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UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d)
of the Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): June 16, 2024
ELUTIA
INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
001-39577 |
|
47-4790334 |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File
Number) |
|
(I.R.S.
Employer
Identification
No.) |
12510
Prosperity Drive, Suite 370
Silver
Spring, MD
20904
(Address
of principal executive offices) (Zip Code)
(240)
247-1170
(Registrant’s
telephone number, include area code)
N/A
(Former
name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title
of each class |
|
Trading
Symbols |
|
Name
of each exchange
on which registered |
| Class A
Common Stock, $0.001 par value per share |
|
ELUT |
|
The
Nasdaq Capital
Market |
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 1.01 | Entry into a Material Definitive Agreement. |
On June 16, 2024, Elutia Inc. (the “Company”)
entered into a placement agency agreement (the “Placement Agency Agreement”) with Lake Street Capital Markets, LLC (“Placement
Agent”) and a securities purchase agreement (the “Purchase Agreement”) with certain purchasers pursuant to which the
Company agreed to sell, in a registered direct offering (the “Offering”), an aggregate of (i) 3,175,000 shares (the “Shares”)
of Class A common stock, par value $0.001 per share (the “Class A Common Stock”), of the Company, and (ii) prefunded warrants
(the “Prefunded Warrants”) to purchase up to an aggregate of 725,000 shares of Class A Common Stock (the “Prefunded
Warrant Shares”). The public offering price for each share of Class A Common Stock was $3.40, and the public offering price for
each Prefunded Warrant was $3.399. The Prefunded Warrants have an exercise price of $0.001 per share of Class A Common Stock, are exercisable
immediately and will expire when exercised in full.
The Offering closed on June 18, 2024. The
gross proceeds to the Company from the Offering were approximately $13.26 million, before deducting the Placement
Agent’s fees and expenses and other Offering expenses payable by the Company. The Company intends to use the net
proceeds from the Offering for working capital and general corporate purposes.
Each of the Placement Agency Agreement and the
Purchase Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification
obligations of the Company, other obligations of the parties and termination provisions. Additionally, each of the directors and officers
of the Company, pursuant to lock-up agreements, agreed not to sell or transfer any of the Company securities which they hold, subject
to certain exceptions, during the 90-day period following the closing of the Offering.
Pursuant to the Purchase Agreement, from the date
of such agreement until 90 days after the closing of the Offering, unless otherwise waived by either (a) purchasers of at least 50.1%
in interest of the Prefunded Warrants based on the initial subscription amounts under the Purchase Agreement or (b) purchasers holding
at least 50.1% in interest of the shares of Class A Common Stock and Prefunded Warrants offered in the Offering and outstanding at the
time of the waiver, neither the Company nor any Company subsidiary shall (i) issue, enter into any agreement to issue or announce the
issuance or proposed issuance of any Class A Common Stock or Class A Common Stock equivalents or (ii) file any registration statement
or amendment or supplement with respect thereto, subject to certain exceptions.
Subject to certain ownership limitations described
in the Prefunded Warrants, the Prefunded Warrants are immediately exercisable and may be exercised for a nominal consideration of $0.001
per share of Class A Common Stock any time until all of the Prefunded Warrants are exercised in full. A holder will not have the right
to exercise any portion of the Prefunded Warrants if the holder (together with its affiliates) would beneficially own in excess of 4.99%
or 9.99%, respectively, of the number of shares of Class A Common Stock outstanding immediately after giving effect to the exercise, as
such percentage ownership is determined in accordance with the terms of the Prefunded Warrants. However, upon notice from the holder to
the Company as described in the Purchase Agreement, the holder may increase the beneficial ownership limitation, provided that any increase
will not be effective until the 61st day after such election.
Pursuant to the Placement Agency Agreement, the
Company paid the Placement Agent as compensation a cash fee equal to 7.0% of the gross proceeds of the Offering, plus reimbursement
of certain expenses and legal fees.
The Shares, the Prefunded Warrants, and Prefunded
Warrant Shares were offered by the Company pursuant to a prospectus supplement (the “Prospectus Supplement”) to the registration
statement on Form S-3 originally filed on August 31, 2022, with the Securities and Exchange Commission (the “SEC”) under the
Securities Act of 1933, as amended (File No. 333-267197), and declared effective on September 8, 2022.
The foregoing description of the material terms
of the Placement Agency Agreement, the Purchase Agreement and the Prefunded Warrants is not complete and is qualified in its entirety
by reference to the full text of the form of Placement Agency Agreement, the form of Purchase Agreement and the form of Prefunded Warrant,
copies of which are filed as Exhibits 10.1, 10.2 and 4.1, respectively, to this Current Report on Form 8-K and are incorporated herein
by reference.
The legal opinion, including the related consent,
of Kilpatrick Townsend & Stockton LLP relating to the legality of the issuance and sale of Shares and the Prefunded Warrant Shares
in the Offering and the enforceability of the Prefunded Warrants is filed as Exhibit 5.1 to this Current Report.
Cautionary Note Regarding Forward-Looking Statements
This report contains forward-looking statements.
Forward-looking statements include, but are not limited to, statements that express the Company’s intentions, beliefs, expectations,
strategies, predictions or any other statements related to the Company’s future activities, or future events or conditions. These
statements are based on current expectations, estimates and projections about the Company’s business based, in part, on assumptions
made by management. These statements are not guarantees of future performance and involve risks, uncertainties and assumptions that are
difficult to predict. Therefore, actual outcomes and results may differ materially from what is expressed or forecasted in the forward-looking
statements due to numerous factors, including the intended use of net proceeds from the Offering, the potential exercise of Prefunded Warrants, as well as those risks
discussed in the Company’s Prospectus Supplement, Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on
Form 8-K and in other documents that the Company files from time to time with the SEC. Any forward-looking statements speak only as of
the date on which they are made, and the Company does not undertake any obligation to update any forward-looking statement to reflect
events or circumstances after the date of this report, except as required by law.
| Item 7.01 | Regulation FD Disclosure. |
On June 17, 2024, the Company issued a press release
announcing the pricing of the Offering. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and
is hereby incorporated by reference herein.
The information in this Item 7.01 of this Current
Report on Form 8-K (including Exhibit 99.1) shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that Section, nor shall it be deemed
to be incorporated by reference into any filing of the Company under the Securities Act of 1933, as amended, or the Exchange Act, except
as expressly set forth by specific reference in such filing.
| Item 9.01 | Financial Statements and Exhibits. |
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
| |
ELUTIA INC. |
| |
|
| Date: June 18, 2024 |
By: |
/s/ Matthew Ferguson |
| |
|
Matthew Ferguson |
| |
|
Chief Financial Officer |
Exhibit 4.1
form
of
PRE-FUNDED
CLASS A COMMON STOCK PURCHASE WARRANT
ELUTIA
INC.
| Warrant Shares: _____________ |
Issue Date: June 18, 2024 |
Warrant No. ____
THIS PRE-FUNDED CLASS A
COMMON STOCK PURCHASE WARRANT (the “Warrant”) certifies that, for value received, _________ or its assigns (the “Holder”)
is entitled, upon the terms and subject to the limitations on exercise and the conditions hereinafter set forth, at any time on or after
the date hereof (the “Initial Exercise Date”) and until this Warrant is exercised in full (the “Termination
Date”) but not thereafter, to subscribe for and purchase from Elutia Inc., a Delaware corporation (the “Company”),
up to _________ shares of Class A common stock, par value $0.001 per share (the “Common Stock”) (as subject to
adjustment hereunder, the “Warrant Shares”). The purchase price of one share of Common Stock under this Warrant shall
be equal to the Exercise Price, as defined in Section 2(b). The Warrant is being issued pursuant to that certain Securities Purchase
Agreement, dated as of June 16, 2024, among the Company and the purchasers signatory thereto, as amended and/or restated from time
to time (the “Purchase Agreement”). Capitalized terms used and not otherwise defined herein shall have the meanings
set forth in the Purchase Agreement.
Section 1. Definitions.
In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“Business Day”
means any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking
institutions in the State of New York are authorized or required by law or other governmental action to close.
“Commission”
means the United States Securities and Exchange Commission.
“Common Stock Equivalents”
means any securities of the Company or its subsidiaries, which would entitle the holder thereof to acquire at any time shares of Common
Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any time convertible
into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company,
joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Securities Act”
means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Trading Day”
means a day on which the principal Trading Market is open for trading.
“Trading Market”
means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date in question: the
NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock Exchange, OTCQB
or OTCQX (or any successors to any of the foregoing).
“Transfer Agent”
means Equiniti Trust Company, LLC, the current transfer agent of the Company, with a mailing address
6201 15th Ave, Brooklyn, NY 11219, and any successor transfer agent of the Company.
Section 2. Exercise.
a) Exercise
of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time or times on
or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF copy submitted
by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”). Within
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as
defined in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the Warrant Shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United
States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice of
Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant Shares available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation within three (3) Trading
Days of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting in purchases
of a portion of the total number of Warrant Shares available hereunder shall have the effect of lowering the outstanding number of Warrant
Shares purchasable hereunder in an amount equal to the applicable number of Warrant Shares purchased. The Holder and the Company shall
maintain records showing the number of Warrant Shares purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Trading Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on
the face hereof.
b) Exercise
Price. The aggregate exercise price of this Warrant, except for a nominal exercise price of $0.001 per Warrant Share, was pre-funded
to the Company on or prior to the Initial Exercise Date and, consequently, no additional consideration (other than the nominal exercise
price of $0.001 per Warrant Share) shall be required to be paid by the Holder to any Person to effect any exercise of this Warrant. The
Holder shall not be entitled to the return or refund of all, or any portion, of such pre-paid aggregate exercise price under any circumstance
or for any reason whatsoever, including in the event this Warrant shall not have been exercised prior to the Termination Date. The remaining
unpaid exercise price per share of Common Stock under this Warrant shall be $0.001, subject to adjustment hereunder (the “Exercise
Price”).
c) Cashless
Exercise. This Warrant may also be exercised, in whole or in part, at any time by means of a “cashless exercise” in which
the Holder shall be entitled to receive a number of Warrant Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
(A) = as applicable: (i) the
VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of Exercise is (1) both
executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed and delivered
pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined in
Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) the VWAP on the
Trading Day immediately preceding the date of the applicable Notice of Exercise or (iii) the VWAP on the date of the applicable Notice
of Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day;
(B) = the Exercise Price, as adjusted
hereunder; and
(X) = the number of Warrant Shares
that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a
cash exercise rather than a cashless exercise.
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the Common Stock is then listed
or quoted on a Trading Market, the daily volume weighted average price of the Common Stock for such date (or the nearest preceding date)
on the Trading Market on which the Common Stock is then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30
a.m. (Eastern time) to 4:02 p.m. (Eastern time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the Common Stock
is not then listed or quoted for trading on OTCQB or OTCQX and if prices for the Common Stock are then reported in the “Pink Open
Market” (or a similar organization or agency succeeding to its functions of reporting prices), the most recent bid price per share
of the Common Stock so reported, or (d) in all other cases, the fair market value of a share of Common Stock as determined by an
independent appraiser selected in good faith by the Holders of a majority in interest of the Securities then outstanding and reasonably
acceptable to the Company, the fees and expenses of which shall be paid by the Company.
d) Mechanics
of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust Company
through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such system
and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of the Warrant
Shares by Holder or (B) this Warrant is being exercised via cashless exercise, and otherwise by physical delivery of a certificate,
registered in the Company’s share register in the name of the Holder or its designee, for the number of Warrant Shares to which
the Holder is entitled pursuant to such exercise to the address specified by the Holder in the Notice of Exercise by the date that is
the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period after
the delivery to the Company of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery
of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares
with respect to which this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment
of the aggregate Exercise Price (other than in the case of a cashless exercise) is received within the earlier of (i) two (2) Trading
Days and (ii) the number of Trading Days comprising the Standard Settlement Period following delivery of the Notice of Exercise.
If the Company fails for any reason to deliver to the Holder the Warrant Shares subject to a Notice of Exercise by the Warrant Share Delivery
Date and the Exercise Price has been paid in full (other than in the case of a cashless exercise), the Company shall pay to the Holder,
in cash, as liquidated damages and not as a penalty, for each $1,000 of Warrant Shares subject to such exercise (based on the VWAP of
the Common Stock on the date of the applicable Notice of Exercise), $10 per Trading Day (increasing to $20 per Trading Day on the fifth
Trading Day after such liquidated damages begin to accrue) for each Trading Day after such Warrant Share Delivery Date until such Warrant
Shares are delivered or Holder rescinds such exercise. The Company agrees to maintain a transfer agent that is a participant in the FAST
program so long as this Warrant remains outstanding and exercisable. As used herein, “Standard Settlement Period” means
the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the
Common Stock as in effect on the date of delivery of the Notice of Exercise.
ii. Delivery
of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of a Holder and
upon surrender of this Warrant certificate, at the time of delivery of the Warrant Shares, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant Shares called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii. Rescission
Rights. If the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares pursuant to Section 2(d)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise, including in the event of a Buy-In (as
defined below), as described in Section 2(d)(iv) below.
iv. Compensation
for Buy-In on Failure to Timely Deliver Warrant Shares Upon Exercise. In addition to any other rights available to the Holder, if
the Company fails to cause the Transfer Agent to transmit to the Holder the Warrant Shares in accordance with the provisions of Section 2(d)(i) above
pursuant to an exercise on or before the Warrant Share Delivery Date, and if after such date the Holder is required by its broker to purchase
(in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, shares of Common Stock to deliver
in satisfaction of a sale by the Holder of the Warrant Shares which the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price
(including brokerage commissions, if any) for the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying
(1) the number of Warrant Shares that the Company was required to deliver to the Holder in connection with the exercise at issue
times (2) the price at which the sell order giving rise to such purchase obligation was executed, and (B) at the option of the
Holder (pursuant to notice to be sent by the Holder to the Company within ten (10) days following the Warrant Share Delivery Date;
if such notice is not provided by that date, the Company shall instead have the right to decide), either reinstate the portion of the
Warrant and equivalent number of Warrant Shares for which such exercise was not honored (in which case such exercise shall be deemed rescinded)
or deliver to the Holder the number of shares of Common Stock that would have been issued had the Company timely complied with its exercise
and delivery obligations hereunder. For example, if the Holder purchases Common Stock having a total purchase price of $11,000 to cover
a Buy-In with respect to an attempted exercise of shares of Common Stock with an aggregate sale price giving rise to such purchase obligation
of $10,000, under clause (A) of the immediately preceding sentence the Company shall be required to pay the Holder $1,000. The Holder
shall provide the Company written notice indicating the amounts payable to the Holder in respect of the Buy-In and, upon request of the
Company, evidence of the amount of such loss. Nothing herein shall limit a Holder’s right to pursue any other remedies available
to it hereunder, at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief with respect
to the Company’s failure to timely deliver shares of Common Stock upon exercise of the Warrant as required pursuant to the terms
hereof.
v. No
Fractional Shares or Scrip. No fractional shares or scrip representing fractional shares shall be issued upon the exercise of this
Warrant. As to any fraction of a share which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall,
at its election, either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the
Exercise Price or round up to the next whole share.
vi. Charges,
Taxes and Expenses. Issuance of Warrant Shares shall be made without charge to the Holder for any issue or transfer tax or other incidental
expense in respect of the issuance of such Warrant Shares, all of which taxes and expenses shall be paid by the Company, and such Warrant
Shares shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided, however, that in
the event that Warrant Shares are to be issued in a name other than the name of the Holder, this Warrant when surrendered for exercise
shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may require, as a condition
thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company shall pay all Transfer Agent
fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company (or another established clearing
corporation performing similar functions) required for same-day electronic delivery of the Warrant Shares.
vii. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s
Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the right to exercise
any portion of this Warrant, pursuant to Section 2 or otherwise (except as contemplated in Section 3(e)), to the extent that
after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s
Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties shall
include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is being
made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation is
in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to be filed
in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination of whether
this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties)
and of which portion of this Warrant is exercisable shall be in the sole discretion of the Holder, and the submission of a Notice of Exercise
shall be deemed to be the Holder’s determination of whether this Warrant is exercisable (in relation to other securities owned by
the Holder together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable, in each case subject
to the Beneficial Ownership Limitation, and the Company shall have no obligation to verify or confirm the accuracy of such determination.
In addition, a determination as to any group status as contemplated above shall be determined in accordance with Section 13(d) of
the Exchange Act and the rules and regulations promulgated thereunder. For purposes of this Section 2(e), in determining the
number of outstanding shares of Common Stock, a Holder may rely on the number of outstanding shares of Common Stock as reflected in (A) the
Company’s most recent periodic or annual report filed with the Commission, as the case may be, (B) a more recent public announcement
by the Company or (C) a more recent written notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. Upon the written or oral request of a Holder, the Company shall within one (1) Trading Days confirm orally and
in writing to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the
Holder or its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported.
The “Beneficial Ownership Limitation” shall be 4.99% (or, at the election of the Holder prior to the issuance of this
Warrant, 9.99%) of the number of shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common
Stock issuable upon exercise of this Warrant. The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership
Limitation provisions of this Section 2(e), provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number
of the shares of Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon exercise of this
Warrant held by the Holder and the provisions of this Section 2(e) shall continue to apply. Any increase in the Beneficial Ownership
Limitation will not be effective until the 61st day after such notice is delivered to the Company. The provisions of this paragraph shall
be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 2(e) to correct
this paragraph (or any portion hereof) which may be defective or inconsistent with the intended Beneficial Ownership Limitation herein
contained or to make changes or supplements necessary or desirable to properly give effect to such limitation. The limitations contained
in this paragraph shall apply to a successor holder of this Warrant. Notwithstanding anything in this Warrant to the contrary, the provisions
of this Section 2(e) (and any other restrictions with respect to Beneficial Ownership Limitations appearing in the Warrant)
shall not apply to any Holder that, together with the Holder's Attribution Parties, beneficially owns in excess of 9.99% of the number
of shares of Common Stock outstanding on the date of the Purchase Agreement (prior to giving effect to the transactions contemplated by
such Purchase Agreement).
