PROPOSAL
1: ELECTION OF DIRECTORS
Our
Certificate of Incorporation provides that the number of directors shall be established from time to time by our Board. Our Board has
fixed the number of directors at six, and we currently have six directors serving on the Board.
Our
Certificate of Incorporation provides that the Board be divided into three classes, designated as Class I, Class II and Class III. Each
class must consist, as nearly as may be practicable, of one-third of the total number of directors constituting the entire Board. Each
class of directors shall serve for a term ending on the date of the third annual meeting of stockholders following the annual meeting
at which such class of directors was elected. The term of the Class I directors expires at the 2025 annual meeting of stockholders. Each
director initially assigned to Class II shall serve for a term expiring at the 2023 annual meeting of stockholders, and each director
initially assigned to Class III shall serve for a term expiring at the 2024 annual meeting of stockholders; provided further, that the
term of each director will continue until the election and qualification of his or her successor and is subject to his or her earlier
death, disqualification, resignation or removal. Generally, vacancies or newly created directorships on the Board will be filled only
by vote of a majority of the directors then in office and will not be filled by the stockholders. A director appointed by the Board to
fill a vacancy will hold office until the next election of the class for which such director was chosen, subject to the election and
qualification of his or her successor and his or her earlier death, disqualification, resignation or removal.
Messrs.
Givens and Medeiros have been nominated by the Board to stand for election. As the directors assigned to Class II, the current term for
each of Messrs. Givens and Medeiros will expire at the Annual Meeting. If elected by the stockholders at the Annual Meeting, Messrs.
Givens and Medeiros will each serve for a term expiring at the annual meeting of stockholders to be held in 2026 subject to the election
and qualification of his successor or until his earlier death, resignation or removal.
Directors
are elected by a plurality of the votes of the holders of shares present in person or represented by proxy and entitled to vote on the
election of directors. Stockholders may not vote, or submit a proxy, for a greater number of nominees than the nominees named below.
The nominees receiving the highest number of affirmative votes will be elected. Unless otherwise directed, shares represented by executed
proxies will be voted for the election of the nominees named below. Each person nominated for election has agreed to serve if elected,
and management has no reason to believe that any nominee will be unable to serve. If, however, prior to the Annual Meeting, the Board
should learn that any nominee will be unable to serve for any reason, the proxies that otherwise would have been voted for this nominee
will be voted for a substitute nominee as selected by the Board. Alternatively, the proxies, at the Board’s discretion, may be
voted for that fewer number of nominees as results from the inability of any nominee to serve. The Board has no reason to believe that
any of the nominees will be unable to serve.
The
following table sets forth the director name, class, age as of April 14, 2023, and other information for each member of our Board:
Name |
|
Class |
|
Age |
|
Director
Since |
|
Current
Term
Expires |
|
Expiration
of
Term
For
Which
Nominated |
|
Skills
and
Experience |
Gregg
Givens |
|
II |
|
62 |
|
2021 |
|
2023 |
|
2026
|
|
Finance,
Accounting, Capital Raising, International Markets and Corporate Development |
Curt
Medeiros |
|
II |
|
47 |
|
2021 |
|
2023 |
|
2026
|
|
Life
Sciences, International Markets and Commercialization |
Scott
Applebaum |
|
III |
|
56 |
|
2022 |
|
2024 |
|
|
|
Life
Sciences, Legal, Compliance, Regulatory, Finance, Operations and Capital Raising |
Shane
J. Schaffer |
|
III |
|
48 |
|
2012 |
|
2024 |
|
|
|
Life
Sciences, Commercialization, Product Development, Clinical and CEO |
Patrick
Gallagher |
|
I |
|
58 |
|
2014 |
|
2025 |
|
|
|
Life
Sciences, Finance and Capital Raising |
|
|
|
|
|
|
|
|
|
|
|
|
|
Peter
J. Werth |
|
I |
|
84 |
|
2018 |
|
2025 |
|
|
|
Life
Sciences, International Markets, Commercialization, Product Development, Manufacturing and Corporate Development |
Class
II Nominees for Election for a Term Expiring at the 2026 Annual Meeting
Gregg
Givens has served on our Board of Directors since July 2021 and as our Lead Independent Director since December 2022. Mr. Givens
is the sole member of Fountain Point Advisory LLC, which provides board and advisory services. Mr. Givens served as the Chief Financial
Officer at Park University from March 2020 to July 2022. From November 2018 to November 2021, Mr. Givens served as a member of the Board
of Directors of Excel Industries, Inc. Previously, Mr. Givens served as a member of the Board of Directors at Asurion, Inc. from January
2006 to July 2007. From May 1996 through April 2018, Mr. Givens served in various positions at DST Systems, Inc. (NYSE: DST), including
as Senior Vice President, Chief Financial Officer and Treasurer. Mr. Givens received his Bachelor of Science in Accountancy from the
University of Missouri and is a Certified Public Accountant. We believe Mr. Givens’ extensive financial and accounting experience
qualifies him to serve on our Board of Directors.
Curt
Medeiros, MBA has served on our Board of Directors since July 2021. Since January 2022, Mr. Medeiros has served as the Chief Executive
Officer and a board member of Ovation.io, Inc., a software and data company in the laboratory and life sciences industry. He has served
as a Strategic Advisor to HealthRhythms and DermTech since June 2021. Mr. Medeiros served as the President and Chief Operating Officer
at Ontrak, Inc., from December 2019 through June 2021 (NASDAQ: OTRK). From June 2010 to November 2019, he served in various positions
at UnitedHealth Group, including President of UnitedHealth Group subsidiaries OPTUM Analytics and OPTUM Life Sciences. Mr. Medeiros received
his Bachelor of Science in Chemical Engineering from Massachusetts Institute of Technology and his Master in Business Administration
from Harvard Business School. We believe Mr. Medeiros’ extensive experience in the life sciences industry qualifies him to serve
on our Board of Directors.
Class
III Directors Continuing in Office until the 2024 Annual Meeting
Scott
Applebaum has served as a member of our Board of Directors since August 2022. Mr. Applebaum has been the Chief Legal Officer and
Corporate Secretary at VectivBio (NASDAQ:VECT), a biopharmaceutical company focused on the discovery, development, and commercialization
of innovative treatments for severe rare conditions with high unmet medical need, since September 2021. Prior to that, he was the Chief
Legal & Compliance Officer and Senior Vice President of Regulatory Affairs at Trevena from February 2020 to August 2021. From September
2017 to June 2019, he served as President of Context Therapeutics and was General Counsel and Corporate Secretary at Vitae Pharmaceuticals
from July 2016 to December 2016. Prior to that, Mr. Applebaum was Chief Legal Officer and Corporate Secretary for Medgenics from September
2014 to July 2016. From 2004-2014 he held various leadership positions at Shire Pharmaceuticals. He began his pharmaceuticals career
at Bristol-Myers Squibb in 1997. Before entering the biopharmaceutical industry, Applebaum was a lawyer at Dechert LLP. He received his
J.D. from Stanford Law School and a B.S. in Economics, Finance and Accounting from the Wharton School of the University of Pennsylvania.
We believe that Mr. Applebaum’s experience in the legal, compliance, regulatory and operational areas of the pharmaceutical industry,
including with ADHD products, qualifies him to serve on our Board of Directors.
Shane
J. Schaffer, PharmD co-founded Cingulate in 2012 and has since served as its Chief Executive Officer and Chairman of the Board of
Directors. Prior to his work at Cingulate, Dr. Schaffer served as the Managing Director of Sabre Scientific Solutions, from July 2009
through December 2012. Previously, Dr. Schaffer worked as a Director of National Accounts at Pri-Med Access from September 2008 through
May 2009, Senior Marketing at Sanofi from February 2004 through December 2007, and as a Marketing Manager at Novartis from June 2001
through October 2003. From July 1999 through June 2001, he served as Chief Fellow of the Rutgers Pharmaceutical Industry Fellowship Program
and was Senior Fellow at Warner Lambert/Parke Davis and Pfizer. From June 1997 to July 1999, he worked as a clinical research associate
at Hoechst Marion Roussel. Dr. Schaffer has over 25 years’ experience in drug development, commercialization and biotech commercial
operation. Dr. Schaffer received his Doctor of Pharmacy from The University of Kansas School of Pharmacy. We believe that Dr. Schaffer’s
extensive knowledge of the pharmaceutical industry, his clinical and commercial background in a wide range of therapeutic areas, and
his experience serving as our Chief Executive Officer, qualifies him to serve on our Board of Directors.
Class
I Directors Continuing in Office until the 2025 Annual Meeting
Patrick
Gallagher, MBA, CFA has served as a member of our Board of Directors since January 2014. Mr. Gallagher has served as Senior Managing
Director at Laidlaw & Co., and as Managing Partner at Laidlaw Venture Partners, since September 2014. Since January 2018, he has
also served as the Chief Executive Officer and as a member of the Board of Directors of Voltron Therapeutics, a privately held biotechnology
company. Mr. Gallagher also serves as the Chief Executive Officer and a member of the Board of Directors at PD Theranostics, Inc. positions
he has held since April 2018, and has served as Treasurer of Aerwave Medical, Inc. since November 2020. Prior to his current roles, Mr.
Gallagher was a founding partner and Chief Executive Officer of BDR Research Group, LLC, from July 2001 through October 2010. Previously,
he served as a Management Consultant for CHD Bioscience, Inc. from July 2012 through August 2014. He has served a member of the Board
of Directors of BioSig Technologies, Inc. (NASDAQ: BSGM) since July 2014, Evermore Global since June 2015, and Algorithm Sciences, Inc.
since May 2019. Mr. Gallagher earned his Master in Business Administration from Penn State University and his Bachelor of Science in
Finance from the University of Vermont. We believe that Mr. Gallagher’s extensive experience in the life sciences industry qualifies
him to serve on our Board of Directors.
Peter
J. Werth has served on our Board of Directors since June 2018. Mr. Werth is Founder and Chief Executive Officer of ChemWerth Inc.,
a full-service generic drug development and supply company providing Active Pharmaceutical Ingredients to regulated markets worldwide.
Mr. Werth previously served as Vice President at Ganes Chemicals, a subsidiary of Siegfried Chemicals, from March 1975 through May 1982.
From 1965 through 1975, Mr. Werth worked in Research and Development for Upjohn Pharmaceuticals, now Pfizer (NYSE: PFE). In addition
to serving on the Board of Cingulate, Mr. Werth serves on the Board of Directors of VM Pharma LLC since December 2010, VM Therapeutics
LLC since May 2012, Alopexx Vaccines LLC since June 2012, VM Oncology LLC since August 2014, Perseus Science Group LLC since January
2015, Likarda LLC since August 2017, Techtona LLC since September 2017, MedRhythms LLC since June 2018 and Bastion Healthcare LLC since
September 2020. He earned his Master of Science in Organic Chemistry from Stanford University and his Bachelor of Science in Chemistry
and Math from Fort Hays State University. We believe that Mr. Werth’s extensive experience in the life sciences industry and his
knowledge in business and international markets qualifies him to serve on our Board of Directors.
Board
Membership Diversity
In
accordance with Nasdaq’s Board Diversity Rules (Rule 5605(f) and Rule 5606), the following Board Diversity Matrix presents our
Board diversity statistics. The minimum diversity objective for smaller reporting companies listed on the Nasdaq Capital Market on or
after August 6, 2021 is two diverse directors by December 31, 2026 or two years from the date of listing, whichever is later, including
one who self-identifies as female, and one who self-identifies as either female, an underrepresented minority or LGBTQ+. “Underrepresented
Minority” means an individual who self-identifies as one or more of the following: Black or African American, Hispanic or Latinx,
Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander, or Two or More Races or Ethnicities. “Two or More
Races or Ethnicities” means a person who identifies with more than one of the following categories: White (not of Hispanic or Latinx
origin), Black or African American, Hispanic or Latinx, Asian, Native American or Alaska Native, Native Hawaiian or Pacific Islander.
Our Board does not currently include any diverse directors; however, we intend to have at least two diverse directors by the August 6,
2026, the deadline set forth in the Nasdaq rules.
Board
Diversity Matrix (As of May 5, 2023) |
Total
Number of Directors |
|
6 |
|
|
|
Female |
|
Male |
|
Non-Binary |
|
Did
Not
Disclose
Gender |
|
Part
I: Gender Identity |
|
|
|
|
|
|
|
|
|
Directors |
|
- |
|
5 |
|
- |
|
1 |
|
Part
II: Demographic Background |
|
|
|
|
|
|
|
|
|
African
American or Black |
|
- |
|
- |
|
- |
|
|
|
Alaskan
Native or Native American |
|
- |
|
- |
|
- |
|
|
|
Asian |
|
- |
|
- |
|
- |
|
|
|
Hispanic
or Latinx |
|
- |
|
- |
|
- |
|
|
|
Native
Hawaiian or Pacific Islander |
|
- |
|
- |
|
- |
|
|
|
White |
|
- |
|
5 |
|
- |
|
|
|
Two
or More Races or Ethnicities |
|
- |
|
- |
|
- |
|
|
|
LGBTQ+ |
|
- |
|
Did
Not Disclose Demographic Background |
|
1 |
|
Our
prior year Board Diversity Matrix is disclosed in our Definitive Proxy Statement filed with the SEC on April 22, 2022.
THE
BOARD RECOMMENDS THAT STOCKHOLDERS VOTE FOR THE ELECTION OF EACH OF
THE DIRECTOR NOMINEES.
CORPORATE
GOVERNANCE
Board
of Director Composition
Our
Board currently consists of six members. Our directors hold office until their successors have been elected and qualified or until the
earlier of their death, resignation or removal.
Corporate
Governance Guidelines
Our
Board adopted Corporate Governance Guidelines, a copy of which can be found in the “Corporate Governance—Governance Documents”
section of the “Investors” page of our website located at www.cingulate.com. Among the topics addressed in our Corporate
Governance Guidelines are:
-
Board size, independence and qualifications |
|
-
Communications with directors |
-
Executive sessions of independent directors |
|
-
Interaction with investors and others |
-
Board leadership structure |
|
-
Board access to senior management |
-
Selection of new directors |
|
-
Board access to independent advisors |
-
Director orientation and continuing education |
|
-
Board self-evaluations |
-
Limits on board service |
|
-
Board meetings |
-
Change of principal responsibilities |
|
-
Meeting attendance by directors and non-directors |
-
Term limits |
|
-
Meeting materials |
-
Director responsibilities |
|
-
Board committees, responsibilities and independence |
-
Director compensation |
|
-
Succession planning |
-
Stock ownership |
|
-
Risk management |
Board
Meetings
During
2022, our Board met 14 times. Each of the directors attended at least 75% of the total of the meetings of the Board and the committees
of which they were a member during 2022.
Director
Attendance at Annual Meeting of Stockholders
Board
members are encouraged to attend all stockholder meetings. All of the directors serving on our Board at the time of the 2022 Annual Meeting
of Stockholders attended the meeting.
