pledge of Shares shall be required to provide the Company with
any notice thereof or otherwise make any delivery to the Company pursuant to this Agreement or any other Transaction Document; provided
that an Investor and its pledgee shall be required to comply with the provisions of the Transaction Documents, including Section 7.5
hereof, in order to effect a sale, transfer or assignment of Shares to such pledgee.
7.9 Short
Sales and Confidentiality After the Date Hereof. Each Investor, severally and not jointly with the other Investors, covenants that
neither it nor any Affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period
from the date hereof until the earlier of such time as (i) after the transactions contemplated by this Agreement are first publicly
announced (subject to, and conditioned upon, the Company’s compliance with its obligations under Section 7.4) or (ii) this
Agreement is terminated in accordance with its terms. Each Investor, severally and not jointly with the other Investors, covenants that
until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company (subject to, and conditioned
upon, the Company’s compliance with its obligations under Section 7.4), such Investor will maintain the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction), other than as
disclosed to its legal and other representatives. Each Investor, severally and not jointly with the other Investors, understands and
acknowledges that the SEC currently takes the position that coverage of short sales of shares of the Common Stock “against the
box” prior to effectiveness of a resale registration statement with securities included in such registration statement and pursuant
thereto would be a violation of Section 5 of the 1933 Act, as set forth in Item 239.10 of the 1933 Act Rules Compliance and
Disclosure Interpretations compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing and
notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no
Investor makes any representation, warranty or covenant hereby that it will not engage in effecting transactions in any securities of
the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 7.4, (ii) no Investor shall be restricted or prohibited from effecting any transactions
in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated
by this Agreement are first publicly announced pursuant to the initial press release as described in Section 7.4 and (iii) no
Investor shall have any duty of confidentiality or duty not to trade in the securities of the Company to the Company, any of its Subsidiaries,
or any of their respective officers, directors, employees, Affiliates or agents, including, without limitation, any placement agent,
after the issuance of the initial press release as described in Section 7.4. Furthermore, in the case of an Investor that is a multi-managed
investment vehicle whereby separate portfolio managers manage separate portions of such Investor’s assets and the portfolio managers
have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Investor’s
assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Securities covered by this Agreement.
7.10 Adjustments
in Share Numbers and Prices. In the event of any stock split, subdivision, dividend or distribution payable in shares of Class A
Common Stock (or other securities or rights convertible into, or entitling the holder thereof to receive directly or indirectly shares
of Class A 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.
7.11 Replacement
of Securities. If any certificate or instrument evidencing any Investor’s Unit Securities is mutilated, lost, stolen or destroyed,
the Company shall issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation),
or in lieu of and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to
the Company of such loss, theft or destruction.
7.12 Equal
Treatment of Investors. No consideration (including any modification of any Transaction Document but excluding the reimbursement
of legal fees) shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of this Agreement
unless the same consideration is also offered to all of the parties to this Agreement. For clarification purposes, this provision constitutes
a separate right granted to each Investor by the Company and negotiated separately by each Investor, and is intended for the Company
to treat the Investors as a class and shall not in any way be construed as the Investors acting in concert or as a group with respect
to the purchase, disposition or voting of Securities or otherwise.
8 Survival
and Indemnification.
8.1 Survival.
The Fundamental Representations shall survive the Closing. The representations and warranties contained in this Agreement other than
the Fundamental Representations shall survive the Closing for a period of three hundred sixty-five (365) days after the date hereof and
thereafter shall have no further force and effect. The covenants and agreements of the Company contained in this Agreement shall survive
the Closing until such time as no Investor holds any Registrable Securities (as defined in the Registration Rights Agreement).
8.2 Indemnification
by the Company. The Company agrees to indemnify and hold harmless each of the Investors, the officers, directors, partners, members,
managers and employees of each Investor, each Person who controls any such Investor (within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act) and the officers, directors, partners, members, managers and employees of each such controlling
Person (each, an “Investor Indemnified Party”), from and against any and all losses, claims, damages, liabilities,
obligations, contingencies, costs and expenses, joint or several, to which such Investor Indemnified Party may suffer, incur or become
subject to as a result of or relating to in whole or in part (a) the inaccuracy in the representations and warranties of the Company
contained in this Agreement or the failure of the Company to perform its obligations hereunder or the other Transaction Documents; or
(b) any action instituted against the Investor Indemnified Party in any capacity, or any of them or their respective Affiliates,
by (i) any current or former shareholder of the Company who is not an Affiliate of such Investor Indemnified Party, with respect
to any of the transactions contemplated by the Transaction Documents or (ii) any other third-party with respect to any of the transactions
contemplated by the Transaction Documents), and will reimburse each Investor Indemnified Party for legal and other expenses reasonably
incurred as such expenses are reasonably incurred by such Investor Indemnified Party in connection with investigating, defending, settling,
compromising or paying such loss, claim, damage, liability, expense or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon (i) the
failure of such Investor Indemnified Party (or its related parties) to comply with the covenants and agreements contained herein, or
(ii) the inaccuracy of any representations made by such Investor Indemnified Party (or its related parties) herein.
8.3 Indemnification
Procedure. Promptly after any Investor Indemnified Party has received notice of any indemnifiable claim hereunder,
or the commencement of any action, suit or proceeding by a third Person, which the Investor Indemnified Party believes in good faith
is an indemnifiable claim under this Agreement, the Investor Indemnified Party shall give the Company written notice of such claim or
the commencement of such action, suit or proceeding, but failure to so notify the Company will not relieve the Company from any liability
it may have to such Investor Indemnified Party hereunder except to the extent that the Company is materially prejudiced by such failure.
Such notice shall state the nature and the basis of such claim to the extent then known. The Company shall have the right to defend and
settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Investor Indemnified Party, any such matter
as long as the Company pursues the same diligently and in good faith; provided, that in no event shall the Company be entitled to assume
the defense of any action if such action (a) is with respect to a criminal proceeding, action, indictment, allegation or investigation;
or (b) seeks an injunction or other equitable relief against any Investor Indemnified Party. If the Company undertakes to defend
or settle, it shall promptly (and in no event later than five days after its decision) notify the Investor Indemnified Party of its intention
to do so, and the Investor Indemnified Party shall cooperate with the Company and its counsel in all commercially reasonable respects
in the defense thereof and/or the settlement thereof. Such cooperation shall include, but shall not be limited to, furnishing the Company
with any books, records and other information relevant to the claim reasonably requested by the Company and in the Investor Indemnified
Party’s possession or control. Such cooperation of the Investor Indemnified Party shall be at the cost of the Company. After the
Company has notified the Investor Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and
for so long as the Company diligently pursues such defense, the Company shall not be liable for any additional legal expenses incurred
by the Investor Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the
Investor Indemnified Party shall be entitled (a) at its expense, to participate in the defense of such asserted liability and the
negotiations of the settlement thereof and (b) if (i) the Company has failed to assume the defense or employ counsel reasonably
acceptable to the Investor Indemnified Party within ten (10) Business Days of when the Investor Indemnified Party provides the Company
written notice of the claim or (ii) if the defendants in any such action include both the Investor Indemnified Party and the Company
and counsel to the Investor Indemnified Party shall have concluded that there may be reasonable defenses available to the Investor Indemnified
Party that are different from or in addition to those available to the Company or if the interests of the Company reasonably may be deemed
to conflict with the interests of the Company, then the Investor Indemnified Party shall have the right to select a separate counsel
and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the Company as incurred. Notwithstanding any other provision
of this Agreement, the Company shall not settle any indemnified claim without the consent of the Investor Indemnified Party, unless the
settlement thereof imposes no liability or obligation on, and includes a complete release from liability of, and does not include any
admission of wrongdoing, malfeasance or failure to act by, the Investor Indemnified Party.
9 Miscellaneous.
9.1 Successors
and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investors,
as applicable; provided, however, that an Investor may assign its rights and delegate its duties hereunder in whole or
in part to an Affiliate without the prior written consent of the Company or the other Investors, provided such assignee agrees in writing
to be bound by the provisions hereof that apply to Investors. The provisions of this Agreement shall inure to the benefit of and be binding
upon the respective permitted successors and assigns of the parties. Without limiting the generality of the foregoing, in the event that
the Company is a party to a merger, consolidation, share exchange or similar business combination transaction in which the Common Stock
is converted into the equity securities of another Person, from and after the effective time of such transaction, such Person shall,
by virtue of such transaction, be deemed to have assumed the obligations of the Company hereunder, the term “Company” shall
be deemed to refer to such Person and the term “Shares” shall be deemed to refer to the securities received by the Investors
in connection with such transaction. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the
parties hereto or their respective permitted successors and assigns any rights, remedies, obligations, or liabilities under or by reason
of this Agreement, except as expressly provided in this Agreement.
