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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported) September 1, 2023 (August 28, 2023)
NRX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Delaware |
|
001-38302 |
|
82-2844431 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(I.R.S. Employer
Identification No.) |
1201 Orange Street,
Suite 600
Wilmington, Delaware |
|
19801 |
(Address of principal executive offices) |
|
(Zip Code) |
(484) 254-6134
(Registrant’s telephone number, including
area code)
N/A
(Former name or former address, if changed since
last report.)
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of
the Act:
Title of each class |
|
Trading Symbol(s) |
|
Name of each exchange on which
registered |
Common Stock, par value $0.001 per share |
|
NRXP |
|
The Nasdaq Stock Market LLC |
Warrants to purchase one share of Common Stock |
|
NRXPW |
|
The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§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 ¨
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 August 28, 2023, the Company entered
into a securities purchase agreement (the “Securities Purchase Agreement”) with the purchasers signatory thereto (the “Investors”),
pursuant to which the Company issued 3,000,000 shares of the Company’s Series A Convertible Preferred Stock, par value $0.001
per share (the “Series A Preferred Stock”), and one (1) investor warrant (each an “Investor Warrant”)
for every share of Series A Convertible Preferred Stock issued. Each Investor Warrant entitles the holder to purchase one (1) share
of Common Stock at a purchase price of $0.40 per share. The aggregate purchase price for each share of Series A Convertible
Preferred Stock and associated Investor Warrant was $0.40.
Beginning on the sixth month anniversary of the
date of issuance, each share of Series A Convertible Preferred Stock will be convertible into one (1) share of the Company’s
common stock, par value $0.001 per share (“Common Stock”). The Series A Convertible Preferred Stock may also be converted
into Common Shares at any time during the initial six-month period after issuance, at the option of the Investor, if the closing share
price of the Common Stock equals or exceeds $1.20 per share on any trading day.
The Investor Warrants are exercisable starting
on the six (6) month anniversary of the date of issuance and will have a term of five (5) years from the date of issuance.
The Investor Warrants may also be exercised during the initial six-month period after issuance, at the option of the Investor, if the
closing share price of the Common Stock equals or exceeds $1.20 per share on any trading day.
The aggregate proceeds to the Company from the
private placement was approximately $1.2 million before expenses. The Company intends to use the net proceeds from such private placement
for capital expenditures, working capital and general corporate purposes, including a corporate share repurchase program, as permitted
by applicable law and legally available funds.
The foregoing descriptions of the Securities Purchase
Agreement and the Investor Warrants do not purport to be complete and are qualified in their entirety by the full text of the Securities
Purchase Agreement attached hereto as Exhibit 10.1 and the full text of the Investor Warrant attached hereto as Exhibit 4.1.
Item 3.02 Unregistered Sales of Equity Securities.
The Company is issuing
3,000,000 shares of the Series A Convertible Preferred Stock, par value $0.001 per share (the “Series A
Convertible Preferred Stock”) and 3,000,000 Investor Warrants (the “Investor Warrants”). The aggregate
purchase price for each share of Series A Convertible Preferred Stock and associated Investor Warrant was $0.40.
The aggregate proceeds to the Company from the
sale of the Series A Convertible Preferred Stock and Investor Warrants was approximately $1.2 million before expenses. As
the issuance was made to existing investors, there were no underwriting discounts or commissions.
The Securities have not been registered for sale
under the Securities Act of 1933, as amended (the “Securities Act”), and may not be offered or sold in the United
States absent registration under the Securities Act or an applicable exemption from the registration requirements. The issuance and sale
of the Securities are made in reliance upon the exemption provided in Section 4(a)(2) of the Securities Act and Rule 506
promulgated thereunder. Any shares of Common Stock issued upon the conversion of the Series A Convertible Preferred Stock, or the
exercise of the Investor Warrants, will be issued in a private placement under Section 4(a)(2) and/or Regulation D of the Securities
Act of 1933. No form of general solicitation or general advertising was conducted in connection with the issuance.
The Securities contain (or will contain, where
applicable) restrictive legends preventing the sale, transfer, or other disposition of such securities, unless registered under the Securities
Act, or pursuant to an exemption therefrom. The disclosure contained in this Current Report on Form 8-K does not constitute an offer
to sell or a solicitation of an offer to buy any securities of the Company, and is made only as required under applicable rules for
filing current reports with the SEC.
Each Purchaser in the Private Placement was required to represent that,
at the time of the applicable closing, it was an accredited investor as defined in Rule 501(a) under the Securities Act or a
qualified institutional buyer as defined in Rule 144A(a) under the Securities Act.
Beginning on the sixth month anniversary of the date of issuance, each
share of Series A Convertible Preferred Stock will be convertible into one (1) share of the Company’s common stock, par
value $0.001 per share (“Common Stock”). The Series A Convertible Preferred Stock may also be converted into Common Shares
at any time during the initial six-month period after issuance, at the option of the Investor, if the closing share price of the Common
Stock equals or exceeds $1.20 per share on any trading day.
The Investor Warrants are exercisable starting on the six (6) month
anniversary of the date of issuance and will have a term of five (5) years from the date of issuance. The Investor Warrants may
also be exercised during the initial six-month period after issuance, at the option of the Investor, if the closing share price of the
Common Stock equals or exceeds $1.20 per share on any trading day.
Item
5.03 Amendments to Articles of Incorporation or Bylaws.
On August 30, 2023, the Company filed a
Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock with the Delaware Secretary
of State (the “Certificate of Designation”) authorizing up to 12,000,000 shares of Series A Convertible Preferred Stock.
The Certificate of Designation authorizes the issuance of a series of preferred stock designated as the Series A Convertible Preferred
Stock, par value $0.001 per share, of the Company and fixes the designation, number of shares, powers, preferences, rights, qualifications,
limitations and restrictions thereof (in addition to any provisions set forth in the Second Amended and Restated Certificate of Incorporation
of the Corporation which are applicable to the Preferred Stock of all classes and series).
Holders shall not be entitled to receive any dividends
in respect of the Series A Convertible Preferred Stock or have any voting rights except as otherwise required by law. However, as
long as any shares of Series A Preferred Convertible Stock are outstanding, the Company shall not, without the affirmative vote of
the holders of a majority of the then outstanding shares of the Series A Convertible Preferred Stock, (a) disproportionally
alter or change adversely the powers, preferences or rights given to the Series A Convertible Preferred Stock or alter or amend the
Certificate of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that disproportionally
adversely affects any rights of the such holders, (c) increase or decrease the number of authorized shares of Series A Convertible
Preferred Stock or (d) enter into any agreement with respect to any of the foregoing.
Upon any liquidation, dissolution or winding up
of the Company (a “Liquidation”), whether voluntary or involuntary, each holder of Series A Convertible Preferred Stock
shall be entitled to receive the amount of cash, securities or other property to which such holder would be entitled to receive if such
shares had been converted to Common Stock immediately prior to such Liquidation, subject to certain rights and limitations.