Executive
Sessions
Non-employee
directors meet regularly (a minimum of two times per year) in executive session without management present. Currently, all non-employee
directors, except Peter Werth, are independent. During 2022, the non-employee directors in attendance determined which member would preside
at the executive session.
Director
Independence
Pursuant
to the rules of Nasdaq, a director will only qualify as an “independent director” if, in the opinion of that company’s
board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying
out the responsibilities of a director.
Our
Board has determined that Scott Applebaum, Patrick Gallagher, Gregg Givens, and Curt Medeiros are “independent directors”
as such term is defined by Nasdaq Marketplace Rule 5605(a)(2). In November 2022, our Board considered the relationship between the Company
and Laidlaw & Company (UK), which acted as co-lead book-running underwriter for our IPO. Mr. Gallagher serves as Senior Managing
Director at Laidlaw & Co and as Managing Partner at Laidlaw Venture Partners. However, Mr. Gallagher received no direct or indirect
benefit from Laidlaw & Company (UK) acting as an underwriter for our IPO. Due to the promissory note issued by CTx in favor of Werth
Family Investment Associates LLC (“WFIA”), our Board determined that Mr. Werth is not an independent director. In addition,
Shane Schaffer is not an independent director due to his position as Chief Executive Officer of the Company. We have established an Audit
Committee, a Compensation Committee and a Nominating and Corporate Governance Committee, each of which are comprised of independent directors.
Committees
of the Board of Directors
Our
Board has established an Audit Committee, a Compensation Committee, and a Nominating and Corporate Governance Committee. Our Board may
establish other committees to facilitate the management of our business. The composition and functions of each committee are described
below. Members serve on these committees until their resignation or until otherwise determined by our Board. Each of these committees
operate under a charter that has been approved by our Board, which can be found in the “Corporate Governance—Committee Charters”
section of the “Investors” page of our website located at www.cingulate.com.
Audit
Committee. Our Audit Committee consists of Gregg Givens, Scott Applebaum and Curt Medeiros, with Gregg Givens serving as the Chairman
of the Audit Committee. The Audit Committee met six times during 2022. Our Board has determined that the directors currently serving
on our Audit Committee are independent within the meaning of the Nasdaq Marketplace Rules and Rule 10A-3 under the Exchange Act. In addition,
our Board has determined that Gregg Givens qualifies as an audit committee financial expert within the meaning of SEC regulations and
the Nasdaq Marketplace Rules.
The
Audit Committee’s primary responsibilities are to (i) oversee and monitor our financial reporting process, internal control system
and disclosure controls and procedures, (ii) review and evaluate the audit performed by our registered independent public accountants
and report to the Board any substantive issues found during the audit; (iii) oversee communication among our registered independent public
accountants, senior management and the Board; (iv) appoint, compensate and oversee the work of our registered independent public accountants;
(v) oversee compliance with legal and regulatory requirements; (vi) review and approve all related party transactions; and (vii) oversee
compliance with our Code of Business Conduct and Ethics.
Compensation
Committee. Our Compensation Committee consists of Pat Gallagher and Gregg Givens, with Pat Gallagher serving as the Chairman of the
Compensation Committee. The Compensation Committee met three times during 2022.Our Board has determined that the directors currently
serving on our Compensation Committee are independent under the listing standards, are “non-employee directors” as defined
in rule 16b-3 promulgated under the Exchange Act.
The
Compensation Committee’s primary responsibilities are to review and approve all forms of non-equity and equity-based compensation
of our executive officers and directors and to administer our equity-based compensation plans. The Compensation Committee also reviews
and approves corporate goals and objectives relevant to the compensation of our Chief Executive Officer and evaluates performance in
light of the goals and objectives.
Compensation
Consultant
In
accordance with its authority to retain consultants and advisors, the Compensation Committee has engaged Pay Governance LLC to provide
executive and director compensation consulting services to the Compensation Committee. In 2022, Pay Governance LLC provided services
to the Compensation Committee, which included providing information and data on current trends and developments in executive and director
compensation and analyzing benchmarking data for our industry. The Compensation Committee evaluated whether any of the work performed
by Pay Governance LLC during 2022 raised any conflict of interest and determined that it did not.
Nominating
and Corporate Governance Committee. Our Nominating and Corporate Governance Committee consists of Scott Applebaum, Pat Gallagher
and Curt Medeiros, with Curt Medeiros serving as the Chairman of the Nominating and Corporate Governance Committee. The Nominating and
Corporate Governance Committee met eight times during 2022. All members of the Nominating and Corporate Governance Committee are independent
directors as defined under the Nasdaq listing standards. The Nominating and Corporate Governance Committee (i) identifies, reviews the
qualifications of, and recommends to the Board individuals to be elected to the Board and (ii) considers recommendations from stockholders
if submitted in a timely manner in accordance with the procedures set forth in our bylaws and will apply the same criteria to all persons
being considered. The Nominating and Corporate Governance Committee also oversees the annual evaluation of the Board and its committees.
Director
Nominations Process
The
Nominating and Corporate Governance Committee is responsible for recommending candidates to serve on our Board and its committees. In
considering whether to recommend any particular candidate to serve on the Board or its committees or for inclusion in the Board’s
slate of recommended director nominees for election at an annual meeting of stockholders, the Nominating and Corporate Governance Committee
considers the criteria set forth in our Corporate Governance Guidelines. Specifically, the Nominating and Corporate Governance Committee
may take into account many factors, including: personal and professional integrity, ethics and values; experience in corporate management,
such as serving as an officer or former officer of a publicly held company; strong finance experience; relevant social policy concerns;
experience relevant to the Company’s industry; experience as a board member of another publicly held company; relevant academic
expertise or other proficiency in an area of the Company’s operations; diversity of expertise and experience in substantive matters
pertaining to the Company’s business relative to other Board members; diversity of background and perspective, including, but not
limited to, with respect to age, gender, race and ethnicity; practical and mature business judgment, including, but not limited to, the
ability to make independent analytical inquiries; and any other relevant qualifications, attributes or skills In determining whether
to recommend a director for re-election, the Nominating and Corporate Governance Committee may also consider the director’s past
attendance at meetings and participation in and contributions to the activities of the Board.
We
do not have a formal policy with regard to the consideration of diversity in identifying director nominees. The Board evaluates each
individual in the context of the Board as a whole, with the objective of assembling a group that can best perpetuate the success of the
business and represent stockholder interests through the exercise of sound judgment using its diversity of experience in these various
areas.
In
identifying prospective director candidates, the Nominating and Corporate Governance Committee may seek referrals from other members
of the Board, management, stockholders and other sources, including third party recommendations. The Nominating and Corporate Governance
Committee also may, but need not, retain a search firm in order to assist it in identifying candidates to serve as directors of the Company.
The Nominating and Corporate Governance Committee uses the same criteria for evaluating candidates regardless of the source of the referral
or recommendation. When considering director candidates, the Nominating and Corporate Governance Committee seeks individuals with backgrounds
and qualities that, when combined with those of our incumbent directors, provide a blend of skills and experience to further enhance
the Board’s effectiveness. In connection with its annual recommendation of a slate of nominees, the Nominating and Corporate Governance
Committee also may assess the contributions of those directors recommended for re-election in the context of the Board evaluation process
and other perceived needs of the Board.
Each
of the director nominees to be elected at the Annual Meeting was evaluated in accordance with our standard review process for director
candidates in connection with their initial appointment and their nomination for election at the Annual Meeting. When considering whether
the directors and nominees have the experience, qualifications, attributes and skills, taken as a whole, to enable the Board to satisfy
its oversight responsibilities effectively in light of our business and structure, the Board focused primarily on the information discussed
in each of the member’s biographical information set forth above. We believe that our directors provide an appropriate mix of experience
and skills relevant to the size and nature of our business. This process resulted in the Board’s nomination of the incumbent directors
named in this Proxy Statement and proposed for election by you at the Annual Meeting.
Stockholder
Nominations for Directorships
Stockholders
may recommend individuals to the Nominating and Corporate Governance Committee for consideration as potential director candidates by
submitting their names and background to the Secretary of the Company at the address set forth below under “Stockholder Communications”
in accordance with the provisions set forth in our bylaws. All such recommendations will be forwarded to the Nominating and Corporate
Governance Committee, which will review and only consider such recommendations if appropriate biographical and other information is provided,
including, but not limited to, the items listed below, on a timely basis. All stockholder recommendations for director candidates must
be received by the Company in the timeframe(s) set forth under the heading “Stockholder Proposals” below.
|
● |
the
name and address of the stockholder and the beneficial owner, if any; |
|
|
|
|
● |
a
representation that the stockholder is a record holder of the Company’s securities entitled to vote at the meeting upon such
nomination and intends to appear in person or by proxy at the meeting to propose such nomination; |
|
|
|
|
● |
the
name, age, business and residential address, and principal occupation or employment of the proposed director candidate; |
|
|
|
|
● |
a
description of any arrangements or understandings between the proposed director candidate and any other person or entity other than
the Company; and |
|
|
|
|
● |
the
consent of the proposed director candidate to be named in the proxy statement relating to the Company’s annual meeting of stockholders
and to serve as a director if elected at such annual meeting. |
Assuming
that appropriate information is provided for candidates recommended by stockholders, the Nominating and Corporate Governance Committee
will evaluate those candidates by following substantially the same process, and applying substantially the same criteria, as for candidates
submitted by members of the Board or other persons, as described above and as set forth in its written charter.
Board
Leadership Structure
The
Board believes that it should have the flexibility to make determinations as to whether the same individual should serve as both the
Chief Executive Officer and the Chairman of the Board, taking into account changing needs and circumstances of both the Company and the
Board over time. In determining the appropriate leadership structure, the Board considers, among other things, the current composition
of the Board, the role of the Lead Independent Director, if any, and challenges and opportunities specific to the Company. Currently,
the Chief Executive Officer and Chairman positions are held by Shane J. Schaffer. Our Board has determined that its leadership structure
is appropriate given the efficiencies of having a single individual fulfill both roles, the benefit of having a single source of leadership
and authority for the Board, and Dr. Schaffer’s extensive knowledge of all aspects of Cingulate, our business and risks. Periodically,
our Board assesses these roles and the Board leadership structure to ensure the interests of Cingulate and our stockholders are best
served. In December 2022, the Board appointed Gregg Givens as Lead Independent Director. Dr. Schaffer will consult with Mr. Givens on
Board matters and issues facing the Company. Mr. Givens serves as the principal liaison between the Chairman of the Board and the independent
directors, advises the Chairman of the Board with respect to agenda items, and presides over executive sessions of the independent directors
at regularly scheduled Board meetings, as well as presides over Board meetings in the event the Chairman of the Board is unable to attend.
Role
of Board in Risk Oversight Process
While
management is responsible for assessing and managing our risks, our Board is responsible for overseeing management’s efforts to
assess and manage risk. This oversight is conducted by our full Board, which has responsibility for general oversight of risks, and standing
committees of our Board. Our Board satisfies this responsibility through full reports by each committee chair regarding the committee’s
considerations and actions, as well as through regular reports directly from officers responsible for oversight of particular risks within
our company. Our Board believes that full and open communication between management and the Board is essential for effective risk management
and oversight.
The
Audit Committee is responsible for discussing the Company’s policies with respect to risk assessment and risk management, including
guidelines and policies to govern the process by which the Company’s exposure to financial risk is handled. In accordance with
those policies, our Board and the Board committees shall have an active role in overseeing management of the Company’s risks. Our
Board regularly reviews information regarding the Company’s credit, liquidity and operations, as well as the risks associated with
each. The Compensation Committee oversees the management of risks relating to the Company’s executive compensation plans and arrangements.
The Audit Committee oversees financial and cybersecurity risks. The Nominating and Corporate Governance Committee manages risks associated
with the independence of our Board and potential conflicts of interest.
Stockholder
Communications
Any
stockholder or any other interested party who desires to communicate with our Board, our non-management directors or any specified individual
director, may do so by directing such correspondence to the attention of our Secretary, Craig S. Gilgallon, at Cingulate Inc., 1901 W.
47th Place, 3rd Floor, Kansas City, Kansas 66205. Our Secretary will forward the communication to the appropriate
director or directors.
Code
of Business Conduct and Ethics
Our
Board adopted a Code of Business Conduct and Ethics (the “Code of Conduct”) that applies to our employees, officers and directors.
A copy of the Code of Conduct is posted on the Corporate Governance section of the Investor Relations page of our website, which is located
at www.cingulate.com/investors. We intend to disclose future amendments to certain provisions of the Code of Conduct, or waivers of such
provisions applicable to any principal executive officer, principal financial officer, principal accounting officer or controller, or
persons performing similar functions, and our directors, on our website identified above or in filings with the SEC.
Anti-Hedging
Policy
Our
Board has adopted a Statement of Company Policy on Insider Trading and Policy Regarding Special Trading Procedures, which applies to
all of our directors, officers and employees. The policy prohibits our directors, officers and employees from engaging in hedging or
monetization transactions, such as zero-cost collars and forward sale contracts.
Delinquent
Section 16(a) Reports
Section
16(a) of the Exchange Act requires our directors, executive officers and persons who beneficially own more than 10% of our outstanding
common stock to file reports with the SEC regarding their stock ownership and changes in their ownership of our common stock. Based on
our records and representations from our directors and executive officers, we believe that all Section 16(a) filing requirements applicable
to our directors and executive officers were complied with during fiscal year 2022, except for the following: (i) due to administrative
error, Laurie Myers filed a late Form 4 on December 1, 2022 to report her purchase of shares our common stock on November 23, 2022; and
(ii) Curt Medeiros filed a late Form 4 on September 23, 2022 to report the sale of shares of our common stock on May 2, 2022 by Mr. Medeiros’
broker without instruction from, or knowledge by, Mr. Medeiros.
EXECUTIVE
OFFICERS
The
following table provides information regarding our executive officers with their respective ages as of April 14, 2023:
Name |
|
Age |
|
Position |
|
|
|
|
|
Shane
J. Schaffer, PharmD |
|
48 |
|
Chief
Executive Officer and Chairman of the Board |
Louis
G. Van Horn, MBA |
|
64 |
|
Executive
Vice President and Chief Financial Officer |
Laurie
A. Myers, PhD |
|
66 |
|
Executive
Vice President and Chief Operating Officer |
Craig
S. Gilgallon, Esq. |
|
51 |
|
Executive
Vice President, General Counsel and Secretary |
Raul
R. Silva, MD |
|
65 |
|
Executive
Vice President and Chief Science Officer |
Matthew
Brams, MD |
|
60 |
|
Executive
Vice President and Chief Medical Officer |
See
page 7 of this Proxy Statement for Mr. Schaffer’s biography.
Louis
G. Van Horn, MBA has served as our Executive Vice President and Chief Financial Officer since May 2017. He previously served as a
consultant with Tarsus CFO Services, LLC from December 2016 to May 2017. From December 2004 through June 2016, Mr. Van Horn served as
Executive Vice President and Chief Financial Officer of Store Financial Services, LLC. Previously, Mr. Van Horn served as Vice President
and Comptroller of Kansas City Southern (NYSE: KSU) from June 1988 to December 2003. He previously held financial positions at Yellow
Freight Systems and PricewaterhouseCoopers. Mr. Van Horn received his Master of Business Administration from the University of Missouri
– Kansas City, and a Bachelor of Arts in Accounting from Westminster College. Mr. Van Horn is a Certified Public Accountant.