9.2 Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature
complying with the U.S. ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered
shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9.3 Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
9.4 Notices.
All notices and other communications under this Agreement must be in writing and are deemed duly delivered when (a) delivered if
delivered personally or by nationally recognized overnight courier service (costs prepaid), (b) sent, if sent by electronic mail
during normal business hours of the recipient, and if not sent during normal business hours, then on the first Business Day following
such transmission, or (c) received or rejected by the addressee, if sent by United States of America certified or registered mail,
return receipt requested; in each case to the following addresses or email and marked to the attention of the individual (by name or
title) designated below (or to such other address, email address or individual as a party may designate by notice to the other parties):
If to the Company:
Elutia Inc.
12510 Prosperity Drive, Suite 370
Silver Spring, MD 20904
Email: rmills@elutia.com
Attention: C. Randal Mills, PhD, President and CEO
With a copy (which will not constitute notice) to:
Kilpatrick Townsend & Stockton LLP
1100 Peachtree Street N.E., Suite 2800
Atlanta, GA 30309
Email: mcochran@kilpatricktownsend.com, deaton@kilpatricktownsend.com
Attention: Michael Cochran, David Eaton
If to the Investors:
to the addresses set forth on the signature pages hereto.
9.5 Expenses.
The parties hereto shall pay their own costs and expenses in connection herewith, regardless of whether the transactions contemplated
hereby are consummated; it being understood that each of the Company and each Investor has relied on the advice of its own respective
counsel; provided, that all Transfer Agent fees and any stamp taxes, transfer taxes and other similar taxes levied in connection with
the delivery of any Unit Securities shall be borne by the Company.
9.6 Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively), only with the written consent of the Company and (a) prior
to the Closing, all of the Investors and (b) following the Closing, the Required Investors. Notwithstanding the foregoing, this
Agreement may not be amended and the observance of any term of this Agreement may not be waived with respect to any Investor without
the written consent of such Investor unless such amendment or waiver applies to all Investors in the same fashion. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon (i) prior to Closing, each Investor and (ii) following the
Closing, each holder of any Unit Securities purchased under this Agreement at the time outstanding, and in each case, each future holder
of all Securities and the Company.
9.7 Publicity.
Except as set forth below, no public release or announcement concerning the transactions contemplated hereby shall be issued by the Company
or the Investors without the prior written consent of the Company (in the case of a release or announcement by any of the Investors)
or the Required Investors (in the case of a release or announcement by the Company) (which consents shall not be unreasonably withheld
or delayed), except as such release or announcement may be required by law or the applicable rules or regulations of any securities
exchange or securities market.
9.8 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as
if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by
applicable law, the parties hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.
9.9 Entire
Agreement. This Agreement, including the signature pages and Exhibits, and the other Transaction Documents constitute the entire
agreement among the parties hereof with respect to the subject matter hereof and thereof and supersede all prior agreements, understandings
and representations, both oral and written, between the parties with respect to the subject matter hereof and thereof.
9.10 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Investors
and the Company will be entitled to specific performance under the Transaction Documents without posting bond or other security or proving
economic harm. The parties agree that monetary damages may not be adequate compensation for any loss incurred by reason of any breach
of the obligations contained in the Transaction Documents and hereby agree to waive and not to assert in any Action for specific performance
of any such obligation the defense that a remedy at law would be adequate.
9.11 Further
Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.
9.12 Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement (including all matters concerning the construction, validity,
enforcement and interpretation hereof) shall be governed by, and construed in accordance with, the internal laws of the State of New
York without regard to the choice of law principles thereof (other than Sections 5-1401 and 5-1402 of the General Obligations Law). Each
of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection with any such
suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified for the giving
of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to the laying of venue
of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL
BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
9.13 Independent
Nature of Investors’ Obligations and Rights. The obligations of each Investor under any Transaction Document are several and
not joint with the obligations of any other Investor, and no Investor shall be responsible in any way for the performance of the obligations
of any other Investor under any Transaction Document. The decision of each Investor to purchase Units pursuant to the Transaction Documents
has been made by such Investor independently of any other Investor. Nothing contained herein or in any Transaction Document, and no action
taken by any Investor pursuant thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture
or any other kind of entity, or create a presumption that the Investors 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 Investor acknowledges that no other Investor has
acted as agent for such Investor in connection with making its investment hereunder and that no Investor will be acting as agent of such
Investor in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction Documents. Each
Investor 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 Investor to be joined as an additional
party in any proceeding for such purpose.
9.14 Interpretation.
Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall
include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer
to such agreement, document or instrument as amended, supplemented or modified from time to time. All article, section, paragraph or
clause references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex,
letter and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules
to this Agreement. In addition, the word “or” is not exclusive; the words “including,” “includes,”
“included” and “include” are deemed to be followed by the words “without limitation”; and the terms
“herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a
whole and not to any particular section, paragraph or subdivision.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
COMPANY: |
ELUTIA INC. |
|
|
|
By: |
/s/ C. Randal Mills |
|
|
Name: C. Randal Mills |
|
Title: President & Chief Executive Officer |
[COMPANY SIGNATURE PAGE]
|
INVESTOR: |
|
|
|
Alyeska Master Fund, L.P. |
|
|
|
By: |
/s/ Jason Bragg |
|
Name: |
Jason Bragg |
|
Title: |
CFO Alyeska Investment Group, LP |
|
|
Investor Information |
|
Entity
Name: |
Alyeska
Master Fund, L.P. |
Contact
Person: |
Jason
Bragg |
Address: |
77
W. Wacker, Suite 700 |
City: |
Chicago |
State: |
Illinois |
Zip
Code: |
60601 |
Telephone: |
|
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
|
Name
in which Securities should be issued: |
Alyeska
Master Fund, L.P. |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
595,630 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
AIGH Investment Partners, LP |
|
|
|
By: |
/s/ Orin Hirschman |
|
Name: |
Orin Hirschman |
|
Title: |
Managing Member, AIGH Capital Management LLC |
|
|
Investor Information |
|
Entity
Name: |
AIGH
Investment Partners, LP |
Contact
Person: |
Orin
Hirschman, Aaron Martin |
Address: |
6006
Berkeley Avenue |
City: |
Baltimore |
State: |
Maryland
|
Zip
Code: |
21209 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
AIGH
Investment Partners, LP |
Prefunded
Units Purchased: |
261,470 |
Common
Units Purchased: |
1,221,458 |
[INVESTOR SIGNATURE PAGE
TO SECURITIES PURCHASE AGREEMENT]
|
INVESTOR: |
|
|
|
Blackwell Partners LLC - Series A |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its Investment Manager |
|
|
|
By: |
/s/ Daniel Mack |
|
Name: |
Daniel Mack |
|
Title: |