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise makes
a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares of
Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares or (iv) issues by reclassification of
shares of Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a fraction
of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately before
such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event, and the
number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this
Warrant shall remain unchanged, provided that the Exercise Price per share shall in any case be no lower than the par value of the Common
Stock. Any adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination
of stockholders entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the
case of a subdivision, combination or re-classification.
b) Voluntary
Adjustment By Company. Subject to the rules and regulations of the Trading Market on which the Common Stock is then listed, the
Company may at any time during the term of this Warrant reduce the then current Exercise Price of this Warrant to any amount and for any
period of time deemed appropriate by the board of directors of the Company with the prior written consent of holders of a majority of
the then outstanding Warrants issued pursuant to the Purchase Agreement, provided that the Exercise Price per underlying share of Common
Stock shall be no lower than the par value of the Common Stock as of the relevant time.
c) Subsequent
Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants, issues
or sells any Common Stock Equivalents or rights to purchase stock, warrants, securities or other property pro rata to the record holders
of any class of shares of Common Stock (the “Purchase Rights”), then the Holder will be entitled to acquire, upon the
terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had held the
number of shares of Common Stock acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise hereof,
including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for the grant,
issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of shares of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, to the extent that the Holder’s
right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder
shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such shares of Common Stock as
a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder until
such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d) Pro
Rata Distributions. During such time as this Warrant is outstanding, if the Company shall declare or make any dividend or other distribution
of its assets (or rights to acquire its assets) to holders of shares of Common Stock, by way of return of capital or otherwise (including,
without limitation, any distribution of cash, stock or other securities, property or options by way of a dividend, spin off, reclassification,
corporate rearrangement, scheme of arrangement or other similar transaction) (a “Distribution”), at any time after
the issuance of this Warrant, then, in each such case, the Holder shall be entitled to participate in such Distribution to the same extent
that the Holder would have participated therein if the Holder had held the number of shares of Common Stock acquirable upon complete exercise
of this Warrant (without regard to any limitations on exercise hereof, including without limitation, the Beneficial Ownership Limitation)
immediately before the date of which a record is taken for such Distribution, or, if no such record is taken, the date as of which the
record holders of shares of Common Stock are to be determined for the participation in such Distribution (provided, however, to the extent
that the Holder’s right to participate in any such Distribution would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Distribution to such extent (or in the beneficial ownership of any shares
of Common Stock as a result of such Distribution to such extent) and the portion of such Distribution shall be held in abeyance for the
benefit of the Holder until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership
Limitation).
e) Fundamental
Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or more related
transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company or any Subsidiary,
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of the its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or
exchange offer (whether by the Company or another Person) is completed pursuant to which holders of Common Stock are permitted to sell,
tender or exchange their shares for other securities, cash or property and has been accepted by the holders of 50% or more of the outstanding
shares of Common Stock or 50% or more of the voting power of the common equity of the Company, (iv) the Company, directly or indirectly,
in one or more related transactions effects any reclassification, reorganization or recapitalization of the Common Stock or any compulsory
share exchange pursuant to which the Common Stock is effectively converted into or exchanged for other securities, cash or property, or
(v) the Company, directly or indirectly, in one or more related transactions consummates a stock or share purchase agreement or other
business combination (including, without limitation, a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with
another Person or group of Persons whereby such other Person or group acquires 50% or more of the outstanding shares of Common Stock or
50% or more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), then, upon
any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share that would have been issuable
upon such exercise immediately prior to the occurrence of such Fundamental Transaction, at the option of the Holder (without regard to
any limitation in Section 2(e) on the exercise of this Warrant), the number of shares of Common Stock of the successor or acquiring
corporation or of the Company, if it is the surviving corporation, and any additional consideration (the “Alternate Consideration”)
receivable as a result of such Fundamental Transaction by a holder of the number of shares of Common Stock for which this Warrant is exercisable
immediately prior to such Fundamental Transaction (without regard to any limitation in Section 2(e) on the exercise of this
Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be appropriately adjusted to apply to such
Alternate Consideration based on the amount of Alternate Consideration issuable in respect of one share of Common Stock in such Fundamental
Transaction, and the Company shall apportion the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the
relative value of any different components of the Alternate Consideration. If holders of Common Stock are given any choice as to the securities,
cash or property to be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration
it receives upon any exercise of this Warrant following such Fundamental Transaction. The Company shall cause any successor entity in
a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”) to assume in writing all
of the obligations of the Company under this Warrant and the other Transaction Documents in accordance with the provisions of this Section 3(e) pursuant
to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder (without unreasonable delay)
prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange for this Warrant a security
of the Successor Entity evidenced by a written instrument substantially similar in form and substance to this Warrant which is exercisable
for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity) equivalent to the shares of Common
Stock acquirable and receivable upon exercise of this Warrant (without regard to any limitations on the exercise of this Warrant) prior
to such Fundamental Transaction, and with an exercise price which applies the exercise price hereunder to such shares of capital stock
(but taking into account the relative value of the shares of Common Stock pursuant to such Fundamental Transaction and the value of such
shares of capital stock, such number of shares of capital stock and such exercise price being for the purpose of protecting the economic
value of this Warrant immediately prior to the consummation of such Fundamental Transaction), and which is reasonably satisfactory in
form and substance to the Holder. Upon the occurrence of any such Fundamental Transaction, the Successor Entity shall be added to the
term “Company” under this Warrant (so that from and after the occurrence or consummation of such Fundamental Transaction,
each and every provision of this Warrant and the other Transaction Documents referring to the “Company” shall refer instead
to each of the Company and the Successor Entity or Successor Entities, jointly and severally), and the Successor Entity or Successor Entities,
jointly and severally with the Company, may exercise every right and power of the Company prior thereto and the Successor Entity or Successor
Entities shall assume all of the obligations of the Company prior thereto under this Warrant and the other Transaction Documents with
the same effect as if the Company and such Successor Entity or Successor Entities, jointly and severally, had been named as the Company
herein. For the avoidance of doubt, the Holder shall be entitled to the benefits of the provisions of this Section 3(e) regardless
of (i) whether the Company has sufficient authorized shares of Common Stock for the issuance of Warrant Shares and/or (ii) whether
a Fundamental Transaction occurs prior to the Initial Exercise Date. For the further avoidance of doubt, the Holder shall not be entitled
to receive more than one of (i) the consideration receivable as a result of such Fundamental Transaction by a holder of the number
of shares of Common Stock for which this Warrant is exercisable immediately prior to such Fundamental Transaction, or (ii) the assumption
by the Successor Entity of all of the obligations of the Company under this Warrant and the option to receive a security of the Successor
Entity evidenced by a written instrument substantially similar in form and substance to this Warrant.
f) Calculations.
All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of a share, as the case may be. For
purposes of this Section 3, the number of shares of Common Stock deemed to be issued and outstanding as of a given date shall be
the sum of the number of shares of Common Stock (excluding treasury shares, if any) issued and outstanding.
g) Notice
to Holder.
i. Adjustment
to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company shall promptly
deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment to the number
of Warrant Shares and setting forth a brief statement of the facts requiring such adjustment.
ii. Notice
to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on the
shares of Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the shares of Common
Stock, (C) the Company shall authorize the granting to all holders of the shares of Common Stock rights or warrants to subscribe
for or purchase any capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required
in connection with any reclassification of the shares of Common Stock (other than a stock split), any consolidation or merger to which
the Company is a party, any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange
whereby the shares of Common Stock are converted into other securities, cash or property, or (E) the Company shall authorize the
voluntary or involuntary dissolution, liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause
to be delivered by email to the Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least
5 calendar days prior to the applicable record or effective date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken,
the date as of which the holders of the shares of Common Stock of record to be entitled to such dividend, distributions, redemption, rights
or warrants are to be determined or (y) the date on which such reclassification, consolidation, merger, sale, transfer or stock exchange
is expected to become effective or close, and the date as of which it is expected that holders of the shares of Common Stock of record
shall be entitled to exchange their shares of Common Stock for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or stock exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice and provided, further
that no notice shall be required if the information is disseminated in a press release or document filed with the Securities and Exchange
Commission. To the extent that any notice provided in this Warrant constitutes, or contains, material, non-public information regarding
the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant to a Current Report
on Form 8-K. The issuance of a press release or the filing of a Form 8-K or other suitable filing with the Commission shall
satisfy this notice requirement. The Holder shall remain entitled to exercise this Warrant during the period commencing on the date of
such notice to the effective date of the event triggering such notice except as may otherwise be expressly set forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
This Warrant and all rights hereunder (including, without limitation, any registration rights) are transferable, in whole or in part,
upon surrender of this Warrant at the principal office of the Company or its designated agent, together with a written assignment of this
Warrant substantially in the form attached hereto duly executed by the Holder or its agent or attorney and funds sufficient to pay any
transfer taxes payable upon the making of such transfer. Upon such surrender and, if required, such payment, the Company shall execute
and deliver a new Warrant or Warrants in the name of the assignee or assignees, as applicable, and in the denomination or denominations
specified in such instrument of assignment, and shall issue to the assignor a new Warrant evidencing the portion of this Warrant not so
assigned, and this Warrant shall promptly be cancelled. Notwithstanding anything herein to the contrary, the Holder shall not be required
to physically surrender this Warrant to the Company unless the Holder has assigned this Warrant in full, in which case, the Holder shall
surrender this Warrant to the Company within three (3) Trading Days of the date on which the Holder delivers an assignment form to
the Company assigning this Warrant in full. The Warrant, if properly assigned in accordance herewith, may be exercised by a new holder
for the purchase of Warrant Shares without having a new Warrant issued.
b) New
Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of the Company,
together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by the Holder or
its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division or combination,
the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided or combined in accordance
with such notice. All Warrants issued on transfers or exchanges shall be dated the Issue Date of this Warrant and shall be identical with
this Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting Section 3, any rights of a Holder to receive Warrant Shares on a “cashless exercise”
pursuant to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein,
or the Company’s rights with respect to fractional shares under Section 2(d)(v), in no event shall the Company be required
to net cash settle an exercise of this Warrant.
b) Loss,
Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant Shares, and in case
of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant, shall not include
the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the Company will make
and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or stock certificate.
c) Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then, such action may be taken or such right may be exercised on the next succeeding Business
Day.
d) Authorized
Shares. The Company covenants that, during the period the Warrant is outstanding, it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein without
violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the shares of Common Stock may
be listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith,
be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in
respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except and to the extent as
waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending its certificate of
incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any
other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at all times
in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate to
protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the Company
will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use commercially reasonable
efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction thereof, as may
be, necessary to enable the Company to perform its obligations under this Warrant.
Before taking any action which
would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the Exercise Price, the Company
shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public regulatory body or
bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof.
Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of this Warrant shall be commenced
in the state and federal courts sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of
the state and federal courts sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such
suit, action or proceeding is improper or is an inconvenient venue for such proceeding. Each party hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this
Warrant and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein
shall be deemed to limit in any way any right to serve process in any other manner permitted by law. If either party shall commence an
action, suit or proceeding to enforce any provisions of this Warrant, the prevailing party in such action, suit or proceeding shall be
reimbursed by the other party for their reasonable attorneys’ fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such action or proceeding.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered and the Holder does not
utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the Holder’s
right to exercise this Warrant terminates on the Termination Date. If the Company willfully and knowingly fails to comply with any provision
of this Warrant, which results in any material damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient
to cover any costs and expenses including, but not limited to, reasonable attorneys’ fees, including those of appellate proceedings,
incurred by the Holder in collecting any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notices, consents, waivers or other document or communications required or permitted to be given or delivered under the terms of this
Warrant, including, without limitation, any Notice of Exercise, must be in writing and will be deemed to have been delivered: (i) upon
receipt, if delivered personally; (ii) when sent, if sent by e-mail (provided that such sent e-mail is kept on file (whether electronically
or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s
e-mail server that such e-mail could not be delivered to such recipient) and (iii) if sent by overnight courier service, one (1) Trading
Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to
receive the same. The addresses and e-mail addresses for such communications shall be:
If to the Company:
Elutia Inc.
12510 Prosperity Drive,
Suite 370
Silver
Spring, MD 20904
Attention:
Randy Mills
E-mail:
rmills@elutia.com
With a copy (for informational purposes
only) to:
Kilpatrick Townsend &
Stockton LLP
1100 Peachtree Street
N.E., Suite 2800
Atlanta,
GA 30309
Attention:
David Eaton
E-mail:
deaton@ktslaw.com
If to a Holder, to its address or e-mail address
set forth herein or on the books and records of the Company.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any shares of Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors
of the Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and the Holder.
m) Severability.
Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Warrant.
n) Headings.
The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed a part of this Warrant.
********************
(Signature Page Follows)
IN WITNESS WHEREOF, the Company
has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above indicated.
| ELUTIA INC. |
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| |
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| By: |
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| Name: |
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| Title: |
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EXHIBIT A
EXHIBIT A
NOTICE OF EXERCISE
TO: ELUTIA
INC.
(1) The undersigned hereby elects to purchase
________ Warrant Shares of the Company pursuant to the terms of the attached Warrant (only if exercised in full), and tenders herewith
payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2) Payment shall take the form of (check
applicable box):
¨ in
lawful money of the United States; or
¨ if permitted,
the cancellation of such number of Warrant Shares as is necessary, in accordance with the formula set forth in subsection 2(c), to
exercise this Warrant with respect to the maximum number of Warrant Shares purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3) Please issue said Warrant Shares in the
name of the undersigned or in such other name as is specified below:
The Warrant Shares shall be delivered to the following
DWAC Account Number:
(4) Accredited Investor. The undersigned
is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as amended.
SIGNATURE OF HOLDER
| Name of Investing Entity: |
|
| Signature of Authorized Signatory of Investing Entity: |
|
| Name of Authorized Signatory: |
|
| Title of Authorized Signatory: |
|
Date: __________________________
EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant, execute this
form and supply required information. Do not use this form to purchase shares.)
FOR VALUE RECEIVED, the foregoing Warrant and
all rights evidenced thereby are hereby assigned to
Name:
________________________________
(Please
Print)
Address:
_____________________________
(Please
Print)
Phone Number:
___________________________
Email Address: ___________________________
Dated: ___________________________
Holder’s Signature: ___________________________
Holder’s Address: ___________________________
EXHIBIT 5.1
 |
Kilpatrick Townsend & Stockton
LLP
ktslaw.com |
Suite 2800, 1100 Peachtree Street NE
Atlanta, GA 30309-4528 |
June 18, 2024
Elutia Inc.
12510 Prosperity Drive, Suite 370
Silver Spring, MD 20904
Re: Elutia
Inc. – Offering Pursuant to Registration Statement on Form S-3 (333-267197)
Ladies and Gentlemen:
We have represented Elutia
Inc. (the “Company”), a Delaware corporation, in connection with the issuance and sale by the Company of 3,175,000
shares (the “Shares”) of its Class A Common Stock, par value $0.001 per share (the “Common Stock”)
and pre-funded warrants (the “Pre-Funded Warrants”) to purchase 725,000 shares of Common Stock (the “Pre-Funded
Warrant Shares”, and together with the Shares and the Pre-Funded Warrants, the “Securities”). The Securities
are being issued and sold in a registered offering pursuant to the Company’s Registration Statement on Form S-3 (File. No
333-267197) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “SEC”)
on August 31, 2022 under the Securities Act of 1933, as amended (the “Securities Act”), the base prospectus included
in the Registration Statement (the “Base Prospectus”) and the prospectus supplement related to the Securities (together
with the Base Prospectus, the “Prospectus”).
Subject to the assumptions,
qualifications and limitations identified in this letter, we are of the opinion that:
1. The
Shares have been duly authorized for issuance and, when issued and paid for as described in the Registration Statement and Prospectus,
will be validly issued, fully paid and nonassessable.
2. The
Pre-Funded Warrants are valid and binding obligations of the Company enforceable against the Company in accordance with their terms.
3. The
Pre-Funded Warrant Shares have been duly authorized for issuance and, when and if issued upon exercise of the Pre-Funded Warrants in
accordance with the provisions of the Pre-Funded Warrants, will be validly issued, fully paid and nonassessable.
In connection with the preparation
of this letter, we have among other things reviewed: (i) the Registration Statement and Prospectus, including the filings incorporated
by reference therein; (ii) the Notice of Effectiveness with respect to the Registration Statement filed by the SEC on September 9,
2022; (iii) agreements related to the offering and purchase of the Securities; (iv) the form of Pre-Funded Warrant; (v) copies
of minutes, resolutions and consents, as applicable, of the Board of Directors and Pricing Committee of the Board of Directors of the
Company related to the offering, certified by an officer of the Company as being complete, accurate and in effect; (vi) the Restated
Certificate of Incorporation of the Company, as amended, as certified by the Secretary of State of the State of Delaware on June 17,
2024; (vii) the Second Amended and Restated Bylaws of the Company, certified by an officer of the Company as being complete, accurate
and in effect; (viii) a certificate of good standing from the Secretary of State of the State of Delaware dated June 18, 2024;
(ix) copies of all certificates and other documents delivered at the closing of the offering; and (x) such other certificates,
documents and instruments we have deemed appropriate for purposes of this letter.
Anchorage
Atlanta Augusta BEIJING Charlotte CHICAGO DALLAS Denver houston los angeles New York PHOENIX Raleigh
San
Diego San Francisco Seattle SHANGHAI Silicon Valley Stockholm Tokyo Walnut Creek Washington Winston-Salem
Elutia Inc.