Each share of Series A Convertible Preferred
Stock may be converted into one (1) share of Common Stock; provided that no shares of Series A Convertible Preferred Stock may
be converted within the first six (6) months after issuance unless the closing share price of the Common Stock equals or exceeds
$1.20 per share on any trading day. The holder’s ability to convert Series A Convertible Preferred Stock into Common Stock
may be subject to certain limitations as set forth in the Certificate of Designation.
The foregoing descriptions of the Series A
Convertible Preferred Stock and Certificate of Designation do not purport to be complete and are qualified in their entirety by the full
text of the Certificate of Designation attached hereto as Exhibit 3.1.
Item 7.01. Regulation FD Disclosure.
On August 29, 2023, the
Company issued a press release announcing its entrance into the Securities Purchase Agreement and the transactions contemplated thereby.
A copy of the press release is furnished as Exhibit 99.1 hereto and is incorporated herein by reference.
The information set forth
in this Item 7.01, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes of Section 18
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section.
The information set forth in this Item 7.01, including Exhibit 99.1, shall not be deemed incorporated by reference into any other
filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference
in such a filing.
|
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
|
NRX Pharmaceuticals, Inc. |
|
|
Date: September 1,
2023 |
/s/ Stephen Willard |
|
Stephen Willard |
|
Acting General Counsel |
Exhibit 3.1
NRX PHARMACEUTICALS, INC.
CERTIFICATE OF DESIGNATION OF PREFERENCES,
RIGHTS AND LIMITATIONS
OF
SERIES A CONVERTIBLE PREFERRED STOCK
PURSUANT TO SECTION 151 OF THE
DELAWARE GENERAL
CORPORATION LAW
NRX
PHARMACEUTICALS, INC., a Delaware corporation (the “Corporation”), in accordance with the provisions
of Section 103 of the Delaware General Corporation Law (the “DGCL”) does hereby certify that, in accordance
with Sections 141(c) and 151 of the DGCL, the following resolution was duly adopted by the Board of Directors of the Corporation
as of August 28, 2023:
RESOLVED,
that the Board of Directors of the Corporation pursuant to authority expressly vesting in it by the provisions of the Second Amended and
Restated Certificate of Incorporation of the Corporation, hereby authorizes the issuance of a series of Preferred Stock designated as
the Series A Convertible Preferred Stock, par value $0.001 per share, of the Corporation and hereby fixes the designation, number
of shares, powers, preferences, rights, qualifications, limitations and restrictions thereof (in addition to any provisions set forth
in the Second Amended and Restated Certificate of Incorporation of the Corporation which are applicable to the Preferred Stock of all
classes and series) as follows:
SERIES A CONVERTIBLE PREFERRED STOCK
Section 1.
Definitions. For the purposes hereof, the following terms shall have the following meanings:
“Affiliate”
means any person or entity that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common
control with a person or entity, as such terms are used in and construed under Rule 144 under the Securities Act. With respect to
a Holder, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Holder
will be deemed to be an Affiliate of such Holder.
“Beneficial Ownership Limitation”
shall have the meaning set forth in Section 6(c).
“Business Day”
means any day except Saturday, Sunday, any day which shall be 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.
“Certificate
of Designation” means this Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible
Preferred Stock filed by the Corporation.
“Commission”
means the Securities and Exchange Commission.
“Common Stock”
means the Corporation’s common stock, par value $0.001 per share, and stock of any other class of securities into which such securities
may hereafter be reclassified or changed into.
“Common Stock Equivalents”
means any securities of the Corporation or its subsidiaries which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible
into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
“Conversion Date” shall have the
meaning set forth in Section 6(a).
“Conversion Price” shall mean $0.40, as adjusted pursuant to Section 7
hereof.
“Conversion Ratio” shall have the meaning set forth in Section 6(b).
“Conversion Shares”
means, collectively, the shares of Common Stock issuable upon conversion of the shares of Series A Preferred Stock in accordance
with the terms hereof.
“DWAC Delivery”
shall have the meaning set forth in Section 6(a).
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Holder” means
any holder of Series A Preferred Stock.
“Issuance Date”
means the date of the “Closing” as defined in that certain Securities Purchase Agreement related to the Series A Preferred
Stock, dated August 28, 2023, by and among the Corporation and the purchaser named on the signature page therein.
“Liquidation”
shall have the meaning set forth in Section 5.
“New York Courts” shall have the
meaning set forth in Section 8(h).
“Notice of Conversion” shall have the meaning set forth in Section 6(a).
“Person” means
any 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.
“Series A Preferred
Stock” shall have the meaning set forth in Section 2(a).
“Series A Preferred Stock Register”
shall have the meaning set forth in Section 2(b).
“Share Delivery Date” shall have the meaning set forth
in Section 6(d).
“Stated Value” shall mean $0.40.
“Trading Day”
means a day on which the Common Stock is traded for any period on the principal securities exchange or if the Common Stock is not traded
on a principal securities exchange, on a day that the Common Stock is traded on another securities market on which the Common Stock is
then being traded.
Section 2.
Designation, Amount and Par Value; Assignment.
(a) The
series of preferred stock designated by this Certificate of Designation shall be designated as the Corporation’s Series A Convertible
Preferred Stock (the “Series A Preferred Stock”) and the number of shares so designated shall be 12,000,000
(which shall not be subject to increase without the written consent of the Holders of a majority of the issued and outstanding Series A
Preferred Stock). Each share of Series A Preferred Stock shall have a par value of $0.001 per share. Such number shall not be subject
to increase without the written consent of the Holders holding a majority of the then-issued and outstanding Series A Preferred Stock.
(b) The
Corporation shall register shares of the Series A Preferred Stock, upon records to be maintained by the Corporation for that purpose
(the “Series A Preferred Stock Register”), in the name of the Holders thereof from time to time. The Corporation
may deem and treat the registered Holder of shares of Series A Preferred Stock as the absolute owner thereof for the purpose of any
conversion thereof and for all other purposes. The Corporation shall register the transfer of any shares of Series A Preferred Stock
in the Series A Preferred Stock Register, upon surrender of the certificates evidencing such shares to be transferred, duly endorsed
by the Holder thereof, to the Corporation at its address specified herein. Upon any such registration or transfer, a new certificate evidencing
the shares of Series A Preferred Stock so transferred shall be issued to the transferee and a new certificate evidencing the remaining
portion of the shares not so transferred, if any, shall be issued to the transferring Holder, in each case, within three Business Days.
The provisions of this Certificate of Designation are intended to be for the benefit of all Holders from time to time and shall be enforceable
by any such Holder.
Section 3.
Dividends. Holders shall not be entitled to receive any dividends in respect of the Series A Preferred Stock.
Section 4.
Voting Rights. Except as otherwise provided herein or as otherwise required by law, the Series A Preferred Stock shall have
no voting rights. However, as long as any shares of Series A Preferred Stock are outstanding, the Corporation shall not, without
the affirmative vote of the Holders of a majority of the then outstanding shares of the Series A Preferred Stock, (a) disproportionally
alter or change adversely the powers, preferences or rights given to the Series A Preferred Stock or alter or amend this Certificate
of Designation, (b) amend its certificate of incorporation or other charter documents in any manner that disproportionally adversely
affects any rights of the Holders, (c) increase or decrease the number of authorized shares of Series A Preferred Stock or (d) enter
into any agreement with respect to any of the foregoing.