Laurie
A. Myers, PhD, MBA has served as our Executive Vice President and Chief Operating Officer since April 2018 and previously served
as a member of our Board of Directors from June 2013 through April 2018 and as our Senior Vice President of Operations from November
2017 to April 2018. Dr. Myers also serves as a Member of the Board of Advisors of Linea System, LLC, a position she has held since September
2020. Dr. Myers previously served as the Head of Marketing of Fidia Pharma USA Inc., a wholly owned subsidiary of Fidia Farmaceutici
from September 2014 through November 2017. Dr. Myers was an Adjunct Professor at the College of New Jersey School of Business from January
2012 through December 2014, and served as President and a Member of the Board of the Hallett David Strategic Group from January 2010
through September 2014. Dr. Myers received her Doctor of Philosophy in Toxicology from Rutgers Medical School and Rutgers School of Pharmacy,
her Masters in Business Administration from St. Joseph’s University and her Master of Science and Bachelor of Science from the
University of Scranton.
Craig
S. Gilgallon, Esq. co-founded Cingulate in 2013 and has served as our Executive Vice President, General Counsel and Board Secretary
since our inception. Previously, he served as our Director of Operations from March 2017 through November 2017. Since 2012, Mr. Gilgallon
has served as a partner at the law firm of Pawar Gilgallon & Rudy, LLC. Prior to that, he served as the owner of the Law Office of
Craig S. Gilgallon from October 2004 through August 2012. Mr. Gilgallon received his Juris Doctor from the Thomas Jefferson School of
Law and his Bachelor of Science from Ithaca College.
Raul
R. Silva, MD co-founded Cingulate in 2013 and has served as our Executive Vice President and Chief Science Officer since January
2018. He has been in private practice since 2009. Previously, Dr. Silva served as Executive Director of Rockland Children’s Psychiatric
Center from 2006-2009. He also served as Vice Chairman of The New York University Child Study Center 2005 through 2009. Dr. Silva served
as Deputy Director of Child Psychiatry at Bellevue Hospital Center from 1999 through 2006. Prior to that, he was Director of Child and
Adolescent Psychiatry at St. Luke’s/Roosevelt Hospital in New York City from 1995 through 1990. He completed his fellowship in
child and adolescent psychiatry at Columbia University’s St. Luke’s/Roosevelt Hospital Center in 1990 Dr. Silva completed
a psychopharmacology research fellowship at New York University Medical Center. Dr. Silva is board certified in general, child and adolescent
psychiatry. Dr. Silva received his Doctor of Medicine degree from Ross University and his Bachelor of Science in Biology from Fairleigh
Dickinson University.
Matthew
N. Brams, MD co-founded Cingulate in 2013 and has served as our Executive Vice President and Chief Medical Officer since January
2018 and served as a director of Cingulate from January 2018 through July 2021. Dr. Brams served as a Principal of Bayou City Research,
a position he held from April 1999 to January 2021. Prior to that, he served as a consultant medical director and/or admitting Psychiatrist
at numerous medical facilities including Taylor Recover Center (April 2019 to present); Lakeview Health Rehabilitation Center (2018-2019);
The Parc, Houston Tx (2012-2015); GeroPsych Unit Gulf Coast Hospital (2009-Present). Dr. Brams has been integral to the research teams
for all the major pharmaceutical companies participating in the ADHD clinical arena. Dr. Brams completed residency and fellowship at
Baylor College of Medicine in adult and child psychiatry, respectively. He is Board certified in Adult and Child Psychiatry (1994) and
is an acting Senior Board Examiner for the American Board of Psychiatry and Neurology. He received his Doctor of Medicine from The University
of Texas Science Center and his Bachelor of Arts in Biology from the University of Texas.
OTHER
MATTERS
As
of the date of this proxy statement, the Board does not intend to present at the Annual Meeting any matters other than those described
herein and does not presently know of any matters that will be presented by other parties. If any other matter requiring a vote of the
stockholders should come before the meeting, it is the intention of the persons named in the proxy to vote with respect to any such matter
in accordance with the recommendation of the Board or, in the absence of such a recommendation, in accordance with the best judgment
of the proxy holder.
|
By
Order of the Board of Directors |
|
|
|
/s/
Craig S. Gilgallon |
|
Craig
S. Gilgallon |
|
Executive
Vice President, General Counsel and Secretary |
May
5, 2023 |
|
Kansas
City, Kansas |
|
Appendix
A
Execution
Version
PURCHASE
AGREEMENT
PURCHASE
AGREEMENT (the “Agreement”), dated as of April 24, 2023, by and between CINGULATE INC., a Delaware corporation
(the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability company (the “Investor”).
WHEREAS:
Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from
the Company, up to Twelve Million Dollars ($12,000,000) of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”
NOW
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
1.
CERTAIN DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the following meanings:
(a)
“Accelerated Purchase Date” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof,
the Business Day immediately following the applicable Purchase Date with respect to the corresponding Regular Purchase referred to in
clause (i) of the second sentence of Section 2(b) hereof.
(b)
“Accelerated Purchase Minimum Price Threshold” means, with respect to any Accelerated Purchase made pursuant to Section
2(b) hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock on the applicable Purchase
Date with respect to the corresponding Regular Purchase referred to in clause (i) of the second sentence of Section 2(b) hereof
and (ii) the minimum per share price threshold set forth in the applicable Accelerated Purchase Notice.
(c)
“Accelerated Purchase Notice” means, with respect to an Accelerated Purchase made pursuant to Section 2(b)
hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the number of Purchase Shares
specified by the Company therein as the Accelerated Purchase Share Amount to be purchased by the Investor (such specified Accelerated
Purchase Share Amount subject to adjustment in accordance with Section 2(b) hereof as necessary to give effect to the Purchase
Share amount limitations applicable to such Accelerated Purchase Share Amount as set forth in this Agreement) at the applicable Accelerated
Purchase Price on the applicable Accelerated Purchase Date for such Accelerated Purchase.
(d)
“Accelerated Purchase Price” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof,
ninety-five percent (95%) of the lower of (i) the VWAP for the period beginning at 9:30:01 a.m., Eastern time, on the applicable Accelerated
Purchase Date, or such other time publicly announced by the Principal Market as the official open (or commencement) of trading on the
Principal Market on such applicable Accelerated Purchase Date (the “Accelerated Purchase Commencement Time”), and
ending at the earliest of (A) 4:00:00 p.m., Eastern time, on such applicable Accelerated Purchase Date, or such other time publicly announced
by the Principal Market as the official close of trading on the Principal Market on such applicable Accelerated Purchase Date, (B) such
time, from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the total number (or volume) of shares
of Common Stock traded on the Principal Market has exceeded the applicable Accelerated Purchase Share Volume Maximum, and (C) such time,
from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the Sale Price has fallen below the applicable
Accelerated Purchase Minimum Price Threshold (such earliest of (i)(A), (i)(B) and (i)(C) above, the “Accelerated Purchase Termination
Time”), and (ii) the Closing Sale Price of the Common Stock on such applicable Accelerated Purchase Date (to be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
(e)
“Accelerated Purchase Share Amount” means, with respect to an Accelerated Purchase made pursuant to Section 2(b)
hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor in an Accelerated Purchase Notice,
which number of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed by the Company to be
purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in
clause (i) of the second sentence of Section 2(b) hereof (subject to the Purchase Share limitations contained in Section 2(a)
hereof) and (ii) an amount equal to (A) the Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume)
of shares of Common Stock traded on the Principal Market during the period on the applicable Accelerated Purchase Date beginning at the
Accelerated Purchase Commencement Time for such Accelerated Purchase and ending at the Accelerated Purchase Termination Time for such
Accelerated Purchase.
(f)
“Accelerated Purchase Share Percentage” means, with respect to an Accelerated Purchase made pursuant to Section
2(b) hereof, thirty percent (30%).
(g)
“Accelerated Purchase Share Volume Maximum” means, with respect to an Accelerated Purchase made pursuant to Section
2(b) hereof, a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the Company in the applicable
Accelerated Purchase Notice as the Accelerated Purchase Share Amount to be purchased by the Investor in such Accelerated Purchase, divided
by (ii) the Accelerated Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend,
stock split, reverse stock split or other similar transaction).
(h)
“Additional Accelerated Purchase Date” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, the Business Day (i) that is the Accelerated Purchase Date with respect to the corresponding Accelerated
Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof and (ii) on which the Investor
receives, prior to 1:00 p.m., Eastern time, on such Business Day, a valid Additional Accelerated Purchase Notice for such Additional
Accelerated Purchase in accordance with this Agreement.
(i)
“Additional Accelerated Purchase Minimum Price Threshold” means, with respect to an Additional Accelerated Purchase
made pursuant to Section 2(c) hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock
on the Business Day immediately preceding the applicable Additional Accelerated Purchase Date with respect to such Additional Accelerated
Purchase and (ii) the minimum per share price threshold set forth in the applicable Additional Accelerated Purchase Notice.
(j)
“Additional Accelerated Purchase Notice” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the number
of Purchase Shares specified by the Company therein as the Additional Accelerated Purchase Share Amount to be purchased by the Investor
(such specified Additional Accelerated Purchase Share Amount subject to adjustment in accordance with Section 2(c) hereof as necessary
to give effect to the Purchase Share amount limitations applicable to such Additional Accelerated Purchase Share Amount as set forth
in this Agreement) at the applicable Additional Accelerated Purchase Price on the applicable Additional Accelerated Purchase Date for
such Additional Accelerated Purchase.
(k)
“Additional Accelerated Purchase Price” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, ninety-five percent (95%) of the lower of (i) the VWAP for the period on the applicable Additional Accelerated
Purchase Date, beginning at the latest of (A) the applicable Accelerated Purchase Termination Time with respect to the corresponding
Accelerated Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof on such Additional
Accelerated Purchase Date, (B) the applicable Additional Accelerated Purchase Termination Time with respect to the most recently completed
prior Additional Accelerated Purchase on such Additional Accelerated Purchase Date, as applicable, and (C) the time at which all Purchase
Shares subject to all prior Accelerated Purchases and Additional Accelerated Purchases (as applicable), including, without limitation,
those that have been effected on the same Business Day as the applicable Additional Accelerated Purchase Date with respect to which the
applicable Additional Accelerated Purchase relates, have theretofore been received by the Investor as DWAC Shares in accordance with
this Agreement (such latest of (i)(A), (i)(B) and (i)(C) above, the “Additional Accelerated Purchase Commencement Time”),
and ending at the earliest of (X) 4:00 p.m., Eastern time, on such Additional Accelerated Purchase Date, or such other time publicly
announced by the Principal Market as the official close of trading on the Principal Market on such Additional Accelerated Purchase Date,
(Y) such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase, that total
number (or volume) of shares of Common Stock traded on the Principal Market has exceeded the applicable Additional Accelerated Purchase
Share Volume Maximum, and (Z) such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional Accelerated
Purchase, that the Sale Price has fallen below the applicable Additional Accelerated Purchase Minimum Price Threshold (such earliest
of (i)(X), (i)(Y) and (i)(Z) above, the “Additional Accelerated Purchase Termination Time”), and (ii) the Closing
Sale Price of the Common Stock on such Additional Accelerated Purchase Date (to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction).
(l)
“Additional Accelerated Purchase Share Amount” means, with respect to an Additional Accelerated Purchase made pursuant
to Section 2(c) hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor on an Additional
Accelerated Purchase Notice, which number of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares
directed by the Company to be purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular
Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof (subject to the Purchase Share
limitations contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Additional Accelerated Purchase Share Percentage
multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Principal Market during the period on the applicable
Additional Accelerated Purchase Date beginning at the Additional Accelerated Purchase Commencement Time for such Additional Accelerated
Purchase and ending at the Additional Accelerated Purchase Termination Time for such Additional Accelerated Purchase.
(m)
“Additional Accelerated Purchase Share Percentage” means, with respect to an Additional Accelerated Purchase made
pursuant to Section 2(c) hereof, thirty percent (30%).
(n)
“Additional Accelerated Purchase Share Volume Maximum” means, with respect to an Additional Accelerated Purchase made
pursuant to Section 2(c) hereof, a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the
Company in the applicable Additional Accelerated Purchase Notice as the Additional Accelerated Purchase Share Amount to be purchased
by the Investor in such Additional Accelerated Purchase, divided by (ii) the Additional Accelerated Purchase Share Percentage (to be
appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction).
(o)
“Alternate Adjusted Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section
2(a) hereof, the maximum number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated
in accordance with this Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such Regular
Purchase, a Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, One Hundred Fifty
Thousand Dollars ($150,000).
(p)
“Available Amount” means, initially, Twelve Million Dollars ($12,000,000) in the aggregate, which amount shall be
reduced by the Purchase Amount each time the Investor purchases Purchase Shares pursuant to Section 2 hereof.
(q)
“Average Price” means a price per Purchase Share (rounded to the nearest tenth of a cent) equal to the quotient obtained
by dividing (i) the aggregate gross purchase price paid by the Investor for all Purchase Shares purchased pursuant to this Agreement,
by (ii) the aggregate number of Purchase Shares issued pursuant to this Agreement.
(r)
“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(s)
“Base Price” means a price per Purchase Share equal to the sum of (i) the Signing Market Price and (ii) $0.20 (subject
to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction
that occurs on or after the date of this Agreement).
(t)
“Business Day” means any day on which the Principal Market is open for trading, including any day on which the Principal
Market is open for trading for a period of time less than the customary time.
(u)
“Closing Sale Price” means, for any security as of any date, the last closing sale price for such security on the
Principal Market as reported by the Principal Market.
(v)
“Confidential Information” means any information disclosed by either party to the other party, either directly or
indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant
and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation. Information
communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information
within ten (10) Business Days after the initial disclosure. Confidential Information may also include information disclosed to a disclosing
party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally
available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii)
is already in the possession of the receiving party without confidential restriction at the time of disclosure by the disclosing party
as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving
party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed
by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and
other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party,
provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance
in obtaining an order protecting the information from public disclosure.
(w)
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(x)
“DTC” means The Depository Trust Company, or any successor performing substantially the same function for the Company.
(y)
“DWAC Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable
and without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified
Deposit/Withdrawal at Custodian (DWAC) with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar program hereafter
adopted by DTC performing substantially the same function.
(z)
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(aa)
“Fully Adjusted Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction from and after the date of this Agreement, the Regular Purchase Share Limit (as defined
in Section 2(a) hereof) in effect on the applicable date of determination, after giving effect to the full proportionate adjustment
thereto made pursuant to Section 2(a) hereof for or in respect of such reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction.
