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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):
October 17, 2023
NeuBase Therapeutics, Inc.
(Exact Name of Registrant as Specified in Its
Charter)
Delaware |
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001-35963 |
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46-5622433 |
(State
or Other Jurisdiction
of Incorporation) |
|
(Commission
File Number) |
|
(I.R.S.
Employer
Identification No.) |
350
Technology Drive, Pittsburgh,
PA |
|
15219 |
(Address
of Principal Executive Offices) |
|
(Zip Code) |
|
(412)
763-3350 |
|
|
(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 |
Common
Stock, par value $0.0001 per share |
NBSE |
The
Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (17 CFR § 230.405) or Rule 12b-2 of the Securities Exchange Act
of 1934 (17 CFR § 240.12b-2).
Emerging growth company ¨
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed, on June 28, 2023,
NeuBase Therapeutics, Inc. (the “Company”) entered into that certain Securities Purchase Agreement with an institutional
investor (the “Warrant Holder”), pursuant to which, among other things, the Company issued to the Warrant Holder in a
private placement on June 30, 2023: (i) a Series A Common Stock Purchase Warrant (the “PIPE Series A Warrant”) to
purchase 1,366,829 shares of common stock of the Company (the “Common Stock”), and (ii) a Series B Common Stock Purchase
Warrant to purchase 1,366,829 shares of Common Stock (the “PIPE Series B Warrant”). As also previously disclosed, on
June 28, 2023, the Company entered into that certain Securities Purchase Agreement, by and between the Company and the Warrant
Holder, pursuant to which, among other things, the Company issued to the Warrant Holder in a private placement conducted
concurrently with a registered direct offering on June 30, 2023: (i) a Series A Common Stock Purchase Warrant to purchase 578,697
shares of Common Stock (the “RD Series A Warrant” and, together with the PIPE Series A Warrant, the “Series A
Warrants”), and (ii) a Series B Common Stock Purchase Warrant to purchase 578,697 shares of Common Stock (the “RD Series
B Warrant” and, together with the PIPE Series B Warrant, the “Series B Warrants” and the Series B Warrants,
together with the Series A Warrants, the “Warrants”).
On October 17, 2023, the Company entered into an exchange agreement
with the Warrant Holder (the “Exchange Agreement”) relating to the repurchase of the Series B Warrants in exchange for a cash
payment of $1,250,000.00 and the treatment of the Series A Warrants in the event the Company executes a definitive agreement (the “Definitive
Agreement”) pursuant to which (i) the Company, directly or indirectly, in one or more related transactions agrees to effect any
merger or consolidation of the Company with or into another person (excluding a merger effected solely to change the Company’s name
or domiciliation), (ii) the Company (or any subsidiary), directly or indirectly, agrees to effect any sale, lease, exclusive license,
assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s 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)
will be effected 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 more than 50% of the outstanding Common Stock or more than 50% 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 (excluding a stock split), or (v) the Company, directly or indirectly,
in one or more related transactions agrees to consummate 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 more than 50% of the outstanding shares of Common Stock or more than 50% of the voting power
of the common equity of the Company.
Pursuant to the Exchange Agreement, the
Company agreed that, effective as of the date the Company executes a Definitive Agreement (the “Execution Date”), in
reliance upon the exemption from securities registration afforded by Section 3(a)(9) of the Securities Act of 1933, as amended (the
“Securities Act”), the Company will exchange all of the Series A Warrants then-held by the Warrant Holder for a new
Series A-1 Common Stock Purchase Warrant (the “New Warrant”) to purchase such number of shares of Common Stock as is
equal to the product of 110% multiplied by the aggregate number of shares of Common Stock that are then-exercisable pursuant to the
Series A Warrants then-held by the Warrant Holder (if any). In addition, by no later than October 19, 2023, the Company will pay the
Warrant Holder a cash payment equal to $1,250,000.00 in consideration for the repurchase in full of all of the Series B
Warrants.
The New Warrant will have the
same $2.32 per share exercise price of the Series A Warrants (subject to adjustment for recapitalizations, stock splits and similar transactions),
will be exercisable commencing on the date of the closing of the transaction contemplated by the Definitive Agreement, and will expire
on January 2, 2029, the same date as the expiration date of the Series A Warrants.