Section 5.
Rank; Liquidation. Upon liquidation, dissolution or winding up of the Corporation (a “Liquidation”),
whether voluntary or involuntary, each Holder shall be entitled to receive the amount of cash, securities or other property to which such
holder would be entitled to receive with respect to such shares of Series A Preferred Stock if such shares had been converted to
Common Stock immediately prior to such Liquidation (without giving effect for such purposes to the Beneficial Ownership Limitation set
forth in Section 6(c)), subject to the preferential rights of holders of any senior securities of the Corporation.
Section 6.
Conversion.
(a) Conversions
at Option of Holder. Each share of Series A Preferred Stock shall be convertible into a number of shares of Common Stock equal
to the number of shares of Series A Preferred Stock being converted. Notwithstanding the foregoing, no share of Series A Preferred
Stock shall be convertible during the six (6) month period following the Issuance Date; provided, however, if the Common
Stock trades at or above $1.20 per share (subject to adjustment for stock splits, stock dividends, stock combinations, recapitalizations
or other similar events), as reported on Bloomberg, L.P. (or an equivalent, reliable reporting service mutually acceptable to and hereafter
designated by Holders of a majority of the then-outstanding Series A Preferred Stock and the Corporation) on any Trading Day, Holder
may convert the Series A Preferred Stock prior to the six (6) month anniversary of the Issuance Date. Holders shall effect
conversions by providing the Corporation with the form of conversion notice attached hereto as Annex A (a “Notice
of Conversion”), duly completed and executed. Each Notice of Conversion shall specify the number of shares of Series A
Preferred Stock to be converted, the number of shares of Series A Preferred Stock owned prior to the requested conversion, the number
of shares of Series A Preferred Stock owned subsequent to the requested conversion and the date on which such conversion is to be
effected (the “Conversion Date”), which date may not be prior to the date the applicable Holder delivers such
Notice of Conversion to the Corporation. If no Conversion Date is specified in a Notice of Conversion, the Conversion Date shall be the
Business Day that the Corporation receives the Notice of Conversion. Provided the Corporation’s transfer agent is participating
in the Depository Trust Company (“DTC”) Fast Automated Securities Transfer program and the applicable Conversion
Shares are either registered for resale or eligible for resale without restriction pursuant to Rule 144 of the Securities Act, the
Notice of Conversion may specify, at the Holder’s election, whether the applicable Conversion Shares shall be credited to the account
of the Holder’s prime broker with DTC through its Deposit Withdrawal Agent Commission system (a “DWAC Delivery”).
The calculations set forth in the Notice of Conversion shall control in the absence of manifest or mathematical error.
(b) Conversion
Ratio. The “Conversion Ratio” for each share of Series A Preferred Stock shall be equal to the Stated
Value divided by the Conversion Price.
(c) Beneficial Ownership Limitation.
i. Notwithstanding
anything herein to the contrary, the Corporation shall not effect any conversion of the Series A Preferred Stock, and a Holder shall
not have the right to convert any portion of its Series A Preferred Stock, to the extent that, after giving effect to an attempted
conversion, such Holder (together with such Holder’s Affiliates, and any other Person whose beneficial ownership of Common Stock
would be aggregated with the Holder’s for purposes of Section 13(d) of the Exchange Act and the applicable rules and
regulations of the Commission, including any “group” of which the Holder is a member) would beneficially own a number of shares
of Common Stock in excess of the Beneficial Ownership Limitation (as defined below).
ii. For
purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such Holder and its Affiliates
shall include the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock subject to conversion
with respect to which the determination of such sentence is being made, but shall exclude the number of shares of Common Stock which
are issuable upon (A) conversion of the remaining, unconverted shares of Series A Preferred Stock beneficially owned by such
Holder or any of its Affiliates, and (B) exercise or conversion of the unexercised or unconverted portion of any other securities
of the Corporation beneficially owned by such Holder or any of its Affiliates (including, without limitation, any convertible notes,
convertible stock or warrants) that are subject to a limitation on conversion or exercise analogous to the limitation contained herein.
Except as set forth in the preceding sentence, for purposes of this Section, beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the applicable rules and regulations of the Commission. In addition, for purposes
hereof, “group” has the meaning set forth in Section 13(d) of the Exchange Act and the applicable rules and
regulations of the Commission.
iii. To
the extent that the limitation contained in this Section 6(c) applies, the determination of whether the Series A Preferred
Stock may be converted (in relation to other securities owned by the Holder together with any Affiliates) and of which portion of its
Series A Preferred Stock may be converted shall be in the sole discretion of the Holder and the submission of a Notice of Conversion
shall be deemed to be such Holder’s determination of whether the shares of Series A Preferred Stock may be converted (in relation
to other securities owned by such Holder together with any Affiliates) and how many shares of the Series A Preferred Stock are convertible,
in each case subject to the Beneficial Ownership Limitation. For purposes of this Section, 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 Corporation’s
most recent Form 10-K, Form 10-Q, Current Report on Form 8-K or other public filing with the Commission, as the case may
be, (B) a more recent public announcement by the Corporation or (C) a more recent notice by the Corporation or the Corporation’s
transfer agent to the Holder setting forth the number of shares of Common Stock then outstanding. For any reason at any time, upon the
written or oral request of a Holder (which may be by email), the Corporation shall, within two (2) Business Days of such request,
confirm orally and in writing to such Holder (which may be via email) 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 any actual conversion or exercise of securities
of the Corporation, including shares of Series A Preferred Stock, by such Holder or its Affiliates since the date as of which such
number of outstanding shares of Common Stock was last publicly reported or confirmed to the Holder.
iv. The
“Beneficial Ownership Limitation” shall be 4.9% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock pursuant to such conversion (to the extent permitted pursuant to this Section).
The Holder, upon not less than 61 days’ prior notice to the Corporation, may increase or decrease the Beneficial Ownership Limitation
provisions of this Section, provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of shares of the
Common Stock outstanding immediately after giving effect to the issuance of shares of Common Stock upon the conversion the Series A
Preferred Stock held by the Holder and the provisions of this Section shall continue to apply. Any such increase will not be effective
until the 61st day after such notice is delivered to the Corporation and shall only be effective with respect to such Holder. The provisions
of this Section shall be construed and implemented in a manner otherwise than in strict conformity with the terms of this Section 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.