Manager |
|
|
Investor Information |
|
Entity
Name: |
Blackwell
Partners LLC - Series A |
Contact
Person: |
Janine
Lall |
Address: |
c/o
Nantahala Capital Management, LLC |
Address: |
130
Main Street, 2nd Floor |
City: |
New
Canaan |
State: |
Connecticut |
Zip
Code: |
06840 |
Telephone: |
|
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
Blackwell
Partners LLC - Series A |
Prefunded
Units Purchased: |
151,705 |
Common
Units Purchased: |
1,036,120 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
Elutia PIPE Investment LP |
|
|
|
By: |
/s/ Matt Zuga |
|
Name: |
Matt Zuga |
|
Title: |
Managing Partner |
|
|
Investor Information |
|
Entity
Name: |
Elutia
PIPE Investment LP |
Contact
Person: |
Matt
Zuga |
Address: |
36
Church Lane |
City: |
Westport |
State: |
Connecticut |
Zip
Code: |
06880 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
|
Name
in which Securities should be issued: |
Elutia
PIPE Investment LP |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
1,436,077
|
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
Highcape Partners LP II |
|
|
|
By: |
/s/ Matt Zuga |
|
Name: |
Matt Zuga |
|
Title: |
Managing Partner |
|
|
Investor Information |
|
Entity
Name: |
Highcape
Partners LP II |
Contact
Person: |
Matt
Zuga |
Address: |
36
Church Lane |
City: |
Westport |
State: |
Connecticut |
Zip
Code: |
06880 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
|
Name
in which Securities should be issued: |
Highcape
Partners LP II |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
28,636 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
Highcape Partners QP II |
|
|
|
By: |
/s/ Matt Zuga |
|
Name: |
Matt Zuga |
|
Title: |
Managing Partner |
|
|
Investor Information |
|
Entity
Name: |
Highcape
Partners QP II |
Contact
Person: |
Matt
Zuga |
Address: |
36
Church Lane |
City: |
Westport |
State: |
Connecticut |
Zip
Code: |
06880 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
|
Name
in which Securities should be issued: |
Highcape
Partners QP II |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
1,372,415 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
Nantahala Capital Partners Limited Partnership |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its General Partner |
|
|
|
By: |
/s/ Daniel Mack |
|
Name: |
Daniel Mack |
|
Title: |
Manager |
|
|
Investor Information |
|
Entity
Name: |
Nantahala
Capital Partners Limited Partnership |
Contact
Person: |
|
Address: |
130
Main Street, 2nd Floor |
City: |
New
Canaan |
State: |
Connecticut |
Zip
Code: |
06840 |
Telephone: |
|
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
Nantahala
Capital Partners Limited Partnership |
Prefunded
Units Purchased: |
27,971 |
Common
Units Purchased: |
191,034 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
Nantahala Capital Partners II Limited Partnership |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its General Partner |
|
|
|
By: |
/s/ Daniel Mack |
|
Name: |
Daniel Mack |
|
Title: |
Manager |
|
|
Investor Information |
|
Entity
Name: |
Nantahala
Capital Partners II Limited Partnership |
Contact
Person: |
|
Address: |
130
Main Street, 2nd Floor |
City: |
New
Canaan |
State: |
Connecticut |
Zip
Code: |
06840 |
Telephone: |
|
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
Nantahala
Capital Partners II Limited Partnership |
Prefunded
Units Purchased: |
13,970 |
Common
Units Purchased: |
95,412 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
NCP RFM LP |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its Investment Manager |
|
|
|
By: |
/s/ Daniel Mack |
|
Name: |
Daniel Mack |
|
Title: |
Manager |
|
|
Investor Information |
|
Entity
Name: |
NCP
RFM LP |
Contact
Person: |
|
Address: |
130
Main Street, 2nd Floor |
City: |
New
Canaan |
State: |
Connecticut |
Zip
Code: |
06840 |
Telephone: |
|
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
NCP
RFM LP |
Prefunded
Units Purchased: |
47,942 |
Common
Units Purchased: |
327,434 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR:
|
|
|
|
WVP Emerging Manager Onshore Fund, LLC – AIGH Series |
|
|
|
By: |
/s/ Orin Hirschman |
|
Name: |
Orin Hirschman |
|
Title: |
Managing Member, AIGH Capital Management LLC |
|
|
Investor Information |
|
Entity
Name: |
WVP
Emerging Manager Onshore Fund, LLC – AIGH Series |
Contact
Person: |
Orin
Hirschman, Aaron Martin |
Address: |
6006
Berkeley Avenue |
City: |
Baltimore |
State: |
Maryland |
Zip
Code: |
21209 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
WVP
Emerging Manager Onshore Fund, LLC – AIGH Series |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
375,934 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
WVP Emerging Manager Onshore Fund, LLC – Optimized Equity Series |
|
|
|
By: |
/s/ Orin Hirschman |
|
Name: |
Orin Hirschman |
|
Title: |
Managing Member, AIGH Capital Management LLC |
|
|
Investor Information |
|
Entity
Name: |
WVP
Emerging Manager Onshore Fund, LLC – Optimized Equity Series |
Contact
Person: |
Orin
Hirschman, Aaron Martin |
Address: |
6006
Berkeley Avenue |
City: |
Baltimore |
State: |
Maryland |
Zip
Code: |
21209 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
WVP
Emerging Manager Onshore Fund, LLC – Optimized Equity Series |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
102,608 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
|
INVESTOR: |
|
|
|
Matthew Ferguson |
|
|
|
By: |
/s/ Matthew Ferguson |
|
Name: |
Matthew Ferguson |
|
Title: |
|
|
|
Investor Information |
|
Entity
Name: |
N/A |
Contact
Person: |
Matthew
Ferguson |
Address: |
393
La Cuesta Drive |
City: |
Portola
Valley |
State: |
California |
Zip
Code: |
94028 |
Telephone: |
*** |
Facsimile: |
|
Email: |
*** |
Tax
ID # or Social Security #: |
*** |
Name
in which Securities should be issued: |
Matthew
Ferguson |
Prefunded
Units Purchased: |
0 |
Common
Units Purchased: |
70,053 |
[INVESTOR SIGNATURE PAGE TO SECURITIES PURCHASE
AGREEMENT]
EXHIBIT A
Schedule of Investors
Investor Name and Address |
|
Number of
Units to be Purchased |
|
|
Type of Units to be Purchased
(Common/ Prefunded) |
|
Aggregate
Purchase Price of Units |
|
Nantahala Capital Partners Limited Partnership |
|
|
219,005 |
|
|
191,034/27,971 |
|
$ |
312,602 |
|
Nantahala Capital Partners II Limited Partnership |
|
|
109,382 |
|
|
95,412/13,970 |
|
$ |
156,129 |
|
NCP RFM LP |
|
|
375,376 |
|
|
327,434/47,942 |
|
$ |
535,801 |
|
Blackwell Partners LLC - Series A |
|
|
1,187,825 |
|
|
1,036,120/151,705 |
|
$ |
1,695,468 |
|
AIGH Investment Partners, LP |
|
|
1,482,928 |
|
|
1,221,458/261,470 |
|
$ |
2,116,618 |
|
WVP Emerging Manager Onshore Fund, LLC – AIGH Series |
|
|
375,934 |
|
|
Common |
|
$ |
536,646 |
|
WVP Emerging Manager Onshore Fund, LLC – Optimized Equity Series |
|
|
102,608 |
|
|
Common |
|
$ |
146,473 |
|
Elutia PIPE Investment LP |
|
|
1,436,077 |
|
|
Common |
|
$ |
2,050,000 |
|
Highcape Partners QP II |
|
|
1,372,415 |
|
|
Common |
|
$ |
1,959,122 |
|
Highcape Partners LP II |
|
|
28,636 |
|
|
Common |
|
$ |
40,878 |
|
Alyeska Master Fund, L.P. |
|
|
595,630 |
|
|
Common |
|
$ |
850,262 |
|
Matt Ferguson |
|
|
70,053 |
|
|
Common |
|
$ |
100,001 |
|
Totals: |
|
|
6,852,811 |
|
|
6,852,811/503,058 |
|
$ |
10,500,000 |
|
EXHIBIT B
Form of Registration Rights Agreement
EXHIBIT C
Form of Legal Opinion
EXHIBIT D
Form of Common Warrant
EXHIBIT E
Form of Prefunded Warrant
APPENDIX I
[Reserved]
APPENDIX II
Form of Selling Securityholder Questionnaire
Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration
Rights Agreement (this “Agreement”) is made and entered into as of September 21, 2023 by and among Elutia
Inc., a Delaware corporation (the “Company”), and the “Investors” named in the Securities Purchase Agreement,
dated as of the date hereof, by and among the Company and the Investors identified on Exhibit A attached thereto (the “Purchase
Agreement”). Capitalized terms used herein have the respective meanings ascribed thereto in the Purchase Agreement unless otherwise
defined herein.
The parties hereby agree as
follows:
1 Certain
Definitions.
As used in this Agreement,
the following terms shall have the following meanings:
“Class A Common
Stock” means the Company’s Class A Common Stock, par value $0.001 per share.
“Class A Shares”
means the shares of Class A Common Stock purchased by the Investors pursuant to the Purchase Agreement.
“Closing Date”
has the meaning ascribed to it in the Purchase Agreement.
“Investors”
means the Investors identified in the Purchase Agreement and any Affiliate or permitted transferee of any such Investor who is a subsequent
holder of Registrable Securities.
“Prospectus”
means (i) the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement and by all other amendments
and supplements to the prospectus, including post-effective amendments and all material incorporated by reference in such prospectus,
and (ii) any “free writing prospectus” as defined in Rule 405 under the 1933 Act.