If a Fundamental Transaction
(as defined in the New Warrant) occurs, then the successor entity will succeed to, and be substituted for, the Company, and may exercise
every right and power that the Company may exercise and will assume all of the Company’s obligations under such warrants with the
same effect as if such successor entity had been named in such warrants itself. If holders of shares of Common Stock are given a choice
as to the securities, cash or property to be received in such a Fundamental Transaction, then the holder shall be given the same choice
as to the consideration it would receive upon any exercise of such warrants following such a Fundamental Transaction. Additionally, as
more fully described in the New Warrant, in the event of certain Fundamental Transactions, the holder of the New Warrant will be entitled
to receive consideration in an amount equal to the Black Scholes value of the New Warrant, on the date of consummation of such Fundamental
Transaction. For purposes of the New Warrant, “Fundamental Transaction” shall exclude any of the transactions contemplated
by the Definitive Agreement.
The New Warrant and the shares of Common Stock issuable upon the exercise
of the New Warrant (if any) will be offered and sold without registration under the Securities Act, in reliance on the exemptions provided
by Section 3(a)(9) of the Securities Act.
The New Warrant will not be listed for trading on any national securities
exchange or other nationally recognized trading system.
Pursuant to the terms of the
Exchange Agreement, the Company has agreed to register for resale the shares of Common Stock issuable upon the exercise of the New Warrant
by the later of 120 calendar days following the Execution Date and May 1, 2024. The Company shall use its commercially reasonable efforts
to cause the registration statement covering the aforementioned securities to be declared effective as promptly as possible after the
filing thereof, but in any event no later than 90 days following the date of the filing of the registration statement and five trading
days after the date the Company receives written notification from the Securities and Exchange Commission that the registration statement
will not be reviewed.
The foregoing descriptions of the Exchange Agreement and the New Warrant
are not complete and are qualified in their entirety by references to the full text of the Exchange Agreement and the form of New Warrant,
respectively, which are filed as exhibits to this Current Report on Form 8-K (this “Current Report”) and are incorporated
by reference herein.
The representations, warranties and covenants made by the Company in
any agreement that is incorporated by reference herein were made solely for the benefit of the parties to such agreement, including, in
some cases, for the purpose of allocating risk among the parties to such agreements. In addition, the assertions embodied in any representations,
warranties and covenants contained in such agreements may be subject to qualifications with respect to knowledge and materiality different
from those applicable to security holders generally. Moreover, such representations, warranties or covenants were accurate only as of
the date when made, except where expressly stated otherwise. Accordingly, such representations, warranties and covenants should not be
relied on as accurately representing the current state of the Company’s affairs at any time.
This Current Report does not constitute an offer to sell or the solicitation
of an offer to buy any securities, nor shall there be any sale of securities in any state or jurisdiction in which such an offer, solicitation,
or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
SIGNATURE
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.
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NEUBASE THERAPEUTICS, INC. (Registrant) |
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Date: October 18, 2023 |
By: |
/s/ Todd P. Branning |
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Todd P. Branning |
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Chief Financial Officer
(Principal Financial and Accounting 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.
SERIES A-1 COMMON STOCK PURCHASE WARRANT
NEUBASE THERAPEUTICS, INC.
Warrant Shares: [_______]1 |
Issue Date: [__________]2 |
THIS SERIES A-1 COMMON STOCK
PURCHASE WARRANT (the “Warrant”) certifies that, for value received, Armistice Capital Master Fund Ltd. 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 Closing (as defined below) (the “Initial Exercise Date”) and on or prior to 5:00
p.m. (New York City time) on January 2, 2029 (the “Termination Date”) but not thereafter, to subscribe for
and purchase from NeuBase Therapeutics, Inc., a Delaware corporation (the “Company” as further defined below),
up to [______] shares (as subject to adjustment hereunder, the “Warrant Shares”) of the Company’s Common Stock.
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).
This Warrant is issued pursuant to that certain Exchange Agreement, dated as of October 17, 2023, by and between the Company and
Holder (as may be amended or restated from time to time, the “Exchange Agreement”).
Section 1. Definitions.
Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities Purchase Agreement
(the “Purchase Agreement”), dated June 28, 2023, among the Company and the purchasers signatory thereto (as may
be amended or restated from time to time). For purposes of this Warrant, “Closing” means the closing of the transaction
contemplated by the Definitive Agreement (as defined in the Exchange Agreement). 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.
1
110% of Series A Warrants outstanding as of the “Execution Date” (as defined in the Exchange Agreement).
2
To be the “Execution Date” (as defined in the Exchange Agreement).