(d) Mechanics of Conversion
i. Delivery
of Certificate or Electronic Issuance Upon Conversion. Not later than two Trading Days after the applicable Conversion Date, or if
the Holder requests the issuance of physical certificate(s), two Trading Days after receipt by the Corporation of the original certificate(s) representing
such shares of Series A Preferred Stock being converted, duly endorsed, and the accompanying Notice of Conversion (the “Share
Delivery Date”), the Corporation shall (a) deliver, or cause to be delivered, to the converting Holder a physical certificate
or certificates representing the number of Conversion Shares being acquired upon the conversion of shares of Series A Preferred Stock
or (b) in the case of a DWAC Delivery, electronically transfer such Conversion Shares by crediting the account of the Holder’s
prime broker with DTC through its DWAC system. If in the case of any Notice of Conversion such certificate or certificates are not delivered
to or as directed by or, in the case of a DWAC Delivery, such shares are not electronically delivered to or as directed by, the applicable
Holder by the Share Delivery Date, the applicable Holder shall be entitled to elect to rescind such Conversion Notice by written notice
to the Corporation at any time on or before its receipt of such certificate or certificates for Conversion Shares or electronic receipt
of such shares, as applicable, in which event the Corporation shall promptly return to such Holder any original Series A Preferred
Stock certificate delivered to the Corporation and such Holder shall promptly return to the Corporation any Common Stock certificates
or otherwise direct the return of any shares of Common Stock delivered to the Holder through the DWAC system, representing the shares
of Series A Preferred Stock unsuccessfully tendered for conversion to the Corporation.
ii. Reservation
of Shares Issuable Upon Conversion. The Corporation covenants that it will at all times reserve and keep available out of its authorized
and unissued shares of Common Stock for the sole purpose of issuance upon conversion of the Series A Preferred Stock, free from preemptive
rights or any other actual contingent purchase rights of Persons other than the Holders of the Series A Preferred Stock, not less
than such aggregate number of shares of the Common Stock as shall be issuable (taking into account the adjustments of Section 7)
upon the conversion of all outstanding shares of Series A Preferred Stock. The Corporation covenants that all shares of Common Stock
that shall be so issuable shall, upon issue, be duly authorized, validly issued, fully paid and nonassessable.
iii. Fractional
Shares. No fractional shares or scrip representing fractional shares of Common Stock shall be issued upon the conversion of the Series A
Preferred Stock. As to any fraction of a share which a Holder would otherwise be entitled to receive upon such conversion, the Corporation
shall round up to the next whole share.
vi. Transfer Taxes.
The issuance of certificates for shares of the Common Stock upon conversion of the Series A Preferred Stock shall be made without
charge to any Holder for any documentary stamp or similar taxes that may be payable in respect of the issue or delivery of such certificates,
provided that the Corporation shall not be required to pay any tax that may be payable in respect of any transfer involved in the issuance
and delivery of any such certificate upon conversion in a name other than that of the registered Holder(s) of such shares of Series A
Preferred Stock and the Corporation shall not be required to issue or deliver such certificates unless or until the Person or Persons
requesting the issuance thereof shall have paid to the Corporation the amount of such tax or shall have established to the satisfaction
of the Corporation that such tax has been paid.
(e) Status
as Stockholder. Upon each Conversion Date (i) the shares of Series A Preferred Stock being converted shall be deemed
converted into shares of Common Stock, and (ii) the Holder’s rights as a holder of such converted shares of Series A
Preferred Stock shall cease and terminate, excepting only the right to receive certificates for such shares of Common Stock and to
any remedies provided herein or otherwise available at law or in equity to such Holder because of a failure by the Corporation to
comply with the terms of this Certificate of Designation. In all cases, the holder shall retain all of its rights and remedies for
the Corporation’s failure to convert Series A Preferred Stock.
Section 7.
Certain Adjustments.
(a) Stock
Dividends and Stock Splits. If the Corporation, at any time while this Series A Preferred Stock is outstanding: (A) pays
a stock dividend or otherwise makes a distribution or distributions payable in shares of Common Stock (which, for avoidance of doubt,
shall not include any shares of Common Stock issued by the Corporation upon conversion of this Series A Preferred Stock) with respect
to the then outstanding shares of Common Stock; (B) subdivides outstanding shares of Common Stock into a larger number of shares;
or (C) combines (including by way of a reverse stock split) outstanding shares of Common Stock into a smaller number of shares, then
the Conversion Price shall be multiplied by a fraction of which the numerator shall be the number of shares of Common Stock (excluding
any treasury shares of the Corporation) outstanding immediately before such event and of which the denominator shall be the number of
shares of Common Stock outstanding immediately after such event (excluding any treasury shares of the Corporation). Any adjustment made
pursuant to this Section 7(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
or combination.
(b) Calculations.
All calculations under this Section 7 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 7, 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 any treasury shares of the Corporation) issued and outstanding.
Section 8.
Miscellaneous.
(a) Notices.
Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without limitation, any
Notice of Conversion, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service,
addressed to the Corporation, at 1201 North Market Street, Suite 111, Wilmington, Delaware 19801, Attention: Seth Van Voorhees,
e-mail: svv@nrxpharma.com,1 or such other address as the Corporation may specify for such purposes by notice to the
Holders delivered in accordance with this Section. Any and all notices or other communications or deliveries to be provided by the Corporation
hereunder shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed
to each Holder at the e-mail address or mailing address of such Holder appearing on the books of the Corporation, or if no such e-mail
address or mailing address appears on the books of the Corporation, at the principal place of business of such Holder. Any notice or
other communication or deliveries hereunder shall be deemed given and effective on the earliest of (i) the date of transmission,
if such notice or communication is delivered via facsimile at the facsimile number specified in this Section prior to 5:30 p.m. (New
York City time) on any date, (ii) the date immediately following the date of transmission, if such notice or communication is delivered
via e-mail at the e-mail address specified in this Section between 5:30 p.m. and 11:59 p.m. (New York City time) on any
date, (iii) the second Business Day following the date of mailing, if sent by nationally recognized overnight courier service, or
(iv) upon actual receipt by the party to whom such notice is required to be given.
1
NRXP – we used the contact information from the ATM Agreement, but please update if necessary.
(b) Lost
or Mutilated Series A Preferred Stock Certificate. If a Holder’s Series A Preferred Stock certificate shall be mutilated,
lost, stolen or destroyed, the Corporation shall execute and deliver, in exchange and substitution for and upon cancellation of a mutilated
certificate, or in lieu of or in substitution for a lost, stolen or destroyed certificate, a new certificate for the shares of Series A
Preferred Stock so mutilated, lost, stolen or destroyed, but only upon receipt of evidence of such loss, theft or destruction of such
certificate, and of the ownership thereof, reasonably satisfactory to the Corporation and, in each case, customary and reasonable indemnity,
if requested. Applicants for a new certificate under such circumstances shall also comply with such other reasonable regulations and procedures
and pay such other reasonable third-party costs as the Corporation may prescribe.
(c) Waiver.
Any waiver by the Corporation or a Holder of a breach of any provision of this Certificate of Designation shall not operate as or be construed
to be a waiver of any other breach of such provision or of any breach of any other provision of this Certificate of Designation or a waiver
by any other Holders. The failure of the Corporation or a Holder to insist upon strict adherence to any term of this Certificate of Designation
on one or more occasions shall not be considered a waiver or deprive that party (or any other Holder) of the right thereafter to insist
upon strict adherence to that term or any other term of this Certificate of Designation. Any waiver by the Corporation or a Holder must
be in writing. Notwithstanding any provision in this Certificate of Designation to the contrary, any provision contained herein and any
right of the holders of Series A Preferred Stock granted hereunder may be waived as to all shares of Series A Preferred Stock
(and the Holders thereof) upon the written consent of the Holders of not less than a majority of the shares of Series A Preferred
Stock then outstanding, unless a higher percentage is required by the DGCL, in which case the written consent of the holders of not less
than such higher percentage shall be required.