“Register,”
“registered” and “registration” refer to a registration made by preparing and filing a Registration
Statement or similar document in compliance with the 1933 Act, and the declaration or ordering of effectiveness of such Registration Statement
or document.
“Registrable Securities”
means (i) the Class A Shares, (ii) the Warrant Shares, and (iii) any other shares of Class A Common Stock as
a dividend or other distribution with respect to, in exchange for or in replacement of any of the Class A Shares or the Warrant Shares;
provided, however, that any such Registrable Securities shall cease to be Registrable Securities (and the Company shall
not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder with respect thereto) upon the
first to occur of (A) a Registration Statement with respect to the sale of such Registrable Securities being declared effective by
the SEC under the 1933 Act and such Registrable Securities having been disposed of by the holder thereof in accordance with such effective
Registration Statement, (B) such Registrable Securities having been sold in accordance with Rule 144 (or another exemption from
the registration requirements of the 1933 Act) in a transaction in which the transferor’s rights under this Agreement are not assigned
to the transferee pursuant to Section 7(c), (C) such Registrable Securities becoming eligible for resale without volume or manner-of-sale
restrictions and without current public information requirements pursuant to Rule 144 and (D) the third anniversary of the Closing
Date. Wherever reference is made in this Agreement to a majority of Registrable Securities outstanding, the determination of such majority
shall be calculated on an as-converted/exercised to Class A Common Stock basis, shall include shares of Class A Common Stock
issuable upon exercise of shares of Warrants, even if such exercise has not yet been effected.
“Registration Statement”
means any registration statement of the Company under the 1933 Act that covers the resale of any of the Registrable Securities pursuant
to the provisions of this Agreement, amendments and supplements to such Registration Statement, including post-effective amendments, all
exhibits and all material incorporated by reference in such Registration Statement.
“Required Investors”
means the Investors holding a majority of the Registrable Securities outstanding from time to time.
“SEC” means
the U.S. Securities and Exchange Commission.
“SEC Guidance”
means (i) any publicly-available written or oral guidance of the SEC staff, or any comments, requirements or requests of the SEC
staff and (ii) the 1933 Act.
“Warrants”
means the Common Warrants and the Prefunded Warrants.
“Warrant Shares”
means any shares of Class A Common Stock issued or issuable upon exercise of, or otherwise in respect of, the Warrants.
2 Registration.
(a) Registration
Statements.
(i) Promptly
following the Closing Date but no later than sixty (60) calendar days after the Closing Date (the “Filing Deadline”),
the Company shall prepare and file with the SEC one Registration Statement covering the resale of all of the Registrable Securities. Subject
to any SEC comments, such Registration Statement shall include the plan of distribution, substantially in the form and substance, set
forth in Part III of each Investor’s Selling Securityholder Questionnaire. Such Registration Statement also shall cover, to
the extent allowable under the 1933 Act and the rules promulgated thereunder (including Rule 416), such indeterminate number
of additional shares of Class A Common Stock resulting from stock splits, stock dividends or similar transactions with respect to
the Registrable Securities. Such Registration Statement (and each amendment or supplement thereto, and each request for acceleration of
effectiveness thereof) shall be provided in accordance with Section 3(c) to the Investors prior to its filing or other submission.
If a Registration Statement covering the Registrable Securities is not filed with the SEC on or prior to the Filing Deadline, the Company
will make pro rata payments to each Investor, as partial liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate
amount paid pursuant to the Purchase Agreement by such Investor for such Registrable Securities then held by such Investor for each 30-day
period or pro rata for any portion thereof following the Filing Deadline for which no Registration Statement is filed with respect to
the Registrable Securities. Such payments shall constitute the Investors’ exclusive monetary remedy for such events except in the
case of the Company’s bad faith or willful breach, but shall not affect the right of the Investors to seek injunctive relief. Such
payments shall be made to each Investor in cash no later than five (5) Business Days after the Filing Deadline and on each 30-day
anniversary thereof (the “Payment Date”). Interest shall accrue at the rate of 1% per month on any such liquidated
damages payments that shall not be paid by the Payment Date until such amount is paid in full. The parties agree that the maximum aggregate
liquidated damages payable to a Holder under this Section 2(a)(i) shall be 6.0% of the aggregate subscription amount paid by
such Holder pursuant to the Purchase Agreement.
(ii) The
Company shall take reasonable efforts to register the Registrable Securities on Form S-3 if such form is available for use by the
Company; provided that if at such time the Registration Statement is on Form S-1, the Company shall maintain the effectiveness of
the Registration Statement then in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities
has been declared effective by the SEC.
(b) Expenses.
The Company will pay all expenses associated with each Registration Statement, including filing and printing fees, the Company’s
counsel and accounting fees and expenses, costs associated with clearing the Registrable Securities for sale under applicable state securities
laws and listing fees, but excluding discounts, commissions, fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals with respect to the Registrable Securities being sold. Except as provided in Section 6 hereof, the Company
shall not be responsible for legal fees incurred by holders of Registrable Securities in connection with the performance of its rights
and obligations under the Transaction Documents.
(c) Effectiveness.
(i) The
Company shall use commercially reasonable efforts to have the Registration Statement declared effective as soon as reasonably practicable
after the filing thereof. The Company shall notify the Investors by facsimile or e-mail as promptly as practicable, and in any event,
within forty-eight (48) hours, after any Registration Statement is declared effective and shall simultaneously provide the Investors with
access to a copy of any related Prospectus to be used in connection with the sale or other disposition of the securities covered thereby.
Subject to Section 2(d), if (A) a Registration Statement covering the Registrable Securities is not declared effective by the
SEC prior to the earlier of (i) five Business Days after the SEC informs the Company that no review of such Registration Statement
will be made or that the SEC has no further comments on such Registration Statement and (ii) the 90th day after the Closing Date
(or the 115th day if the SEC reviews such Registration Statement) (the “Effectiveness Deadline”), or (B) after
a Registration Statement has been declared effective by the SEC, sales cannot be made pursuant to such Registration Statement for any
reason (including without limitation by reason of a stop order, or the Company’s failure to update such Registration Statement),
but excluding any Allowed Delay (as defined below) or, if the Registration Statement is on Form S-1, for a period of fifteen (15)
days following the date on which the Company files a post-effective amendment to incorporate the Company’s Annual Report on Form 10-K
(a “Maintenance Failure”), then the Company will make pro rata payments to each Investor then holding Registrable Securities,
as liquidated damages and not as a penalty, in an amount equal to 1% of the aggregate amount paid pursuant to the Purchase Agreement by
such Investor for such Registrable Securities then held by such Investor for each 30-day period or pro rata for any portion thereof following
the date by which such Registration Statement should have been effective (the “Blackout Period”). Such payments shall
constitute the Investors’ exclusive monetary remedy for such events except in the case of the Company’s bad faith or willful
breach, but shall not affect the right of the Investors to seek injunctive relief. The amounts payable as liquidated damages pursuant
to this paragraph shall be paid no later than five (5) Business Days after the first day of such Blackout Period and each such 30-day
period following the commencement of the Blackout Period until the termination of the Blackout Period (the “Blackout Period Payment
Date”). Such payments shall be made to each Investor in cash. Interest shall accrue at the rate of 1% per month on any such
liquidated damages payments that shall not be paid by the Blackout Payment Date until such amount is paid in full. The parties agree that
the maximum aggregate liquidated damages payable to a Holder under this Section 2(c) shall be 6.0% of the aggregate subscription
amount paid by such Holder pursuant to the Purchase Agreement (minus any amounts paid by the Company pursuant to Section 2(a)(i)).