“Bid Price”
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 bid price of the Common Stock for the time in question (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. (New
York City time) to 4:02 p.m. (New York City 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 on 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 Warrants then outstanding and reasonably acceptable to the Company,
the fees and expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share, and any other class of securities into which such
securities may hereafter be reclassified or changed.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is
at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Company”
means NeuBase Therapeutics, Inc., a Delaware corporation or any Successor Entity (as defined herein) thereto. The Successor Entity
shall succeed to, and be substituted for (so that from and after the date of such Fundamental Transaction or Definitive Agreement Transaction
(as defined below), the provisions of this Warrant referring to the “Company” shall refer instead to the Successor Entity),
and may exercise every right and power of the Company and shall assume all of the obligations of the Company under this Warrant and with
the same effect as if such Successor Entity had been named as the Company herein.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Liens”
means a lien, charge pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“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.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading Day” means
a day on which the Common Stock is traded on a Trading Market.
“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 Standard Registrar and Transfer Company, the current transfer agent of the Company, with a mailing address of 440
East 400 South, Suite 200, Salt Lake City, UT 84111, and any successor transfer agent of the Company.
“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. (New York City time) to 4:02 p.m. (New York City 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 on 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 Warrants then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by 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 as soon as reasonably practicable
following 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 exercise price per share of Common Stock under this Warrant shall be $[2.32]3,
subject to adjustment hereunder (the “Exercise Price”).
3
Note: To be adjusted for any NeuBase capitalization adjustments after the date of the Exchange Agreement and prior to the
issuance of this Warrant.
c) Cashless
Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus contained
therein is not 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) at
the option of the Holder, either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise
or (z) the Bid Price of the Common Stock on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”)
as of the time of the Holder’s execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular
trading hours” on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after
the close of “regular trading hours” on a Trading Day) pursuant to Section 2(a) hereof 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 of this Warrant, 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.
This Warrant, as
originally issued by the Company, was offered and sold by the Company pursuant to the Exchange Agreement in an exchange meeting the requirements
of Section 3(a)(9) of the Securities Act. If Warrant Shares are issued in such a cashless exercise, the parties acknowledge
and agree that in accordance with Section 3(a)(9) of the Securities Act, the Warrant Shares shall take on the characteristics
of the Warrants being exercised, and the holding period of the Warrant Shares being issued may be tacked on to the holding period of the
Series A Warrant (as defined in the Exchange Agreement) for which this Warrant was exchanged. The Company agrees not to take any
position contrary to this Section 2(c).
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 the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale limitations
pursuant to Rule 144 (assuming cashless exercise of the Warrant), 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 earliest
of (i) two (2) Trading Days after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day
after delivery of the aggregate Exercise Price to the Company and (iii) 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 by the Warrant Share
Delivery Date. 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, 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 third (3rd) Trading Day after the Warrant Share Delivery Date) 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 by delivering written notice to the Company
at any time prior to the Company delivering such Warrant Shares.
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 (other than any such failure that is solely due to any action or
inaction by the Holder with respect to such exercise or any material incorrect or incomplete information provided by the Holder to the
Company), 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, but did not 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, 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 as Exhibit B 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, 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, and shall be the sole responsibility 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 and shall have no liability for purported or actual exercises of this Warrant that are not in compliance with the Beneficial
Ownership Limitation (other than to the extent that information on the number of outstanding shares of Common Stock of the Company is
provided by the Company and relied upon by the Holder). 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
and the Company shall have no obligation to verify or confirm the accuracy of such determination and shall have no liability for purported
or actual exercises of this Warrant that are not in compliance with the Beneficial Ownership Limitation (other than to the extent that
information on the number of outstanding shares of Common Stock of the Company is provided by the Company and relied upon by the Holder).
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 Day 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 4.99% of the number of shares of the 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
shares of the 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.
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 the 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, subject to the limitation on fractional shares in Section 2(d)(v). 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) 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, that 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).
c) 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) other than a dividend or other distribution of the type described
in Section 3(a) above (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, that 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).
d) 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 (excluding a merger effected solely to change
the Company’s name or domiciliation), (ii) the Company (or any Subsidiary), directly or indirectly, effects any sale, lease,
exclusive license, assignment, transfer, conveyance or other disposition of all or substantially all of the Company’s 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 more than 50% of the outstanding Common Stock or
more than 50% 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 more than 50% of the outstanding shares of Common Stock or more than 50%
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, 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 Successor 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
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 contemplated 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(d) and
(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 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(d) 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(d) 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. Notwithstanding anything to the contrary contained herein, none of
the transactions contemplated by the Definitive Agreement shall, individually or collectively (the “Definitive Agreement Transaction”),
be deemed to be a “Fundamental Transaction” for purposes of this Section 3(d), and the provisions of this Section 3(d) shall
not apply to any Definitive Agreement Transaction.