(d) Severability.
If any provision of this Certificate of Designation is invalid, illegal or unenforceable, the balance of this Certificate of Designation
shall remain in effect, and if any provision is inapplicable to any Person or circumstance, it shall nevertheless remain applicable to
all other Persons and circumstances. If it shall be found that any amount deemed interest due hereunder violates the applicable law governing
usury, the applicable rate of interest due hereunder shall automatically be lowered to equal the maximum rate of interest permitted under
applicable law.
(e) Next
Business Day. Whenever any payment or other obligation hereunder shall be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day.
(f) Headings.
The headings contained herein are for convenience only, do not constitute a part of this Certificate of Designation and shall not be deemed
to limit or affect any of the provisions hereof.
(g) Status of Converted
Series A Preferred Stock. If any shares of Series A Preferred Stock shall be converted or reacquired by the Corporation,
such shares shall resume the status of authorized but unissued shares of preferred stock and shall no longer be designated as Series A
Preferred Stock.
(h) Governing
Law. All questions concerning the construction, validity, enforcement and interpretation of this Certificate of Designation shall
be governed by and construed and enforced in accordance with the internal laws of the State of Delaware, without regard to the principles
of conflict of laws thereof. Each party agrees that all legal proceedings concerning the interpretation, enforcement and defense of the
transactions contemplated by any of the Tender Agreement, the Exchange Agreement and any other agreement delivered or entered into in
connection therewith (whether brought against a party hereto or its respective Affiliates, directors, officers, shareholders, employees
or agents) shall be commenced in the state and federal courts sitting in the City of New York, Borough of Manhattan (the “New
York Courts”). Each party hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts 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 such New York Courts, or such New York Courts are improper or 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 Certificate of Designation 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 applicable
law. Each party hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Certificate of Designation or the transactions contemplated hereby. If any
party shall commence an action or proceeding to enforce any provisions of this Certificate of Designation, then the prevailing party in
such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred in
the investigation, preparation and prosecution of such action or proceeding.
[Signature Page Follows]
IN
WITNESS WHEREOF, the undersigned has executed this Certificate of Designation this 30th day of August 2023.
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NRX PHARMACEUTICALS, INC. |
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By: |
/s/ Stephen
H. Willard |
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Name: Stephen H. Willard |
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Title: Chief Executive Officer |
ANNEX A
NOTICE OF CONVERSION
(TO BE EXECUTED BY THE REGISTERED HOLDER IN ORDER
TO CONVERT SHARES OF SERIES A PREFERRED STOCK)
The undersigned
Holder hereby irrevocably elects to convert the number of shares of Series A Convertible Preferred Stock indicated below, represented
by stock certificate No(s). (the “Preferred Stock Certificates”), into shares of common stock, par value $0.001
per share (the “Common Stock”), of NRX Pharmaceuticals, Inc., a Delaware corporation (the “Corporation”),
as of the date written below. If securities are to be issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto. Capitalized terms utilized but not defined herein shall have the meaning ascribed
to such terms in that certain Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred
Stock (the “Certificate of Designation”) filed by the Corporation on August 30, 2023.
As of the date
hereof, the number of shares of Common Stock beneficially owned by the undersigned Holder (together with such Holder’s Affiliates,
and any other Person whose beneficial ownership of Common Stock would be aggregated with the Holder’s for purposes of Section 13(d) of
the Exchange Act and the applicable regulations of the Commission, including any “group” of which the Holder is a member),
including the number of shares of Common Stock issuable upon conversion of the Series A Preferred Stock subject to this Notice of
Conversion, but excluding the number of shares of Common Stock which are issuable upon (A) conversion of the remaining, unconverted
Series A Preferred Stock beneficially owned by such Holder or any of its Affiliates, and (B) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Corporation (including any warrants) beneficially owned by such Holder or any of
its Affiliates that are subject to a limitation on conversion or exercise similar to the limitation contained in Section 6(c) of
the Certificate of Designation, is _______ . For purposes hereof, beneficial ownership shall be calculated in accordance with Section 13(d) of
the Exchange Act and the applicable regulations of the Commission. In addition, for purposes hereof, “group” has the meaning
set forth in Section 13(d) of the Exchange Act and the applicable regulations of the Commission.
Conversion calculations:
Date to Effect Conversion: _______________________________________________________________________________________ |
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Number of shares of Series A Preferred Stock owned prior to Conversion:____________________________________________________ |
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Number of shares of Series A Preferred Stock to be Converted:____________________________________________________________ |
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Number of shares of Common Stock to be Issued:______________________________________________________________________ |
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Address for delivery of physical certificates: _________________________________________________________________________ |
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or for DWAC Delivery: |
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DWAC Instructions: |
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Broker no: ____________________________________________________________________________________________________ |
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Account no: __________________________________________________________________________________________________ |
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[HOLDER] |
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By: _________________________________________________________________________________________________________ |
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Name:_______________________________________________________________________________________________________ |
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Title: |
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Date: |
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Exhibit 4.1
NEITHER THIS SECURITY
NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT
AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
COMMON STOCK PURCHASE
WARRANT
NRX PHARMACEUTICALS, INC.
Warrant
Shares:_______ |
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Issue Date: ________, 2023 |
THIS
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 during the six (6) month period following the Issue Date; provided, however, if the Common
Stock trades at or above $1.20 per share (subject to adjustment for stock splits, stock dividends, stock combinations, recapitalizations
or other similar events), as reported on Bloomberg, L.P. (or an equivalent, reliable reporting service mutually acceptable to and hereafter
designated by Holder and the Company), the Holder may exercise this Warrant prior to the six (6) month anniversary of the Issue
Date (the “Initial Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on 1
(the “Termination Date”) but not thereafter, to subscribe for and purchase from NRX Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”), up to______ shares (as subject to adjustment hereunder, the “Warrant Shares”)
of Common Stock. The purchase price of one share of Common Stock under this Warrant shall be equal to the Exercise Price, as defined
in Section 2(b).
Section 1.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings set forth in that certain Securities
Purchase Agreement (the “Purchase Agreement”), dated August 28, 2023, among the Company and the purchaser signatory
thereto.
1
Insert the date that is the five (5) year anniversary of the Initial Exercise Date, provided that, if such date is not a Trading
Day, insert the immediately following Trading Day.