(ii) Notwithstanding
anything to the contrary contained herein, the Company may, upon written notice to all holders of Registrable Securities included in a
Registration Statement, suspend the use of any Registration Statement, including any Prospectus that forms a part of a Registration Statement,
if the Company (W) determines that it would be required to make disclosure of material information in the Registration Statement
that the Company has a bona fide business purpose for preserving as confidential, (X) the Company determines it must amend or supplement
the Registration Statement or the related Prospectus so that such Registration Statement or Prospectus shall not include an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the
case of the Prospectus in light of the circumstances under which they were made, not misleading, (Y) the Company has experienced
or is experiencing some other material non-public event, including a pending transaction involving the Company, the disclosure of which
at such time, in the good faith judgment of the Company, would adversely affect the Company, or (Z) the Company determines it must
amend or supplement the Registration Statement or Prospectus in connection with a fundamental change; provided, however,
in no event shall holders of Registrable Securities be suspended from selling Registrable Securities pursuant to the Registration Statement
(I) under clauses (W), (X) or (Y) above, for a period that exceeds 30 consecutive Trading Days or 60 total Trading Days
in any 180-day period, or (II) under clause (Z) above, for a period that exceeds 90 consecutive Trading Days in any 365-day
period (any such suspension contemplated by this Section 2(c)(ii), an “Allowed Delay”). Upon disclosure of such
information or the termination of the condition described above, the Company shall provide prompt notice to holders whose Registrable
Securities are included in the Registration Statement, and shall promptly terminate any suspension of sales it has put into effect and
shall take such other reasonable actions to permit registered sales of Registrable Securities as contemplated hereby. Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to deliver unlegended shares of Common Stock to a transferee of an
Investor in connection with any sale of Registrable Securities with respect to which an Investor has entered into a contract for sale
prior to the Investor’s receipt of a notice from the Company of an Allowed Delay and for which the Investor has not yet settled.
(d) Rule 415;
Cutback. If at any time the SEC takes the position that the offering of some or all of the Registrable Securities in a Registration
Statement is not eligible to be made on a delayed or continuous basis under the provisions of Rule 415 under the 1933 Act (provided,
however, the Company shall be obligated to use commercially reasonable efforts to advocate with the SEC for the registration of all of
the Registrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation
612.09) or requires any Investor to be named as an “underwriter,” the Company shall (i) promptly notify each holder of
Registrable Securities thereof and (ii) make commercially reasonable efforts to persuade the SEC that the offering contemplated by
such 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 Investors is an “underwriter”; provided, that in no event shall an Investor be named as
an “underwriter” without its prior written consent. The Investors shall have the right to select one legal counsel designated
by the holders of a majority of the Registrable Securities, at such Investors’ expense, to review and oversee any registration or
matters pursuant to this Section 2(d), including participation in any meetings or discussions with the SEC regarding the SEC’s
position and to comment on any written submission made to the SEC with respect thereto. No such written submission with respect to this
matter shall be made to the SEC to which the Investors’ counsel reasonably objects. In the event that, despite the Company’s
commercially reasonable efforts and compliance with the terms of this Section 2(d), the SEC refuses to alter its position, the Company
shall (i) remove from such Registration Statement such portion of the Registrable Securities (the “Cut Back Shares”)
and/or (ii) agree to such restrictions and limitations on the registration and resale of the Registrable Securities as the SEC may
require to assure the Company’s compliance with the requirements of Rule 415 (collectively, the “SEC Restrictions”).
Any cut-back imposed on the Investors pursuant to this Section 2(d) shall be allocated among the Investors on a pro rata basis
and shall be applied first to any of the Registrable Securities of such Investor as such Investor shall designate, unless the SEC Restrictions
otherwise require or provide or the Investors otherwise agree. No liquidated 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 applicable to such
Cut Back Shares (such date, the “Restriction Termination Date”). In furtherance of the foregoing, each Investor shall
provide the Company with prompt written notice of its sale of substantially all of the Registrable Securities under such Registration
Statement such that the Company will be able to file one or more additional Registration Statements covering the Cut Back Shares. From
and after the Restriction Termination Date applicable to any Cut Back Shares, all of the provisions of this Section 2 (including
the Company’s obligations with respect to the filing of a Registration Statement and its obligations to use reasonable efforts to
have such Registration Statement declared effective within the time periods set forth herein and the liquidated damages provisions relating
thereto) shall again be applicable to such Cut Back Shares; provided, however, that (i) the Filing Deadline for such
Registration Statement including such Cut Back Shares shall be ten (10) Business Days after such Restriction Termination Date, and
(ii) the date by which the Company is required to obtain effectiveness with respect to such Cut Back Shares shall be the 60th day
immediately after the Restriction Termination Date (or the 90th day if the SEC reviews such Registration Statement).
(e) Other
Limitations. Notwithstanding any other provision herein or in the Purchase Agreement, (i) the Filing Deadline and each Effectiveness
Deadline for a Registration Statement shall be extended and any Maintenance Failure shall be automatically waived with respect to any
Investor, in each case, without default by or liquidated damages payable by the Company hereunder to such Investor, in the event that
the Company’s failure to make such filing or obtain such effectiveness or a Maintenance Failure results from the failure of such
Investor to timely provide the Company with information requested by the Company and necessary to complete a Registration Statement in
accordance with the requirements of the 1933 Act (in which case any such deadline would be extended, and a Maintenance Failure waived,
with respect to all Registrable Securities until such time as the Investor provides such requested information) and (ii) in no event
shall the aggregate amount of liquidated damages (not including interest thereon) paid under this Agreement exceed, in the aggregate,
8% of the aggregate purchase price of the Shares.
3 Company
Obligations. The Company will use commercially reasonable efforts to effect the registration of the Registrable Securities in accordance
with the terms hereof, and pursuant thereto the Company will, as expeditiously as possible:
(a) use
commercially reasonable efforts to cause such Registration Statement to become effective and to remain continuously effective until such
time as there are no longer Registrable Securities held by the Investors (the “Effectiveness Period”) and advise the
Investors promptly in writing when the Effectiveness Period has expired;
(b) prepare
and file with the SEC such amendments and post-effective amendments to such Registration Statement and the related Prospectus as may be
necessary to keep such Registration Statement effective for the Effectiveness Period and to comply with the provisions of the 1933 Act
and the 1934 Act with respect to the distribution of all of the Registrable Securities covered thereby;
(c) provide
via email to the Investors who have supplied the Company with email addresses each Registration Statement and all amendments and supplements
thereto not less than three (3) Trading Days prior to their filing with the SEC and reflect in each such document when so filed with
the SEC such comments regarding the Investors and the plan of distribution as the Investors may reasonably and promptly propose no later
than two (2) Trading Days after the Investors have been so furnished with copies of such documents as aforesaid;
(d) furnish,
without charge, to each Investor whose Registrable Securities are included in any Registration Statement (i) promptly after the same
is prepared and filed with the SEC, if requested by such Investor, as many conformed copies as such Investor may reasonably request of
the applicable Registration Statement and any amendment thereto, including financial statements and schedules, all documents incorporated
therein by reference and all exhibits (including those incorporated by reference), each preliminary prospectus and Prospectus and each
amendment or supplement thereto, and each letter written by or on behalf of the Company to the SEC or the staff of the SEC, and each item
of correspondence from the SEC or the staff of the SEC, in each case relating to such Registration Statement (other than any portion of
any thereof which contains information for which the Company has sought confidential treatment), and (ii) such number of copies of
a Prospectus, including a preliminary prospectus, and all amendments and supplements thereto and such other documents as each Investor
may reasonably request in order to facilitate the disposition of the Registrable Securities owned by such Investor (it being understood
and agreed that such documents, or access thereto, may be provided electronically);
(e) use
commercially reasonable efforts to (i) prevent the issuance of any stop order or other suspension of effectiveness and, (ii) if
such order is issued, obtain the withdrawal of any such order at the earliest possible moment;
(f) (f) prior
to any public offering of Registrable Securities, use reasonable best efforts to assist or cooperate with the Investors and their counsel
in connection with their registration or qualification of such Registrable Securities for the offer and sale under the securities or blue
sky laws of such jurisdictions reasonably requested by the Investors; provided, however, that the Company shall not be required
in connection therewith or as a condition thereto to (i) qualify to do business in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(f), (ii) subject itself to general taxation in any jurisdiction where it would
not otherwise be so subject but for this Section 3(f), or (iii) file a general consent to service of process in any such jurisdiction;
(g) use
commercially reasonable efforts to cause all Registrable Securities covered by a Registration Statement to be listed on the Nasdaq Global
Market (or the primary securities exchange, interdealer quotation system or other market on which the Class A Common Stock then listed);
(h) promptly
notify the Investors, at any time prior to the end of the Effectiveness Period, upon discovery that, or upon the happening of any event
as a result of which, the Prospectus contains an untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing, and as promptly
as reasonably practicable, prepare, file with the SEC and furnish to such holder a supplement to or an amendment of such Prospectus as
may be necessary so that such Prospectus shall not include an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in light of the circumstances then existing;
(i) otherwise
use commercially reasonable efforts to comply with all applicable rules and regulations of the SEC under the 1933 Act and the 1934
Act, including, without limitation, Rule 172 under the 1933 Act, file any final Prospectus, including any supplement or amendment
thereof, with the SEC pursuant to Rule 424 under the 1933 Act, promptly inform the Investors in writing if, at any time during the
Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof, the Investors are
required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities hereunder; and
(j) with
a view to making available to the Investors the benefits of Rule 144 (or its successor rule) and any other rule or regulation
of the SEC that may at any time permit the Investors to sell shares of Class A Common Stock to the public without registration, the
Company covenants and agrees to: (i) make and keep public information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) six months after such date as all of the Registrable Securities may be sold without restriction by the holders
thereof pursuant to Rule 144 or any other rule of similar effect or (B) such date as there are no longer Registrable Securities;
(ii) file with the SEC in a timely manner (without giving effect to any extensions pursuant to Rule 12b-25 under the 1933 Act
or any other applicable grace period) all reports and other documents required of the Company under the 1934 Act; and (iii) furnish
electronically to each Investor upon request, as long as such Investor owns any Registrable Securities, (A) a written statement by
the Company that it has complied with the reporting requirements of the 1934 Act, (B) a copy of or electronic access to the Company’s
most recent Annual Report on Form 10-K or Quarterly Report on Form 10-Q, and (C) such other information as may be reasonably
requested in order to avail such Investor of any rule or regulation of the SEC that permits the selling of any such Registrable Securities
without registration.