(bb)
“Material Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document,
(ii) the results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other
than any material adverse effect that resulted exclusively from (A) any change in the United States or foreign economies or securities
or financial markets in general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (B)
any change that generally affects the industry in which the Company and its Subsidiaries operate that does not have a disproportionate
effect on the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with earthquakes, hostilities, acts
of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage
or terrorism or military actions existing as of the date hereof, (D) any action taken by the Investor, its affiliates or its or their
successors and assigns with respect to the transactions contemplated by this Agreement, (E) the effect of any change in applicable laws
or accounting rules that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, or (F) any change
resulting from compliance with terms of this Agreement or the consummation of the transactions contemplated by this Agreement, or (iii)
the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document to be
performed as of the date of determination.
(cc)
“Maturity Date” means the first day of the month immediately following the thirty-six (36) month anniversary of the
Commencement Date.
(dd)
“PEA Period” means the period commencing at 9:30 a.m., Eastern time, on the fifth (5th) Business Day immediately
prior to the filing of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement (as
such term is defined in the Registration Rights Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day immediately following,
the effective date of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement (as
such term is defined in the Registration Rights Agreement).
(ee)
“Person” means an individual or entity including but not limited to any limited liability company, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.
(ff)
“Principal Market” means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however,
that in the event the Company’s Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market,
the New York Stock Exchange, the NYSE American, the NYSE Arca, or the OTCQB or the OTCQX operated by OTC Markets Group, Inc. (or any
nationally recognized successor to any of the foregoing), then the “Principal Market” shall mean such other market
or exchange on which the Company’s Common Stock is then listed or traded.
(gg)
“Purchase Amount” means, with respect to any Regular Purchase, any Accelerated Purchase or any Additional Accelerated
Purchase made hereunder, as applicable, the portion of the Available Amount to be purchased by the Investor pursuant to Section 2
hereof.
(hh)
“Purchase Date” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the Business
Day on which the Investor receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m., Eastern time, on such Business Day, a valid
Regular Purchase Notice for such Regular Purchase in accordance with this Agreement.
(ii)
“Purchase Price” means, with respect to any Regular Purchase made pursuant to Section 2(a) hereof, the lower
of: (i) the lowest Sale Price on the applicable Purchase Date for such Regular Purchase and (ii) the arithmetic average of the three
(3) lowest Closing Sale Prices for the Common Stock during the ten (10) consecutive Business Days ending on the Business Day immediately
preceding such Purchase Date for such Regular Purchase (in each case, to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction that occurs on or after the date of this Agreement).
(jj)
“Regular Purchase Notice” means, with respect to any Regular Purchase pursuant to Section 2(a) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to buy such applicable amount of Purchase Shares at the applicable
Purchase Price as specified by the Company therein on the applicable Purchase Date for such Regular Purchase.
(kk)
“Sale Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal
Market.
(ll)
“SEC” means the U.S. Securities and Exchange Commission.
(mm)
“Securities” means, collectively, the Purchase Shares and the Commitment Shares.
(nn)
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(oo)
“Signing Market Price” means $1.0320, representing the average official closing price of the Common Stock on The Nasdaq
Capital Market (as reflected on Nasdaq.com) for the five (5) consecutive trading days ending on the trading day immediately preceding
the date of this Agreement.
(pp)
“Subsidiary” means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly,
owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of
Regulation S-K promulgated under the Securities Act.
(qq)
“Transaction Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration
Rights Agreement and the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered
into or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby.
(rr)
“Transfer Agent” means Computershare Trust Company, N.A., or such other Person who is then serving as the transfer
agent for the Company in respect of the Common Stock.
(ss)
“VWAP” means in respect of an Accelerated Purchase Date and an Additional Accelerated Purchase Date, as applicable,
the volume weighted average price of the Common Stock on the Principal Market, as reported on the Principal Market or by another reputable
source such as Bloomberg, L.P.
2.
PURCHASE OF COMMON STOCK.
Subject
to the terms and conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has the
obligation to purchase from the Company, Purchase Shares as follows:
(a)
Commencement of Regular Sales of Common Stock. Upon the satisfaction of all of the conditions set forth in Sections 7 and
8 hereof (the “Commencement” and the date of satisfaction of such conditions the “Commencement Date”)
and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of
a Regular Purchase Notice from time to time, to purchase up to Thirty Thousand (30,000) Purchase Shares, subject to adjustment as set
forth below in this Section 2(a) (such maximum number of Purchase Shares, as may be adjusted from time to time, the “Regular
Purchase Share Limit”), at the Purchase Price on the Purchase Date (each such purchase a “Regular Purchase”);
provided, however, that (i) the Regular Purchase Share Limit shall be increased to Forty Thousand (40,000) Purchase Shares,
if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $1.00, (ii) the Regular Purchase Share Limit
shall be increased to Sixty Thousand (60,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase
Date is not below $1.50, and (iii) the Regular Purchase Share Limit shall be increased to Eighty Thousand (80,000) Purchase Shares, if
the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $2.00 (all of which share and dollar amounts
shall be appropriately proportionately adjusted for any reorganization, recapitalization, non-cash dividend, stock split or other similar
transaction; provided that if, after giving effect to the full proportionate adjustment to the Regular Purchase Share Limit therefor,
the Fully Adjusted Regular Purchase Share Limit then in effect would preclude the Company from delivering to the Investor a Regular Purchase
Notice hereunder for a Purchase Amount (calculated by multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular
Purchase Share Limit, by (Y) the Purchase Price per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase
Date therefor) equal to or greater than One Hundred Fifty Thousand Dollars ($150,000), the Regular Purchase Share Limit for such Regular
Purchase Notice shall not be fully adjusted to equal the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular
Purchase Share Limit for such Regular Purchase Notice shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share
Limit as of the applicable Purchase Date for such Regular Purchase Notice); and provided, further, however, that
the Investor’s committed obligation under any single Regular Purchase, other than any Regular Purchase with respect to which an
Alternate Adjusted Regular Purchase Share Limit shall apply, shall not exceed Five Hundred Thousand Dollars ($500,000). If the Company
delivers any Regular Purchase Notice for a Purchase Amount in excess of the limitations contained in the immediately preceding sentence,
such Regular Purchase Notice shall be void ab initio to the extent of the amount by which the number of Purchase Shares set forth
in such Regular Purchase Notice exceeds the number of Purchase Shares which the Company is permitted to include in such Purchase Notice
in accordance herewith, and the Investor shall have no obligation to purchase such excess Purchase Shares in respect of such Regular
Purchase Notice; provided, however, that the Investor shall remain obligated to purchase the number of Purchase Shares
which the Company is permitted to include in such Regular Purchase Notice. The Company may deliver a Regular Purchase Notice to the Investor
as often as every Business Day, so long as all Purchase Shares subject to all prior Regular Purchases have theretofore been received
by the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding the foregoing, the Company shall not deliver any Regular
Purchase Notices to the Investor during the PEA Period.
(b)
Accelerated Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date, in addition
to purchases of Purchase Shares as described in Section 2(a) above, the Company shall also have the right, but not the obligation,
to direct the Investor, by its delivery to the Investor of an Accelerated Purchase Notice from time to time in accordance with this Agreement,
to purchase the applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price on the Accelerated Purchase Date therefor
in accordance with this Agreement (each such purchase, an “Accelerated Purchase”). The Company may deliver an Accelerated
Purchase Notice to the Investor only (i) on a Purchase Date on which the Company also properly submitted a Regular Purchase Notice providing
for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect on such Purchase
Date in accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the Regular Purchase
Share Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above
on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a) above)
and (ii) if all Purchase Shares subject to all Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases prior to
the Regular Purchase Date referred to in clause (i) hereof (as applicable) have theretofore been received by the Investor as DWAC Shares
in accordance with this Agreement. If the Company delivers any Accelerated Purchase Notice directing the Investor to purchase an amount
of Purchase Shares that exceeds the Accelerated Purchase Share Amount that the Company is then permitted to include in such Accelerated
Purchase Notice, such Accelerated Purchase Notice shall be void ab initio to the extent of the amount by which the number of Purchase
Shares set forth in such Accelerated Purchase Notice exceeds the Accelerated Purchase Share Amount that the Company is then permitted
to include in such Accelerated Purchase Notice (which shall be confirmed in an Accelerated Purchase Confirmation), and the Investor shall
have no obligation to purchase such excess Purchase Shares in respect of such Accelerated Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the Accelerated Purchase Share Amount which the Company is permitted to include
in such Accelerated Purchase Notice. Within one (1) Business Day after completion of each Accelerated Purchase Date for an Accelerated
Purchase, the Investor will provide to the Company a written confirmation of such Accelerated Purchase setting forth the applicable Accelerated
Purchase Share Amount and Accelerated Purchase Price for such Accelerated Purchase (each, an “Accelerated Purchase Confirmation”).
Notwithstanding the foregoing, the Company shall not deliver any Accelerated Purchase Notices to the Investor during the PEA Period.
(c)
Additional Accelerated Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date,
in addition to purchases of Purchase Shares as described in Section 2(a) and Section 2(b) above, the Company shall also
have the right, but not the obligation, to direct the Investor, by its timely delivery to the Investor of an Additional Accelerated Purchase
Notice on an Additional Accelerated Purchase Date in accordance with this Agreement, to purchase the applicable Additional Accelerated
Purchase Share Amount at the applicable Additional Accelerated Purchase Price therefor in accordance with this Agreement (each such purchase,
an “Additional Accelerated Purchase”). The Company may deliver multiple Additional Accelerated Purchase Notices to
the Investor on an Additional Accelerated Purchase Date; provided, however, that the Company may deliver an Additional
Accelerated Purchase Notice to the Investor only (i) on a Business Day that is also the Accelerated Purchase Date for an Accelerated
Purchase with respect to which the Company properly submitted to the Investor an Accelerated Purchase Notice in accordance with this
Agreement on the applicable Purchase Date for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share
Limit then in effect in accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the
Regular Purchase Share Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section
2(a) above on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section
2(a) above), and (ii) if all Purchase Shares subject to all prior Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases, including, without limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated
Purchase Date with respect to which the applicable Additional Accelerated Purchase relates, in each case have theretofore been received
by the Investor as DWAC Shares in accordance with this Agreement. If the Company delivers any Additional Accelerated Purchase Notice
directing the Investor to purchase an amount of Purchase Shares that exceeds the Additional Accelerated Purchase Share Amount that the
Company is then permitted to include in such Additional Accelerated Purchase Notice, such Additional Accelerated Purchase Notice shall
be void ab initio to the extent of the amount by which the number of Purchase Shares set forth in such Additional Accelerated
Purchase Notice exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted to include in such Additional
Accelerated Purchase Notice (which shall be confirmed in an Additional Accelerated Purchase Confirmation), and the Investor shall have
no obligation to purchase such excess Purchase Shares in respect of such Additional Accelerated Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the Additional Accelerated Purchase Share Amount which the Company is permitted
to include in such Additional Accelerated Purchase Notice. Within one (1) Business Day after completion of each Additional Accelerated
Purchase Date, the Investor will provide to the Company a written confirmation of each Additional Accelerated Purchase on such Additional
Accelerated Purchase Date setting forth the applicable Additional Accelerated Purchase Share Amount and Additional Accelerated Purchase
Price for each such Additional Accelerated Purchase on such Additional Accelerated Purchase Date (each, an “Additional Accelerated
Purchase Confirmation”). Notwithstanding the foregoing, the Company shall not deliver any Additional Accelerated Purchase Notices
to the Investor during the PEA Period.
(d)
Payment for Purchase Shares. For each Regular Purchase, the Investor shall pay to the Company an amount equal to the Purchase
Amount with respect to such Regular Purchase as full payment for such Purchase Shares via wire transfer of immediately available funds
on the same Business Day that the Investor receives such Purchase Shares, if such Purchase Shares are received by the Investor before
1:00 p.m., Eastern time, or, if such Purchase Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business Day.
For each Accelerated Purchase and each Additional Accelerated Purchase, the Investor shall pay to the Company an amount equal to the
Purchase Amount with respect to such Accelerated Purchase and Additional Accelerated Purchase, respectively, as full payment for such
Purchase Shares via wire transfer of immediately available funds on the second Business Day following the date that the Investor receives
such Purchase Shares. If the Company or the Transfer Agent shall fail for any reason or for no reason to electronically transfer any
Purchase Shares as DWAC Shares in respect of a Regular Purchase, an Accelerated Purchase or an Additional Accelerated Purchase (as applicable)
within two (2) Business Days following the receipt by the Company of the Purchase Price, Accelerated Purchase Price and Additional Accelerated
Purchase Price, respectively, therefor in compliance with this Section 2(d), and if on or after such Business Day the Investor
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of
such Purchase Shares that the Investor anticipated receiving from the Company in respect of such Regular Purchase, Accelerated Purchase
or Additional Accelerated Purchase (as applicable), then the Company shall, within two (2) Business Days after the Investor’s request,
either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the Company’s obligation
to deliver such Purchase Shares as DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor such
Purchase Shares as DWAC Shares and pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total
Purchase Amount paid by the Investor pursuant to this Agreement for all of the Purchase Shares to be purchased by the Investor in connection
with such Regular Purchase, Accelerated Purchase and Additional Accelerated Purchase (as applicable). The Company shall not issue any
fraction of a share of Common Stock upon any Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase. If the issuance
would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock
up or down to the nearest whole share. All payments made under this Agreement shall be made in lawful currency of the United States of
America by wire transfer of immediately available funds to such account as the Company (or the Investor, as applicable) may from time
to time designate by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the
terms of this Agreement is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is
a Business Day.
(e)
Compliance with Rules of Principal Market.
(i)
Exchange Cap. Subject to Section 2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant
to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent
that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and
the transactions contemplated hereby would exceed 2,260,751 (such number of shares equal to 19.99% of the shares of Common Stock issued
and outstanding immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share
basis, by the number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated
with the transactions contemplated by this Agreement under applicable rules of The Nasdaq Stock Market and (ii) appropriately adjusted
for any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this
Agreement (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder
approval of the issuance of Common Stock as contemplated by this Agreement, and the stockholders of the Company have in fact approved
the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules of The Nasdaq Stock Market. For
the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common
Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i),
the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during
the term of this Agreement (except as set forth in Section 2(e)(ii) below).
(ii)
At-Market Transaction. Notwithstanding Section 2(e)(i) above, the Exchange Cap shall not be applicable for any purposes
of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall
equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of
this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder
approval referred to in Section 2(e)(i) is obtained). The parties acknowledge and agree that the Signing Market Price used to
determine the Base Price hereunder represents the lower of (i) the official closing price of the Common Stock on The Nasdaq Capital Market
(as reflected on Nasdaq.com) on the trading day immediately preceding the date of this Agreement and (ii) the average official closing
price of the Common Stock on The Nasdaq Capital Market (as reflected on Nasdaq.com) for the five (5) consecutive trading days ending
on the trading day immediately preceding the date of this Agreement.