June 18, 2024
Page 2
We have assumed for purposes
of this letter: (i) that each document we have reviewed is accurate and complete, each such document that is an original is authentic,
each such document that is a copy conforms to an authentic original, and all signatures on each such document are genuine, and that all
natural persons who have signed any documents have the legal capacity to do so; that the parties thereto (other than the Company) had
the power, corporate or other, to enter into and perform all obligations thereunder; that each such document was duly authorized by all
requisite corporate or other action of the parties thereto and that such documents were duly executed and delivered by each party thereto
other than the Company; (ii) that each agreement we have examined for purposes of this letter has been duly authorized, executed
and delivered, constitutes a valid and binding obligation of each party to that document and that each such party has satisfied all legal
requirements that are applicable to such party to the extent necessary to entitle such party to enforce such agreement, and that each
party to any document is in good standing and duly incorporated or organized under the laws of the state of its incorporation or organization
(except that we make no assumptions pursuant to this clause (ii) with respect to the Company); and (iii) that the counterparties
to such agreements have acted in good faith and without notice of any fact which has caused them to reach any conclusion contrary to
any of the opinions or assumptions in this letter.
In preparing this letter
we have relied without independent verification upon: (i) information contained in certificates obtained from governmental authorities;
(ii) factual information represented to be true in the agreements and documents read by us (including, without limitation, the representations
and warranties of the Company and counterparties to such agreements); (iii) factual information provided to us by the Company or
its representatives; and (iv) factual information we have obtained from such other sources as we have deemed reasonable. We have
assumed that there has been no relevant change or development between the dates as of which the information cited in the preceding sentence
was given and the date of this letter and that the information upon which we have relied is accurate and does not omit disclosures necessary
to prevent such information from being misleading.
Our opinions are subject
to the following additional qualifications, assumptions and exceptions:
(a) At
the time of exercise or adjustment of the Pre-Funded Warrants, a sufficient number of Pre-Funded Warrant Shares will be authorized and
available for issuance under the Company’s Restated Certificate of Incorporation as then in effect to satisfy the Company’s
obligations under the Pre-Funded Warrants to issue all of such Pre-Funded Warrant Shares upon exercise or adjustment. The exercise price
of the Pre-Funded Warrants at the time of exercise will equal to or greater than the par value of the Common Stock.
(b) Our
opinions as to validity and enforceability are subject to: (i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
voidable preference, moratorium or similar laws, and related judicial doctrines, from time to time in effect affecting creditors’
rights and remedies generally; and (ii) general principles of equity (including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness, equitable defenses and limits on the availability of equitable remedies), whether such principles
are considered in a proceeding at law or in equity.
(c) We
express no opinion as to the validity or enforceability of any provision: (i) relating to choice of governing law or forum for resolutions
of disputes, a party paying another party’s attorneys’ fees and costs, the fixing of venue, waiver of jury trials or submission
to arbitration; or (ii) specifying that provisions of a contract may be waived only in writing, to the extent that an oral agreement
or an implied agreement by trade practice or course of conduct has been created that modifies any provision of such documents.
(d) Our
opinions as to validity or enforceability are subject to the effect of generally applicable rules of law that: (i) limit the
availability of a remedy under certain circumstances when another remedy has been elected; and (ii) may, where less than all of
a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable
portion is not an essential part of the agreed exchange.
Elutia Inc.
June 18, 2024
Page 3
(e) We
express no opinion as to the enforceability of: (i) any purported waiver, release, variation, disclaimer, consent or other agreement
to similar effect (all of the foregoing, collectively, a “Waiver”) by the Company to the extent limited by applicable
law (including judicial decisions), or to the extent that such a Waiver applies to a right, claim, duty, defense or ground for discharge
otherwise existing or occurring as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective
under and is not prohibited by or void or invalid under applicable law (including judicial decisions); or (ii) any Waiver in insofar
as it relates to causes or circumstances that would operate as a discharge or release of, or defense available to, any issuer thereunder
as a matter of law (including judicial decisions), except to the extent that such a Waiver is effective under and is not prohibited by
or void or invalid under applicable law (including judicial decisions).
(f) We
express no opinion as to the application of, and our opinions above are subject to the effect, if any, of, any applicable fraudulent
conveyance, fraudulent transfer, fraudulent obligation or preferential transfer law, any applicable bulk sale or transfer law and any
law governing the liquidation or dissolution of, or the distribution of assets of, any person or entity (including, without limitation,
any law relating to the payment of dividends or other distributions on capital stock or the repurchase of capital stock).
(g) We
express no opinion as to the subject matter jurisdiction of any United States court to adjudicate any suit which may be brought by any
person who is not a citizen of the United States or organized under the laws thereof or of one of the states thereof.
Our advice on every legal
issue addressed in this letter is based exclusively on the internal laws of the State of New York and the Delaware General Corporation
Law. We express no opinion with respect to compliance with any law, rule or regulation that as a matter of customary practice is
understood to be covered only when an opinion refers to it expressly.
This opinion is limited to
the matters expressly set forth in this letter, and no opinion has been or should be implied, or may be inferred, beyond the matters
expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation
or responsibility to update or supplement this letter to reflect any facts or circumstances that may hereafter come to our attention
or any changes in law that may hereafter occur.
Elutia Inc.
June 18, 2024
Page 4
We consent to the reference
to our firm under the caption “Legal Matters” in the Prospectus and to the filing of this opinion as an exhibit to a Current
Report on Form 8-K to be filed with the SEC for incorporation by reference into the Registration Statement. In giving such consents,
we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the SEC thereunder.
| |
Sincerely, |
| |
|
| |
/s/KILPATRICK TOWNSEND &
STOCKTON LLP |
Exhibit 10.1
PLACEMENT AGENCY AGREEMENT
June 16, 2024
C. Randal Mills, Ph.D.
President & Chief Executive Officer
Elutia Inc.
12510 Prosperity Drive, Suite 370
Silver Spring, MD 20904
Dear Dr. Mills:
This letter agreement (the “Agreement”)
constitutes the agreement between Lake Street Capital Markets, LLC (“Lake Street”), as placement agent (the “Placement
Agent”) and Elutia Inc., a company incorporated under the laws of the State of Delaware (the “Company”),
pursuant to which the Placement Agent shall serve as the exclusive placement agent for the Company, on a “reasonable best efforts”
basis, in connection with the proposed placement (the “Placement”) of shares of Class A common stock (the “Shares”)
of the Company, par value $0.001 per share (“Common Stock”) and pre-funded warrants to purchase shares of Common Stock
(the “Pre-Funded Warrants” and, together with the Shares, the “Securities”). The terms of the Placement
and the Securities shall be mutually agreed upon by the Company and the purchasers (each, a “Purchaser” and, collectively,
the “Purchasers”) and nothing herein constitutes that the Placement Agent would have the power or authority to bind
the Company or any Purchaser or an obligation for the Company to issue any Securities or complete the Placement. This Agreement and the
documents executed and delivered by the Company and the Purchasers in connection with the Placement, which may include a securities purchase
agreement between the Company and one or more of such Purchasers in a form mutually agreed upon by the Company and the Placement Agent
(the “Purchase Agreement”), shall be collectively referred to herein as the “Transaction Documents.”
The date of the closing of the Placement shall be referred to herein as the “Closing Date.” The Company expressly
acknowledges and agrees that the Placement Agent’s obligations hereunder are on a reasonable best efforts basis only and that the
execution of this Agreement does not constitute a commitment by the Placement Agent to purchase the Securities and does not ensure the
successful placement of the Securities or any portion thereof or the success of the Placement Agent with respect to securing any other
financing on behalf of the Company. With the prior written consent of the Company, the Placement Agent may retain other brokers or dealers
to act as sub-agents or selected-dealers on its behalf in connection with the Placement. Capitalized terms that are not otherwise defined
herein have the meanings given to such terms in the Purchase Agreement. Prior to the signing of any Purchase Agreement, executive officers
of the Company will be available upon reasonable notice and during normal business hours to answer inquiries from prospective Purchasers.
SECTION 1.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY; COVENANTS OF THE COMPANY.
A. Representations
of the Company. Each of the representations and warranties (together with any related disclosure schedules thereto) and covenants
made by the Company to the Purchasers in the Purchase Agreement in connection with the Placement is hereby incorporated herein by reference
into this Agreement (as though fully restated herein) and is, as of the date of this Agreement and as of the Closing Date, hereby made
to, and in favor of, the Placement Agent. In addition to the foregoing, the Company represents and warrants that:
1. The Company has prepared and filed
with the Commission a registration statement on Form S-3 (Registration No. 333-267197), and amendments thereto, and related
preliminary prospectuses, for the registration under the Securities Act of 1933, as amended (the “Securities Act”),
of up to $50,000,000 of the securities of the Company identified therein, which registration statement, as so amended (including post-effective
amendments, if any) became effective on September 8, 2022. At the time of such filing, the Company met the requirements of Form S-3
under the Securities Act or received any necessary waivers from the Commission with respect to its eligibility thereof. Such registration
statement meets the requirements set forth in Rule 415(a)(1)(x) under the Securities Act and complies with said Rule. The Company
will file with the Commission pursuant to Rule 424(b) under the Securities Act, and the rules and regulations (the “Rules and
Regulations”) of the Commission promulgated thereunder, a supplement to the form of prospectus included in such registration
statement relating to the placement of the Securities and the plan of distribution thereof and has advised the Placement Agent of all
further information (financial and other) with respect to the Company required to be set forth therein. Such registration statement,
including the exhibits thereto, as amended at the date of this Agreement (including any Rule 462(b) registration statement),
is hereinafter called the “Registration Statement”; such prospectus in the form in which it appears in the Registration
Statement is hereinafter called the “Base Prospectus”; and the supplemented form of prospectus, in the form in which
it will be filed with the Commission pursuant to Rule 424(b) (including the Base Prospectus as so supplemented) is hereinafter
called the “Prospectus Supplement.” Any reference in this Agreement to the Registration Statement, the Base Prospectus
or the Prospectus Supplement shall be deemed to refer to and include the documents incorporated by reference therein (the “Incorporated
Documents”) pursuant to Item 12 of Form S-3 which were filed under the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or before the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be; and any reference in this Agreement to the terms “amend,” “amendment” or “supplement”
with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of this Agreement, or the issue date of the Base Prospectus or the Prospectus
Supplement, as the case may be, deemed to be incorporated therein by reference. All references in this Agreement to financial statements
and schedules and other information which is “contained,” “included,” “described,” “referenced,”
“set forth” or “stated” in the Registration Statement, the Base Prospectus or the Prospectus Supplement (and
all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information
which is or is deemed to be incorporated by reference in the Registration Statement, the Base Prospectus or the Prospectus Supplement,
as the case may be. The Company has not received any notice that the Commission has issued or intends to issue a stop order suspending
the effectiveness of the Registration Statement or the use of the Base Prospectus or the Prospectus Supplement, or intends to commence
a proceeding for any such purpose.
2. The Registration Statement (and
any further documents to be filed with the Commission) contains all exhibits and schedules as required by the Securities Act. Each of
the Registration Statement and any post-effective amendment thereto, at the time it became effective, complied in all material respects
with the Securities Act and the Exchange Act and the applicable Rules and Regulations and did not and, as amended or supplemented,
if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. The Base Prospectus, and the Prospectus Supplement, each as of its respective
date, comply in all material respects with the Securities Act and the Exchange Act and the applicable Rules and Regulations. Each
of the Base Prospectus, and the Prospectus Supplement, as amended or supplemented, did not and will not contain as of the date thereof
any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading. The Incorporated Documents, when they were filed with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, and none of
such documents, when they were filed with the Commission, contained any untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein (with respect to Incorporated Documents incorporated by reference in the Base Prospectus
or Prospectus Supplement), in the light of the circumstances under which they were made not misleading; and any further documents so
filed and incorporated by reference in the Base Prospectus or Prospectus Supplement, when such documents are filed with the Commission,
will conform in all material respects to the requirements of the Exchange Act and the applicable Rules and Regulations, as applicable,
and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading. No post-effective amendment to the Registration Statement
reflecting any facts or events arising after the date thereof which represent, individually or in the aggregate, a fundamental change
in the information set forth therein is required to be filed with the Commission. There are no documents required to be filed with the
Commission in connection with the transaction contemplated hereby that (x) have not been filed as required pursuant to the Securities
Act or (y) will not be filed within the requisite time period. There are no contracts or other documents required to be described
in the Base Prospectus, or Prospectus Supplement, or to be filed as exhibits or schedules to the Registration Statement, which (x) have
not been described or filed as required or (y) will not be filed within the requisite time period.
B. Covenants
of the Company. The Company has delivered or made available, or will as promptly as practicable deliver or make available, to the
Placement Agent complete conformed copies of the Registration Statement and of each consent and certificate of experts, as applicable,
filed as a part thereof, and conformed copies of the Registration Statement (without exhibits), the Base Prospectus, and the Prospectus
Supplement, as amended or supplemented, in such quantities and at such places as the Placement Agent reasonably requests. Neither the
Company nor any of its directors and officers has distributed and none of them will distribute, prior to the Closing Date, any offering
material in connection with the offering and sale of the Securities pursuant to the Placement other than the Base Prospectus, the Prospectus
Supplement, the Registration Statement, copies of the documents incorporated by reference therein and any other materials permitted by
the Securities Act.
SECTION 2.
REPRESENTATIONS OF THE PLACEMENT AGENT.
The Placement Agent represents and warrants that
it (i) is a member in good standing of FINRA, (ii) is registered as a broker/dealer under the Exchange Act, (iii) is licensed
as a broker/dealer under the laws of the States applicable to the offers and sales of the Securities by the Placement Agent, (iv) is
and will be a corporate entity validly existing under the laws of its place of incorporation, and (v) has full power and authority
to enter into and perform its obligations under this Agreement. The Placement Agent will immediately notify the Company in writing of
any change in its status as such. The Placement Agent covenants that it will use its reasonable best efforts to conduct the Placement
hereunder in compliance with the provisions of this Agreement and the requirements of applicable law.
SECTION 3.
COMPENSATION.
A. In
consideration of the services to be provided for hereunder, the Company shall pay to the Placement Agent or its respective designees,
the following compensation with respect to the placement of the Securities:
1. A cash fee (the “Cash Fee”)
equal to (a) an aggregate of four percent (4.0%) of the gross proceeds from the sale of Securities in the Placement to those Purchasers
listed on Annex A hereto, and (b) an aggregate of seven percent (7.0%) of the gross proceeds from the sale of Securities
in the Placement to all other Purchasers. The Cash Fee shall be paid to the Placement Agent at the Closing of the Placement.
2. Subject to compliance with FINRA
Rule 5110(g)(5), the Company also agrees to reimburse the Placement Agent for all reasonable and documented out-of-pocket expenses
incurred by the Placement Agent in connection with the Placement, including the fees and disbursements of legal counsel, in an aggregate
amount not to exceed $135,000. The Company will reimburse the Placement Agent directly out of the Closing of the Placement.
3. The Placement Agent reserves the
right to reduce any item of its compensation or adjust the terms thereof as specified herein in the event that a determination shall
be made by FINRA to the effect that the Placement Agent’s aggregate compensation is in excess of FINRA Rules or that the terms
thereof require adjustment.
SECTION 4.
INDEMNIFICATION. The Company agrees to the indemnification and other agreements
set forth in the Indemnification Provisions (the “Indemnification Provisions”) attached hereto as Addendum A,
the provisions of which are incorporated herein by reference and shall survive the termination or expiration of this Agreement.
SECTION 5.
ENGAGEMENT TERM. The Placement Agent’s engagement hereunder shall be
until the earlier of (i) the final closing date of the Placement and (ii) the date a party terminates the engagement according
to the terms of the next sentence (such date, the “Termination Date” and the period of time during which this Agreement
remains in effect is referred to herein as the “Term”). After an initial period of four (4) weeks from the date
hereof, the engagement may be terminated at any time by either party upon five (5) days written notice to the other party, effective
upon receipt of written notice to that effect by the other party. Notwithstanding anything to the contrary contained herein, the provisions
concerning the Company’s obligation to pay any fees actually earned pursuant to Section 3 hereof and the provisions concerning
confidentiality, indemnification and contribution contained herein and the Company’s obligations contained in the Indemnification
Provisions will survive any expiration or termination of this Agreement. If this Agreement is terminated prior to the completion of the
Placement, all fees due to the Placement Agent shall be paid by the Company to the Placement Agent on or before the Termination Date
(in the event such fees are earned or owed as of the Termination Date). The Placement Agent agrees not to use any confidential information
concerning the Company provided to the Placement Agent by the Company for any purposes other than those contemplated under this Agreement.
SECTION 6.
PLACEMENT AGENT INFORMATION. The Company agrees that any information or advice
rendered by the Placement Agent in connection with this engagement is for the confidential use of the Company only in their evaluation
of the Placement and, except as otherwise required by law, the Company will not disclose or otherwise refer to the advice or information
in any manner without the Placement Agent’s prior written consent.
SECTION 7.
NO FIDUCIARY RELATIONSHIP. This Agreement does not create, and shall not
be construed as creating rights enforceable by any person or entity not a party hereto, except those entitled hereto by virtue of the
Indemnification Provisions hereof. The Company acknowledges and agrees that the Placement Agent is not and shall not be construed as
a fiduciary of the Company and shall have no duties or liabilities to the equity holders or the creditors of the Company or any other
person by virtue of this Agreement or the retention of the Placement Agent hereunder, all of which are hereby expressly waived.
SECTION 8.
CLOSING. The obligations of the Placement Agent, and the closing of the sale
of the Securities hereunder are subject to the accuracy, when made and on the Closing Date, of the representations and warranties on
the part of the Company contained herein and in the Purchase Agreement, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the Company of their obligations hereunder, and to each of the
following additional terms and conditions, except as otherwise disclosed to and acknowledged and waived by the Placement Agent by the
Company:
A. No
stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall
have been initiated or threatened by the Commission, and any request for additional information on the part of the Commission (to be
included in the Registration Statement, the Base Prospectus, the Prospectus Supplement or otherwise) shall have been complied with to
the reasonable satisfaction of the Placement Agent. Any filings required to be made by the Company in connection with the Placement shall
have been timely filed with the Commission.