4 Due
Diligence Review; Information. If any Investor is required under applicable securities laws to be described in a Registration Statement
as an “underwriter,” the Company shall, upon reasonable prior notice, make available, during normal business hours, for inspection
and review by the Investors, advisors to and representatives of the Investors (who may or may not be affiliated with the Investors and
who are reasonably acceptable to the Company) (collectively, the “Inspectors”), all pertinent financial and other records,
and all other corporate documents and properties of the Company (collectively, the “Records”) as may be reasonably
necessary for the purpose of such review, and cause the Company’s officers, directors and employees, within a reasonable time period,
to supply all such information reasonably requested by the Inspectors (including, without limitation, in response to all questions and
other inquiries reasonably made or submitted by any of them), prior to and from time to time after the filing and effectiveness of such
Registration Statement for the sole purpose of enabling such Investor and its accountants and attorneys to conduct such due diligence
solely for the purpose of establishing a due diligence defense to underwriter liability under the 1933 Act; provided, however,
that each Inspector shall agree to hold in strict confidence and shall not make any disclosure (except to such Investor) or use of any
Record or other information which the Company determines in good faith to be confidential, and of which determination the Inspectors are
so notified, unless (a) the disclosure of such Records is necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release of such Records is ordered pursuant to a final, non-appealable
subpoena or order from a court or government body of competent jurisdiction, or (c) the information in such Records has been made
generally available to the public other than by disclosure in violation of this Agreement or the Purchase Agreement. Each Investor agrees
that it shall, upon learning that disclosure of such Records is sought in or by a court or governmental body of competent jurisdiction
or through other means, give prompt notice to the Company and allow the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed confidential. Nothing herein (or in any other confidentiality agreement
between the Company and any Investor) shall be deemed to limit the Investors’ ability to sell Registrable Securities in a manner
which is otherwise consistent with applicable laws and regulations.
Notwithstanding the foregoing
or anything else to the contrary contained herein, the Company shall not disclose material nonpublic information to the Investors, or
to advisors to or representatives of the Investors, unless prior to disclosure of such information the Company identifies such information
as being material nonpublic information and provides the Investors, such advisors and representatives with the opportunity to accept or
refuse to accept such material nonpublic information for review and any Investor wishing to obtain such information enters into an appropriate
confidentiality agreement with the Company with respect thereto.
5 Obligations
of the Investors.
(a) Each
Investor shall execute and deliver a Selling Securityholder Questionnaire prior to the Closing Date or promptly thereafter. Each Investor
shall additionally furnish in writing to the Company such other information regarding itself, the Registrable Securities held by it and
the intended method of disposition of the Registrable Securities held by it, as shall be reasonably required to effect the registration
of such Registrable Securities. At least seven (7) Business Days prior to the first anticipated filing date of any Registration Statement,
the Company shall notify each Investor of the additional information the Company requires from such Investor if such Investor elects to
have any of the Registrable Securities included in such Registration Statement (the “Registration Information Notice”).
An Investor shall provide such information to the Company no later than five (5) Business Days following receipt of a Registration
Information Notice if such Investor elects to have any of the Registrable Securities included in such Registration Statement. It is agreed
and understood that it shall be a condition precedent to the obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of a particular Investor that such Investor furnish to the Company such information
regarding itself, the Registrable Securities held by it and the intended method of disposition of the Registrable Securities held by it
as shall be reasonably required to effect the effectiveness of the registration of such Registrable Securities, and (ii) the Investor
execute a Selling Securityholder Questionnaire.
(b) Each
Investor, by its acceptance of the Registrable Securities, severally and not jointly, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of a Registration Statement hereunder, unless such Investor has
notified the Company in writing of its election to exclude all of its Registrable Securities from such Registration Statement.
(c) Each
Investor, severally and not jointly, agrees that, upon receipt of any notice from the Company of either (i) the commencement of an
Allowed Delay pursuant to Section 2(c)(ii) or (ii) the happening of an event pursuant to Section 3(h) hereof,
such Investor will immediately discontinue disposition of Registrable Securities pursuant to any Registration Statement covering such
Registrable Securities, until the Investor is advised by the Company that such dispositions may again be made.
(d) Each
Investor, severally and not jointly, covenants and agrees that it will comply with the prospectus delivery requirements of the 1933 Act
as applicable to it or an exemption therefrom in connection with sales of Registrable Securities pursuant to any Registration Statement.
6 Indemnification.
(a) Indemnification
by the Company. The Company will indemnify and hold harmless each Investor and its officers, directors, members, managers, partners,
trustees, employees and agents and other representatives, successors and assigns, and each other person, if any, who controls such Investor
within the meaning of the 1933 Act, against any losses, claims, damages or liabilities, joint or several, to which they may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement or omission or alleged omission of any material fact contained in any
Registration Statement, any preliminary Prospectus or final Prospectus, or any amendment or supplement thereof; provided, however,
that the Company will not be liable to any particular Investor in any such case if and to the extent that any such loss, claim, damage
or liability arises out of or is based solely upon (i) an untrue statement or alleged untrue statement or omission or alleged omission
so made in conformity with information furnished by such Investor or any such controlling person in writing specifically for use in such
Registration Statement or Prospectus, or (ii) the use by such Investor of an outdated or defective Prospectus after the Company has
notified such Investor in writing that such Prospectus is outdated or defective. Such indemnification obligation shall remain in full
force and effect regardless of any investigation made by or on behalf of any Investor and shall survive the transfer of Registrable Securities
by the Investor as permitted hereunder.
(b) Indemnification
by the Investors. Each Investor agrees, severally but not jointly, to indemnify and hold harmless, to the fullest extent permitted
by law, the Company, its directors, officers, employees, stockholders and each person who controls the Company (within the meaning of
the 1933 Act) against any losses, claims, damages, liabilities and expense (including reasonable attorney fees) directly attributable
to any untrue statement of a material fact or any omission of a material fact required to be stated in any Registration Statement or Prospectus
or preliminary Prospectus or amendment or supplement thereto or necessary to make the statements therein not misleading, to the extent,
but only to the extent, that such untrue statement or omission is contained in any information regarding such Investor and furnished in
writing by such Investor to the Company specifically for inclusion in such Registration Statement or Prospectus or amendment or supplement
thereto. In no event shall the liability of an Investor be greater than the dollar amount of the proceeds received (net of all expenses
paid by such holder in connection with any claim relating to this Section 6 and the amount of any damages such holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) by such Investor upon the sale
of the Registrable Securities included in such Registration Statement giving rise to such indemnification obligation.