(iii)
General. The Company shall not issue any shares of Common Stock pursuant to this Agreement if such issuance would reasonably be
expected to result in (A) a violation of the Securities Act or (B) a breach of the rules and regulations of the Principal Market. The
provisions of this Section 2(e) shall be implemented in a manner otherwise than in strict conformity with the terms hereof only
if necessary to ensure compliance with the Securities Act, the rules and regulations of the Principal Market.
(f)
Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue
or sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with
all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section 13(d)
of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor of more than 4.99%
of the then issued and outstanding shares of Common Stock (the “Beneficial Ownership Limitation”). Upon the written
or oral request of the Investor, the Company shall promptly (but not later than 24 hours) confirm orally or in writing to the Investor
the number of shares of Common Stock then outstanding. The Investor and the Company shall each cooperate in good faith in the determinations
required hereby and the application hereof. The Investor’s written certification to the Company of the applicability of the Beneficial
Ownership Limitation, and the resulting effect thereof hereunder at any time, shall be conclusive with respect to the applicability thereof
and such result absent manifest error.
3.
INVESTOR’S REPRESENTATIONS AND WARRANTIES.
The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:
(a)
Investment Purpose. The Investor is acquiring the Securities as principal for its own account and not with a view to or for distributing
or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present
intention of distributing any of such 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 such Securities
in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Investor’s
right to sell the Securities at any time pursuant to the Registration Statement described herein or otherwise in compliance with applicable
federal and state securities laws). The Investor is acquiring the Securities hereunder in the ordinary course of its business.
(b)
Accredited Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of
Regulation D promulgated under the Securities Act.
(c)
Reliance on Exemptions. The Investor understands that the Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of
the Investor to acquire the Securities.
(d)
Information. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is
able to bear the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities
and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning the financial condition
and business of the Company and others matters related to an investment in the Securities. Neither such inquiries nor any other due diligence
investigations conducted by the Investor or its representatives shall modify, amend or affect the Investor’s right to rely on the
Company’s representations and warranties contained in Section 4 below. The Investor has sought such accounting, legal and
tax advice from its own independent advisors as it has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities.
(e)
No Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment in the
Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(f)
Transfer or Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned or transferred
unless (A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms
of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the
Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder.
(g)
Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and
is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability
to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(h)
Residency. The Investor is a resident of the State of Illinois.
(i)
No Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has
any of the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with respect to the Common Stock.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to the Investor that, except as set forth in the disclosure schedules attached hereto, which exceptions
shall be deemed to be a part of the representations and warranties made hereunder, as of the date hereof and as of the Commencement Date:
(a)
Organization and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Each of the Company
and its Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction
in which the nature of the business conducted or property owned by it makes such qualification necessary, except where the failure to
be so qualified or in good standing, as the case may be, could not have or reasonably be expected to result in a Material Adverse Effect
and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail
such power and authority or qualification. The Company has no Subsidiaries except as set forth on Exhibit 21.1 to the Company’s
Annual Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 10, 2023.
(b)
Authorization; Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement, the Registration Rights Agreement and each of the other Transaction Documents, and to issue the
Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby, including without limitation, the issuance of the Commitment
Shares (as defined below in Section 5(e)) and the reservation for issuance and the issuance of the Purchase Shares issuable under
this Agreement, have been duly authorized by the Company’s Board of Directors and no further consent or authorization is required
by the Company, its Board of Directors or its stockholders (except as provided in this Agreement), (iii) each of this Agreement and the
Registration Rights Agreement has been, and each other Transaction Document shall be on the Commencement Date, duly executed and delivered
by the Company and (iv) each of this Agreement and the Registration Rights Agreement constitutes, and each other Transaction Document
upon its execution on behalf of the Company, shall constitute, the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’
rights and remedies. The Board of Directors of the Company has approved the resolutions (the “Signing Resolutions”)
substantially in the form as set forth as Exhibit C attached hereto to authorize this Agreement, the Registration Rights Agreement
and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and have not been modified or supplemented
in any respect. The Company has delivered to the Investor a true and correct copy of minutes of a meeting of the Board of Directors of
the Company at which the Signing Resolutions were duly adopted by the Board of Directors or a unanimous written consent adopting the
Signing Resolutions executed by all of the members of the Board of Directors of the Company. Except as set forth in this Agreement, no
other approvals or consents of the Company’s Board of Directors, any authorized committee thereof, or stockholders (except as provided
in this Agreement) is necessary under applicable laws and the Company’s Certificate of Incorporation or Bylaws to authorize the
execution and delivery of the Transaction Documents or any of the transactions contemplated thereby, including, but not limited to, the
issuance of the Commitment Shares and the issuance of the Purchase Shares.
(c)
Capitalization. As of the date hereof, the authorized capital stock of the Company is set forth in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2022 filed with the SEC on March 10, 2023. Except as disclosed in the SEC Documents
(as defined below), (i) no shares of the Company’s capital stock are subject to preemptive rights or any other similar rights or
any liens or encumbrances suffered or permitted by the Company, (ii) there are no outstanding debt securities, (iii) other than securities
issued pursuant the Company’s stock option plan, there are no outstanding options, warrants, scrip, rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries or options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares
of capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or arrangements under which the Company or any
of its Subsidiaries is obligated to register the sale of any of their securities under the Securities Act (except the Registration Rights
Agreement), (v) there are no outstanding securities or instruments of the Company or any of its Subsidiaries which contain any redemption
or similar provisions, and there are no contracts, commitments, understandings or arrangements by which the Company or any of its Subsidiaries
is or may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there are no securities or instruments containing
anti-dilution or similar provisions that will be triggered by the issuance of the Securities as described in this Agreement and (vii)
the Company does not have any stock appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement.
The Company has furnished to the Investor true and correct copies of the Company’s Amended Restated Certificate of Incorporation,
as amended and as in effect on the date hereof (the “Certificate of Incorporation”), and the Company’s Amended
and Restated Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and summaries of the material
terms of all securities convertible into or exercisable for Common Stock, if any, and copies of any documents containing the material
rights of the holders thereof in respect thereto that are not disclosed in the SEC Documents.
(d)
Issuance of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the
Purchase Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of
first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder
of Common Stock. Upon issuance in accordance with the terms and conditions of this Agreement, the Commitment Shares (as defined in Section
5(e)) shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of first
refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder of
Common Stock. 11,538,461 shares of Common Stock have been duly authorized and reserved for issuance upon purchase under this Agreement
as Purchase Shares.
(e)
No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Commitment Shares and
the reservation for issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate of Incorporation,
any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the Bylaws or
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations, the rules of the Principal Market applicable to the Company or any of its Subsidiaries)
or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations under clause (ii), which could not reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor its Subsidiaries is in violation of any term of or in default under its certificate
or articles of incorporation, any certificate of designation, preferences and rights of any outstanding series of preferred stock of
the Company or bylaws or other organizational documents. Neither the Company nor any Subsidiary:
(i) is in default under or in violation of (and no event has occurred that has not been waived that, with notice or lapse of time or
both, would result in a default by the Company or any Subsidiary under), nor has the Company or any Subsidiary received notice of a claim
that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument
to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii)
is in violation of any judgment, decree, or order of any court, arbitrator or other governmental authority or (iii) is in violation of
any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and
local laws relating to taxes, environmental protection, occupational health and safety, product quality and safety and employment and
labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect. Except
as specifically contemplated by this Agreement and as required under the Securities Act or applicable state securities laws and the rules
of the Principal Market, the Company is not required to obtain any consent, authorization or order of, or make any filing or registration
with, any court or governmental agency or any regulatory or self-regulatory agency in order for it to execute, deliver or perform any
of its obligations under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof. Except as set forth
elsewhere in this Agreement, all consents, authorizations, orders, filings and registrations which the Company is required to obtain
pursuant to the preceding sentence shall be obtained or effected on or prior to the Commencement Date. Except as disclosed in the SEC
Documents, since one year prior to the date hereof, the Company has not received nor delivered any notices or correspondence from or
to the Principal Market, other than notices with respect to listing of additional shares of Common Stock and other routine correspondence.
Except as disclosed in the SEC Documents, the Principal Market has not commenced any delisting proceedings against the Company.
(f)
SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
twelve months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred
to herein as the “SEC Documents”) on a timely basis or has received a valid extension of such time of filing and has
filed any such SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable. None of the SEC Documents,
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
consolidated financial statements of the Company included or incorporated by reference in the SEC Documents, together with the related
notes and schedules, present fairly, in all material respects, the consolidated financial position of the Company as of the dates indicated
and the consolidated results of operations, cash flows and changes in stockholders’ equity of the Company for the periods specified
and have been prepared in compliance in all material respects with the requirements of the Securities Act and Exchange Act, as applicable,
as in effect as of the time of filing and in conformity with generally accepted accounting principles in the United States as in effect
as of the time of filing (“GAAP”) applied on a consistent basis (except (i) for such adjustments to accounting standards
and practices as are noted therein and (ii) in the case of unaudited interim statements, to the extent they may exclude footnotes or
may be condensed or summary statements) during the periods involved; the other financial and statistical data with respect to the Company
contained or incorporated by reference in the SEC Documents, are accurately and fairly presented in all material respects and prepared
on a basis materially consistent with the financial statements and books and records of the Company; there are no financial statements
(historical or pro forma) that are required to be included or incorporated by reference in the SEC Documents that are not included or
incorporated by reference as required; the Company does not have any material liabilities or obligations, direct or contingent (including
any off balance sheet obligations), not described in the SEC Documents (including the exhibits thereto and documents incorporated by
reference thereto), which are required to be described in the SEC Documents (including the exhibits thereto and documents incorporated
by reference thereto); and all disclosures contained or incorporated by reference in the SEC Documents, if any, regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the SEC) comply in all material respects with Regulation
G of the Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable.
(g)
Absence of Certain Changes; No Undisclosed Events, Liabilities or Developments; Solvency. Except as disclosed in the SEC Documents,
since December 31, 2022, there has been no material adverse change in the business, properties, operations, financial condition or results
of operations of the Company or its Subsidiaries. Except for the issuance of the Securities contemplated
by this Agreement, no event, liability, fact, circumstance, occurrence or development has occurred or exists or is reasonably expected
to occur or exist with respect to the Company or its Subsidiaries or their respective businesses, prospects, properties, operations,
assets or financial condition that would be required to be disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at least one (1) Business Day prior to the date that this
representation is made. The Company has not taken any steps, and does not currently expect to take any steps, to seek protection
pursuant to any Bankruptcy Law nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors
intend to initiate involuntary bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay
its debts as they become due.
(h)
Absence of Litigation. There is no action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the
knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or
by any court, arbitrator, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) (collectively,
an “Action”). Neither the Company nor any Subsidiary, nor to the knowledge of the Company, any director or officer
thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws
or a claim of breach of fiduciary duty. There has not been, and to the knowledge of the Company, there is not pending or contemplated,
any investigation by the SEC involving the Company or any current or former director or officer of the Company. The SEC has not issued
any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under
the Exchange Act or the Securities Act.
(i)
Acknowledgment Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the
capacity of arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby.
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the
Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby
and thereby is merely incidental to the Investor’s purchase of the Securities. The Company further represents to the Investor that
the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company
and its representatives and advisors.
(j)
No General Solicitation; No Integrated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its
or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the
Securities Act) in connection with the offer or sale of the Securities. Neither the Company, nor or any of its affiliates, nor any Person
acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security,
under circumstances that would require registration of the offer and sale of any of the Securities under the Securities Act, whether
through integration with prior offerings or otherwise, or cause this offering of the Securities to be integrated with prior offerings
by the Company in a manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the
securities of the Company are listed or designated. The issuance and sale of the Securities hereunder does not contravene the rules and
regulations of the Principal Market.
(k)
Intellectual Property Rights. The Company and the Subsidiaries have, or have rights to use, all patents, patent applications,
trademarks, trademark applications, service marks, trade names, trade secrets, inventions, copyrights, licenses and other intellectual
property rights and similar rights necessary or required for use in connection with their respective businesses as described in the SEC
Documents and which the failure to so have could have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).
None of, and neither the Company nor any Subsidiary has received a notice (written or otherwise) that any of, the Intellectual Property
Rights has expired, terminated or been abandoned, or is expected to expire or terminate or be abandoned, within two (2) years from the
date of this Agreement. Neither the Company nor any Subsidiary has received, since the date of the latest audited financial statements
included within the SEC Documents, a written notice of a claim or otherwise has any knowledge that the Intellectual Property Rights violate
or infringe upon the rights of any Person, except as could not have or reasonably be expected to not have a Material Adverse Effect.
To the knowledge of the Company, all such Intellectual Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights. The Company and its Subsidiaries have taken reasonable security measures to protect
the secrecy, confidentiality and value of all of their intellectual properties, except where failure to do so could not, individually
or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(l)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with all federal,
state, local and foreign laws relating to pollution or protection of human health or the environment (including ambient air, surface
water, groundwater, land surface or subsurface strata), including laws relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, or toxic or hazardous substances or wastes (collectively, “Hazardous Materials”)
into the environment, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials, as well as all authorizations, codes, decrees, demands, or demand letters, injunctions, judgments,
licenses, notices or notice letters, orders, permits, plans or regulations, issued, entered, promulgated or approved thereunder (“Environmental
Laws”); (ii) have received all permits licenses or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses; and (iii) are in compliance with all terms and conditions of any such permit, license or approval
where in each clause (i), (ii) and (iii), the failure to so comply could be reasonably expected to have, individually or in the aggregate,
a Material Adverse Effect.
(m)
Title. Except as set forth in the SEC Documents, the Company and its Subsidiaries have good and marketable title in fee simple
to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business
of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects (“Liens”),
except for (i) Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and the Subsidiaries and (ii) Liens for the payment of federal, state or other taxes, for
which appropriate reserves have been made therefor in accordance with GAAP and, the payment of which is neither delinquent nor subject
to penalties. Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting
and enforceable leases with which the Company and the Subsidiaries are in compliance with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.
(n)
Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including,
but not limited to, directors and officers insurance coverage. Neither the Company nor any Subsidiary has any reason to believe that
it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business without a significant increase in cost that would materially and adversely affect
the Company.
(o)
Regulatory Permits. The Company and the Subsidiaries possess all material certificates, authorizations and permits issued by the
appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in
the SEC Documents, and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation or modification
of any material permit.
(p)
Tax Status Except for matters that would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect, the Company and its Subsidiaries each (i) has made or filed all United States federal, state and local income
and all foreign income and franchise tax returns, reports and declarations required by any jurisdiction to which it is subject, (ii)
has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations and (iii) has set aside on its books provision reasonably adequate for the payment of all material
taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no unpaid taxes in any material
amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company or of any Subsidiary know of no
basis for any such claim.
(q)
Transactions With Affiliates and Employees. Except as set forth in the SEC Documents, none of the officers or directors of the
Company or any Subsidiary and, to the knowledge of the Company, none of the employees of the Company or any Subsidiary is presently a
party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors), including
any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal
property to or from, providing for the borrowing of money from or lending of money to or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or any such employee
has a substantial interest or is an officer, director, trustee, stockholder, member or partner, in each case in excess of $120,000 other
than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
(r)
Application of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement
Date all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws
of the state of its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated by
this Agreement, including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership of the
Securities.