b) 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. Notwithstanding the foregoing,
in no event may the Exercise Price be adjusted below the par value of the Common Stock then in effect.
c) 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
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
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 Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party,
any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is 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 (unless such information is filed with the Commission on the EDGAR system, in
which case a notice shall not be required) 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 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 share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share 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. 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 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 and to the provisions
of Section 4.1 of the Purchase Agreement, 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 as Exhibit B 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) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable
state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information
requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee
of this Warrant, as the case may be, comply with the provisions of Section 5.7 of the Purchase Agreement.
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 this Warrant or 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 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, 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 Trading Day, then, such action may be taken or such right may be exercised on the next succeeding Trading
Day.
d) Authorized
Shares.
The Company covenants
that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued 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 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) Governing
Law. 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 the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough
of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, 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 right to
exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant or the Purchase Agreement,
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 and all notices or other communications or deliveries to be provided by the Holder hereunder including, without limitation, any Notice
of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed
to the Company, at 350 Technology Drive, Pittsburgh, PA 15219, Attention: Todd Branning, email address: tbranning@neubasetherapeutics.com,
or such other email address or address as the Company may specify for such purposes by notice to the Holder. Any and all notices or other
communications or deliveries to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent
by a nationally recognized overnight courier service addressed to each Holder at the e-mail address or address of such Holder appearing
on the books of the Company. Any notice or other communication or deliveries hereunder shall be deemed given and effective on the earliest
of (i) the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this
Section 5(h) prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading Day after the time of transmission,
if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 5(h) on a day that is
not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public information
regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current
Report on Form 8-K.
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 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, on the one hand, and
the Holder of this Warrant, on the other hand.
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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NEUBASE THERAPEUTICS, INC. |
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By: |
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Name: Todd Branning |
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Title: Chief Financial Officer |
NOTICE OF EXERCISE
TO: NEUBASE THERAPEUTICS, INC. (or any
Successor Entity thereto)
(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: |
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Signature of Authorized Signatory of Investing Entity: |
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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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 exercise the Warrant to purchase shares.)
FOR VALUE RECEIVED, the foregoing
Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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(Please Print) |
Address: |
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Phone Number: |
(Please Print) |
Email Address: |
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Dated: |
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______________________________ __, ______ |
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Holder’s Signature: |
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Holder’s Address: |
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Exhibit 10.1
exchange
Agreement
This
Exchange Agreement (this “Agreement”) is dated as of October 17, 2023, by and between NeuBase
Therapeutics, Inc. or any Successor Entity thereto (together, the “Company”) and Armistice Capital Master
Fund Ltd. (the “Warrant Holder”). Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Securities Purchase Agreements (as defined below) and the New Warrant (as defined below).
Recitals
Whereas,
on June 30, 2023, pursuant to a Securities Purchase Agreement, dated June 28, 2023, by and between the Company and the Warrant
Holder (the “PIPE SPA”), the Company, among other things, issued to the Warrant Holder in a private placement:
(i) a Series A Common Stock Purchase Warrant to purchase 1,366,829 shares of Common Stock (the “PIPE Series A
Warrant”), and (ii) a Series B Common Stock Purchase Warrant to purchase 1,366,829 shares of Common Stock (the
“PIPE Series B Warrant”);
Whereas,
on June 30, 2023, pursuant to a Securities Purchase Agreement, dated June 28, 2023, by and between the Company and the Warrant
Holder (the “RD SPA” and, together with the PIPE SPA, the “Securities Purchase Agreements”),
the Company, among other things, issued to the Warrant Holder in a private placement conducted concurrently with a registered direct offering:
(i) a Series A Common Stock Purchase Warrant to purchase 578,697 shares of Common Stock (the “RD Series A Warrant”
and, together with the PIPE Series A Warrant, the “Series A Warrants”), and (ii) a Series B
Common Stock Purchase Warrant to purchase 578,697 shares of Common Stock (the “RD Series B Warrant” and,
together with the PIPE Series B Warrant, the “Series B Warrants” and the Series B Warrants, together
with the Series A Warrants, the “Warrants”); and
Whereas,
the Company and the Warrant Holder desire to enter into this agreement relating to the treatment of the Series A Warrants upon the
execution of a Definitive Agreement (as defined below) and the treatment of the Series B Warrants upon execution of this Agreement.