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(c)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver the aggregate Exercise
Price for the shares specified in the applicable Notice of Exercise by wire transfer or cashier’s check drawn on a United States
bank. 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) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of
this Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
Shares hereunder, the number of Warrant Shares available for purchase hereunder at any given time may be less than the amount stated on
the face hereof.
b) Exercise
Price. The exercise price per share of Common Stock under this Warrant shall be $0.40, subject to adjustment hereunder (the
“Exercise Price”).
c) Mechanics
of Exercise.
i. Delivery
of Warrant Shares Upon Exercise. The Company shall cause the Warrant Shares purchased hereunder to be transmitted by the Transfer
Agent to the Holder by crediting the account of the Holder’s or its designee’s balance account with The Depository Trust
Company through its Deposit or Withdrawal at Custodian system (“DWAC”) if the Company is then a participant in such
system and either (A) there is an effective registration statement permitting the issuance of the Warrant Shares to or resale of
the Warrant Shares by the Holder or (B) the Warrant Shares are eligible for resale by the Holder without volume or manner-of-sale
limitations pursuant to Rule 144, and otherwise by physical delivery of a certificate, registered in the Company’s share register
in the name of the Holder or its designee, for the number of Warrant Shares to which the Holder is entitled pursuant to such exercise
to the address specified by the Holder in the Notice of Exercise by the date that is the earliest of (i) two (2) Trading Days
after the delivery to the Company of the Notice of Exercise, (ii) one (1) Trading Day after delivery of the aggregate Exercise
Price to the Company and (iii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company
of the Notice of Exercise (such date, the “Warrant Share Delivery Date”). Upon delivery of the Notice of Exercise,
the Holder shall be deemed for all corporate purposes to have become the holder of record of the Warrant Shares with respect to which
this Warrant has been exercised, irrespective of the date of delivery of the Warrant Shares, provided that payment of the aggregate Exercise
Price 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. 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(c)(i) by
the Warrant Share Delivery Date, then the Holder will have the right to rescind such exercise.
iv. 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.
v. 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.
vi. Closing
of Books. The Company will not close its stockholder books or records in any manner which prevents the timely exercise of this Warrant,
pursuant to the terms hereof.
e) Holder’s Exercise Limitations. The Company shall not effect any exercise of this Warrant, and a Holder shall not have the
right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise, to the extent that after giving effect to such
issuance after exercise as set forth on the applicable Notice of Exercise, the Holder (together with the Holder’s Affiliates, and
any other Persons acting as a group together with the Holder or any of the Holder’s Affiliates (such Persons, “Attribution
Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation (as defined below). For purposes of the
foregoing sentence, the number of shares of Common Stock beneficially owned by the Holder and its Affiliates and Attribution Parties
shall include the number of shares of Common Stock issuable upon exercise of this Warrant with respect to which such determination is
being made, but shall exclude the number of shares of Common Stock which would be issuable upon (i) exercise of the remaining, nonexercised
portion of this Warrant beneficially owned by the Holder or any of its Affiliates or Attribution Parties and (ii) exercise or conversion
of the unexercised or nonconverted portion of any other securities of the Company (including, without limitation, any other Common Stock
Equivalents) subject to a limitation on conversion or exercise analogous to the limitation contained herein beneficially owned by the
Holder or any of its Affiliates or Attribution Parties. Except as set forth in the preceding sentence, for purposes of this Section 2(e),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder, it being acknowledged by the Holder that the Company is not representing to the Holder that such calculation
is in compliance with Section 13(d) of the Exchange Act and the Holder is solely responsible for any schedules required to
be filed in accordance therewith. To the extent that the limitation contained in this Section 2(e) applies, the determination
of whether this Warrant is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution
Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion of 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 Trading Day confirm orally and in writing
to the Holder the number of shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall
be determined after giving effect to the conversion or exercise of securities of the Company, including this Warrant, by the Holder or
its Affiliates or Attribution Parties since the date as of which such number of outstanding shares of Common Stock was reported. The
“Beneficial Ownership Limitation” shall be 4.9% of the number of shares of the Common Stock outstanding immediately
after giving effect to the issuance of shares of Common Stock issuable upon exercise of this Warrant. The Holder, upon notice to the
Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e), provided that the Beneficial
Ownership Limitation in no event exceeds 9.99% of the number of shares of the Common Stock outstanding immediately after giving effect
to the issuance of shares of Common Stock upon exercise of this Warrant held by the Holder and the provisions of this Section 2(e) shall
continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day after such
notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise than in
strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section 3. Certain
Adjustments.
a) Stock
Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a stock dividend or otherwise
makes a distribution or distributions on shares of its Common Stock or any other equity or equity equivalent securities payable in shares
of Common Stock (which, for avoidance of doubt, shall not include any shares of Common Stock issued by the Company upon exercise of this
Warrant), (ii) subdivides outstanding shares of Common Stock into a larger number of shares, (iii) combines (including by way
of reverse stock split) outstanding shares of Common Stock into a smaller number of shares, or (iv) issues by reclassification of
shares of the Common Stock any shares of capital stock of the Company, then in each case the Exercise Price shall be multiplied by a
fraction of which the numerator shall be the number of shares of Common Stock (excluding treasury shares, if any) outstanding immediately
before such event and of which the denominator shall be the number of shares of Common Stock outstanding immediately after such event,
and the number of shares issuable upon exercise of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price
of this Warrant shall remain unchanged. 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) [RESERVED]
c) [RESERVED]
d) [RESERVED]
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 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
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 more than
50% 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 succeed to, and be substituted for (so that from
and after the date of such Fundamental Transaction, the provisions of this Warrant and the other Transaction Documents referring to the
“Company” shall refer instead to the Successor Entity), and may exercise every right and power of the Company and shall assume
all of the obligations of the Company under this Warrant and the other Transaction Documents with the same effect as if such Successor
Entity 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.
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
Common Stock, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Common Stock, (C) the
Company shall authorize the granting to all holders of the Common Stock rights or warrants to subscribe for or purchase any shares of
capital stock of any class or of any rights, (D) the approval of any stockholders of the Company shall be required in connection
with any reclassification of the Common Stock, any consolidation or merger to which the Company (or any of its Subsidiaries) is a party,
any sale or transfer of all or substantially all of its assets, or any compulsory share exchange whereby the Common Stock is converted
into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution, liquidation
or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the Holder at its
last email address as it shall appear upon the Warrant Register of the Company, at least 20 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 Common Stock
of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined or (y) the date on
which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective or close, and the
date as of which it is expected that holders of the Common Stock of record shall be entitled to exchange their shares of the Common Stock
for securities, cash or other property deliverable upon such reclassification, consolidation, merger, sale, transfer or share exchange;
provided that the failure to deliver such notice or any defect therein or in the delivery thereof shall not affect the validity of the
corporate action required to be specified in such notice. To the extent that any notice provided in this Warrant constitutes, or contains,
material, non-public information regarding the Company or any of the Subsidiaries, the Company shall simultaneously file such notice with
the Commission pursuant to a Current Report on Form 8-K. The Holder shall remain entitled to exercise this Warrant during the period
commencing on the date of such notice to the effective date of the event triggering such notice except as may otherwise be expressly set
forth herein.
Section 4. Transfer
of Warrant.
a) Transferability.
Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof and to the provisions
of Section 4.1 of the Purchase Agreement, this Warrant and all rights hereunder (including, without limitation, any registration
rights) are transferable, in whole or in part, upon surrender of this Warrant at the principal office of the Company or its designated
agent, together with a written assignment of this Warrant substantially in the form attached hereto 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 original Issue Date and shall be identical with this
Warrant except as to the number of Warrant Shares issuable pursuant thereto.
c) Warrant
Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the “Warrant
Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the registered Holder
of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder, and for all other
purposes, absent actual notice to the contrary.
d) Transfer
Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer of this
Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under applicable
state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public information
requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or transferee
of this Warrant, as the case may be, comply with the provisions of Section 4.10 of the Purchase Agreement.
e) Representation
by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant and, upon any exercise
hereof, will acquire the Warrant Shares issuable upon such exercise, for its own account and not with a view to or for distributing or
reselling such Warrant Shares or any part thereof in violation of the Securities Act or any applicable state securities law, except pursuant
to sales registered or exempted under the Securities Act.
Section 5. Miscellaneous.
a) No
Rights as Stockholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights, dividends
or other rights as a stockholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. 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 Common Stock a sufficient number of shares to provide for the issuance of the Warrant Shares upon the exercise of any purchase
rights under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers
who are charged with the duty of issuing the necessary Warrant Shares upon the exercise of the purchase rights under this Warrant. The
Company will take all such reasonable action as may be necessary to assure that such Warrant Shares may be issued as provided herein
without violation of any applicable law or regulation, or of any requirements of the Trading Market upon which the Common Stock may be
listed. The Company covenants that all Warrant Shares which may be issued upon the exercise of the purchase rights represented by this
Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant Shares in accordance herewith,
be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the Company in
respect of the issue thereof (other than taxes in respect of any transfer occurring contemporaneously with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its certificate of incorporation or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale
of securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant,
but will at all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary
or appropriate to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the
foregoing, the Company will (i) not increase the par value of any Warrant Shares above the amount payable therefor upon such exercise
immediately prior to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the
Company may validly and legally issue fully paid and nonassessable Warrant Shares upon the exercise of this Warrant and (iii) use
commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having jurisdiction
thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant Shares for which this Warrant is exercisable or in the
Exercise Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from
any public regulatory body or bodies having jurisdiction thereof.
e) Jurisdiction.
All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be determined in accordance
with the provisions of the Purchase Agreement.
f) Restrictions.
The Holder acknowledges that the Warrant Shares acquired upon the exercise of this Warrant, if not registered, will have restrictions
upon resale imposed by state and federal securities laws.
g) Nonwaiver
and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall operate as
a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies, notwithstanding the fact that the right
to exercise this Warrant terminates on the Termination Date. Without limiting any other provision of this Warrant or the Purchase Agreement,
if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material damages to the
Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including, but not limited
to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting any amounts due
pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h) Notices.
Any notice, request or other document required or permitted to be given or delivered to the Holder by the Company shall be delivered in
accordance with the notice provisions of the Purchase Agreement.
i) Limitation
of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant
Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase
price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the
Company.
j) Remedies.
The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to assert the defense in any
action for specific performance that a remedy at law would be adequate.
k) Successors
and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns of Holder.
The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall be enforceable
by the Holder or holder of Warrant Shares.
l) Amendment.
This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company 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.
| NRX PHARMACEUTICALS, INC. |
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NOTICE OF EXERCISE
| TO: | NRX PHARMACEUTICALS, 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 lawful money of the United States.
(3)
Please issue said Warrant Shares in the name of the undersigned or in such other name as is specified below:
_______________________________
The Warrant Shares shall be delivered to the following
DWAC Account Number:
_______________________________
_______________________________
_______________________________
(4)
Accredited Investor. The
undersigned is an “accredited investor” as defined in Regulation D promulgated under the Securities Act of 1933, as
amended.
[SIGNATURE OF HOLDER]
Name of Investing Entity: |
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Signature of Authorized Signatory of Investing Entity: |
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Name of Authorized Signatory: |
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Title of Authorized Signatory: |
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EXHIBIT B
ASSIGNMENT FORM
(To assign the foregoing Warrant,
execute this form and supply required information. Do not use this form to purchase shares.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to Name:
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Dated:
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Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT
(the “Agreement”), dated as of August [ ], 2023, between NRX Pharmaceuticals, Inc., a Delaware corporation
(the “Company”), and each investor identified on the signature pages hereto (each, including its successors and
assigns, an “Investor” and collectively, the “Investors”). Subject to the terms and conditions
set forth in this Agreement and pursuant to Section 4(a)(2) of the Securities Act of 1933, as amended (the “Act”),
and Rule 506 promulgated thereunder, the Company desires to issue and sell to each Investor, and each Investor, severally and not
jointly, desires to purchase from the Company, securities of the Company as more fully described in this Agreement.
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase
and Sale of the Securities.
1.1 Sale
and Issuance of the Securities.
(a) The
Company shall adopt and file with the Secretary of State of Delaware prior to the Closing (as defined below), the Certificate of Designation
of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (the “Certificate of Designation”)
in the form attached hereto as Exhibit A.
(b) Prior
to the Closing (as defined below), the Company shall have authorized (i) the sale and issuance to the Investor of the shares (the
“Shares”) of its Series A Convertible Preferred Stock (the “Series A Preferred Stock”),
(ii) the issuance of the shares of common stock, par value $0.001 per share (the “Common Stock”), to be issued
upon conversion of the Shares (the “Conversion Shares”), (iii) the sale and issuance to the Investor of the Warrants
(as defined herein), and (iv) the issuance of the shares of Common Stock issuable upon exercise of the Warrants (the “Warrant
Shares”). The Shares, the Warrants, the Conversion Shares and the Warrant Shares are collectively referred to herein as the
“Securities”.
(c) Subject
to the terms and conditions of this Agreement, the Investor agrees to purchase at the Closing, and the Company agrees to sell and issue
to the Investor at the Closing (i) the number of Shares set forth on the signature page hereto, and (ii) Common Stock
purchase warrants (the “Warrants”) in the form attached as Exhibit B hereto, to purchase up to a number
of shares of Common Stock equal to 100% such Investor’s Shares, at an exercise price of $0.40 per share of Common Stock, subject
to adjustments therein, at a combined purchase price of $0.40 per Share and the accompanying Warrant.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 1 |
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1.2 Closing;
Delivery. Subject to the terms and conditions of this Agreement, the issuance of the Shares and Warrants shall take place remotely
via the exchange of documents and signatures on a Trading Day (as defined in the Warrants) on which all conditions set forth in this
Agreement have been satisfied (or waived as permitted herein) at such time as the Company and the Investor mutually agree upon, orally
or in writing (which time and place are designated as the “Closing” and such date, the “Closing Date”).
(a) On
or prior to the Closing, the Company shall deliver to the Investor the following:
(i) this
Agreement duly executed by the Company;
(ii) a
copy of the irrevocable instructions to the transfer agent of the Company (the “Transfer Agent”) instructing the Transfer
Agent to deliver evidence of the issuance of such Investor’s Shares as held in DRS book-entry form by the Transfer Agent and registered
in the name of such Investor;
(iii) a
Warrant registered in the name of such Investor; and
(iv) wire
instructions for a bank account designated by the Company.