(s)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents
that will be timely publicly disclosed by the Company, the Company confirms that neither it nor any other Person authorized to act on
its behalf has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute material,
non-public information which is not otherwise disclosed in the Registration Statement or the SEC Documents. The Company understands and
confirms that the Investor will rely on the foregoing representation in effecting purchases and sales of securities of the Company. All
of the disclosure furnished by or on behalf of the Company by a Person authorized by the Company to the Investor regarding the Company,
its business and the transactions contemplated hereby is true and correct and does not contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which
they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement
taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that the Investor neither makes nor has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3 hereof.
(t)
Foreign Corrupt Practices. Neither the Company nor any Subsidiary, nor to the knowledge of the Company or any Subsidiary, any
agent or other person acting on behalf of the Company or any Subsidiary, has (i) directly or indirectly, used any funds for unlawful
contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful
payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate
funds, (iii) failed to disclose fully any contribution made by the Company or any Subsidiary (or made by any person acting on its behalf
of which the Company is aware) which is in violation of law, or (iv) violated in any material respect any provision of the Foreign Corrupt
Practices Act of 1977, as amended.
(u)
DTC Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer
(FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer
(FAST) Program.
(v)
Sarbanes-Oxley Act; Internal Controls. The Company and the Subsidiaries are in compliance with any and all applicable requirements
of the Sarbanes-Oxley Act of 2002, as amended, that are effective as of the date hereof, and any and all applicable rules and regulations
promulgated by the Commission thereunder that are effective as of the date hereof and as of the Closing Date. The Company and the Subsidiaries
maintain a system of internal accounting controls with the goal of providing reasonable assurance that: (i) transactions are executed
in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company and the Subsidiaries have
established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and the Subsidiaries
and designed such disclosure controls and procedures to ensure that information required to be disclosed by the Company in the reports
it files or submits under the Exchange Act is recorded, processed, summarized and reported, within the time periods specified in the
Commission’s rules and forms. The Company’s certifying officers have evaluated the effectiveness of the disclosure controls
and procedures of the Company and the Subsidiaries as of the end of the period covered by the most recently filed periodic report under
the Exchange Act (such date, the “Evaluation Date”). The Company presented in its most recently filed periodic report
under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have been no changes in the internal control over financial
reporting (as such term is defined in the Exchange Act) of the Company and its Subsidiaries that have materially affected, or is reasonably
likely to materially affect, the internal control over financial reporting of the Company and its Subsidiaries.
(w)
Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Investor shall have no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section 4(w) that may be due in connection with the transactions
contemplated by the Transaction Documents.
(x)
Investment Company. The Company is not, and is not an affiliate of, and immediately after receipt of payment for the Purchase
Shares pursuant to this Agreement, will not be or be an affiliate of, an “investment company” within the meaning of the Investment
Company Act of 1940, as amended. The Company shall conduct its business in a manner so that it will not become an “investment company”
subject to registration under the Investment Company Act of 1940, as amended.
(y)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating terminating
such registration. The issued and outstanding shares of Common Stock are listed and posted for trading on the Principal Market, and the
Company has not received notice from the Principal Market that it is in violation of any of the rules, regulations or requirements of
the Principal Market; and the Securities will be listed and posted for trading on the Principal Market at or prior to Commencement, with
respect to the Commitment Shares, and prior to the time of sale to the Investor pursuant to this Agreement, with respect to the Purchase
Shares. Except as disclosed in the SEC Documents, the Company has not, in the twelve (12) months preceding the date hereof, received
any notice from any Person to the effect that the Company is not in compliance with the listing or maintenance requirements of the Principal
Market.
(z)
Accountants. To the knowledge and belief of the Company, the Company’s accounting firm is a registered public accounting
firm as required by the Exchange Act.
(aa)
No Market Manipulation. The Company has not, and to its knowledge no Person acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company.
(bb)
Shell Company Status. The Company is not currently, and has never been, an issuer identified in Rule 144(i)(1) under the Securities
Act.
(cc)
Office of Foreign Assets Control. Neither the Company nor any Subsidiary nor, to the Company’s knowledge, any director,
officer, agent, employee or affiliate of the Company or any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”).
(dd)
U.S. Real Property Holding Corporation. The Company
is not and has never been a U.S. real property holding corporation within the meaning of Section 897 of the Internal Revenue Code of
1986, as amended.
(ee)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent or more of the total equity
of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its Subsidiaries
or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject to the BHCA and
to regulation by the Federal Reserve.
(ff)
Money Laundering. The operations of the Company and its Subsidiaries are and have been conducted
at all times in compliance with applicable financial record-keeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, applicable money laundering statutes and applicable rules and regulations thereunder (collectively,
the “Money Laundering Laws”), and no Action or Proceeding by or before any court or governmental agency, authority
or body or any arbitrator involving the Company or any Subsidiary with respect to the Money Laundering Laws is pending or, to the knowledge
of the Company or any Subsidiary, threatened.
(gg)
Labor Matters. No labor dispute exists or, to the knowledge of the Company, is imminent with respect to any of the employees of
the Company, which could reasonably be expected to result in a Material Adverse Effect. None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship with the Company or such Subsidiary, and neither
the Company nor any of its Subsidiaries is a party to a collective bargaining agreement, and the Company and its Subsidiaries believe
that their relationships with their employees are good. To the knowledge of the Company, no executive officer of the Company or any Subsidiary,
is, or is now expected to be, in violation of any material term of any employment contract, confidentiality, disclosure or proprietary
information agreement or non-competition agreement, or any other contract or agreement or any restrictive covenant in favor of any third
party, and the continued employment of each such executive officer does not subject the Company or any of its Subsidiaries to any liability
with respect to any of the foregoing matters. The Company and its Subsidiaries are in compliance with all material U.S. federal, state,
local and foreign laws and regulations relating to employment and employment practices, terms and conditions of employment and wages
and hours.
(hh)
Cybersecurity. Except as would not reasonably
be expected to result in a Material Adverse Effect, (i)(x) there has been no security breach or other compromise of or relating to any
of the Company’s or any Subsidiary’s information technology and computer systems, networks, hardware, software, data (including
the data of its respective customers, employees, suppliers, vendors and any third party data maintained by or on behalf of it), equipment
or technology (collectively, “IT Systems and Data”) and (y) other than as disclosed in the SEC Documents, the Company
and the Subsidiaries have not been notified of, and has no knowledge of any event or condition that would reasonably be expected to result
in, any security breach or other compromise to its IT Systems and Data; (ii) the Company and the Subsidiaries are presently in compliance
with all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal policies and contractual obligations relating to the privacy and security of IT Systems and Data and to the protection
of such IT Systems and Data from unauthorized use, access, misappropriation or modification,; (iii) the Company and the Subsidiaries
have implemented and maintained commercially reasonable safeguards to maintain and protect its material confidential information and
the integrity, continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company and the Subsidiaries have
implemented backup and disaster recovery technology consistent with industry standards and practices.
(ii)
Stock Option Plans. Each stock option granted by the Company under the Company’s
stock option plan was granted (i) in accordance with the terms of the Company’s stock option plan and (ii) with an exercise price
at least equal to the fair market value of the Common Stock on the date such stock option would be considered granted under GAAP and
applicable law. No stock option granted under the Company’s stock option plan has been backdated. The Company has not knowingly
granted, and there is no and has been no Company policy or practice to knowingly grant, stock options prior to, or otherwise knowingly
coordinate the grant of stock options with, the release or other public announcement of material information regarding the Company or
its Subsidiaries or their financial results or prospects.
(jj)
Pre-Clinical and Clinical Studies, Tests and Trials. Except as described in the SEC Documents, and except as it would not, individually
or in the aggregate, have a Material Adverse Effect, (i) any preclinical or clinical studies, tests and trials conducted by or, to the
knowledge of the Company, on behalf of or sponsored by the Company or its Subsidiaries or in which the Company or its Subsidiaries have
participated, that are described in the SEC Documents, or the results of which are referred to in the SEC Documents, as applicable, were,
and if still pending are, being conducted in accordance with their respective protocols, the applicable rules and regulations of the
U.S. Food and Drug Administration (the “FDA”), including, without limitation, any foreign, federal, state or local
governmental or regulatory authority performing functions similar to those performed by the FDA (collectively, the “Regulatory
Authorities”), and current applicable Good Clinical Practices and Good Laboratory Practices; (ii) the descriptions in the SEC
Documents of such preclinical or clinical studies, tests and trials are accurate and fairly present the data derived therefrom; (iii)
the Company has no knowledge of any other preclinical or clinical studies, tests or trials not described in the SEC Documents, the results
of which, considered together with the results of the Company’s preclinical or clinical studies, tests and trials received to date,
call into question the results described or referred to in the SEC Documents; (iv) the Company and its Subsidiaries have operated at
all times and are currently in compliance with all applicable statutes, rules and regulations of the Regulatory Authorities; and (v)
neither the Company nor any of its Subsidiaries have received any written notices, correspondence or other communications from the Regulatory
Authorities or any other governmental agency requiring or threatening the termination, modification or suspension of any preclinical
or clinical studies, tests or trials that are described in the SEC Documents or the results of which are referred to in the SEC Documents,
other than ordinary course communications with respect to modifications in connection with the design and implementation of such preclinical
or clinical studies, tests or trials, and, to the Company’s knowledge, there are no reasonable grounds for the same.
(kk)
Smaller Reporting Company Status. As of the Closing Date, the Company was, and as of the Commencement Date, the Company believes
in good faith that it will be, a “smaller reporting company” as defined in Rule 12b-2 of the Exchange Act.
(ll)
Emerging Growth Company Status. As of the Closing
Date the Company was, and as of the Commencement Date the Company will be, an “emerging growth company” as defined in Section
2(a)(19) of the Securities Act, as modified by the Jumpstart Our Business Startups Act of 2012.
(mm)
No Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405
under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities
Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
5.
COVENANTS.
(a)
Filing of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange
Act, file with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions
of, the Transaction Documents (the “Current Report”). The Company shall also file with the SEC, within ten (10) days
from the date hereof, a new registration statement (the “Registration Statement”) covering the resale of the Purchase
Shares and all of the Commitment Shares, in accordance with the terms of the Registration Rights Agreement between the Company and the
Investor, dated as of the date hereof (the “Registration Rights Agreement”). The Company shall permit the Investor
to review and comment upon (1) the final pre-filing draft version of the Current Report at least two (2) Business Days prior to its filing
with the SEC, and the Company shall give due consideration to all such comments. The Investor shall use its reasonable best efforts to
comment upon the Current Report within one (1) Business Day from the date the Investor receives the final versions thereof from the Company.
The Investor shall cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of
the Current Report with the SEC.
(b)
Blue Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to
register or qualify (i) the issuance of the Commitment Shares and the sale of the Purchase Shares to the Investor under this Agreement
and (ii) any subsequent resale of all Commitment Shares and all Purchase Shares by the Investor, in each case, under applicable securities
or “Blue Sky” laws of the states of the United States in such states as is reasonably requested by the Investor from time
to time, and shall provide evidence of any such action so taken to the Investor.
(c)
Listing/DTC. The Company shall promptly secure the listing of all of the Purchase Shares and Commitment Shares to be issued to
the Investor hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange
or automated quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to maintain,
so long as any shares of Common Stock shall be so listed, such listing of all such Securities from time to time issuable hereunder. The
Company shall use commercially reasonable efforts to maintain the listing of the Common Stock on the Principal Market and shall comply
in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules and regulations of the Principal
Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably be expected to result in the delisting
or suspension of the Common Stock on the Principal Market. The Company shall promptly, and in no event later than the following Business
Day, provide to the Investor copies of any notices it receives from any Person regarding the continued eligibility of the Common Stock
for listing on the Principal Market; provided, however, that the Company shall not be required to provide the Investor copies of any
such notice that the Company reasonably believes constitutes material non-public information and the Company would not be required to
publicly disclose such notice in any report or statement filed with the SEC and under the Exchange Act or the Securities Act. The Company
shall pay all fees and expenses in connection with satisfying its obligations under this Section 5(c). The Company shall take
all action necessary to ensure that its Common Stock can be transferred electronically as DWAC Shares.
(d)
Prohibition of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending
on the date of termination of this Agreement as provided in Section 11, the Investor and its agents, representatives and affiliates shall
not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined
in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position
with respect to the Common Stock.
(e)
Issuance of Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, the Company
shall cause to be issued to the Investor a total of 368,023 shares of Common Stock (the “Commitment Shares”) upon
the execution of this Agreement and shall deliver to the Transfer Agent the Irrevocable Transfer Agent Instructions with respect to the
issuance of such Commitment Shares. For the avoidance of doubt, all of the Commitment Shares shall be fully earned as of the date of
this Agreement, whether or not the Commencement shall occur or any Purchase Shares are purchased by the Investor under this Agreement
and irrespective of any subsequent termination of this Agreement.
(f)
Due Diligence; Non-Public Information. The Investor shall have the right, from time to time as the Investor may reasonably deem
appropriate and upon reasonable advance notice to the Company, to perform reasonable due diligence on the Company during normal business
hours. The Company and its officers and employees shall provide information and reasonably cooperate with the Investor in connection
with any reasonable request by the Investor related to the Investor’s due diligence of the Company. Each party hereto agrees not
to disclose any Confidential Information of the other party to any third party and shall not use the Confidential Information for any
purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges that
the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable measures
to protect the secrecy of any Confidential Information disclosed by the other party. The Company confirms that neither it nor any other
Person acting on its behalf shall provide the Investor or its agents or counsel with any information that constitutes or might constitute
material, non-public information, unless a simultaneous public announcement thereof is made by the Company in the manner contemplated
by Regulation FD. In the event of a breach of the foregoing covenant by the Company or any Person acting on its behalf (as determined
in the reasonable good faith judgment of the Investor), in addition to any other remedy provided herein or in the other Transaction Documents,
if the Investor is holding any Securities at the time of the disclosure of material, non-public information, the Investor shall have
the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material, non-public
information without the prior approval by the Company; provided the Investor shall have first provided notice to the Company that it
believes it has received information that constitutes material, non-public information, the Company shall have at least 24 hours to publicly
disclose such material, non-public information prior to any such disclosure by the Investor, the Company shall have failed to demonstrate
to the Investor in writing within such time period that such information does not constitute material, non-public information, and the
Company shall have failed to publicly disclose such material, non-public information within such time period. The Investor shall not
have any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders or
agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing covenants in
effecting transactions in securities of the Company.
(g)
Purchase Records. The Investor and the Company shall each maintain records showing the remaining Available Amount at any given
time and the dates and Purchase Amounts for each Regular Purchase, Accelerated Purchase and Additional Accelerated Purchase or shall
use such other method, reasonably satisfactory to the Investor and the Company.
(h)
Taxes. The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and
delivery of any shares of Common Stock to the Investor made under this Agreement.
(i)
Use of Proceeds. The Company will use the net proceeds from the offering as described in the Registration Statement or the SEC
Documents.