Agreement
Now,
Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Execution
of Definitive Agreement. In the event the Company executes a definitive agreement (the “Definitive Agreement”)
pursuant to which (i) the Company, directly or indirectly, in one or more related transactions agrees to effect any merger or consolidation
of the Company with or into another Person (excluding a merger effected solely to change the Company’s name or domiciliation), (ii) the
Company (or any Subsidiary), directly or indirectly, agrees to effect any sale, lease, exclusive license, assignment, transfer, conveyance
or other disposition of all or substantially all of the Company’s 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) will be effected 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 more than 50% of the outstanding Common Stock or more than 50% 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
agrees to consummate 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 more than 50% of the outstanding shares of Common Stock or more than 50% of the voting power of the common equity of the Company,
in each of cases (i) through (v), other than a combination (including by way of a reverse stock split) of the Company’s outstanding
shares of capital stock into a smaller number of shares, the Company shall notify the Warrant Holder of such Definitive Agreement in writing
(the “Notice”) on the date such Definitive Agreement is executed by the Company (the “Execution
Date”). Within one (1) Business Day of the Warrant Holder’s receipt of the Notice, the Warrant Holder shall provide
to the Company a written certification, in the form attached hereto as Exhibit A,
certifying as to the number of shares of Common Stock issuable upon exercise of the Series A Warrants held by the Warrant Holder
as of the Execution Date (the “Certification”). For purposes of clarification, whether or not the Company provides
a Notice pursuant to this Section 1, effective as of the Execution Date, the Warrant Holder shall be entitled to receive the consideration
as further detailed in this Agreement.
2. Exchange
of Series A Warrants. Effective as of the Execution Date, the Company shall, in reliance upon the exemption from securities registration
afforded Section 3(a)(9) of the Securities Act, exchange the Series A Warrants then-held by the Warrant Holder for a new
Series A-1 Common Stock Purchase Warrant, in substantially the form attached hereto as Exhibit B
(the “New Warrant”), to purchase such number of shares of Common Stock as is equal to the product of 110% multiplied
by the aggregate number of shares of Common Stock that are then-exercisable pursuant to the Series A Warrants held by the Warrant
Holder (if any), as indicated in the Certification (rounded up to the nearest whole share). Within two (2) Trading Days following
the date the Warrant Holder delivers the Certification, the Company shall deliver the original New Warrant to the Warrant Holder to the
address designated by the Warrant Holder to the Company in writing, and the Warrant Holder shall deliver its original Series A Warrants
to the Company for cancellation as soon as practicable. For avoidance of doubt, if the Series A Warrants are no longer outstanding
or there are otherwise no shares exercisable under the Series A Warrants as of the date of entry into the Definitive Agreement, then
no New Warrant shall be issued pursuant to this Section 2.
3. Repurchase
of Series B Warrants. No later than two Business Days following the date hereof, the Company shall pay to the Warrant Holder
a cash payment by wire transfer of immediately available funds to the account designated by the Warrant Holder to the Company in writing
equal to $1,250,000.00 (the “Series B Warrant Payment Amount”), in consideration for the Company’s
repurchase of the Series B Warrants in full, and the Warrant Holder shall surrender its original Series B Warrants to the Company
for cancellation as soon as practicable.
4. Non-Transferability
of Warrants. Notwithstanding anything to the contrary contained in Section 4 of the Warrants, from and after the date of this
Agreement, the Warrant Holder hereby agrees that it shall not, directly or indirectly, offer, sell, contract to sell (including any short
sale), pledge, hypothecate, establish an open “put equivalent position” within the meaning of Rule 16a-1(h) under
the Exchange Act, grant any option, right or warrant for the sale of, purchase any option or contract to sell, sell any option, right,
warrant or contract to purchase, lend, or otherwise encumber, dispose of or transfer, or grant any rights with respect to, any of the
Warrants. For avoidance of doubt, nothing in this Section 4 shall be construed as a limitation on the Warrant Holder’s ability
to exercise any of the Warrants, and the Warrant Holder shall continue to have all rights to exercise any of the Warrants in accordance
with the terms thereof.