B. The
Placement Agent shall not have discovered and disclosed to the Company on or prior to the Closing Date that the Registration Statement,
the Base Prospectus, the Prospectus Supplement or any amendment or supplement thereto contains an untrue statement of a fact which, in
the reasonable opinion of counsel for the Placement Agent, is material or omits to state any fact which, in the reasonable opinion of
such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
C. All
corporate proceedings and other legal matters incident to the authorization, form, execution, delivery and validity of each of this Agreement,
the Securities, the Registration Statement, the Base Prospectus and the Prospectus Supplement and all other legal matters relating to
this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to counsel for the
Placement Agent, and the Company shall have furnished to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
D. The
Placement Agent shall have received from Kilpatrick, Townsend & Stockton LLP, outside counsel to the Company, such counsel’s
written opinion, addressed to the Placement Agent and the Purchasers and dated as of the Closing Date, in form and substance reasonably
satisfactory to the Placement Agent.
E. On
the Closing Date, the Placement Agent shall have received a certificate of the Chief Executive Officer of the Company, in his capacity
as such, dated, as applicable, as of the date of such Closing, certifying to certain regulatory matters, in form and substance reasonably
satisfactory to the Placement Agent.
F. On
the Closing Date, the Placement Agent shall have received a certificate of the Chief Financial Officer of the Company, in his capacity
as such, dated, as applicable, as of the date of such Closing, certifying to certain financial matters, in form and substance reasonably
satisfactory to the Placement Agent.
G. On
the Closing Date, the Placement Agent shall have received a certificate of the Chief Executive Officer of the Company, in his capacity
as such, dated as of the date of such Closing, to the effect that, as of the date of this Agreement and as of the applicable date, the
representations and warranties of the Company contained herein and in the Purchase Agreement were and are accurate in all material respects,
except for such changes as are contemplated by this Agreement and except as to representations and warranties that were expressly limited
to a state of facts existing at a time prior to the applicable Closing Date, and that, as of the applicable date, the obligations to
be performed by the Company hereunder on or prior thereto have been fully performed in all material respects.
H. On
the Closing Date, the Placement Agent shall have received a certificate of the Secretary of the Company, in his capacity as such, dated
as of the date of such Closing, certifying to the organizational documents, good standing in the state of incorporation of the Company
and board resolutions relating to the Placement of the Securities from the Company.
I. On
the Closing Date, the Placement Agent shall have received a “comfort” letter from PricewaterhouseCoopers LLP, addressed to
the Placement Agent and in form and substance reasonably satisfactory to the Placement Agent.
J. The
Company (i) shall not have sustained since the date of the latest audited financial statements included or incorporated by reference
in the Registration Statement, the Base Prospectus and the Prospectus Supplement, any loss or interference with its business from fire,
explosion, flood, terrorist act or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth in or contemplated by the Registration Statement, the Base Prospectus and the Prospectus
Supplement, and (ii) since the date of the latest audited financial statements included or incorporated by reference in the Registration
Statement, the Base Prospectus and the Prospectus Supplement there shall not have been any change in the capital stock or long-term debt
of the Company or any change, or any development involving a prospective change, in or affecting the business, general affairs, management,
financial position, stockholders’ equity, results of operations or prospects of the Company, otherwise than as set forth in or
contemplated by the Registration Statement, the Base Prospectus and the Prospectus Supplement, the effect of which, in any such case
described in clause (i) or (ii), is, in the judgment of the Placement Agent, so material and adverse as to make it impracticable
or inadvisable to proceed with the sale or delivery of the Securities on the terms and in the manner contemplated by the Base Prospectus,
Prospectus Supplement and the Purchase Agreement.
K. The
Common Stock is registered under the Exchange Act and, as of the Closing Date, the Common Stock shall be listed for trading on the Trading
Market or other applicable U.S. national exchange and reasonable evidence of such action, if available, shall have been provided to the
Placement Agent upon its request. The Company shall have taken no action designed to, or likely to have the effect of terminating the
registration of the Common Stock under the Exchange Act or delisting or suspending from trading the Common Stock from the Trading Market
or other applicable U.S. national exchange, nor has the Company received any information suggesting that the Commission or the Trading
Market or other U.S. applicable national exchange is contemplating terminating such registration or listing.
L. No
action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any governmental
agency or body which would, as of the Closing Date, prevent the issuance or sale of the Securities or materially and adversely affect
or potentially and adversely affect the business or operations of the Company; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have been issued as of the Closing Date which would prevent the
issuance or sale of the Securities or materially and adversely affect or potentially and adversely affect the business or operations
of the Company.
M. The
Company shall have prepared for filing with the Commission a Current Report on Form 8-K with respect to the Placement, including
as an exhibit thereto this Agreement.
N. Any
Purchase Agreement entered into by the Company with a Purchaser shall be in full force and effect and shall contain representations,
warranties and covenants of the Company as agreed between the Company and the Purchaser.
O. FINRA
shall have raised no objection to the fairness and reasonableness of the terms and arrangements of this Agreement. In addition, the Company
shall, if requested by the Placement Agent, make or authorize Placement Agent’s counsel to make on the Company’s behalf,
any filing with the FINRA Corporate Financing Department pursuant to FINRA Rule 5110 with respect to the Placement and pay all filing
fees required in connection therewith.
P. Prior
to the Closing Date, the Company shall have furnished to the Placement Agent such further information, certificates and documents as
the Placement Agent may reasonably request. If any of the conditions specified in this Section 8 shall not have been fulfilled when
and as required by this Agreement, or if any of the certificates, opinions, written statements or letters furnished to the Placement
Agent pursuant to this Section 8 shall not be reasonably satisfactory in form and substance to the Placement Agent, all obligations
of the Placement Agent hereunder may be cancelled by the Placement Agent at, or at any time prior to, the consummation of the Closing.
Notice of such cancellation shall be given to the Company in writing or orally. Any such oral notice shall be confirmed promptly thereafter
in writing.
SECTION 9.
[RESERVED].
SECTION 10.
GOVERNING LAW. This Agreement will be governed by, and construed in accordance
with, the laws of the State of New York applicable to agreements made and to be performed entirely in such State without regard to the
conflicts of laws principles thereof. This Agreement may not be assigned by either party without the prior written consent of the other
party. This Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted
assigns. Any right to trial by jury with respect to any dispute arising under this Agreement or any transaction or conduct in connection
herewith is waived. Any dispute arising under this Agreement may be brought into the courts of the State of New York or into the Federal
Court located in New York, New York and, by execution and delivery of this Agreement, the Company hereby accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of aforesaid courts. Each party hereto hereby irrevocably waives personal
service of process and consents to process being served in any such suit, action or proceeding by delivering a copy thereof via overnight
delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such
service shall constitute good and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to limit
in any way any right to serve process in any manner permitted by law. If either party shall commence an action or proceeding to enforce
any provisions of a Transaction Document, then the prevailing party in such action or proceeding shall be reimbursed by the other party
for its attorney’s fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action
or proceeding.
SECTION 11.
ENTIRE AGREEMENT/MISC. This Agreement (including the attached Indemnification
Provisions) embodies the entire agreement and understanding between the parties hereto, and supersedes all prior agreements and understandings,
relating to the subject matter hereof. If any provision of this Agreement is determined to be invalid or unenforceable in any respect,
such determination will not affect such provision in any other respect or any other provision of this Agreement, which will remain in
full force and effect. This Agreement may not be amended or otherwise modified or waived except by an instrument in writing signed by
the Placement Agent and the Company. The representations, warranties, agreements and covenants contained herein shall survive the closing
of the Placement and delivery of the Securities. This Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature
is delivered by facsimile transmission or a .pdf format file, such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or .pdf signature page were
an original thereof.
SECTION 12.
CONFIDENTIALITY. The Placement Agent (i) will keep the Confidential
Information (as such term is defined below) confidential and will not (except as required by applicable law or stock exchange requirement,
regulation or legal process (“Legal Requirement”)), without the Company’s prior written consent, disclose to
any person any Confidential Information, and (ii) will not use any Confidential Information other than in connection with the Placement.
The Placement Agent further agrees to disclose the Confidential Information only to its Representatives (as such term is defined below)
who need to know the Confidential Information for the purpose of the Placement, and who are informed by the Placement Agent of the confidential
nature of the Confidential Information. The term “Confidential Information” shall mean, all confidential, proprietary
and non-public information (whether written, oral or electronic communications) furnished by the Company to a Placement Agent or its
Representatives in connection with the Placement Agent’s evaluation of the Placement. The term “Confidential Information”
will not, however, include information which (i) is or becomes publicly available other than as a result of a disclosure by a Placement
Agent or its Representatives in violation of this Agreement, (ii) is or becomes available to a Placement Agent or any of its Representatives
on a non-confidential basis from a third-party, (iii) is known to a Placement Agent or any of its Representatives prior to disclosure
by the Company or any of its Representatives, or (iv) is or has been independently developed by a Placement Agent and/or the Representatives
without use of any Confidential Information furnished to it by the Company. The term “Representatives” shall mean the Placement
Agent’s directors, board committees, officers, employees, financial advisors, attorneys and accountants. This provision shall be
in full force until the earlier of (a) the date that the Confidential Information ceases to be confidential and (b) two years
from the date hereof. Notwithstanding any of the foregoing, in the event that the Placement Agent or any of its Representatives are required
by Legal Requirement to disclose any of the Confidential Information, the Placement Agent and its Representatives will furnish only that
portion of the Confidential Information which the Placement Agent or its Representative, as applicable, is required to disclose by Legal
Requirement as advised by counsel, and will use reasonable efforts to obtain reliable assurance that confidential treatment will be accorded
the Confidential Information so disclosed.
SECTION 13.
NOTICES. Any and all notices or other communications or deliveries required
or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date
of transmission, if such notice or communication is sent to the email address specified on the signature pages attached hereto prior
to 6:30 p.m. (New York City time) on a business day, (b) the next business day after the date of transmission, if such notice
or communication is sent to the email address on the signature pages attached hereto on a day that is not a business day or later
than 6:30 p.m. (New York City time) on any business day, (c) the third business day following the date of mailing, if sent
by U.S. internationally recognized air courier service, or (d) upon actual receipt by the party to whom such notice is required
to be given. The address for such notices and communications shall be as set forth on the signature pages hereto.
SECTION 14.
PRESS ANNOUNCEMENTS. The Company agrees that the Placement Agent shall, from
and after any Closing, have the right to reference the Placement and the Placement Agent’s role in connection therewith in the
Placement Agent’s marketing materials and on its website and to place advertisements in financial and other newspapers and journals,
in each case at its own expense.
[The remainder of this page has been intentionally
left blank.]
Please confirm that the foregoing correctly sets forth our agreement
by signing and returning to Lake Street the enclosed copy of this Agreement.
| |
Very truly yours, |
| |
|
| |
LAKE STREET CAPITAL
MARKETS, LLC |
| |
|
|
| |
By: |
/s/ Mark Argento |
| |
|
Name:
Mark Argento |
| |
|
Title: President,
Head of Institutional Equities |
| |
|
| |
Address for notice: |
| |
920 Second Avenue South,
Suite 700 |
| |
Minneapolis, Minnesota
55402 |
| |
Attention: Mark Argento, President, Head of Institutional Equities |
| |
Email: mark.argento@lakestreetcm.com |
Accepted and Agreed to as of
the date first written above:
| ELUTIA INC. |
|
| |
|
|
| By: |
/s/ C. Randal Mills |
|
| |
Name: C.
Randal Mills, Ph.D. |
|
| |
Title: President &
Chief Executive Officer |
|
Address
for notice:
Elutia Inc.
12510 Prosperity Drive, Suite 370
Silver Spring, MD 20904
Attn: President & Chief Executive Officer
Email: rmills@elutia.com
[Signature Page to Placement Agency Agreement]
ADDENDUM A
INDEMNIFICATION PROVISIONS
In connection with the engagement
of Lake Street Capital Markets, LLC (the “Placement Agent”) by Elutia Inc. (the “Company”) pursuant to a placement
agency agreement dated as of the date hereof, between the Company and the Placement Agent, as it may be amended from time to time in
writing (the “Agreement”), the Company hereby agrees as follows:
1. To
the extent permitted by law, the Company will indemnify the Placement Agent and its affiliates, directors, officers, employees and controlling
persons (within the meaning of Section 15 of the Securities Act of 1933, as amended, or Section 20 of the Securities Exchange
Act of 1934, as amended) against all losses, claims, damages, expenses and liabilities, as the same are incurred (including the reasonable
and documented fees and expenses of counsel), relating to or arising out of its activities hereunder or pursuant to the Agreement, except,
with regard to the Placement Agent, to the extent that any losses, claims, damages, expenses or liabilities (or actions in respect thereof)
are found in a final judgment (not subject to appeal) by a court of law to have resulted primarily and directly from the willful misconduct,
bad faith or gross negligence in performing the services described herein, as the case may be of any or all of the Placement Agent.
2. Promptly
after receipt by the Placement Agent of notice of any claim or the commencement of any action or proceeding with respect to which the
Placement Agent is entitled to indemnity hereunder, the Placement Agent will notify the Company in writing of such claim or of the commencement
of such action or proceeding, and the Company will assume the defense of such action or proceeding and will employ counsel reasonably
satisfactory to the Placement Agent and will pay the reasonable fees and expenses of such counsel. Notwithstanding the preceding sentence,
the Placement Agent will be entitled to employ counsel separate from counsel for the Company and from any other party in such action
if counsel for the Placement Agent reasonably determines that it would be inappropriate under the applicable rules of professional
responsibility for the same counsel to represent both the Company and the Placement Agent. In such event, the reasonable and documented
fees and disbursements of no more than one such separate counsel will be paid by the Company. The Company will have the exclusive right
to settle the claim or proceeding provided that the Company will not settle any such claim, action or proceeding without the prior written
consent of the Placement Agent, which will not be unreasonably withheld, unless such settlement includes an unconditional release of
the Placement Agent from all liability arising out of such claim, action or proceeding..
3. The
Company agrees to notify the Placement Agent promptly of the assertion against it or any other person of any claim or the commencement
of any action or proceeding relating to a transaction contemplated by the Agreement.
4. If
for any reason the foregoing indemnity is unavailable to the Placement Agent or insufficient to hold the Placement Agent harmless, then
the Company shall contribute to the amount paid or payable by the Placement Agent, as the case may be, as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the
one hand, and the Placement Agent on the other, but also the relative fault of the Company on the one hand and the Placement Agent on
the other that resulted in such losses, claims, damages or liabilities, as well as any relevant equitable considerations. The amounts
paid or payable by a party in respect of losses, claims, damages and liabilities referred to above shall be deemed to include any legal
or other fees and expenses incurred in defending any litigation, proceeding or other action or claim. Notwithstanding the provisions
hereof, the Placement Agent’s share of the liability hereunder shall not be in excess of the amount of fees actually received,
or to be received, by the Placement Agent under the Agreement (excluding any amounts received as reimbursement of expenses incurred by
the Placement Agent).
5. These
Indemnification Provisions shall remain in full force and effect whether or not the transaction contemplated by the Agreement is completed
and shall survive the termination of the Agreement, and shall be in addition to any liability that the Company might otherwise have to
any indemnified party under the Agreement or otherwise.
[The remainder of this page has been intentionally
left blank.]
| |
Very truly yours, |
| |
|
| |
LAKE STREET CAPITAL
MARKETS, LLC |
| |
|
|
| |
By: |
/s/ Mark Argento |
| |
|
Name:
Mark Argento |
| |
|
Title: President,
Head of Institutional Equities |
| |
|
| |
Address for notice: |
| |
920 Second Avenue South,
Suite 700 |
| |
Minneapolis, Minnesota
55402 |
| |
Attention: Mark Argento, President, Head of Institutional Equities |
| |
Email: mark.argento@lakestreetcm.com |
Accepted and Agreed to as of
the date first written above:
| ELUTIA INC. |
|
| |
|
|
| By: |
/s/ C. Randal Mills |
|
| |
Name: C.
Randal Mills |
|
| |
Title: President &
Chief Executive Officer |
|
Address
for notice:
Elutia Inc.
12510 Prosperity Drive, Suite 370
Silver Spring, MD 20904
Attn: President & Chief Executive Officer
Email: rmills@elutia.com
[Signature Page to Indemnification Provisions
Pursuant
to Placement Agency Agreement]
ANNEX A
Company Introduced Investors
Exhibit 10.2
SECURITIES
PURCHASE AGREEMENT
This Securities Purchase
Agreement (this “Agreement”) is dated as of June 16, 2024, between Elutia Inc., a Delaware corporation (the “Company”),
and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively the “Purchasers”).
WHEREAS, subject to the terms
and conditions set forth in this Agreement and pursuant to an effective registration statement under the Securities Act (as defined below),
the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the
Company, securities of the Company as more fully described in this Agreement.
NOW, THEREFORE, IN CONSIDERATION
of the mutual covenants contained in this Agreement, and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions.
In addition to the terms defined elsewhere in this Agreement, for all purposes of this Agreement, the following terms have the meanings
set forth in this Section 1.1:
“Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.
“Action”
shall have the meaning ascribed to such term in Section 3.1(j).
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person as such terms are used in and construed under Rule 405 under the Securities Act.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed.
“Closing”
means the closing of the purchase and sale of the Shares and Pre-Funded Warrants pursuant to Section 2.1.
“Closing
Date” means the Trading Day on which all of the Transaction Documents have been executed and delivered by the applicable parties
thereto, and all conditions precedent to (i) the respective Purchasers’ obligations to pay the Subscription Amount and (ii) the
Company’s obligations to deliver the Shares and Pre-Funded Warrants, in each case, have been satisfied or waived, but in no event
later than the second (2nd) Trading Day following the date hereof.
“Commission”
means the United States Securities and Exchange Commission.
“Common
Stock” means shares of the Company’s Class A Common Stock, par value $0.001 per share.
“Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Common Stock or shares of the Company Class B common stock, par value $0.001 per share (“Class B Common
Stock”), including, without limitation, any debt, preferred stock, right, option, warrant or other instrument that is at any
time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock or Class B
Common Stock.
“Company
Counsel” means Kilpatrick Townsend & Stockton LLP with offices located at 1100 Peachtree Street NE, Suite 2800,
Atlanta, GA 30309.
“Company’s
Knowledge” means the actual knowledge of any executive officer (as defined in Rule 405 under the 1933 Act) of the Company.
“Disclosure
Time” means, (i) if this Agreement is signed on a day that is not a Trading Day or after 9:00 a.m. (New York City
time) and before midnight (New York City time) on any Trading Day, 9:01 a.m. (New York City time) on the Trading Day immediately
following the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent, and (ii) if this Agreement
is signed between midnight (New York City time) and 9:00 a.m. (New York City time) on any Trading Day, no later than 9:01 a.m. (New
York City time) on the date hereof, unless otherwise instructed as to an earlier time by the Placement Agent.
“Environmental Laws”
has the meaning set forth in Section 3.1(m).
“Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(s).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Exempt
Issuance” means the issuance of (a) Common Stock, restricted share units or options to employees, consultants,
officers, or directors of the Company pursuant to any equity plan in existence duly adopted for such purpose by, or shares of Common
Stock or options to employees, officers or consultants pursuant to an inducement grant approved by, a majority of the non-employee members
of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose, in each
case for services rendered to the Company, (b) Common Stock upon the exercise or exchange of or conversion of securities exercisable
or exchangeable for or convertible into Common Stock pursuant to terms of existing agreements or instruments that are outstanding as
of the date of this Agreement and the filing of any registration statement and amendments thereto that are required in connection an
issuance pursuant to this clause (b), provided that such securities have not been amended since the date of this Agreement to increase
the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the
term of such securities (excluding, for the avoidance of doubt, any anti-dilution adjustments expressly provided for in the terms of
such securities as of the date of this Agreement), and (c) securities issued pursuant to acquisitions or strategic investments approved
by a majority of the disinterested directors of the Company, provided that, in any case, such securities are issued as “restricted
securities” (as defined in Rule 144) and carry no registration rights that require or permit the filing of any registration
statement in connection therewith during the prohibition period in Section 4.11(a) herein.
“FCPA”
means the Foreign Corrupt Practices Act of 1977, as amended.
“GAAP”
shall have the meaning ascribed to such term in Section 3.1(h).
“Health
Care Laws” means all applicable laws, rules and regulations relating to the provision and/or administration of, and/or
payment for, health care services, items and supplies including, without limitation, applicable laws, rules and regulations related
to: (a) fraud and abuse, including, without limitation, the federal Anti-Kickback Statute (42 U.S.C. §1320a-7b(b)), the Anti-Inducement
Law (42 U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. §§ 3729 et seq.), the criminal False Claims
Act 18 U.S.C. §§ 286 and 287, the administrative False Claims Law (42 U.S.C. Section 1320a-7b(a)), the False Statements
Relating to Health Care Matters Act (18 U.S.C. § 1035), the Health Care Fraud Act (18 U.S.C. § 1347), the Program Fraud Civil
Remedies Act (31 U.S.C. §§ 3801-3812), the Anti-Kickback Act of 1986 (41 U.S.C. §§ 51-58), the laws regarding Exclusion
and Civil Monetary Penalties (42 U.S.C. §§ 1320a-7, 1320a-7a and 1320a-7b), and any state, commonwealth or local laws similar
to any of the foregoing; (b) Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act),
CHAMPVA, TRICARE, the State Children’s Health Insurance Program (Title XXI of the Social Security Act), and any other third party
payor programs; (c) HIPAA; (d) the Physician Payments Sunshine Act (42 U.S.C. Section 1320a-7h); and (e) the Federal
Food Drug and Cosmetic Act (21 U.S.C. §§ 301 et seq.), each of the laws, rules and regulations referred to in clauses
(a) through (e) as may be amended, modified or supplemented from time to time and any successor statutes thereto and regulations
promulgated thereunder from time to time.
“HIPAA”
means the (a) Health Insurance Portability and Accountability Act of 1996; (b) the Health Information Technology for Economic
and Clinical Health Act (Title XIII of the American Recovery and Reinvestment Act of 2009); and (c) any federal, state and local
laws regulating the privacy and/or security of individually identifiable health information, including, without limitation, state laws
providing for notification of breach of privacy or security of individually identifiable health information, in each case with respect
to the applicable laws described in clauses (a), (b) and (c) of this definition, as the same may be amended, modified or supplemented
from time to time, any successor statutes thereto, any and all rules or regulations promulgated from time to time thereunder.
“Intellectual
Property Rights” shall have the meaning ascribed to such term in Section 3.1(p).
“Liens”
means a lien, charge, pledge, security interest, encumbrance, right of first refusal, preemptive right or other restriction.
“Lock-Up
Agreement” means the Lock-Up Agreement, dated as of the date hereof, by and among the Company and the directors and officers,
in the form of Exhibit A attached hereto.
“Material
Adverse Effect” means any change, event, condition, effect, development, state of facts, circumstance or occurrence (each,
an “Effect”) that, individually or when taken together with all other Effects, has had or would be reasonably likely
to have, a material adverse effect on (i) the assets, liabilities, results of operations, condition (financial or otherwise), earnings,
business, prospects or properties of the Company and its Subsidiaries taken as a whole, (ii) the legality or enforceability of any
of the Transaction Documents or (iii) the ability of the Company to perform its obligations under the Transaction Documents; provided,
however, that in no event shall any of the following Effects after the date hereof, alone or in combination with one another, be deemed
to constitute, a Material Adverse Effect: (1) any Effect resulting directly or indirectly from general business or economic conditions,
except to the extent such general business or economic conditions have a materially disproportionate effect on the Company as compared
to companies in the Company’s industry, (2) any change in the Company’s stock price or trading volume in and of itself
(but not the underlying causes thereof), or (3) any Effect caused by the announcement or pendency of the transactions contemplated
by the Transaction Documents, or the identity of any Investor or any of its Affiliates as the purchaser in connection with the transactions
contemplated by this Agreement (provided that this clause (3) shall not apply to the representations and warranties and related
conditions contained in the Transaction Documents that, by their terms, speak of the consequences arising out of the execution or performance
of any of the Transaction Documents or the consummation of the transactions contemplated thereby).
“Material
Contract” means any contract, instrument or other agreement (including any amendment) to which the Company is a party or by
which it is bound which is material to the business of the Company and has been, was required to be, or will be required to be, filed
as an exhibit to the SEC Reports pursuant to Item 601(b)(10) of Regulation S-K.
“Per Share
Purchase Price” equals $3.40, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations
and other similar transactions of the Common Stock that occur after the date of this Agreement, provided that the purchase price per
Pre-Funded Warrant shall be the Per Share Purchase Price minus $0.001.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Placement
Agent” means Lake Street Capital Markets, LLC.
“Pre-Funded
Warrants” means, collectively, the pre-funded Common Stock purchase warrants delivered to the Purchasers at the Closing in
accordance with Section 2.2(a) hereof, in the form of Exhibit B attached hereto.
“Pre-Funded
Warrant Shares” means the shares of Common Stock issuable upon exercise of the Pre-Funded Warrants.
“Proceeding”
means an action, claim, suit, investigation or proceeding (including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened.
“Prospectus”
means the final prospectus filed for the Registration Statement.
“Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of the Securities Act that is filed
with the Commission and delivered by the Company to each Purchaser at the Closing.
“Purchaser
Party” shall have the meaning ascribed to such term in Section 4.8.
“Registration
Statement” means the effective registration statement with Commission (File No. 333-267197) which registers the sale of
the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares to the Purchasers, and includes any Rule 462(b) Registration
Statement.
“Required
Approvals” shall have the meaning ascribed to such term in Section 3.1(e).
“Rule 144”
means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 424”
means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from
time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Rule 462(b) Registration
Statement” means any registration statement prepared by the Company registering additional securities, which was filed with
the Commission on or prior to the date hereof and became automatically effective pursuant to Rule 462(b) promulgated by the
Commission pursuant to the Securities Act.
“SEC Reports”
shall have the meaning ascribed to such term in Section 3.1(g).
“Securities”
means the Shares, the Pre-Funded Warrants and the Pre-Funded Warrant Shares.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Shares”
means the shares of Common Stock issued or issuable to each Purchaser pursuant to this Agreement.
“Short
Sales” means all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act (but shall
not be deemed to include locating and/or borrowing shares of Common Stock).
“Subscription
Amount” means, as to each Purchaser, the aggregate amount to be paid for Shares and Pre-Funded Warrants (if applicable) purchased
hereunder as specified below such Purchaser’s name on the signature page of this Agreement and next to the heading “Subscription
Amount,” in United States dollars and in immediately available funds (excluding for the avoidance of doubt, if applicable, a Purchaser’s
aggregate exercise price of the Pre-Funded Warrants, which amounts shall be paid as and when such Pre-Funded Warrants are exercised for
cash).
“Subsidiary”
means any subsidiary of the Company as set forth on Schedule 3.1(a), and shall, where applicable, also include any direct or indirect
subsidiary of the Company formed or acquired after the date hereof.
“Sullivan”
means Sullivan & Worcester LLP with offices located at 1633 Broadway, New York, New York 10019.
“Trading
Day” means a day on which the principal Trading Market is open for trading.
“Trading
Market” means any of the following markets or exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the New York Stock
Exchange, the Pink Open Market, OTCQB or the OTCQX (or any successors to any of the foregoing).
“Transaction
Disclosure Documents” shall have the meaning ascribed to such term in Section 4.4.
“Transaction
Documents” means this Agreement, the Lock-Up Agreements, the Pre-Funded Warrants, all exhibits and schedules thereto and hereto
and any other documents or agreements executed in connection with the transactions contemplated hereunder.
“Transfer
Agent” means Equiniti Trust Company, LLC, the current transfer agent of the Company, with a mailing address of 6201 15th Ave,
Brooklyn, NY 11219, Attention: Janice Santiago, and an e-mail address of janice.santiago@equiniti.com, and any successor transfer
agent of the Company.
ARTICLE II.
PURCHASE AND SALE
2.1 Closing.
On the Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery
of this Agreement by the parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase,
up to an aggregate of $13,260,000.00 of Shares; provided, however, that to the extent that a Purchaser determines, in its sole discretion,
that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such Purchaser or
any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser
may otherwise choose, in lieu of purchasing Shares, such Purchaser may elect, by so indicating such election prior to their issuance,
to purchase Pre-Funded Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser
to the Company. The “Beneficial Ownership Limitation” shall be 4.99% (or, with respect to each Purchaser, at the election
of such Purchaser at Closing, 9.99%) of the number of shares of the Common Stock outstanding immediately after giving effect to the issuance
of the Shares on the Closing Date. In each case, the election to receive Pre-Funded Warrants is solely at the option of the Purchaser.
Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall take place remotely by electronic
transfer of the Closing documentation. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via “Delivery
Versus Payment” (“DVP”) (i.e., on the Closing Date, the Company shall issue the Shares registered in the Purchasers’
names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser;
upon receipt of such Shares, the Placement Agent shall promptly electronically deliver such Shares to the applicable Purchaser, and payment
therefor shall be made by the Placement Agent (or their respective clearing firm) by wire transfer to the Company or its designee), and
the Company shall deliver to each Purchaser, its Pre-Funded Warrant, if any; provided, however, that for those Purchasers electing “Company
Settlement” on the signature pages hereto, such Purchasers shall wire their respective Subscription Amount in immediately
available funds to the account specified in writing by the Company within the time period required in Section 2.2(b) below,
and on the Closing Date, the Company shall deliver the Shares registered in the name of the applicable Purchaser through the Transfer
Agent via book-entry procedure or, if elected by such Purchaser, otherwise via The Depository Trust Company Deposit or Withdrawal at
Custodian system (“DWAC”) for the account of the applicable Purchaser. Notwithstanding anything herein to the contrary,
if at any time on or after the time of execution of this Agreement by the Company and an applicable Purchaser, through, and including
the time immediately prior to the Closing (the “Pre-Settlement Period”), such Purchaser sells to any Person all, or
any portion, of the Shares or Pre-Funded Warrants to be issued hereunder to such Purchaser at the Closing (collectively, the “Pre-Settlement
Securities”), such Purchaser shall, automatically hereunder (without any additional required actions by such Purchaser or the
Company) be deemed to be unconditionally bound to purchase and the Company shall be deemed unconditionally bound to sell, such Pre-Settlement
Securities at the Closing; provided, that the Company shall not be required to deliver any Pre-Settlement Securities to such Purchaser
prior to the Company’s receipt of the purchase price of such Pre-Settlement Securities hereunder; and provided further that the
Company hereby acknowledges and agrees that the forgoing shall not constitute a representation or covenant by such Purchaser as to whether
or not during the Pre-Settlement Period such Purchaser shall sell any securities to any Person and that any such decision to sell any
securities by such Purchaser shall solely be made at the time such Purchaser elects to effect any such sale, if any.
2.2 Deliveries.
(a) On
or prior to the Closing Date (except as indicated below), the Company shall deliver or cause to be delivered to each Purchaser the following:
(i) this
Agreement duly executed by the Company;
(ii) a
legal opinion of Company Counsel, substantially in form and substance reasonably satisfactory to the Placement Agent;
(iii) subject
to the last sentence of Section 2.1, the Company shall have provided each Purchaser with the Company’s wire instructions,
on Company letterhead and executed by the Chief Executive Officer or Chief Financial Officer;
(iv) subject
to the last sentence of Section 2.1, a copy of the irrevocable instructions to the Transfer Agent instructing the Transfer Agent
to deliver on an expedited basis via book-entry procedure or DWAC, as elected by the Purchaser on the signature page hereto, the
Shares equal to such Purchaser’s Subscription Amount divided by the Per Share Purchase Price;
(v) if
applicable, for each Purchaser of Pre-Funded Warrants pursuant to Section 2.1, subject to the last sentence of Section 2.1,
a Pre-Funded Warrant registered in book-entry form in the name of such Purchaser to purchase up to a number of shares of Common Stock
equal to the portion of such Purchaser’s Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase
Price, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein;
(vi) on
the date hereof, the duly executed Lock-Up Agreements; and
(vii) the
Prospectus and Prospectus Supplement (which may be delivered in accordance with Rule 172 under the Securities Act).
(b) On
or prior to the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company, the following:
(i) this
Agreement duly executed by such Purchaser; and
(ii) such
Purchaser’s Subscription Amount, which shall be (i) funded to the Company no later than close of business on June 17,
2024 and held in escrow by the Company prior to Closing or (ii) made available for DVP settlement with the Company or its designee,
in each case, as specified on the signature page hereto.
2.3 Closing
Conditions.
(a) The
obligations of the Company hereunder in connection with the Closing with respect to each Purchaser are subject to the following conditions
being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) on the Closing Date of the representations and warranties of such Purchaser contained herein (unless as of a specific
date therein in which case they shall be accurate in all material respects (or, to the extent representations or warranties are qualified
by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of such Purchaser required to be performed at or prior to the Closing Date shall have been performed;
and
(iii) the
delivery by such Purchaser of the items set forth in Section 2.2(b) of this Agreement.
(b) The
respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met:
(i) the
accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect,
in all respects) when made and on the Closing Date of the representations and warranties of the Company contained herein (unless as of
a specific date therein in which case they shall be accurate in all material respects or, to the extent representations or warranties
are qualified by materiality or Material Adverse Effect, in all respects) as of such date);
(ii) all
obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed;
(iii) the
delivery by the Company of the items set forth in Section 2.2(a) of this Agreement;
(iv) there
shall have been no Material Adverse Effect with respect to the Company since the date hereof; and
(v) from
the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission or the Company’s
principal Trading Market, and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall
not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities
nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of
such Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Closing.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES
3.1 Representations
and Warranties of the Company. Except as described in the SEC Reports, which descriptions shall be deemed a part hereof and shall
qualify any representation or otherwise made herein to the extent of the disclosure contained in the SEC Reports, the Company hereby
makes the following representations and warranties to each Purchaser:
(a) Organization,
Good Standing and Qualifications. The Company is an entity duly incorporated, validly existing and in good standing under the laws
of the State of Delaware, with the requisite corporate power and authority to own or lease and use its properties and assets, to execute
and deliver the Transaction Documents, to carry out the provisions of the Transaction Documents, to issue and sell the Securities and
to carry on its business as presently conducted as described in the SEC Reports. Each of the Company’s subsidiaries required to
be disclosed pursuant to Item 601(b)(21) of Regulation S-K in an exhibit to its annual report on Form 10-K filed with the Commission
for the year ended December 31, 2023 or that has been formed as of the date hereof and will be required to be disclosed pursuant
to Item 601(b)(21) of Regulation S-K in an exhibit to its annual report on Form 10-K filed with the Commission for the year ended
December 31, 2024 (the “Subsidiaries”) is an entity duly incorporated or otherwise organized, validly existing
and in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of the jurisdiction of its incorporation
or organization, as applicable, and has all requisite power and authority to carry on its business to own and use its properties. Neither
the Company nor any of its Subsidiaries is in violation or default in any material respect of any of the provisions of its respective
articles of association, charter, certificate of incorporation, bylaws, limited partnership agreement or other organizational or constitutive
documents. Each of the Company and its Subsidiaries is duly qualified to do business as a foreign entity and is in good standing (to
the extent such concept exists in the relevant jurisdiction) in each jurisdiction in which the conduct of its business or its ownership
or leasing of property makes such qualification necessary, except to the extent any failure to so qualify has not had and would not reasonably
be expected to have a Material Adverse Effect.