(j)
Other Transactions. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the
Company to perform its obligations under the Transaction Documents, including, without limitation, the obligation of the Company to deliver
the Purchase Shares and the Commitment Shares to the Investor in accordance with the terms of the Transaction Documents.
(k)
Integration. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company
shall use its reasonable best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers or
sales of any security or solicit any offers to buy any security, under circumstances that would (i) require registration of the offer
and sale by the Company to the Investor of any of the Securities under the Securities Act, or (ii) cause this offering of the Securities
by the Company to the Investor to be integrated with other offerings by the Company in a manner that would require stockholder approval
pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated, unless in the case
of this clause (ii), stockholder approval is obtained before the closing of such subsequent transaction in accordance with the rules
of such Principal Market.
(l)
Limitation on Similar Transactions. From and after the date of this Agreement until the later of (i) the 36-month anniversary
of the date of this Agreement and (ii) the 36-month anniversary of the Commencement Date (if the Commencement has occurred), irrespective
of any earlier termination of this Agreement, the Company and its Subsidiaries shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock or Common Stock Equivalents (or any combination
of units thereof) in any “equity line of credit”, “at-the-market offering” or other continuous offering or similar
offering in which the Company may offer, issue or sell Common Stock or Common Stock Equivalents (or any combination of units thereof)
at a future determined price, other than in connection with an Exempt Issuance. The Investor shall be entitled to seek injunctive relief
against the Company and its Subsidiaries to preclude any such issuance, which remedy shall be in addition to any right to collect damages,
without the necessity of showing economic loss and without any bond or other security being required. “Common Stock Equivalents”
means any securities of the Company or its Subsidiaries which entitle the holder thereof to acquire at any time shares of Common Stock,
including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, shares of Common Stock. “Exempt
Issuance” means the issuance of (a) any Securities issued or issuable to the Investor pursuant to this Agreement, and any securities,
including, without limitation, Common Stock or Common Stock Equivalents (or any combination of units thereof), issued or issuable to
the Investor or any affiliate of the Investor pursuant to any other existing agreement or arrangement between the Company or any of its
Subsidiaries, on the one hand, and the Investor or any of its affiliates, on the other hand, if any, (b) any securities issued or issuable
upon the exercise or exchange of or conversion of any shares of Common Stock or Common Stock Equivalents owned or held, directly or indirectly,
by the Investor or any of its affiliates or designees at any time, (c) any securities, including, without limitation, Common Stock or
Common Stock Equivalents (or any combination of units thereof), issuable to the Investor or any of its affiliates or designees pursuant
to any other future agreement or arrangement between the Investor or any of its affiliates or designees, on the one hand, and the Company
or any of its Subsidiaries, on the other hand, entered into after the date of this Agreement, if any, or (d) shares of Common Stock issued
pursuant to an “at-the-market offering” under Rule 415(a)(4) under the Securities Act by the Company exclusively through
one or more registered broker-dealer(s) acting as agent(s) of the Company pursuant to a written agreement between the Company and such
registered broker-dealer(s) only.
6.
TRANSFER AGENT INSTRUCTIONS.
(a)
On the date of this Agreement, the Company shall issue irrevocable instructions to the Transfer Agent substantially in the form attached
hereto as Exhibit D to issue the Commitment Shares in accordance with the terms of this Agreement (the “Irrevocable
Transfer Agent Instructions”). The certificate(s) or book-entry statement(s) representing the Commitment Shares, except as
set forth below, shall bear the following restrictive legend (the “Restrictive Legend”):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
(b)
On the earlier of (i) the Commencement Date and (ii) such time that the Investor shall request, provided all conditions of Rule 144 under
the Securities Act are met, the Company shall, no later than one (1) Business Day following the delivery by the Investor to the Company
or the Transfer Agent of one or more legended certificates or book-entry statements representing the Commitment Shares (which certificates
or book-entry statements the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses (i)
and (ii) of this sentence), as directed by the Investor, issue and deliver (or cause to be issued and delivered) to the Investor, as
requested by the Investor, either: (A) a certificate or book-entry statement representing such Commitment Shares that is free from all
restrictive and other legends or (B) a number of shares of Common Stock equal to the number of Commitment Shares represented by the certificate(s)
or book-entry statement(s) so delivered by the Investor as DWAC Shares. The Company shall take all actions to carry out the intent and
accomplish the purposes of the immediately preceding sentence, including, without limitation, delivering all such legal opinions, consents,
certificates, resolutions and instructions to the Transfer Agent, and any successor transfer agent of the Company, as may be requested
from time to time by the Investor or necessary or desirable to carry out the intent and accomplish the purposes of the immediately preceding
sentence. On the Commencement Date, the Company shall issue to the Transfer Agent, and any subsequent transfer agent, (i) irrevocable
instructions in the form substantially similar to those used by the Investor in substantially similar transactions (the “Commencement
Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness of the Registration Statement in the form attached
as an exhibit to the Registration Rights Agreement (the “Notice of Effectiveness of Registration Statement”), in each
case to issue the Commitment Shares and the Purchase Shares in accordance with the terms of this Agreement and the Registration Rights
Agreement. All Purchase Shares and Commitment Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant
to this Agreement shall be issued only as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement
is effective, no instruction other than the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration
Statement referred to in this Section 6(b) will be given by the Company to the Transfer Agent with respect to the Purchase Shares
or the Commitment Shares from and after Commencement, and the Purchase Shares and the Commitment Shares covered by the Registration Statement
shall otherwise be freely transferable on the books and records of the Company. If the Investor effects a sale, assignment or transfer
of the Purchase Shares, the Company shall permit the transfer and shall promptly instruct the Transfer Agent (and any subsequent transfer
agent) to issue DWAC Shares in such name and in such denominations as specified by the Investor to effect such sale, transfer or assignment.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations under this Section 6 will be inadequate and agrees,
in the event of a breach or threatened breach by the Company of the provisions of this Section 6, that the Investor shall be entitled,
in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and
transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company agrees that
if the Company fails to fully comply with the provisions of this Section 6(b) within five (5) Business Days of the Investor providing
the deliveries referred to above, the Company shall, at the Investor’s written instruction, purchase such shares of Common Stock
containing the restrictive legend from the Investor at the greater of the (i) purchase price paid for such shares of Common Stock (as
applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s written instruction.
7.
CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK.
The
right of the Company hereunder to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction of each
of the following conditions:
(a)
The Investor shall have executed each of the Transaction Documents and delivered the same to the Company;
(b)
The Registration Statement covering the resale of the Purchase Shares and all of the Commitment Shares shall have been declared effective
under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall be pending or threatened by the
SEC; and
(c)
The representations and warranties of the Investor shall be true and correct in all material respects as of the date hereof and as of
the Commencement Date as though made at that time.
8.
CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.
The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions
on or prior to the Commencement Date and, once such conditions have been initially satisfied, there shall not be any ongoing obligation
to satisfy such conditions after the Commencement has occurred:
(a)
The Company shall have executed each of the Transaction Documents and delivered the same to the Investor;
(b)
The Company shall have issued or caused to be issued to the Investor (i) one or more certificates or book-entry statements representing
the Commitment Shares free from all restrictive and other legends or (ii) a number of shares of Common Stock equal to the number of Commitment
Shares as DWAC Shares, in each case in accordance with Section 6(b);
(c)
The Common Stock shall be listed or quoted on the Principal Market, subject only to customary listing conditions, trading in the Common
Stock shall not have been within the last 365 days suspended by the SEC, the Principal Market, and all Securities to be issued by the
Company to the Investor pursuant to this Agreement shall have been approved for listing or quotation on the Principal Market in accordance
with the applicable rules and regulations of the Principal Market, subject only to official notice of issuance and any standard listing
conditions for transactions of this nature;
(d)
The Investor shall have received the opinions and negative assurances of the Company’s legal counsel, dated as of the Commencement
Date, substantially in the forms heretofore agreed by the parties hereto;
(e)
The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of
such representations and warranties is already qualified as to materiality in Section 4 above, in which case, the portion of such representations
and warranties so qualified shall be true and correct without further qualification) as of the date hereof and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date. The Investor
shall have received a certificate, executed by the CEO, President or CFO of the Company, dated as of the Commencement Date, to the foregoing
effect in the form attached hereto as Exhibit A;
(f)
The Board of Directors of the Company shall have adopted resolutions in substantially the form attached hereto as Exhibit B
which shall be in full force and effect without any amendment or supplement thereto as of the Commencement Date;
(g)
As of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose
of effecting purchases of Purchase Shares hereunder, 11,538,461 shares of Common Stock;
(h)
The Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement each shall have been
delivered to and acknowledged in writing by the Company and the Company’s Transfer Agent (or any successor transfer agent);
(i)
The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in the State
of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) Business Days of the Commencement
Date;
(j)
The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of
State of the State of Delaware within ten (10) Business Days of the Commencement Date;
(k)
The Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of
the Commencement Date, in the form attached hereto as Exhibit C;
(l)
The Registration Statement covering the resale of the Purchase Shares and all of the Commitment Shares shall have been declared effective
under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall be pending or threatened by the
SEC. The Company shall have prepared and filed with the SEC, not later than one (1) Business Day after the effective date of the Registration
Statement, a final and complete prospectus (the preliminary form of which shall be included in the Registration Statement) and shall
have delivered to the Investor a true and complete copy thereof. Such prospectus shall be current and available for the resale by the
Investor of all of the Securities covered thereby. The Current Report shall have been filed with the SEC as required pursuant to Section
5(a). All reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the
Company with the SEC at or prior to the Commencement Date pursuant to the reporting requirements of the Exchange Act shall have been
filed with the SEC within the applicable time periods prescribed for such filings under the Exchange Act;
(m)
No Suspension Event has occurred, or any event which, after notice and/or lapse of time, would become a Suspension Event has occurred;
(n)
All federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction
Documents and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders
of, and all filings and registrations with, all federal, state and local courts or governmental agencies and all federal, state and local
regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction Documents and the consummation
of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation,
in each case those required under the Securities Act, the Exchange Act, applicable state securities or “Blue Sky” laws or
applicable rules and regulations of the Principal Market, or otherwise required by the SEC, the Principal Market or any state securities
regulators;
(o)
No statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state or local court or governmental authority of competent jurisdiction which prohibits the consummation of or which
would materially modify or delay any of the transactions contemplated by the Transaction Documents; and
(p)
No action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign governmental
authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers, directors or
affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction Documents, or seeking
material damages in connection with such transactions.
9.
INDEMNIFICATION.
In
consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder and
in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Investor and all of its affiliates, stockholders, members, officers, directors, employees and direct or indirect
investors and any of the foregoing Person’s agents or other representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of,
or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction
Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement
or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, or (c) any cause of action, suit or claim brought or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, other than, in the case of clause (c), with respect to Indemnified Liabilities which directly and primarily result
from the fraud, gross negligence or willful misconduct of an Indemnitee. The indemnity in this Section 9 shall not apply to amounts paid
in settlement of any claim if such settlement is effected without the prior written consent of the Company, which consent shall not be
unreasonably withheld, conditioned or delayed. To the extent that the foregoing undertaking by the Company may be unenforceable for any
reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law. Payment under this indemnification shall be made within thirty (30) days from the date Investor
makes written request for it. A certificate containing reasonable detail as to the amount of such indemnification submitted to the Company
by Investor shall be conclusive evidence, absent manifest error, of the amount due from the Company to Investor. If any action shall
be brought against any Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Indemnitee shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Indemnitee. Any Indemnitee shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee, except to the extent that (i)
the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period
of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel,
a material conflict on any material issue between the position of the Company and the position of such Indemnitee, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
10.
SUSPENSION EVENTS.
A
“Suspension Event” shall be deemed to have occurred at any time as any of the following events occurs:
(a)
the effectiveness of a registration statement registering the resale of the Securities lapses for any reason (including, without limitation,
the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof) is unavailable
to the Investor for resale of any or all of the Securities to be issued to the Investor under the Transaction Documents, and such lapse
or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business
Days in any 365-day period, but excluding a lapse or unavailability where (i) the Company terminates a registration statement after the
Investor has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company supersedes one registration
statement with another registration statement, including (without limitation) by terminating a prior registration statement when it is
effectively replaced with a new registration statement covering Securities (provided in the case of this clause (ii) that all of the
Securities covered by the superseded (or terminated) registration statement that have not theretofore been resold are included in the
superseding (or new) registration statement);
(b)
the suspension of the Common Stock from trading on the Principal Market for a period of one (1) Business Day, provided that the Company
may not direct the Investor to purchase any shares of Common Stock during any such suspension;
(c)
the delisting of the Common Stock from The Nasdaq Capital Market (or any nationally recognized successor thereto), provided, however,
that the Common Stock is not immediately thereafter trading on The Nasdaq Global Market, The Nasdaq Global Select Market, the New York
Stock Exchange, the NYSE American, the NYSE Arca, or the OTCQX or OTCQB operated by the OTC Markets Group, Inc. (or any nationally recognized
successors thereto);
(d)
the failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within two (2) Business Days after the Purchase
Date, Accelerated Purchase Date or Additional Accelerated Purchase Date, as applicable, on which the Investor is entitled to receive
such Purchase Shares;
(e)
the Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such breach
would reasonably be expected to have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably
curable, only if such breach continues for a period of at least five (5) Business Days;
(f)
if any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(g)
if the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable to pay its debts as the
same become due;
(h)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders the liquidation
of the Company or any Subsidiary;
(i)
if at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares; or
(j)
if at any time after the Commencement Date, the Exchange Cap is reached (to the extent such Exchange Cap is applicable pursuant to Section
2(e) hereof), and the stockholder approval referred to in Section 2(e)(i) has not been obtained in accordance with the applicable
rules of The Nasdaq Stock Market.
In
addition to any other rights and remedies under applicable law and this Agreement, so long as a Suspension Event has occurred and is
continuing, or if any event which, after notice and/or lapse of time, would reasonably be expected to become a Suspension Event has occurred
and is continuing, the Company shall not deliver to the Investor any Regular Purchase Notice, Accelerated Purchase Notice or Additional
Accelerated Purchase Notice.
11.
TERMINATION
This
Agreement may be terminated only as follows:
(a)
If pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company which is not discharged within 90 days, a Custodian is appointed for the Company or for all or substantially all
of its property, or the Company makes a general assignment for the benefit of its creditors (any of which would be a Suspension Event
as described in Sections 10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without any
liability or payment to the Company (except as set forth below) without further action or notice by any Person.
(b)
In the event that (i) the Company fails to file the Registration Statement with the SEC within the period specified in Section 5(a)
hereof in accordance with the terms of the Registration Rights Agreement or (ii) the Commencement shall not have occurred on or before
September 30, 2023, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect to the
Commencement, then, in the case of clause (i) above, this Agreement may be terminated by the Investor at any time prior to the filing
of the Registration Statement and, in the case of clause (ii) above, this Agreement may be terminated by either party at the close of
business on September 30, 2023 or thereafter, in each case without liability of such party to the other party (except as set forth below);
provided, however, that the right to terminate this Agreement under this Section 11(b) shall not be available to any party if
such party is then in breach of any covenant or agreement contained in this Agreement or any representation or warranty of such party
contained in this Agreement fails to be true and correct such that the conditions set forth in Section 7(c) or Section 8(e),
as applicable, could not then be satisfied.