5. The
Company’s Representations and Warranties. The Company hereby represents and warrants to the Warrant Holder as follows:
(a) Organization
and Qualification. The Company and each of the Subsidiaries is an entity duly incorporated or otherwise organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or organization (if a good standing concept exists in such
jurisdiction), with the requisite power and authority to own and use its properties and assets and to carry on its business as currently
conducted. Neither the Company nor any Subsidiary is in violation nor default of any of the provisions of its respective certificate or
articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing (if a good standing concept exists in such jurisdiction) as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing (if a good standing concept exists in such jurisdiction), as the case
may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality, validity or enforceability
of this Agreement, (ii) a material adverse effect on the results of operations, assets, business, prospects or condition (financial
or otherwise) of the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse effect on the Company’s ability
to perform in any material respect on a timely basis its obligations under this Agreement (any of (i), (ii) or (iii), a “Material
Adverse Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or
seeking to revoke, limit or curtail such power and authority or qualification.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and otherwise to carry out its obligations hereunder. The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby have been duly authorized by all necessary action on the part of the Company
and no further action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith other
than in connection with the Required Approvals (as defined below). This Agreement has been (or upon delivery will have been) duly executed
by the Company and, when delivered in accordance with the terms hereof, will (assuming due authorization, execution and delivery by other
parties thereto) constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms,
except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by 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.
(c) Issuance
of the Securities. The New Warrant and the shares of Common Stock issuable upon exercise thereof (such shares of Common Stock, the
“Warrant Shares” and, together with the New Warrant, the “Securities”) are duly authorized
and, when issued and paid for in accordance with this Agreement and, in the case of the Warrant Shares, the New Warrant, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions on transfer
provided for in this Agreement and the New Warrant. The Warrant Shares, when issued and paid for in accordance with the terms of the New
Warrant, will be validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company other than restrictions
on transfer provided for in this Agreement and the New Warrant. The Company has reserved from its duly authorized capital stock the maximum
number of shares of Common Stock issuable pursuant to this Agreement and the New Warrant.
(d) No
Conflicts. The execution, delivery and performance by the Company of this Agreement, the issuance and sale of the Securities and the
consummation by it of the transactions contemplated hereby, including the agreement to exchange the Series A Warrants for the New
Warrant and the agreement to accept the surrender of the Series B Warrants in exchange for the Series B Warrant Payment Amount,
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, anti-dilution or similar adjustments,
acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or other instrument
(evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary is a party or by
which any property or asset of the Company or any Subsidiary is bound or affected, or (iii) subject to the Required Approvals, conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental
authority to which the Company or a Subsidiary is subject (including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such
as could not have or reasonably be expected to result in a Material Adverse Effect.
(e) Section 3(a)(9) Exchange.
The Company acknowledges that the issuance of the New Warrant in exchange for the Series A Warrants is intended to be exempt from
registration by virtue of Section 3(a)(9) of the Securities Act. The Company has not taken any action that would cause such
exemption not to be available.
(f) SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company under
the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or
such shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein, the “SEC Reports”). As of their respective dates, the
SEC Reports complied in all material respects with the requirements of the Exchange Act and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never been an issuer
subject to Rule 144(i) under the Securities Act.
(g) Trading
Market. The issuance and sale of the New Warrant and the New Warrant Shares hereunder does not contravene the applicable rules and
regulations of the Nasdaq Capital Market.
(h) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection
with the execution, delivery and performance by the Company of this Agreement, other than: (i) the filings required pursuant to this
Agreement; (ii) the application(s) or notice to each applicable Trading Market for the listing of the New Warrant and New Warrant
Shares for trading thereon in the time and manner required thereby, and (iii) the filing of Form D with the Commission and such
filings as are required to be made under applicable state securities laws.
(i) Form D;
Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrant and New Warrant Shares
as required under Regulation D and to provide a copy thereof, promptly upon request of the Warrant Holder. The Company shall take such
action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrant and the
New Warrant Shares for, sale to the Warrant Holder on the Execution Date under applicable securities or “Blue Sky” laws of
the states of the United States, and shall provide evidence of such actions promptly upon request of the Warrant Holder.
6. The
Warrant Holder’s Representations and Warranties. The Warrant Holder hereby represents and warrants to the Company as follows:
(a) Ownership
of the Warrants. The Warrant Holder holds and is the sole owner, beneficially and of record, of the Warrants. The Warrants are held
free and clear of all mortgages, liens, licenses, pledges, charges, claims, equities, commitments, security interests, prior assignments
encumbrances, agreements, rights of first refusal, options or restrictions of any kind whatsoever (including, without limitation, restrictions
on the right to sell or otherwise dispose of the Warrants) or other defects in title.