(b) Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this Agreement and each of the other Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The
execution and delivery of this Agreement and each of the other Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further
action is required by the Company, the Board of Directors or the Company’s stockholders in connection herewith or therewith other
than in connection with the Required Approvals. This Agreement and each other Transaction Document to which it is a party has been (or
upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof and thereof, will
constitute the valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(c) No
Conflicts. The execution, delivery and performance by the Company of this Agreement and the other Transaction Documents to which
it is a party, the issuance and sale of the Securities and the consummation by it of the transactions contemplated hereby and thereby
do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate or articles
of incorporation, bylaws or other organizational or charter documents, (ii) conflict with, or constitute a default (or an event
that with notice or lapse of time or both would become a default) under, result in the creation of any Lien upon any of the properties
or assets of the Company or any Subsidiary pursuant to, or give to others any rights of termination, amendment, anti-dilution or similar
adjustments, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit facility, debt or
other instrument (evidencing a Company or Subsidiary debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is bound or affected or (iii) subject to the Required
Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction
of any court or governmental authority to which the Company or a Subsidiary is subject (including federal and state securities laws and
regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected; except in the case of each of clauses
(ii) and (iii), such as could not have or reasonably be expected to result in a Material Adverse Effect.
(d) Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice to,
or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in
connection with the execution, delivery and performance by the Company of the Transaction Documents, other than: (i) the filings
required pursuant to Section 4.4 of this Agreement, (ii) the filing with the Commission of the Prospectus Supplement, (iii) application(s) to
each applicable Trading Market for the listing of the Shares and Pre-Funded Warrant Shares for trading thereon in the time and manner
required thereby, and (iv) such filings as are required to be made under applicable state securities laws (collectively, the “Required
Approvals”).
(e) Issuance
of the Securities; Registration. The Securities are duly authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and nonassessable, free and clear of all Liens imposed by the Company.
The Pre-Funded Warrant Shares, when issued in accordance with the terms of the Pre-Funded Warrants, will be validly issued, fully paid
and nonassessable, free and clear of all Liens imposed by the Company. The Company has reserved from its duly authorized capital stock
the maximum number of shares of Common Stock issuable pursuant to this Agreement and the Pre-Funded Warrants. The Company has prepared
and filed the Registration Statement, which became effective on September 8, 2022 (the “Effective Date”),
in conformity with the requirements of the Securities Act, including the Prospectus, and such amendments and supplements thereto as may
have been required to the date of this Agreement. The Registration Statement is effective under the Securities Act and no stop order
preventing or suspending the effectiveness of the Registration Statement or suspending or preventing the use of the Prospectus has been
issued by the Commission and no proceedings for that purpose have been instituted or, to the Company’s Knowledge, are threatened
by the Commission. The Company, if required by the rules and regulations of the Commission, shall file the Prospectus Supplement
with the Commission pursuant to Rule 424(b). At the time the Registration Statement and any amendments thereto became effective,
at the date of this Agreement and at the Closing Date, the Registration Statement and any amendments thereto conformed and will conform
in all material respects to the requirements of the Securities Act and did not and will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and
the Prospectus and any amendments or supplements thereto, at the time the Prospectus or any amendment or supplement thereto was issued
and at the Closing Date, conformed and will conform in all material respects to the requirements of the Securities Act and did not and
will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. The Company is eligible to use Form S-3 under the Securities
Act and it meets the requirements as set forth in General Instruction I.B.6 of Form S-3.
(f) Capitalization.
(i) As
of June 16, 2024 the capitalization of the Company was in all material respects as set forth in the Company’s SEC Reports.
Since June 16, 2024, the Company has not issued any capital stock, other than pursuant to the exercise of employee stock options
or settlement of restricted stock units under the Company’s equity incentive plans. All of the issued and outstanding shares of
the Company’s capital stock have been duly authorized and validly issued and are fully paid, nonassessable and none of such shares
were issued in violation of any pre-emptive rights and such shares were issued in compliance in all material respects with applicable
state and federal securities law and any rights of third parties. No Person is entitled to pre-emptive or similar statutory or contractual
rights with respect to the issuance by the Company of the Securities or of any other securities of the Company.
(ii) There
are no outstanding warrants, options, convertible securities or other rights, agreements or arrangements of any character under which
the Company is or may be obligated to issue any equity securities of any kind, except as contemplated by this Agreement. There are no
voting agreements, buy-sell agreements, option or right of first purchase agreements or other similar agreements among the Company and
any of the security holders of the Company relating to the securities of the Company held by them.
(iii) The
issuance and sale of the Securities hereunder will not obligate the Company to issue shares of Common Stock or other securities to any
other Person (other than the Purchasers) or will result in the adjustment of the exercise, conversion, exchange or reset price of any
outstanding security. The Company does not have outstanding stockholder purchase rights or “poison pill” or any similar arrangement
in effect giving any Person the right to purchase any equity interest in the Company upon the occurrence of certain events.
(iv) All
of the outstanding shares of capital stock of, or other equity interests in, each Subsidiary have been duly authorized and validly issued,
are fully paid and non-assessable, and none of such securities were issued in violation of any pre-emptive rights and such securities
were issued in compliance in all material respects with applicable state and federal securities law and any rights of third parties.
The Company owns, directly or indirectly, the outstanding capital stock or other ownership interests of each of the Subsidiaries. No
options, warrants, or other rights to purchase, or other obligations to issue or to convert any obligation into, shares of capital stock
of, or other equity interest in, the Subsidiaries are outstanding.
(g) SEC
Reports; 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 12 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, together with the Prospectus
and the Prospectus Supplement, being collectively referred to herein as the “SEC Reports”) on a timely basis or has
received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As
of their respective dates, the SEC Reports complied as to form in all material respects with the requirements of the Securities Act and
the Exchange Act, as applicable, and none of the SEC Reports, when filed, contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Company has never been an issuer subject to Rule 144(i) under the Securities
Act. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting requirements
and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements
have been prepared in accordance with United States generally accepted accounting principles applied on a consistent basis during the
periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto
and except that unaudited financial statements may not contain all footnotes required by GAAP, and fairly present in all material respects
the financial position of the Company and its consolidated Subsidiaries as of and for the dates thereof and the results of operations
and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments.
(h) Material
Changes; Undisclosed Events, Liabilities or Developments. Since the date of the latest audited financial statements included within
the SEC Reports, except as set forth in the SEC Reports or Prospectus Supplement, (i) there has been no event, occurrence or development
that has had or that could reasonably be expected to result in a Material Adverse Effect, (ii) the Company has not incurred any
liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of business
consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant
to GAAP or disclosed in filings made with the Commission, (iii) the Company has not altered its method of accounting, (iv) the
Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or
made any agreements to purchase or redeem any shares of its capital stock and (v) the Company has not issued any equity securities
to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before
the Commission any request for confidential treatment of information. Except for the issuance of the Securities contemplated by this
Agreement or as set forth in the SEC Reports or Prospectus Supplement, 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.
(i) No
Conflict, Breach, Violation or Default. The execution, delivery and performance of the Transaction Documents by the Company, the
issuance and sale of the Securities in accordance with the provisions thereof and the issuance of the Pre-Funded Warrant Shares upon
exercise of the Pre-Funded Warrants do not and will not (i) conflict with or result in a breach or violation of (a) any of
the terms and provisions of, or constitute a default under, the Company’s Certificate of Incorporation or Bylaws, both as in effect
on the date hereof (true and complete copies of which have been made available to the Purchasers through the EDGAR system), or (b) assuming
the accuracy of the representations and warranties in Section 5, any applicable statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over the Company or its Subsidiaries, or any of their assets or
properties, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a
default) under, result in the creation of any Lien upon any of the properties or assets of the Company or its Subsidiaries or give to
others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any Material
Contract except, in the case of clauses (i)(b) and (ii) only, for such conflicts, breaches, violations and defaults as have
not and would not reasonably be expected to have a Material Adverse Effect.
(j) Litigation.
There is no material action, suit, inquiry, notice of violation, proceeding or investigation pending or, to the Company’s Knowledge,
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 any director or officer thereof, is or has been the subject of any Action involving a claim
of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty. There has not been, and to
the Company’s Knowledge, there is not pending or contemplated, any investigation by the Commission involving the Company or any
current or former director or officer of the Company. The Commission has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act.
(k) Labor
Relations.
(i) Neither
the Company nor its Subsidiaries are parties to or bound by any collective bargaining agreements or other agreements with labor organizations.
(ii) No
labor dispute with the employees of the Company or any of its Subsidiaries, or with the employees of any principal supplier, manufacturer,
customer or contractor of the Company, exists or, to the Company’s Knowledge, is threatened or imminent that would reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(l) Compliance.
(iii) Neither
the Company nor any of its Subsidiaries is (i) in default under or in violation of (and no event has occurred that has not been
waived that, with notice or lapse of time or both, would result in a default by the Company under), nor, during the past three years,
has the Company received written notice of a claim that it is in default under or that it is in violation of, its charter, bylaws or
similar organizational documents as in effect on the date hereof or any Material Contract (whether or not such default or violation has
been waived), (ii) in violation of any judgment, decree or order of any court, arbitrator or governmental body or (iii) in
violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all Health Care Laws
and all foreign, federal, state and local laws relating to taxes, environmental protection, occupational health and safety, product quality
and safety and employment and labor matters, except in each case as would not have or reasonably be expected to result in a Material
Adverse Effect.
(iv) Except
in each case as would not have or reasonably be expected to result in a Material Adverse Effect: (i) during the past three (3) years,
there has not been any violation of any applicable Health Care Laws by the Company or any of its Subsidiaries; (ii) to the Company’s
Knowledge, there are no civil or criminal proceedings relating to the Company, any of its Subsidiaries or any officer, director or employee
of the Company or any of its Subsidiaries that involve a matter within or related to any governmental or regulatory authority’s
jurisdiction or any allegations of non-compliance with Health Care Laws; and (iii) during the past three (3) years, neither
the Company nor any of its Subsidiaries nor any Affiliate thereof has received any written adverse notice from any governmental or regulatory
authority (including without limitation the United States Food and Drug Administration or any foreign equivalent, the U.S. Federal Trade
Commission, the United States Centers for Medicare & Medicaid Services, HHS’s Office of Inspector General, the U.S. Department
of Justice and state Attorneys General or similar agencies) alleging non-compliance with Health Care Laws.
(m) Environmental
Laws. Except as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect, neither the
Company nor any of its Subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to the
protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental
Laws”), has released any hazardous substances regulated by Environmental Law on to any real property that it owns or operates,
or has received any written notice or claim it is liable for any off-site disposal or contamination pursuant to any Environmental Laws;
and to the Company’s Knowledge, there is no pending or threatened investigation that would reasonably be expected to lead to such
a claim.
(n) Certificates,
Authorities and Permits. The Company and its Subsidiaries possess adequate certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now operated by them, except where failure to so possess would not
reasonably be expected to, individually or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries have
not received any notice of proceedings relating to the revocation or modification of any such certificate, authority or permit that,
if determined adversely to the Company or its Subsidiaries, would reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(o) Title
to Properties. The Company and its Subsidiaries have good and marketable title to all real properties and all other tangible properties
and assets owned by them as described in the SEC Reports, in each case free from Liens and defects, except such as would not reasonably
be expected, individually or in the aggregate, to have a Material Adverse Effect; and the Company and its Subsidiaries hold any leased
real or personal property under valid, subsisting and enforceable leases with which the Company are in compliance and with no exceptions,
except such as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(p) Intellectual
Property. The Company and its Subsidiaries own, possess, license or have other rights to use, the patents and patent applications,
copyrights, trademarks, service marks, trade names, service names and trade secrets necessary or material for use in connection with
its businesses as currently conducted as described in the SEC Reports (collectively, the “Intellectual Property Rights”).
There is no pending or, to the Company’s Knowledge, threatened action, suit, proceeding, claim or basis for a claim by any Person
that the Company’s Intellectual Property Rights or its business or the business of its Subsidiaries as now conducted infringes
or otherwise violates any patent, trademark, copyright, trade secret or other proprietary rights of another. To the Company’s Knowledge,
there is no existing infringement by another Person of any of the Intellectual Property Rights that would have or would reasonably be
expected to have a Material Adverse Effect. The Company and its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of its Intellectual Property Rights, except where the failure to do so would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. All material licenses or other material agreements under which
the Company is granted rights to Intellectual Property Rights are, to the Company’s Knowledge, in full force and effect and, to
the Company’s Knowledge, there is no material default by any other party thereto, except as would not reasonably be expected to
have a Material Adverse Effect. The Company has no reason to believe that the licensors under such licenses and other agreements do not
have and did not have all requisite power and authority to grant the rights to the Intellectual Property Rights purported to be granted
thereby. The consummation of the transactions contemplated hereby and by the other Transaction Documents will not result in the alteration,
loss, impairment of or restriction on the Company’s or any of its Subsidiaries’ ownership or right to use any Intellectual
Property Right that is material to the conduct of the Company’s business as currently conducted.
(q) Insurance.
The Company and the Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries are engaged, including, but not
limited to, directors and officers insurance coverage at least equal to the sum of the aggregate Subscription Amount. Neither the Company
nor any Subsidiary has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business.
(r) Transactions
With Affiliates. Except as disclosed in the SEC Reports, none of the officers or directors of the Company and, to the Company’s
Knowledge, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than
as holders of stock options and/or warrants, and for services as employees, officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from,
or otherwise requiring payments to or from any officer, director or such employee or, to the Company’s Knowledge, any entity in
which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner.
(s) Internal
Controls. The Company is in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 currently applicable
to the Company. The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets and liabilities is compared with the existing assets and liabilities at reasonable intervals and appropriate
action is taken with respect to any differences. The Company has established disclosure controls and procedures (as defined in Exchange
Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such disclosure controls and procedures to ensure that material
information relating to the Company, including the Subsidiaries, is made known to the certifying officers by others within those entities,
particularly during the period in which the Company’s most recently filed periodic report under the Exchange Act, as the case may
be, is being prepared. The Company has established internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and
15d-15(f)) to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements
for external purposes in accordance with GAAP. The Company’s certifying officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures and the Company’s internal control over financial reporting (collectively, “internal
controls”) as of the end of the period covered by the most recently filed periodic report under the 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 such internal controls based on their evaluations as of the Evaluation
Date. Since the Evaluation Date, there have been no significant changes in the Company’s internal controls or, to the Company’s
Knowledge, in other factors that could significantly affect the Company’s internal controls. The Company maintains and will continue
to maintain a standard system of accounting established and administered in accordance with GAAP and the applicable requirements of the
Exchange Act.
(t) Certain
Fees. Other than the Placement Agent, no Person will have, as a result of the transactions contemplated by the Transaction Documents,
any valid right, interest or claim against or upon the Company or, to the Company’s Knowledge, an Investor for any commission,
fee or other compensation pursuant to any agreement, arrangement or understanding entered into by or on behalf of the Company. To the
Company’s Knowledge, the Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated
by the Transaction Documents.
(u) Investment
Company. Neither the Company nor any Subsidiary is required to be registered as, and immediately following the Closing will not be
required to register as, an “investment company” within the meaning of the Investment Company Act of 1940, as amended.
(v) Tests
and Preclinical and Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or, to the Company’s
Knowledge, on behalf of the Company or its Subsidiaries were and, if still pending, are being, conducted in all material respects in
accordance with the protocols submitted to the U.S. Food and Drug Administration (the “FDA”) or any foreign governmental
body exercising comparable authority over such studies, tests and trials (together, the “Regulatory Authorities”),
standard medical and scientific research standards and procedures for products or product candidates comparable to those being developed
by the Company, all applicable Health Care Laws and any applicable rules and regulations enforced by the FDA or other Regulatory
Authorities and applicable Good Clinical Practice and Good Laboratory Practice requirements; the descriptions of the studies, tests and
preclinical and clinical trials conducted by or, to the Company’s Knowledge, on behalf of the Company or its Subsidiaries, contained
in the SEC Reports are accurate in all material respects; the Company has no Knowledge of any other studies, tests or preclinical and
clinical trials, the results of which call into question the results described in the SEC Reports; and the Company has not received any
written notices or correspondence from the Regulatory Authorities or any Institutional Review Board requiring the termination, suspension,
or clinical hold of any studies, tests or preclinical or clinical trials conducted by or on behalf of the Company.
(w) Registration
Rights. No Person has any right to cause the Company or any Subsidiary to effect the registration under the Securities Act of any
securities of the Company or any Subsidiary.
(x) Listing
and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange Act,
and the Company has taken no action designed to, or which to the Company’s Knowledge is likely to have the effect of, terminating
the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the Commission is contemplating
terminating such registration. Except as set forth in the SEC Reports, the Company has not, in the 12 months preceding the date hereof,
received notice from any trading market on which the Common Stock is or has been listed or quoted to the effect that the Company is not
in compliance with the listing or maintenance requirements of such trading market. Except as set forth in the SEC Reports, the Company
is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing and maintenance
requirements. The Common Stock is currently eligible for electronic transfer through the Depository Trust Company and the Company is
current in payment of the fees to the Depository Trust Company (or such other established clearing corporation) in connection with such
electronic transfer. The Company is in compliance with applicable Nasdaq continued listing requirements. Except as set forth in the SEC
Reports, there are no proceedings pending or, to the Company’s Knowledge, threatened against the Company relating to the continued
listing of the Common Stock on Nasdaq and the Company has not received any notice of, nor to the Company’s Knowledge is there any
reasonable basis for, the delisting of the Common Stock from Nasdaq.
(y) Application
of Takeover Protections. The Company and the Board of Directors have taken all necessary action, if any, in order to render inapplicable
any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar
anti-takeover provision under the Company’s certificate of incorporation (or similar charter documents) or the laws of its state
of incorporation that is or could become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents, including without limitation as a result of the Company’s
issuance of the Securities and the Purchasers’ ownership of the Securities.
(z) Disclosure.
Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents, the Company confirms
that neither it nor any other Person acting on its behalf has provided any of the Purchasers or their agents or counsel with any information
that it believes constitutes or might constitute material, non-public information which is not otherwise disclosed in the Prospectus
Supplement. The Company understands and confirms that the Purchasers will rely on the foregoing representation in effecting transactions
in securities of the Company. All of the disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company
and its Subsidiaries, their respective businesses and the transactions contemplated hereby, 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
the light of the circumstances under which they were made, not misleading. The press releases disseminated by the Company during the
12 months preceding the date of this Agreement taken as a whole do not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made and when made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any
representations or warranties with respect to the transactions contemplated hereby other than those specifically set forth in Section 3.2
hereof.
(aa) No
Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set forth in Section 3.2,
neither the Company, nor any of its Affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers
or sales of any security or solicited any offers to buy any security, under circumstances that would cause this offering of the Securities
to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions of any Trading Market
on which any of the securities of the Company are listed or designated.
(bb) 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.
(cc) Questionable
Payments. Neither the Company nor any of its Subsidiaries nor, to the Company’s Knowledge, any of the current or former directors,
officers, employees, agents or other Persons acting on behalf of the Company or its Subsidiaries, has on behalf of the Company or its
Subsidiaries: (a) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses
relating to foreign or domestic political activity; (b) made any direct or indirect unlawful payments to any foreign or domestic
governmental officials or employees or to any foreign or domestic political parties or campaigns from corporate funds; (c) established
or maintained any unlawful or unrecorded fund of corporate monies or other assets which is in violation of law; (d) made any false
or fictitious entries on the books and records of the Company; or (e) made any unlawful rebate, payoff, influence payment, kickback,
bribe or other unlawful payment of any nature; (f) failed to disclose fully any contribution made by the Company or any Subsidiary
(or made by any Person acting on its behalf of which the Company is aware) which is in violation of law, or (f) violated or is in
violation of any provision of the FCPA.
(dd) Acknowledgment
Regarding Purchasers’ Purchase of Securities. The Company acknowledges and agrees that each of the Purchasers is acting solely
in the capacity of an arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated thereby.
The Company further acknowledges that no Purchaser is acting as a financial advisor or fiduciary of the Company (or in any similar capacity)
with respect to the Transaction Documents and the transactions contemplated thereby and any advice given by any Purchaser or any of their
respective representatives or agents in connection with the Transaction Documents and the transactions contemplated thereby is merely
incidental to the Purchasers’ purchase of the Securities. The Company further represents to each Purchaser that the Company’s
decision to enter into this Agreement and the other Transaction Documents has been based solely on the independent evaluation of the
transactions contemplated hereby by the Company and its representatives.
(ee) Acknowledgment
Regarding Purchasers’ Trading Activity. Anything in this Agreement or elsewhere herein to the contrary notwithstanding (except
for Sections 3.2(f) and 4.14 hereof), it is understood and acknowledged by the Company that: (i) none of the Purchasers has
been asked by the Company to agree, nor has any Purchaser agreed, to desist from purchasing or selling, long and/or short, securities
of the Company, or “derivative” securities based on securities issued by the Company or to hold the Securities for any specified
term; (ii) past or future open market or other transactions by any Purchaser, specifically including, without limitation, Short
Sales or “derivative” transactions, before or after the Closing of this transaction or future private placement transactions,
may negatively impact the market price of the Company’s publicly-traded securities; (iii) any Purchaser, and counter-parties
in “derivative” transactions to which any such Purchaser is a party, directly or indirectly, presently may have a “short”
position in the Common Stock, and (iv) each Purchaser shall not be deemed to have any affiliation with or control over any arm’s
length counter-party in any “derivative” transaction. The Company further understands and acknowledges that (y) one
or more Purchasers may engage in hedging activities at various times during the period that the Securities are outstanding, including,
without limitation, during the periods that the value of the Pre-Funded Warrant Shares deliverable with respect to Securities are being
determined, and (z) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the
Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned
hedging activities do not constitute a breach of any of the Transaction Documents.
(ff) Regulation
M Compliance. The Company has not, and to the Company’s Knowledge no one acting on its behalf has, (i) taken, directly
or indirectly, any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting
purchases of, any of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase
any other securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to the Placement Agent
in connection with the placement of the Securities.
(gg) 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”).
(hh) 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, and the Company shall so certify upon Purchaser’s request.
(ii) 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.
(jj) 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 Company’s Knowledge, threatened.
3.2 Representations
and Warranties of the Purchasers. Each Purchaser, for itself and for no other Purchaser, hereby represents and warrants as of the
date hereof and as of the Closing Date to the Company as follows (unless as of a specific date therein, in which case they shall be accurate
as of such date):
(a) Organization;
Authority. Such Purchaser is either an individual or an entity duly incorporated or formed, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or formation with full right, corporate, partnership, limited liability company
or similar power and authority to enter into and to consummate the transactions contemplated by the Transaction Documents and otherwise
to carry out its obligations hereunder and thereunder. The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have been duly authorized by all necessary corporate, partnership,
limited liability company or similar action, as applicable, on the part of such Purchaser. Each Transaction Document to which it is a
party has been duly executed by such Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute
the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except: (i) as
limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific performance,
injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by
applicable law.
(b) Understandings
or Arrangements. Such Purchaser is acquiring the Securities as principal for its own account and has no direct or indirect arrangement
or understandings with any other persons to distribute or regarding the distribution of such Securities (this representation and warranty
not limiting such Purchaser’s right to sell the Securities pursuant to the Registration Statement or otherwise in compliance with
applicable federal and state securities laws). Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
(c) Purchaser
Status. At the time such Purchaser was offered the Securities, it was, and as of the date hereof it is, an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Securities Act and/or meets
the definition of “qualified institutional buyer” as defined in Rule 144A(a)(1) under the Securities Act and, and
is not an entity formed for the sole purpose of acquiring the Securities (it being understood that the issuance of the Securities is
being made in reliance on Section 4(2) or Regulation D, and not Rule 144A), in either case which such knowledge and experience
in financial and business matters as are necessary in order to evaluate the merits and risks of an investment in the Securities.
(d) Experience
of Such Purchaser. Such Purchaser, either alone or together with its representatives, has such knowledge, sophistication and experience
in business and financial matters so as to be capable of evaluating the merits and risks of the prospective investment in the Securities,
and has so evaluated the merits and risks of such investment. Such Purchaser is able to bear the economic risk of an investment in the
Securities and, at the present time, is able to afford a complete loss of such investment.
(e) Access
to Information. Such Purchaser acknowledges that it has had the opportunity to review the Transaction Documents (including all exhibits
and schedules thereto) and the SEC Reports and has been afforded, (i) the opportunity to ask such questions as it has deemed necessary
of, and to receive answers from, representatives of the Company concerning the terms and conditions of the offering of the Securities
and the merits and risks of investing in the Securities; (ii) access to information about the Company and its financial condition,
results of operations, business, properties, management and prospects sufficient to enable it to evaluate its investment; and (iii) the
opportunity to obtain such additional information that the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the investment. Such Purchaser acknowledges and agrees that
neither the Placement Agent nor any Affiliate of the Placement Agent has provided such Purchaser with any information or advice with
respect to the Securities nor is such information or advice necessary or desired. Neither the Placement Agent nor any Affiliate
has made or makes any representation as to the Company or the quality of the Securities and the Placement Agent and any Affiliate may
have acquired non-public information with respect to the Company which such Purchaser agrees need not be provided to it. In connection
with the issuance of the Securities to such Purchaser, neither the Placement Agent nor any of its Affiliates has acted as a financial
advisor or fiduciary to such Purchaser.
(f) Certain
Transactions and Confidentiality. Other than consummating the transactions contemplated hereunder, such Purchaser has not, nor has
any Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any purchases or
sales, including Short Sales, of the securities of the Company during the period commencing as of the time that such Purchaser first
received a term sheet (written or oral) from the Company or any other Person representing the Company setting forth the material pricing
terms of the transactions contemplated hereunder and ending immediately prior to the execution hereof. Notwithstanding the foregoing,
in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers
managing other portions of such Purchaser’s assets, the representation set forth above shall only apply with respect to the portion
of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Other
than to other Persons party to this Agreement or to such Purchaser’s representatives, including, without limitation, its officers,
directors, partners, legal and other advisors, employees, agents and Affiliates, such Purchaser has maintained the confidentiality of
all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Notwithstanding
the foregoing, for the avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions,
with respect to locating or borrowing shares in order to effect Short Sales or similar transactions in the future.
The
Company acknowledges and agrees that the representations contained in this Section 3.2 shall not modify, amend or affect
such Purchaser’s right to rely on the Company’s representations and warranties contained in this Agreement or any representations
and warranties contained in any other Transaction Document or any other document or instrument executed and/or delivered in connection
with this Agreement or the consummation of the transactions contemplated hereby. Notwithstanding the foregoing, for the avoidance of
doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to locating or borrowing
shares in order to effect Short Sales or similar transactions in the future.
ARTICLE IV.
OTHER AGREEMENTS OF THE PARTIES
4.1 Pre-Funded
Warrant Shares. If all or any portion of a Pre-Funded Warrant is exercised at a time when there is an effective registration statement
to cover the issuance or resale of the Pre-Funded Warrant Shares or if the Pre-Funded Warrant is exercised via cashless exercise, the
Pre-Funded Warrant Shares issued pursuant to any such exercise shall be issued free of all legends. If at any time following the date
hereof the Registration Statement (or any subsequent registration statement registering the sale or resale of the Pre-Funded Warrant
Shares) is not effective or is not otherwise available for the sale or resale of the Pre-Funded Warrant Shares, the Company shall immediately
notify the holders of the Pre-Funded Warrants in writing that such registration statement is not then effective and thereafter shall
promptly notify such holders when the registration statement is effective again and available for the sale or resale of the Pre-Funded
Warrant Shares (it being understood and agreed that the foregoing shall not limit the ability of the Company to issue, or any Purchaser
to sell, any of the Pre-Funded Warrant Shares in compliance with applicable federal and state securities laws). The Company shall use
its reasonable best efforts to keep a registration statement (including the Registration Statement) registering the issuance or resale
of the Pre-Funded Warrant Shares effective during the term of the Pre-Funded Warrants until the earlier of (x) the time at which
no Purchaser owns any Pre-Funded Warrants or Pre-Funded Warrant Shares issuable upon exercise thereof or (y) the time at which the
Pre-Funded Warrants or Pre-Funded Warrant Shares become eligible for resale by nonaffiliates without volume or manner of sale restrictions
and without current public information required pursuant to Rule 144.
4.2 Furnishing
of Information. Until the earlier of the time that (i) no Purchaser owns Securities or (ii) the Pre-Funded Warrants have
expired, the Company covenants to timely file (or obtain extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to the Exchange Act even if the Company is not then subject
to the reporting requirements of the Exchange Act.
4.3 Integration.
The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in
Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless
shareholder approval is obtained before the closing of such subsequent transaction.
4.4 Securities
Laws Disclosure; Publicity. The Company shall (a) by the Disclosure Time, issue a press release disclosing the material terms
of the transactions contemplated hereby, and (b) file a Current Report on Form 8-K, including the Transaction Documents as
exhibits thereto, with the Commission within the time required by the Exchange Act (such press release and Current Report on Form 8-K,
together, the “Transaction Disclosure Documents”). From and after the issuance of such press release, the Company
represents to the Purchasers that it shall have publicly disclosed all material, non-public information delivered to any of the Purchasers
by the Company or any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including,
without limitation, the Placement Agent, in connection with the transactions contemplated by the Transaction Documents. In addition,
effective upon the issuance of such press release, the Company acknowledges and agrees that any and all confidentiality or similar obligations
under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors,
agents, employees, Affiliates or agents, including, without limitation, the Placement Agent, on the one hand, and any of the Purchasers
or any of their Affiliates on the other hand, shall terminate and be of no further force or effect. The Company understands and confirms
that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the Company. The Company and
each Purchaser shall consult with each other in issuing any other press releases with respect to the transactions contemplated hereby,
and neither the Company nor any Purchaser shall issue any such press release nor otherwise make any such public statement without the
prior consent of the Company, with respect to any press release of any Purchaser, or without the prior consent of each Purchaser, with
respect to any press release of the Company, which consent shall not unreasonably be withheld or delayed, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the other party with prior notice of such public statement
or communication. Notwithstanding the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name
of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, without the prior written consent of such
Purchaser, except (a) as required by federal securities law in connection with the filing of final Transaction Documents with the
Commission and (b) to the extent such disclosure is required by law or Trading Market regulations, in which case the Company shall
provide the Purchasers with prior notice of such disclosure permitted under this clause (b) and reasonably cooperate with such Purchaser
regarding such disclosure.
4.5 Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser
is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser
could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents
or under any other agreement between the Company and the Purchasers.
4.6 Non-Public
Information. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents,
which shall be disclosed pursuant to Section 4.4, and any additional material, non-public information that is contained in the Transaction
Disclosure Documents or the Prospectus, the Company represents, warrants, covenants and agrees that neither it, nor any other Person
acting on its behalf has provided nor will provide any Purchaser or its agents or counsel with any information that constitutes, or the
Company reasonably believes constitutes, material non-public information, unless prior thereto such Purchaser shall have consented in
writing to the receipt of such information and agreed in writing with the Company to keep such information confidential. The Company
understands and confirms that each Purchaser shall be relying on the foregoing covenant in effecting transactions in securities of the
Company. To the extent that the Company, any of its Subsidiaries, or any of their respective officers, directors, agents, employees or
Affiliates delivers any material, non-public information to a Purchaser without such Purchaser’s consent, the Company hereby covenants
and agrees that such Purchaser shall not have any duty of confidentiality to the Company, any of its Subsidiaries, or any of their respective
officers, directors, employees, Affiliates or agents, including, without limitation, the Placement Agent, or a duty to the Company any
of its Subsidiaries or any of their respective officers, directors, employees, Affiliates or agents, including, without limitation, the
Placement Agent, not to trade on the basis of, such material non-public information, provided that the Purchaser shall remain subject
to applicable law. To the extent that any notice required to be delivered pursuant to any Transaction Document constitutes, or contains,
material, non-public information regarding the Company or any Subsidiaries, the Company shall obtain consent in writing from the Purchaser
or its agent or counsel to receipt of such material, non-public information prior to delivering such notice to the Purchaser; provided
that, if the Purchaser shall not provide such written consent, the Company shall either (i) indicate to the Purchaser that such
notice is unable to be provided or (ii) to the extent practicable, provide such notice without any material, non-public information
regarding the Company or any Subsidiaries. The Company understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.
4.7 Use
of Proceeds. The Company shall use the net proceeds from the sale of the Securities hereunder for working capital purposes as described
in the Prospectus and Prospectus Supplement and shall not use such proceeds in violation of FCPA or OFAC regulations.
4.8 Indemnification
of Purchasers. Subject to the provisions of this Section 4.8, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other Persons with a functionally equivalent role of a Person
holding such titles notwithstanding a lack of such title or any other title), each Person who controls such Purchaser (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers, shareholders, agents,
members, partners or employees (and any other Persons with a functionally equivalent role of a Person holding such titles notwithstanding
a lack of such title or any other title) of such controlling Persons (each, a “Purchaser Party”) harmless from any
and all losses, liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in
settlements, court costs and reasonable and documented attorneys’ fees and costs of investigation that any such Purchaser Party
may suffer or incur as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements
made by the Company in this Agreement or in the other Transaction Documents or (b) any action instituted against the Purchaser Parties
in any capacity, or any of them or their respective Affiliates, by any stockholder of the Company who is not an Affiliate of such Purchaser
Party, with respect to any of the transactions contemplated by the Transaction Documents (unless such action is solely based upon a material
breach of such Purchaser Party’s representations, warranties or covenants under the Transaction Documents or any agreements or
understandings such Purchaser Party may have with any such stockholder or any violations by such Purchaser Party of state or federal
securities laws or any conduct by such Purchaser Party which is finally judicially determined to constitute fraud, gross negligence or
willful misconduct. If any action shall be brought against any Purchaser Party in respect of which indemnity may be sought pursuant to
this Agreement, such Purchaser Party shall promptly notify the Company in writing, and, the Company shall have the right to assume the
defense thereof with counsel of its own choosing reasonably acceptable to the Purchaser Party. Any Purchaser Party shall have the right
to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall
be at the expense of such Purchaser Party except to the extent that (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 counsel a material conflict on any material issue between the position
of the Company and the position of such Purchaser Party, in which case the Company shall be responsible for the reasonable and documented
fees and expenses of no more than one such separate counsel. The Company will not be liable to any Purchaser Party under this Agreement
(y) for any settlement by a Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably
withheld or delayed; or (z) to the extent, but only to the extent that a loss, claim, damage or liability is attributable to any
Purchaser Party’s breach of any of the representations, other Transaction Documents. The indemnification required by this Section 4.8
shall be made by periodic payments of the amount thereof during the course of the investigation or defense, as and when bills are received
or are incurred. The indemnity agreements contained herein shall be in addition to any cause of action or similar right of any Purchaser
Party against the Company or others and any liabilities the Company may be subject to pursuant to law.
4.9 Reservation
of Common Stock. As of the date hereof, the Company has reserved and the Company shall continue to reserve and keep available at
all times, free of preemptive rights, a sufficient number of shares of Common Stock for the purpose of enabling the Company to issue
Shares pursuant to this Agreement and Pre-Funded Warrant Shares pursuant to any exercise of the Pre-Funded Warrants.
4.10 Listing
of Common Stock. The Company hereby agrees to use commercially reasonable efforts to maintain the listing or quotation of the Common
Stock on the Trading Market on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote
all of the Shares and Pre-Funded Warrant Shares on such Trading Market and promptly secure the listing of all of the Shares and Pre-Funded
Warrant Shares on such Trading Market. The Company further agrees, if the Company applies to have the Common Stock traded on any other
Trading Market, it will then include in such application all of the Shares and Pre-Funded Warrant Shares, and will take such other action
as is necessary to cause all of the Shares and Pre-Funded Warrant Shares to be listed or quoted on such other Trading Market as promptly
as possible. The Company will then take all action reasonably necessary to continue the listing and trading of its Common Stock on a
Trading Market and will comply in all material respects with the Company’s reporting, filing and other obligations under the bylaws
or rules of the Trading Market. The Company agrees to maintain the eligibility of the Common Stock for electronic transfer through
the Depository Trust Company or another established clearing corporation, including, without limitation, by timely payment of fees to
the Depository Trust Company or such other established clearing corporation in connection with such electronic transfer.