(c)
At any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason
by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement without
any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company Termination Notice
shall not be effective until one (1) Business Day after it has been received by the Investor.
(d)
This Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount
as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other
party under this Agreement (except as set forth below).
(e)
If, for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of this Agreement
by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of
any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).
Except
as set forth in Sections 11(a) (in respect of a Suspension Event under Sections 10(f), 10(g) and 10(h)), 11(d)
and 11(e), any termination of this Agreement pursuant to this Section 11 shall be effected by written notice from the
Company to the Investor, or the Investor to the Company, as the case may be, setting forth the basis for the termination hereof. The
representations and warranties and covenants of the Company and the Investor contained in Sections 3, 4, 5, and
6 hereof, the indemnification provisions set forth in Section 9 hereof and the agreements and covenants set forth in Sections
10, 11 and 12 shall survive the execution and delivery of this Agreement and any termination of this Agreement. No
termination of this Agreement shall (i) affect the Company’s or the Investor’s rights or obligations under (A) this Agreement
with respect to pending Regular Purchases, Accelerated Purchases or Additional Accelerated Purchases and the Company and the Investor
shall complete their respective obligations with respect to any pending Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases under this Agreement and (B) the Registration Rights Agreement, which shall survive any such termination, or (ii) be deemed
to release the Company or the Investor from any liability for intentional misrepresentation or willful breach of any of the Transaction
Documents.
12.
MISCELLANEOUS.
(a)
Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement, the Registration Rights Agreement and the other Transaction Documents shall be governed by the internal laws of the
State of Illinois, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois
or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Illinois, County
of Cook, for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith,
or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b)
Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided
that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file, including any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com, etc., shall be considered due execution
and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.
(c)
Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement.
(d)
Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
(e)
Entire Agreement. The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company,
their affiliates and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other Transaction
Documents and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty,
covenant or undertaking with respect to such matters. The Company acknowledges and agrees that is has not relied on, in any manner whatsoever,
any representations or statements, written or oral, other than as expressly set forth in the Transaction Documents.
(f)
Notices. Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or
(iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses for such communications shall be:
If
to the Company:
Cingulate
Inc.
1901
West 47th Place
Kansas
City, KS 66205
Telephone:
(913) 942-2300
E-mail: sschaffer@cingulate.com
Attention: Shane J. Schaffer
With
a copy to (which shall not constitute notice or service of process):
Lowenstein
Sandler LLP
1251
Avenue of the Americas
New
York, NY 10020
Telephone: (212) 262-6700
E-mail:
sskolnick@lowenstein.com
Attention: Steven M. Skolnick, Esq.
If
to the Investor:
Lincoln
Park Capital Fund, LLC
440
North Wells, Suite 410
Chicago,
IL 60654
Telephone: 312-822-9300
Facsimile: 312-822-9301
E-mail: jscheinfeld@lpcfunds.com/jcope@lpcfunds.com
Attention: Josh Scheinfeld/Jonathan Cope
With
a copy to (which shall not constitute notice or service of process):
Dorsey
& Whitney LLP
51
West 52nd Street
New
York, NY 10019
Telephone: (212) 415-9214
Facsimile:
(212) 953-7201
E-mail: marsico.anthony@dorsey.com
Attention: Anthony J. Marsico, Esq.
If
to the Transfer Agent:
Computershare
Trust Company, N.A.
480
Washington Blvd 26th Floor
Jersey
City, NJ 07310
Telephone:
(800) 962-4284
or
at such other address and/or facsimile number and/or email address and/or to the attention of such other Person as the recipient party
has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or email
address, as applicable, and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g)
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of
the Investor, including by merger or consolidation. The Investor may not assign its rights or obligations under this Agreement.
(h)
No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns and, except as set forth in Section 9, is not for the benefit of, nor may any provision hereof be enforced by,
any other Person.
(i)
Publicity. The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall consult
with the Investor and its counsel on the form and substance of, and shall give due consideration to all such comments from the Investor
or its counsel on, any press release, SEC filing or any other public disclosure by or on behalf of the Company relating to the Investor,
its purchases hereunder or any aspect of the Securities, the Transaction Documents or the transactions contemplated thereby, not less
than 24 hours prior to the issuance, filing or public disclosure thereof. The Investor must be provided with a final version of any portion
of such press release, SEC filing or other public disclosure relating to the Investor, its purchases hereunder or any aspect of the Securities,
the Transaction Documents or the transactions contemplated thereby at least 24 hours prior to any release, issuance, filing or use by
the Company thereof. The Company agrees and acknowledges that its failure to fully comply with this Section 12(i) shall constitute
a Material Adverse Effect
(j)
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to consummate and make effective, as soon as reasonably possible, the Commencement, and to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k)
No Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has not engaged
any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Investor represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions
contemplated hereby. The Company shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement
agent, broker or finder relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Investor
harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out of pocket expenses)
arising in connection with any such claim.
(l)
No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party. In addition, each and every reference to
share prices and shares of Common Stock in this Agreement shall be subject to adjustment as provided in this Agreement for reverse and
forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date
of this Agreement.
(m)
Remedies, Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including,
without limitation, the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available
to the Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief),
no remedy of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and
nothing herein shall limit the Investor’s right to pursue actual damages for any failure by the Company to comply with the terms
of this Agreement. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor
and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach
or threatened breach, the Investor shall be entitled, in addition to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other security being required.
(n)
Enforcement Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced
by the Investor through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization,
receivership or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney
is retained to represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company shall pay
to the Investor, as incurred by the Investor, all reasonable costs and expenses including reasonable attorneys’ fees incurred in
connection therewith, in addition to all other amounts due hereunder.
(o)
Amendment and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties
from and after the date that is one (1) Business Day immediately preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument
signed by both parties hereto and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the
party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
**
Signature Page Follows **
IN
WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be duly executed as of the date first written above.
|
THE
COMPANY: |
|
|
|
CINGULATE
INC. |
|
|
|
|
By: |
/s/
Shane J. Schaffer |
|
Name: |
Shane
J. Schaffer |
|
Title: |
Chief
Executive Officer |
|
|
|
|
INVESTOR: |
|
|
|
LINCOLN
PARK CAPITAL FUND, LLC |
|
BY:
LINCOLN PARK CAPITAL, LLC |
|
BY:
ROCKLEDGE CAPITAL CORPORATION |
|
|
|
|
By: |
/s/
Joshua Scheinfeld |
|
Name: |
Joshua
Scheinfeld |
|
Title: |
President |
EXHIBITS
Exhibit
A |
|
Form
of Officer’s Certificate |
Exhibit
B |
|
Form
of Resolutions of Board of Directors of the Company |
Exhibit
C |
|
Form
of Secretary’s Certificate |
Exhibit
D |
|
Form
of Letter to Transfer Agent |
EXHIBIT
A
FORM
OF OFFICER’S CERTIFICATE
This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(e) of that certain Purchase
Agreement dated as of April [_], 2023, (“Purchase Agreement”), by and between CINGULATE INC., a Delaware corporation
(the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.
The
undersigned, ___________, ______________ of the Company, hereby certifies, on behalf of the Company and not in his individual capacity,
as follows:
1.
I am the _____________ of the Company and make the statements contained in this Certificate;
2.
The representations and warranties of the Company are true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which case, such representations
and warranties are true and correct without further qualification) as of the date when made and as of the Commencement Date as though
made at that time (except for representations and warranties that speak as of a specific date, in which case such representations and
warranties are true and correct as of such date);
3.
The Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.
4.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law
nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ___________.
The
undersigned as Secretary of CINGULATE INC., a Delaware corporation, hereby certifies that ___________ is the duly elected, appointed,
qualified and acting ________ of CINGULATE INC. and that the signature appearing above is his genuine signature.
EXHIBIT
B
FORM
OF COMPANY RESOLUTIONS
FOR
SIGNING PURCHASE AGREEMENT
UNANIMOUS
WRITTEN CONSENT OF
CINGULATE
INC.
In
accordance with the corporate laws of the state of Delaware, the undersigned, being all of the directors of CINGULATE INC., a
Delaware corporation (the “Corporation”), do hereby consent to and adopt the following resolutions as the action of the Board
of Directors for and on behalf of the Corporation and hereby direct that this Consent be filed with the minutes of the proceedings of
the Board of Directors:
WHEREAS,
there has been presented to the Board of Directors of the Corporation a draft of the Purchase Agreement (the “Purchase Agreement”)
by and between the Corporation and Lincoln Park Capital Fund, LLC (“Lincoln Park”), providing for the purchase by Lincoln
Park of up to Twelve Million Dollars ($12,000,000) of the Corporation’s common stock, par value $0.0001 per share (the “Common
Stock”), from time to time at the direction of the Corporation; and
WHEREAS,
after careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Board
of Directors, the Board of Directors has determined that it is advisable and in the best interests of the Corporation to engage in the
transactions contemplated by the Purchase Agreement, including, but not limited to, the issuance of 368,023 shares of Common Stock to
Lincoln Park as a commitment fee (the “Commitment Shares”) and the sale of shares of Common Stock to Lincoln Park up to the
available amount under the Purchase Agreement (the “Purchase Shares”).
Transaction
Documents
NOW,
THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and ________________________________________
(the “Authorized Officers”) are severally authorized to execute and deliver the Purchase Agreement, and any other agreements
or documents contemplated thereby including, without limitation, a registration rights agreement (the “Registration Rights Agreement”)
providing for the registration of the shares of the Corporation’s Common Stock issuable in respect of the Purchase Agreement on
behalf of the Corporation, with such amendments, changes, additions and deletions as the Authorized Officers may deem to be appropriate
and approve on behalf of, the Corporation, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon;
and
FURTHER
RESOLVED, that the terms and provisions of the Registration Rights Agreement by and among the Corporation and Lincoln Park are hereby
approved and the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the terms of
the Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate and approve
on behalf of, the Corporation, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and
FURTHER
RESOLVED, that the terms and provisions of the forms of Irrevocable Transfer Agent Instructions and Notice of Effectiveness of Registration
Statement (collectively, the “Instructions”) are hereby approved and the Authorized Officers are authorized to execute and
deliver the Instructions on behalf of the Company in accordance with the Purchase Agreement, with such amendments, changes, additions
and deletions as the Authorized Officers may deem appropriate and approve on behalf of, the Corporation, such approval to be conclusively
evidenced by the signature of an Authorized Officer thereon; and
Execution
of Purchase Agreement
FURTHER
RESOLVED, that the Corporation be and it hereby is authorized to execute the Purchase Agreement providing for the purchase by Lincoln
Park of up to Twelve Million Dollars ($12,000,000) of the Corporation’s Common Stock, from time to time at the direction of the
Corporation; and
Issuance
of Common Stock
FURTHER
RESOLVED, that the Corporation is hereby authorized to issue to Lincoln Park Capital Fund, LLC, 368,023 shares of Common Stock as Commitment
Shares and that upon issuance of the Commitment Shares pursuant to the Purchase Agreement the Commitment Shares shall be duly authorized,
validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof; and
FURTHER
RESOLVED, that the Corporation is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to the Available
Amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance of the Purchase Shares
pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly issued, fully paid and nonassessable with no
personal liability attaching to the ownership thereof; and
FURTHER
RESOLVED, that the Corporation shall initially reserve 11,538,461 shares
of Common Stock for issuance as Purchase Shares under the Purchase Agreement.
Approval
of Actions
FURTHER
RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed
on behalf of the Corporation and to take all such steps as deemed necessary or appropriate, with the advice and assistance of counsel,
to cause the Corporation to consummate the agreements referred to herein and to perform its obligations under such agreements; and
FURTHER
RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in the name
of the Corporation, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed and delivered
all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters and undertakings
and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable to carry into effect the
purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken by any officer or director of the
Corporation in connection with the transactions contemplated by the agreements described herein are hereby approved, ratified and confirmed
in all respects.
IN
WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective as of __________, 2023.
being
all of the directors of CINGULATE INC.
EXHIBIT
C
FORM
OF SECRETARY’S CERTIFICATE
This
Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(k) of that certain Purchase
Agreement dated as of April [__], 2023 (“Purchase Agreement”), by and between CINGULATE INC., a Delaware corporation
(the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”), pursuant to which the Company may
sell to the Investor up to Twelve Million Dollars ($12,000,000) of the Company’s common stock, par value $0.0001 per share (the
“Common Stock”). Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the
Purchase Agreement.
The
undersigned, ____________, Secretary of the Company, hereby certifies, on behalf of the Company and not in his individual capacity, as
follows:
1.
I am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.
2.
Attached hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s Amended and Restated
Bylaws (“Bylaws”) and Amended and Restated Certificate of Incorporation (“Charter”), in each case, as amended
through the date hereof, and no action has been taken by the Company, its directors, officers or stockholders, in contemplation of the
filing of any further amendment relating to or affecting the Bylaws or Charter.
3.
Attached hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of
the Company on _____________, at which a quorum was present and acting throughout. Such resolutions have not been amended, modified or
rescinded and remain in full force and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors,
or any committee thereof, or the stockholders of the Company relating to or affecting (i) the entering into and performance of the Purchase
Agreement, the Registration Rights Agreement and the other Transaction Documents, or the issuance, offering and sale of the Purchase
Shares and the Commitment Shares, and (ii) and the performance of the Company of its obligations under each of the Transaction Documents
as contemplated therein.
4.
As of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________, 20__.
The
undersigned as ______________ of CINGULATE INC., a Delaware corporation, hereby certifies that __________________ is the duly
elected, appointed, qualified and acting Secretary of CINGULATE INC., and that the signature appearing above is his genuine signature.
EXHIBIT
D
FORM
OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE COMMITMENT SHARES AT SIGNING OF THE PURCHASE AGREEMENT
[COMPANY
LETTERHEAD]
[DATE]
Computershare
Transfer & Trust Company, N.A.
__________________
__________________
__________________
Re:
Issuance of Common Stock to Lincoln Park Capital Fund, LLC
Dear
________,
On
behalf of CINGULATE INC., a Delaware corporation (the “Company”), you are hereby instructed to issue as soon
as possible a book-entry statement representing an aggregate of 368,023 shares of our common stock in the name of Lincoln
Park Capital Fund, LLC. The book-entry statement should be dated April [__], 2023. The book-entry statement should bear the following
restrictive legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
The
book-entry statement should be sent as soon as possible via overnight mail to the following address:
Lincoln
Park Capital Fund, LLC
440
North Wells, Suite 410
Chicago,
IL 60654
Attention:
Josh Scheinfeld/Jonathan Cope
Thank
you very much for your help. Please call me at ______________ if you have any questions or need anything further.
CINGULATE
INC.