(b) Organization;
Authority. The Warrant Holder is an entity duly incorporated or formed, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company or similar power and
authority to enter into and to consummate the transactions contemplated hereby and otherwise to carry out its obligations hereunder. The
execution and delivery of this Agreement and performance by the Warrant Holder of the transactions contemplated by this Agreement have
been duly authorized by all necessary corporate, partnership, limited liability company or similar action, as applicable, on the part
of the Warrant Holder. This Agreement has been duly executed by the Warrant Holder, and when delivered by the Warrant Holder in accordance
with the terms hereof, will constitute the valid and legally binding obligation of the Warrant Holder, enforceable against it in accordance
with its terms, except: (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.
(c) Understandings
or Arrangements. The Warrant Holder is entering into this Agreement, including the agreement to exchange the Series A Warrants
for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount,
as principal for its own account and has no direct or indirect arrangement or understandings with any other persons to distribute or regarding
the distribution of the Securities (this representation and warranty not limiting the Warrant Holder’s right to sell any such shares
of Common Stock in compliance with applicable federal and state securities laws). The Warrant Holder understands that the Securities are
“restricted securities” and have not been registered under the Securities Act or any applicable state securities law and is
acquiring the Securities as principal for its own account and not with a view to or for distributing or reselling the Securities or any
part thereof in violation of the Securities Act or any applicable state securities law, has no present intention of distributing any of
the Securities in violation of the Securities Act or any applicable state securities law and has no direct or indirect arrangement or
understandings with any other persons to distribute or regarding the distribution of the Securities in violation of the Securities Act
or any applicable state securities law (this representation and warranty not limiting the Warrant Holder’s right to sell the Securities
in compliance with applicable federal and state securities laws). The Warrant Holder is entering into this Agreement, including the agreement
to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the
Series B Warrant Payment Amount, in the ordinary course of its business.
(d) The
Warrant Holder’s Status. As of the date hereof, the Warrant Holder is, and on the Execution Date and each date on which it exercises
the New Warrant, it will be, either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3),
(a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined
in Rule 144A(a) under the Securities Act.
(e) Experience
of the Warrant Holder. The Warrant Holder, either alone or together with its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of evaluating the merits and risks of entering into this Agreement, including
the agreement to exchange the Series A Warrants for the New Warrant and the agreement to surrender its Series B Warrants in
exchange for the Series B Warrant Payment Amount, and has so evaluated the merits and risks of such investment. The Warrant Holder
is able to bear the economic risk of an investment in the Securities and, at the present time, is able to afford a complete loss of such
investment.
(f) Access
to Information. The Warrant Holder acknowledges that it has had the opportunity to review this Agreement (including all exhibits and
schedules thereto) and the SEC Reports 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 this Agreement, including the agreement to exchange the Series A
Warrants for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment
Amount, 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.
(g) General
Solicitation. The Warrant Holder is not entering into this Agreement, including the agreement to exchange the Series A Warrants
for the New Warrant and the agreement to surrender its Series B Warrants in exchange for the Series B Warrant Payment Amount,
as a result of any advertisement, article, notice or other communication regarding the Securities published in any newspaper, magazine
or similar media or broadcast over television or radio or presented at any seminar or, to the knowledge of the Warrant Holder, any other
general solicitation or general advertisement.
(h) Section 3(a)(9) Exchange.
The Warrant Holder acknowledges that the issuance of the New Warrant in exchange for the Series A Warrants is intended to be exempt
from registration by virtue of Section 3(a)(9) of the Securities Act. The Warrant Holder has not taken any action that would
cause such exemption not to be available.
7. Registration
Statement. As soon as practicable (and in any event by the later of 120 calendar days following the Execution Date and May 1,
2024), the Company shall file a registration statement on Form S-1 (or other appropriate form if the Company is not then S-1 eligible)
(the “Registration Statement”) providing for the resale by the Warrant Holder of the Warrant Shares issued and
issuable upon exercise of the New Warrant. The Company shall use commercially reasonable efforts to cause the Registration Statement
to become effective upon the earlier of 90 days following the date of the filing of the Registration Statement and five trading days after
the date the Company receives written notification from the Commission that the Registration Statement will not be reviewed and to keep
the Registration Statement effective at all times until no Warrant Holder owns any New Warrants or Warrant Shares issuable upon exercise
thereof.