(c) Conduct
of Indemnification Proceedings. Any person entitled to indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party; provided, that any person entitled to indemnification
hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of
such counsel shall be at the expense of such person unless (A) the indemnifying party has agreed to pay such fees or expenses, (B) the
indemnifying party shall have failed to assume the defense of such claim and employ counsel reasonably satisfactory to such person, (C) in
the reasonable judgment of any such person, based upon written advice of its counsel, a conflict of interest exists between such person
and the indemnifying party with respect to such claims (in which case, if the person notifies the indemnifying party in writing that such
person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such person) or (D) the claim seeks an injunction or equitable relief against the indemnified
party or any of its affiliates; and provided, further that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations hereunder, except to the extent that such failure to give notice shall
materially adversely affect the indemnifying party in the defense of any such claim or litigation. It is understood that the indemnifying
party shall not, in connection with any proceeding in the same jurisdiction, be liable for fees or expenses of more than one separate
firm of attorneys at any time for all such indemnified parties. No indemnifying party will, except with the consent of the indemnified
party, which shall not be unreasonably withheld or conditioned, consent to entry of any judgment or enter into any settlement that does
not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability
in respect of such claim or litigation or that includes any admission as to fault, culpability or failure to act on the part of such indemnified
party.
(d) Contribution.
If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) is unavailable to an indemnified
party or insufficient to hold it harmless, other than as expressly specified therein, then the indemnifying party shall contribute to
the amount paid or payable by the 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 indemnified party and the indemnifying party, as well as any other relevant equitable considerations.
No person guilty of fraudulent misrepresentation within the meaning of Section 11(f) of the 1933 Act shall be entitled to contribution
from any person not guilty of such fraudulent misrepresentation. In no event shall the contribution obligation of a holder of Registrable
Securities be greater in amount than the dollar amount of the proceeds (net of all expenses paid by such holder in connection with any
claim relating to this Section 6 and the amount of any damages such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it upon the sale of the Registrable Securities giving rise to
such contribution obligation.
(e) Survival.
The obligations of the Company and the Investors under this Section 6 shall survive completion of any offering of Registrable Securities
in any Registration Statement and the termination of this Agreement.
7 Miscellaneous.
(a) (a) Amendments
and Waivers. This Agreement may be amended only by a writing signed by the Company and the Required Investors. The Company may take
any action herein prohibited, or omit to perform any act herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act, of the Required Investors.
(b) Notices.
All notices and other communications provided for or permitted hereunder shall be made as set forth in Section 9.4 of the Purchase
Agreement.
(c) Assignments
and Transfers by Investors. The provisions of this Agreement shall be binding upon and inure to the benefit of the Investors and their
respective successors and permitted assigns. An Investor may transfer or assign, in whole or from time to time in part, to one or more
persons its rights hereunder in connection with the transfer of Registrable Securities by such Investor to such person, provided that
(i) the Investor agrees in writing with the transferee or assignee to assign such rights and a copy of such agreement is furnished
to the Company within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after such transfer
or assignment, furnished with written notice of (A) the name and address of such transferee or assignee and (B) the securities
with respect to which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment
the further disposition of such securities by the transferee or assignee is restricted under the 1933 Act or applicable state securities
laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee
or assignee agrees in writing with the Company to be bound by all of the provisions contained herein applicable to an Investor in respect
of the transferred securities; (v) such transfer shall have been made in accordance with the applicable requirements of the Purchase
Agreement and (vi) unless the transferee or assignee is an Affiliate of, and after such transfer or assignment continues to be an
Affiliate of, such Investor, or unless this condition is waived or modified by the Company in its discretion, the amount of Registrable
Securities transferred or assigned to such transferee or assignee represents at least $1.0 million of Registrable Securities (based on
the then-current market price of the Class A Common Stock).
(d) Assignments
and Transfers by the Company. This Agreement may not be assigned by the Company (whether by operation of law or otherwise) without
the prior written consent of the Required Investors, provided, however, that in the event that the Company is a party to
a merger, consolidation, share exchange or similar business combination transaction in which the Class A Common Stock is converted
into the equity securities of another Person, from and after the effective time of such transaction, such Person shall, by virtue of such
transaction, be deemed to have assumed the obligations of the Company hereunder, the term “Company” shall be deemed to refer
to such Person and the term “Registrable Securities” shall be deemed to include the securities received by the Investors in
connection with such transaction unless such securities are otherwise freely tradable by the Investors after giving effect to such transaction.
(e) Benefits
of the Agreement. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective permitted
successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than
the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement (including Section 6).
(f) Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying
with the U.S. ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be
deemed to have been duly and validly delivered and be valid and effective for all purposes.
(g) Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
(h) Severability.
Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as
if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by
applicable law, the parties hereby waive any provision of law which renders any provisions hereof prohibited or unenforceable in any respect.
(i) Further
Assurances. The parties shall execute and deliver all such further instruments and documents and take all such other actions as may
reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained.
(j) Entire
Agreement. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such subject matter.
(k) Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to the choice of law principles thereof (other than sections 5-1401 and 5-1402 of the General
Obligations Law). Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York
located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action,
proceeding or judgment relating to or arising out of this Agreement and the transactions contemplated hereby. Service of process in connection
with any such suit, action or proceeding may be served on each party hereto anywhere in the world by the same methods as are specified
for the giving of notices under this Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court
in any such suit, action or proceeding and to the laying of venue in such court. Each party hereto irrevocably waives any objection to
the laying of venue of any such suit, action or proceeding brought in such courts and irrevocably waives any claim that any such suit,
action or proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE PARTIES HERETO WAIVES ANY RIGHT
TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY
AS TO THIS WAIVER.
(l) Interpretation.
Wherever required by the context of this Agreement, the singular shall include the plural and vice versa, and the masculine gender shall
include the feminine and neuter genders and vice versa, and references to any agreement, document or instrument shall be deemed to refer
to such agreement, document or instrument as amended, supplemented or modified from time to time. All article, section, paragraph or clause
references not attributed to a particular document shall be references to such parts of this Agreement, and all exhibit, annex, letter
and schedule references not attributed to a particular document shall be references to such exhibits, annexes, letters and schedules to
this Agreement. In addition, the word "or" is not exclusive; the words "including," "includes," "included"
and "include" are deemed to be followed by the words "without limitation"; and the terms "herein," "hereof"
and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular section, paragraph
or subdivision.
(m) Independent
Nature of Investors’ Obligations and Rights. The obligations of each Investor hereunder are several and not joint with the obligations
of any other Investor hereunder, and no Investor shall be responsible in any way for the performance of the obligations of any other Holder
hereunder. Nothing contained herein or in any other agreement or document delivered at any closing, and no action taken by any Investor
pursuant hereto or thereto, shall be deemed to constitute the Investors as a partnership, an association, a joint venture or any other
kind of group or entity, or create a presumption that the Investors are in any way acting in concert or as a group or entity with respect
to such obligations or the transactions contemplated by this Agreement or any other matters, and the Company acknowledges that the Investors
are not acting in concert or as a group, and the Company shall not assert any such claim, with respect to such obligations or transactions.
Each Investor shall be entitled to protect and enforce its rights, including without limitation the rights arising out of this Agreement,
and it shall not be necessary for any other Investor to be joined as an additional party in any proceeding for such purpose. The use of
a single agreement with respect to the obligations of the Company contained was solely in the control of the Company, not the action or
decision of any Investor, and was done solely for the convenience of the Company and not because it was required or requested to do so
by any Investor. It is expressly understood and agreed that each provision contained in this Agreement is between the Company and an Investor,
solely, and not between the Company and the Investors collectively and not between and among Investor.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties
have executed this Agreement or caused their duly authorized officers to execute this Agreement as of the date first above written.