4.11 Subsequent
Equity Sales.
(a) From
the date hereof until (90) days after the Closing Date, unless otherwise waived by either (i) the Purchasers of at least 50.1% in
interest of the Pre-Funded Warrants based on the initial Subscription Amounts hereunder or (ii) the Purchasers holding at least
50.1% in interest of the Shares and Pre-Funded Warrants outstanding at the time of the waiver, neither the Company nor any Subsidiary
shall (1) issue, enter into any agreement to issue or announce the issuance or proposed issuance of any Common Stock or Common Stock
Equivalents or (2) file any registration statement or amendment or supplement with respect thereto.
(b) Notwithstanding
the foregoing, this Section 4.11 shall not apply in respect of an Exempt Issuance.
4.12 [Reserved].
4.13 Equal
Treatment of Purchasers. No consideration (including any modification of this Agreement) shall be offered or paid to any Person to
amend or consent to a waiver or modification of any provision of this Agreement unless the same consideration is also offered to all
of the parties to this Agreement. For clarification purposes, this provision constitutes a separate right granted to each Purchaser by
the Company and negotiated separately by each Purchaser, and is intended for the Company to treat the Purchasers as a class and shall
not in any way be construed as the Purchasers acting in concert or as a group with respect to the purchase, disposition or voting of
Securities or otherwise.
4.14 Certain
Transactions and Confidentiality. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it
nor any Affiliate acting on its behalf or pursuant to any understanding with it will execute any purchases or sales, including Short
Sales of any of the Company’s securities during the period commencing with the execution of this Agreement and ending at such time
that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described
in Section 4.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described
in Section 4.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction (other than as disclosed
to its legal and other representatives). Notwithstanding the foregoing and notwithstanding anything contained in this Agreement
to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant
hereby that it will not engage in effecting transactions in any securities of the Company after the time that the transactions contemplated
by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.4, (ii) no Purchaser
shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities
laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial
press release as described in Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality or duty not to trade
in the securities of the Company to the Company, any of its Subsidiaries, or any of their respective officers, directors, employees,
Affiliates, or agent, including, without limitation, the Placement Agent, after the issuance of the initial press release as described
in Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby
separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge
of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set
forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision
to purchase the Securities covered by this Agreement.
4.15 [Reserved].
4.16 Exercise
Procedures. The form of Notice of Exercise included in the Pre-Funded Warrants set forth the totality of the procedures required
of the Purchasers in order to exercise the Pre-Funded Warrants. No additional legal opinion, other information or instructions shall
be required of the Purchasers to exercise their Pre-Funded Warrants. Without limiting the preceding sentences, no ink-original Notice
of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization) of any Notice of Exercise
form be required in order to exercise the Pre-Funded Warrants. The Company shall honor exercises of the Pre-Funded Warrants and shall
deliver Pre-Funded Warrant Shares in accordance with the terms, conditions and time periods set forth in the Transaction Documents.
4.17 Lock-Up
Agreements. The Company shall not amend, modify, waive or terminate any provision of any of the Lock-Up Agreements except to extend
the term of the lock-up period and shall enforce the provisions of each Lock-Up Agreement in accordance with its terms. If any party
to a Lock-Up Agreement breaches any provision of a Lock-Up Agreement, the Company shall promptly use its reasonable best efforts to seek
specific performance of the terms of such Lock-Up Agreement.
ARTICLE V.
MISCELLANEOUS
5.1 Termination.
This Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations hereunder only and without any effect whatsoever
on the obligations between the Company and the other Purchasers, by written notice to the other parties, if the Closing has not been
consummated on or before the fifth (5th) Trading Day following the date hereof; provided, however, that no such
termination will affect the right of any party to sue for any breach by any other party (or parties).
5.2 Fees
and Expenses. Except as expressly set forth in the Transaction Documents to the contrary, each party shall pay the fees and expenses
of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement. The Company shall pay all Transfer Agent fees (including, without
limitation, any fees required for same-day processing of any instruction letter delivered by the Company and any exercise notice delivered
by a Purchaser), stamp taxes and other taxes and duties levied in connection with the delivery of any Securities to the Purchasers.
5.3 Entire
Agreement. The Transaction Documents, together with the exhibits and schedules thereto, the Prospectus and the Prospectus Supplement,
contain the entire understanding of the parties with respect to the subject matter hereof and thereof and supersede all prior agreements
and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.
5.4 Notices.
Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall
be deemed given and effective on the earliest of: (a) the time of transmission, if such notice or communication is delivered via
email attachment at the email address as set forth on the signature pages attached hereto at or prior to 5:30 p.m. (New York
City time) on a Trading Day, (b) the next Trading Day after the time of transmission, if such notice or communication is delivered
via email attachment at the email address as set forth on the signature pages attached hereto on a day that is not a Trading Day
or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second (2nd) Trading Day following the
date of mailing, if sent by U.S. nationally recognized overnight courier service or (d) upon actual receipt by the party to whom
such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached
hereto.
5.5 Amendments;
Waivers. No provision of this Agreement may be waived, modified, supplemented or amended except in a written instrument signed, in
the case of an amendment, by the Company and Purchasers holding at least 50.1% in interest of the Shares and Pre-Funded Warrants outstanding
at the time of such waiver, modification, supplement or amendment based on the initial Subscription Amounts hereunder (or, prior to the
Closing, the Company and each Purchaser) or, in the case of a waiver, by the party against whom enforcement of any such waived provision
is sought, provided that if any amendment, modification or waiver disproportionately and adversely impacts a Purchaser (or group of Purchasers),
the consent of such disproportionately impacted Purchaser (or group of Purchasers) shall also be required. No waiver of any default with
respect to any provision, condition or requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver
of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of any
party to exercise any right hereunder in any manner impair the exercise of any such right. Any proposed amendment or waiver that disproportionately,
materially and adversely affects the rights and obligations of any Purchaser relative to the comparable rights and obligations of the
other Purchasers shall require the prior written consent of such adversely affected Purchaser. Any amendment effected in accordance with
this Section 5.5 shall be binding upon each Purchaser and holder of Securities and the Company.
5.6 Headings.
The headings herein are for convenience only, do not constitute a part of this Agreement and shall not be deemed to limit or affect any
of the provisions hereof.
5.7 Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser
(other than by merger). Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns
or transfers any Securities, provided that such transferee agrees in writing to be bound, with respect to the transferred Securities,
by the provisions of the Transaction Documents that apply to the “Purchasers.”
5.8 No
Third-Party Beneficiaries. The Placement Agent shall be the third party beneficiary of the representations and warranties of the
Company in Section 3.1 and the representations and warranties of the Purchasers in Section 3.2. This Agreement is intended
for the benefit of the parties hereto and their respective successors and permitted assigns and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person, except as otherwise set forth in Section 4.8 and this Section 5.8.
5.9 Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of the Transaction Documents shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal Proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether brought against a party hereto or its respective Affiliates,
directors, officers, shareholders, partners, members, employees or agents) shall be commenced exclusively in the state and federal courts
sitting in the City of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts
sitting in the City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein (including with respect to the enforcement of any of the Transaction Documents),
and hereby irrevocably waives, and agrees not to assert in any Action or Proceeding, any claim that it is not personally subject to the
jurisdiction of any such court, that such Action or Proceeding is improper or is an inconvenient venue for such Proceeding. Each party
hereby irrevocably waives personal service of process and consents to process being served in any such Action or Proceeding by mailing
a copy thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect
for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any other manner permitted by law.
If any party shall commence an Action or Proceeding to enforce any provisions of the Transaction Documents, then, in addition to the
obligations of the Company under Section 4.8, the prevailing party in such Action or Proceeding shall be reimbursed by the non-prevailing
party for its reasonable attorneys’ fees and other costs and expenses incurred with the investigation, preparation and prosecution
of such Action or Proceeding.
5.10 Survival.
The representations and warranties contained herein shall survive the Closing and the delivery of the Securities.
5.11 Execution.
This Agreement may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party and delivered to each other party, it being understood that
the parties need not sign the same counterpart. In the event that any signature is delivered by e-mail delivery of a “.pdf”
format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature
is executed) with the same force and effect as if such “.pdf” signature page were an original thereof.
5.12 Severability.
If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force
and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts
to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
5.13 Rescission
and Withdrawal Right. Notwithstanding anything to the contrary contained in (and without limiting any similar provisions of) any
of the other Transaction Documents, whenever any Purchaser exercises a right, election, demand or option under a Transaction Document
and the Company does not timely perform its related obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the Company, any relevant notice, demand or election in
whole or in part without prejudice to its future actions and rights; provided, however, that, in the case of a rescission
of an exercise of a Warrant, the applicable Purchaser shall be required to return any shares of Common Stock or Pre-Funded Warrants subject
to any such rescinded exercise notice concurrently with the return to such Purchaser of the aggregate exercise price paid to the Company
for such shares and the restoration of such Purchaser’s right to acquire such shares pursuant to such Purchaser’s Warrant
(including, issuance of a replacement warrant certificate evidencing such restored right).
5.14 Replacement
of Securities. If any certificate or instrument evidencing any Securities is mutilated, lost, stolen or destroyed, the Company shall
issue or cause to be issued in exchange and substitution for and upon cancellation thereof (in the case of mutilation), or in lieu of
and substitution therefor, a new certificate or instrument, but only upon receipt of evidence reasonably satisfactory to the Company
of such loss, theft or destruction. The applicant for a new certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance of such replacement Securities.
5.15 Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, each of the Purchasers
and the Company will be entitled to specific performance under the Transaction Documents. The parties agree that monetary damages may
not be adequate compensation for any loss incurred by reason of any breach of obligations contained in the Transaction Documents and
hereby agree to waive and not to assert in any Action for specific performance of any such obligation the defense that a remedy at law
would be adequate.
5.16 Payment
Set Aside. To the extent that the Company makes a payment or payments to any Purchaser pursuant to any Transaction Document or a
Purchaser enforces or exercises its rights thereunder, and such payment or payments or the proceeds of such enforcement or exercise or
any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside, recovered from, disgorged by or
are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver or any other Person under any law (including,
without limitation, any bankruptcy law, state or federal law, common law or equitable cause of action), then to the extent of any such
restoration the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such enforcement or setoff had not occurred.
5.17 Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser under any Transaction Document are several
and not joint with the obligations of any other Purchaser, and no Purchaser shall be responsible in any way for the performance or non-performance
of the obligations of any other Purchaser under any Transaction Document. Nothing contained herein or in any other Transaction Document,
and no action taken by any Purchaser pursuant hereto or thereto, shall be deemed to constitute the Purchasers as a partnership, an association,
a joint venture or any other kind of entity, or create a presumption that the Purchasers are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by the Transaction Documents. Each Purchaser shall be entitled to independently
protect and enforce its rights including, without limitation, the rights arising out of this Agreement or out of the other Transaction
Documents, and it shall not be necessary for any other Purchaser to be joined as an additional party in any Proceeding for such purpose.
Each Purchaser has been represented by its own separate legal counsel in its review and negotiation of the Transaction Documents. For
reasons of administrative convenience only, each Purchaser and its respective counsel have chosen to communicate with the Company through
Sullivan. Sullivan does not represent any of the Purchasers and only represents the Placement Agent. The Company has elected to provide
all Purchasers with the same terms and Transaction Documents for the convenience of the Company and not because it was required or requested
to do so by any of the Purchasers. It is expressly understood and agreed that each provision contained in this Agreement and in each
other Transaction Document is between the Company and a Purchaser, solely, and not between the Company and the Purchasers collectively
and not between and among the Purchasers.
5.18 Liquidated
Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents
is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have
been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts
are due and payable shall have been canceled.
5.19 Saturdays,
Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or
granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
5.20 Construction.
The parties agree that each of them and/or their respective counsel have reviewed and had an opportunity to revise the Transaction Documents
and, therefore, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of the Transaction Documents or any amendments thereto. In addition, each and every reference
to share prices and shares of Common Stock in any Transaction Document shall be subject to adjustment for reverse and forward stock splits,
stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement.
5.21 WAIVER
OF JURY TRIAL. IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE PARTIES
EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY
AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY.
(Signature Pages Follow)
IN WITNESS WHEREOF, the parties
hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first
indicated above.
| ELUTIA INC. |
|
Address for Notice: |
| |
|
|
| By: |
|
|
|
| |
Name: C. Randal Mills, Ph.D. |
|
E-Mail: rmills@elutia.com |
| |
Title: President & Chief Executive Officer |
|
|
| With a copy to (which shall not constitute notice): |
|
|
| |
|
|
| Michael Cochran; David Eaton |
|
mcochran@ktslaw.com; |
| Kilpatrick Townsend & Stockton LLP |
|
deaton@ktslaw.com |
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR PURCHASER FOLLOWS]
IN WITNESS WHEREOF, the undersigned
have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated
above.
Name of Purchaser: ________________________________________________________
Signature
of Authorized Signatory of Purchaser: _________________________________
Name of Authorized Signatory: _______________________________________________
Title of Authorized Signatory: ________________________________________________
Email Address of Authorized Signatory: _________________________________________
Address for Notice to Purchaser:
Address for Delivery of securities to Purchaser (if not same as address
for notice):
Subscription Amount: $_________________
Settlement Election:
DVP
Settlement o
Company
Settlement o
If “Company Settlement” Selected and Shares are to be
delivered via DWAC: Purchaser DTC Account: ___________________
Shares: _________________
| Pre-Funded Warrants: _______________ |
Beneficial Ownership Blocker: |
¨ 4.99% or
¨ 9.99%
EIN Number: ____________________
¨
Notwithstanding anything contained in this Agreement to the contrary, by checking this box (i) the obligations of the
above-signed to purchase the securities set forth in this Agreement to be purchased from the Company by the above-signed, and the
obligations of the Company to sell such securities to the above-signed, shall be unconditional and all conditions to Closing shall
be disregarded, (ii) the Closing shall occur on the second (2nd) Trading Day following the date of this Agreement
and (iii) any condition to Closing contemplated by this Agreement (but prior to being disregarded by clause (i) above)
that required delivery by the Company or the above-signed of any agreement, instrument, certificate or the like or purchase price
(as applicable) shall no longer be a condition and shall instead be an unconditional obligation of the Company or the above-signed
(as applicable) to deliver such agreement, instrument, certificate or the like or purchase price (as applicable) to such other party
on the Closing Date.
[PURCHASER SIGNATURE PAGES TO SECURITIES PURCHASE
AGREEMENT]
DISCLOSURE SCHEDULES
Schedule 3.1(a) – Subsidiaries
Elutia Med LLC
Exhibit 99.1
Elutia
Announces $13.26 Million Registered Direct Offering
SILVER
SPRING, Md., June 17, 2024 — Elutia Inc. (Nasdaq: ELUT) (“Elutia” or the “Company”) today announced
it has entered into a definitive agreement with investors for the purchase and sale of 3,175,000 shares of the Company’s Class A
common stock at a purchase price of $3.40 per share and 725,000 prefunded warrants to purchase up to 725,000 shares of the Company’s
Class A common stock at a purchase price of $3.399 per prefunded warrant in a registered direct offering. The prefunded warrants
are immediately exercisable at an exercise price of $0.001 per each prefunded warrant. The gross proceeds to Elutia from the offering
are expected to be approximately $13.26 million, before deducting placement agent fees and other offering expenses payable by Elutia.
The offering is expected to close on or about June 18, 2024, subject to customary closing conditions.
Lake
Street Capital Markets, LLC is acting as the exclusive placement agent for the offering.
Elutia
intends to use the proceeds from the proposed offering for working capital and other general corporate purposes.
The
securities are being offered and sold by the Company pursuant to an effective shelf registration statement on Form S-3 (File No. 333-267197)
previously filed with the U.S. Securities and Exchange Commission (the “SEC”) and declared effective by the SEC on September 8,
2022. The offering of such securities is being made only by means of a prospectus supplement that forms a part of the registration statement.
Copies of the prospectus supplement and accompanying base prospectus will be filed with the SEC and will be available free of charge
on the SEC's website at http://sec.gov. Electronic copies of the prospectus supplement and accompanying base prospectus may also
be obtained, when available, from Lake Street Capital Markets, LLC at 920 Second Avenue South, Unit 700, Minneapolis,
MN 55402, or e-mail at prospectus@lakestreetcm.com.
This
press release shall not constitute an offer to sell or the solicitation of an offer to buy any of the securities described herein, nor
shall there be any sale of these securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such state or jurisdiction.
About
Elutia
Elutia
develops and commercializes drug-eluting biomatrix products to improve compatibility between medical devices and the patients who need
them. With a growing population in need of implantable technologies, Elutia’s mission is humanizing medicine so patients can thrive
without compromise.
Forward-Looking
Statements
This
press release includes certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995,
including statements regarding the completion of the Company’s offering and the anticipated use of proceeds therefrom. These statements
are based on the Company’s current expectations or beliefs and are subject to uncertainty and changes in circumstances. Actual
results may vary materially from those expressed or implied by the statements here due to changes in economic, business, competitive
or regulatory factors, and other risks and uncertainties, including those set forth in the Company’s filings with the SEC. The
forward-looking statements in this press release speak only as of the date of this press release. The Company does not undertake any
obligation to update or revise these forward-looking statements for any reason, except as required by law.
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- DefinitionName of the Exchange on which a security is registered. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Section 14a
-Number 240
-Subsection 12
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- DefinitionTrading symbol of an instrument as listed on an exchange.
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| X |
- DefinitionBoolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act. Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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| Namespace Prefix: |
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