8. General
Provisions.
(a) Entire
Agreement. This Agreement, together with the exhibits hereto, contains the entire understanding of the parties with respect to the
subject matter hereof and supersedes all prior agreements and understandings, oral or written, with respect to such matters, which the
parties acknowledge have been merged into this Agreement and such exhibits.
(b) Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery (including any electronic
signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act
or other applicable law, e.g., www.docusign.com) or other transmission method, such signature shall be deemed to have been duly and validly
delivered and shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with
the same force and effect as if such “.pdf” signature page were an original there.
(c) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City of New York, Borough
of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of any such court, that such suit, action or proceeding is improper or is an inconvenient venue for such proceeding.
Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding
by mailing a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted
by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Agreement, 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.
(d) Notices.
Any and all notices or other communications or deliveries to be provided by the Warrant Holder hereunder, shall be in writing and delivered
personally, by e-mail, or sent by a nationally recognized overnight courier service, addressed to the Company, at 350 Technology Drive,
Pittsburgh, PA 15219, Attention: Todd Branning, email address: tbranning@neubasetherapeutics.com, or such other email address or address
as the Company may specify for such purposes by notice to the Warrant Holder. Any and all notices or other communications or deliveries
to be provided by the Company hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service addressed to each Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice
or other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the time of transmission,
if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section 8(d) prior to 5:30 p.m. (New
York City time) on any date, (ii) the next Trading Day after the time of transmission, if such notice or communication is delivered
via e-mail at the e-mail address set forth in this Section 8(d) on a day that is not a Trading Day or later than 5:30 p.m. (New
York City time) on any Trading Day, (iii) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized
overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required to be given. To the extent that
any notice provided hereunder constitutes, or contains, material, non-public information regarding the Company or any Subsidiaries, the
Company shall simultaneously file such notice with the Commission pursuant to a Current Report on Form 8-K.
(e) Successors
and Assigns. Subject to applicable securities laws, this Agreement 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 the
Warrant Holder.
(f) Amendment.
This Agreement may be modified or amended or the provisions hereof waived with the written consent of the Company, on the one hand, and
the Warrant Holder, on the other hand.
(g) Severability.
Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement 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 Agreement.
(h) Headings.
The headings used in this Agreement are for the convenience of reference only and shall not, for any purpose, be deemed a part of this
Agreement.
[Signature Page Follows]
In
Witness Whereof, the parties hereto have executed this Agreement on the date first written above.
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NeuBase Therapeutics, Inc. |
|
|
|
|
|
By: |
/s/ Todd Branning |
|
Name: Todd Branning |
|
Title: Chief Financial Officer |
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|
|
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Armistice Capital
Master Fund Ltd. |
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By |
/s/ Steven Boyd |
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Name: Steven Boyd |
|
Title: CIO of Armistice Capital, LLC, the Investment Manager |
Exhibit A
Certification
Reference
is hereby made to that certain Exchange Agreement, dated October 17,
2023 (the “Agreement”), by and between NeuBase Therapeutics, Inc.
and Armistice Capital Master Fund Ltd. (the “Warrant Holder”). Capitalized terms used and not otherwise defined
herein shall have the meanings set forth in the Agreement. In accordance with Section 1 of the Agreement, the Warrant Holder hereby
represents and warrants to the Company that, as of the date hereof, the Warrant Holder holds and is the sole owner, beneficially and of
record, of the following Series A Warrants:
Warrant | |
Shares of Common Stock Issuable upon Exercise | |
Series A Common Stock Purchase Warrant (Series A PIPE Warrant) | |
| | |
Series A Common Stock Purchase Warrant (Series A RD Warrant) | |
| | |
The
Warrant Holder hereby represents and warrants to the Company that the Series A Warrants are held free and clear of all mortgages,
liens, licenses, pledges, charges, claims, equities, commitments, security interests, prior assignments encumbrances, agreements, rights
of first refusal, options or restrictions of any kind whatsoever (including, without limitation, restrictions on the right to sell
or otherwise dispose of the Series A Warrants) or other defects in title.
The Warrant Holder hereby represents and warrants
to the Company that it is either: (i) an “accredited investor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7),
(a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act or (ii) a “qualified institutional buyer” as defined in
Rule 144A(a) under the Securities Act.
Executed as of this _____ day of __________, 202__.
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Armistice Capital
Master Fund Ltd. |
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By |
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Name: |
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Title: |
Exhibit B
Form of
New Warrant
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