COMPANY: |
ELUTIA INC. |
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|
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By: |
/s/ C. Randal Mills |
|
|
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Name: C. Randal Mills |
|
|
Title: President & Chief
Executive Officer |
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
|
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Alyeska Master Fund, L.P. |
|
|
|
By: |
/s/ Jason Bragg |
|
|
Name: Jason Bragg |
|
Title: CFO Alyeska Investment Group, LP |
|
[Signature Page to
Registration Rights Agreement]
INVESTORS: |
|
AIGH Investment Partners, LP |
WVP Emerging Manager Onshore Fund, LLC – AIGH Series |
|
WVP Emerging Manager Onshore Fund, LLC – Optimized
Equity Series |
|
|
|
By: |
/s/ Orin Hirschman |
|
|
Name: Orin Hirschman |
|
Title: Managing Member, AIGH Capital Management
LLC |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS:
Blackwell Partners
LLC – Series A, solely with respect to the portion of its |
|
assets for which Nantahala Capital Management, LLC acts
as its Investment |
|
Manager |
|
|
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By: |
Nantahala Capital Management, LLC |
|
|
Its Investment Manager |
|
|
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By: |
/s/ Daniel Mack |
|
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Name: Daniel Mack |
|
Title: Manager |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
|
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Elutia PIPE Investment LP |
|
|
|
By: |
/s/ Matt Zuga |
|
|
Name: Matt Zuga |
|
Title: Managing Partner |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
Highcape Partners LP II |
|
|
|
By: |
/s/ Matt Zuga |
|
|
Name: Matt Zuga |
|
Title: Managing Partner |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
|
|
Highcape Partners QP II |
|
|
|
By: |
/s/ Matt Zuga |
|
|
Name: Matt Zuga |
|
Title: Managing Partner |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
|
|
Nantahala Capital Partners Limited
Partnership |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its General Partner |
|
|
|
|
By: |
/s/ Daniel Mack |
|
|
Name: Daniel Mack |
|
Title: Manager |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
Nantahala Capital Partners II Limited Partnership |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its General Partner |
|
|
|
By: |
/s/ Daniel Mack |
|
|
Name: Daniel Mack |
|
Title: Manager |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
NCP RFM LP |
|
|
|
By: |
Nantahala Capital Management, LLC |
|
|
Its Investment Manager |
|
|
|
By: |
/s/ Daniel Mack |
|
|
Name: Daniel Mack |
|
Title: Manager |
|
[Signature Page to Registration Rights
Agreement]
INVESTORS: |
|
Matthew Ferguson |
|
|
|
By: |
/s/ Matthew Ferguson |
|
|
Name: Matthew Ferguson |
|
Title: |
|
[Signature Page to Registration Rights
Agreement]
Exhibit 99.1
Elutia Announces Private Placement for Proceeds
Up to $26 Million
– Combined proceeds of financing and Orthobiologics
divestiture potentially top $60 million –
SILVER SPRING, Md., Sep. 19, 2023 — Elutia
Inc. (Nasdaq: ELUT) (“Elutia”), a company pioneering drug-eluting biomatrix products, today announced that it has entered
into a securities purchase agreement for a private placement (PIPE) financing that is expected to result in initial gross proceeds to
the Company of approximately $10.5 million, before deducting offering expenses. The full exercise of warrants included in the financing
would add $15.8 million, for total gross proceeds of $26.2 million. Cash raised from the PIPE financing and the Orthobiologics business
unit divestiture, announced yesterday, will support the Company’s advancement of its drug-eluting biomatrix products for the cardiac
pacemaker and defibrillator market and breast reconstruction post-mastectomy.
“We appreciate the support of our investors,
demonstrating the high value of our platforms and technology for patient care,” said Dr. Randy Mills, President and Chief Executive
Officer of Elutia. “The combined proceeds from our Orthobiologics divestiture and today’s financing potentially adds more
than $60 million in cash to our balance sheet, materially strengthening our financial position and extending our cash runway. We remain
well-positioned to execute on our upcoming program milestones involving CanGaroo® for device protection
and SimpliDerm® for breast reconstruction.”
The private placement financing included participation
by existing investor HighCape Capital and new investors Nantahala Capital and a life-sciences focused investment fund. Lake Street Capital
Markets, LLC is acting as the exclusive placement agent for the transaction.
Pursuant to the securities purchase agreement,
Elutia is selling an aggregate of 7,355,869 shares of the Company’s common stock (or pre-funded warrants) and 11,033,804 warrants
to purchase common stock (or pre-funded warrants) at a price of $1.4275 per share and associated warrants (less $0.001 in the case of
pre-funded warrants), priced at-the-market. Each common stock purchase warrant is exercisable at $1.4275 per share at any time until the
earlier of: a) 30 trading days after the FDA clearance of the Company’s CanGaroo®RM antibiotic-eluting biologic envelope or
b) five years from the date of issuance.
In connection with the securities purchase agreement,
the Company entered into a registration rights agreement pursuant to which the Company has agreed to subsequently file a registration
statement to register for resale the common stock purchased in the transaction and the common stock underlying the prefunded warrants
and warrants.
The closing of the transaction is subject to certain
conditions and is expected to occur on September 21, 2023.
The offer was, and sale of the foregoing securities
are being, made in a transaction not involving a public offering, and have not been registered under the Securities Act of 1933, as amended
(the “Securities Act”), or applicable state securities laws. The securities will be sold in a private placement exempt from
the Securities Act. The securities being issued in the private placement may not be offered or resold in the United States absent registration
or pursuant to an exemption from the registration requirements of the Securities Act and applicable state securities laws. The Company
has agreed to file a registration statement covering the resale of the shares of common stock acquired by investors, or underlying warrants
acquired by investors, in the private placement.
This press release does not constitute an offer
to sell or the solicitation of an offer to buy the securities in any jurisdiction, nor shall there be any sale of the securities in any
state in which such offer or sale would be unlawful prior to the registration or qualification under the securities laws of such state.
Any offering of the securities under the resale registration statement will only be by means of a prospectus.
About Elutia
Elutia develops and commercializes biologic products
to improve compatibility between medical devices and the patients who need them. With a growing population in need of implantable technologies,
Elutia’s mission is humanizing medicine so patients can thrive without compromise. For more information, visit www.Elutia.com.
Forward-Looking Statements
This press release contains “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange
Act of 1934, as amended. Forward-looking statements can be identified by words such as “projects,” “may,” “will,”
“could,” “would,” “should,” “believes,” “expects,” “anticipates,”
“estimates,” “intends,” “plans,” “potential,” “promise” or similar references
to future periods. All statements contained in this press release that do not relate to matters of historical fact should be considered
forward-looking statements, including any statements and information concerning our expectations for closing of our private placement,
our focus on drug-eluting biomatrix technology aimed at improving surgical outcomes or our milestones for our CanGaroo® and SimpliDerm®
products. Forward-looking statements are based on management’s current assumptions and expectations of future events and trends,
which affect or may affect our business, strategy, operations or financial performance, and actual results may differ materially from
those expressed or implied in such statements due to numerous risks and uncertainties. Forward-looking statements are inherently subject
to risks and uncertainties, some of which cannot be predicted or quantified, and other important factors that may cause actual results,
performance or achievements to differ materially from those contemplated or implied in this press release, including, but not limited
to: risks associated with shifting focus to our drug-eluting biomatrix solutions in the cardiovascular and breast reconstruction areas
and away from our Orthobiologics business; risks regarding the ability to successfully execute or realize the anticipated benefits under
our distribution arrangements with LeMaitre Vascular and Sientra; our inability to generate sufficient revenue to achieve or sustain profitability;
adverse changes in economic conditions and instability and disruption of credit markets; our ability to continue as a going concern; our
ability to successfully execute or achieve expected benefits from the divestiture of our Orthobiologics business; closing our divestiture
of our Orthobiologics business; our products and our ability to enhance, expand, develop and commercialize our product offerings; the
impact on our business of the recall of a single lot of our FiberCel product and the discontinuation of its sales by our distribution
partner; consequences of our recall of a single lot of one of our viable bone matrix products and market withdrawal of all of our viable
bone matrix products; our dependence on our commercial partners; the impact of the bankruptcy of Surgalign Holdings, Inc., a significant
customer of the Company, on our future revenues; physician awareness of the distinctive characteristics, and acceptance by the medical
community, of our products; the ability to obtain regulatory approval or other marketing authorizations; and our intellectual property
rights, and other important factors which can be found in the “Risk Factors” section of Elutia’s public filings with
the Securities and Exchange Commission (“SEC”), including Elutia’s Annual Report on Form 10-K for the year ended December
31, 2022, as such factors may be updated from time to time in Elutia’s other filings with the SEC, including Elutia’s Quarterly
Reports on Form 10-Q, accessible on the SEC’s website at www.sec.gov and the Investor Relations page of Elutia’s website at
https://investors.elutia.com. Because forward-looking statements are inherently subject to risks and uncertainties, you should not rely
on these forward-looking statements as predictions of future events. Any forward-looking statement made by Elutia in this press release
is based only on information currently available and speaks only as of the date on which it is made. Except as required by applicable
law, Elutia expressly disclaims any obligations to publicly update any forward-looking statements, whether written or oral, that may be
made from time to time, whether as a result of new information, future developments or otherwise.
Investors:
Matt Steinberg
FINN Partners
matt.steinberg@finnpartners.com
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