(b) On
or prior to the Closing, the Investor shall deliver to the Company the following:
(i) this
Agreement duly executed by such Investor; and
(ii) the
Investor’s subscription amount for the Shares and the Warrants by wire transfer to the bank account designated by the Company;
and
(iii) a
duly executed, correct, complete and accurate IRS Form W-8 or W-9 (or any successor form), as applicable.
1.3 Use
of Proceeds. The Company covenants and agrees that it shall use the proceeds of the sale of the Shares and the Warrants hereunder
for capital expenditures, working capital and general corporate purposes, including a corporate share repurchase program, as permitted
by applicable law and legally available funds, and to pay any fees and expenses in connection with the issuance of the Shares and the
Warrants.
2. Representations
and Warranties of the Company. Except as set forth in the SEC Reports (as defined herein), the Company represents and warrants to
the Investor on the date hereof and on the Closing Date that:
2.1 Organization,
Good Standing and Qualification. The Company is a corporation duly incorporated, validly existing and in good standing under the
laws of the state of Delaware and has all requisite corporate power and authority to carry on its business as now conducted. The Company
is duly qualified to transact business and is in good standing in each jurisdiction, except where the failure to be so qualified or in
good standing, as the case may be, could not have or reasonably be expected to result in: (i) a material adverse effect on the legality,
validity or enforceability of this Agreement, the Certificate of Designation or the Warrants, (ii) a material adverse effect on
the results of operations, assets, business, prospects or condition (financial or otherwise) of the Company and the Subsidiary, taken
as a whole, or (iii) a material adverse effect on the Company’s ability to perform in any material respect on a timely basis
its obligations under this Agreement, the Certificate of Designation or the Warrants (any of (i), (ii) or (iii), a “Material
Adverse Effect”).
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2.2 Capitalization
and Voting Rights. The capitalization of the Company and voting rights of the Common Stock and the Series A Preferred Stock
are identified in the Company’s Second Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”)
and Certificate of Designation, respectively. Except for the Shares to be issued pursuant to this Agreement, there are no currently outstanding
shares of preferred stock.
2.3 Valid
Issuance of the Securities. The Shares and Warrants being purchased by the Investor hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed herein, will be duly and validly issued, fully paid and nonassessable
and will be free of restrictions on transfer other than restrictions on transfer under this Agreement, the Certificate of Designation,
the Warrants and applicable state and federal securities laws. The Conversion Shares have been duly and validly reserved for issuance
and, upon issuance in accordance with the terms of the Certificate of Designation, will be duly and validly issued, fully paid and nonassessable
and will be free of restrictions on transfer other than restrictions on transfer under this Agreement, the Certificate of Designation
and applicable state and federal securities laws. The Warrant Shares have been duly and validly reserved for issuance and, upon issuance
in accordance with the terms of the Warrants, will be duly and validly issued, fully paid and nonassessable and will be free of restrictions
on transfer other than restrictions on transfer under this Agreement, the Warrants and applicable state and federal securities laws.
2.4 Governmental
Consents. No consent, approval, order or authorization of, or registration, qualification, designation, declaration or filing with,
any federal, state or local governmental authority on the part of the Company or its subsidiary (the “Subsidiary”)
is required in connection with the consummation of the transactions contemplated by this Agreement, except (i) the filing of the
Certificate of Designation with the Secretary of State of the state of Delaware, (ii) the notice and/or application(s) to each
applicable trading market for the issuance and sale of the Securities and the listing of the Conversion Shares and Warrant Shares for
trading thereon in the time and manner required thereby, and (iii) the filing of Form D with the Commission and such filings
as are required to be made under applicable state securities laws (collectively, the “Required Approvals”).
2.5 Offering.
Subject to the truth and accuracy of the Investor’s representations and warranties set forth in Section 3 of this Agreement,
the offer, sale and issuance of the Securities as contemplated by this Agreement are exempt from the registration requirements of any
applicable state and federal securities laws, and neither the Company nor any authorized agent acting on its behalf will take any action
hereafter that would cause the loss of such exemption.
2.6 Litigation.
There is no action, suit, proceeding or investigation pending or, to the Company’s knowledge, currently threatened against the
Company or the Subsidiary that questions the validity of this Agreement or the Warrants, or the right of the Company to enter into such
agreements, or to consummate the transactions contemplated thereunder, or that might result, either individually or in the aggregate,
in any material adverse changes in the assets, condition or affairs of the Company or the Subsidiary, financially or otherwise, or any
change in the current equity ownership of the Company or the Subsidiary, nor is the Company or the Subsidiary aware that there is any
basis for the foregoing. The foregoing includes, without limitation, actions, suits, proceedings or investigations pending or threatened
(or any basis therefor known to the Company) involving the prior employment of any of the Company’s or the Subsidiary’s employees,
their use in connection with the Company’s or the Subsidiary’s business of any information or techniques allegedly proprietary
to any of their former employers or their obligations under any agreements with prior employers. Neither the Company nor the Subsidiary
is a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.
There is no action, suit, proceeding or investigation by the Company or the Subsidiary currently pending or that the Company intends
to initiate.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 3 |
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2.7 Compliance
with Other Instruments. Neither the Company nor the Subsidiary is in violation, default, conflict or breach in any respect of any
provision of its Certificate of Incorporation, Second Amended and Restated By-laws or equivalent corporate documents, or in any material
respect of any instrument, judgment, order, writ, decree, privacy policy (each of which has been provided to special counsel to the Investor,
as applicable) or contract to which it is a party or by which it is bound, or, to its knowledge, of any provision of any federal or state
statute, rule or regulation applicable to the Company or the Subsidiary (including, without limitation, those related to privacy,
personally identifiable information or export control), subject to the Required Approvals. The execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby and thereby will not result in any such violation, default,
conflict or breach, nor will such consummation constitute, with or without the passage of time and giving of notice, subject to the Required
Approvals, an event that results in (a) the creation of any lien, charge or encumbrance upon any assets of the Company, or (b) the
suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization, or approval applicable
to the Company, its respective business or operations or any of its respective assets or properties, except in the case of each of clauses
(a) and (b), such as could not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect.
2.8 Financial
Statements. The Company has directed the Investor to review its audited and unaudited financial statements (collectively, the “Financial
Statements”) included in its reports, schedules, forms, statements and other documents required to be filed by the Company
under the Act and the Exchange Act of 1934, as amended (the “Exchange Act”), including pursuant to Section 13(a) or
15(d) thereof (the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively
referred to herein as the “SEC Reports”).
2.9 Material
Changes. Since the date of the Company’s most recently filed periodic report under the Exchange Act, except in the case of
each of clauses (a) through (e), such as could not, individually or in the aggregate, have or reasonably be expected to have a Material
Adverse Effect, there has not been:
(a) any
change in the assets, liabilities, financial condition or operating results of the Company or the Subsidiary from that reflected in the
Financial Statements;
(b) any
damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the assets, properties, financial
condition, operating results, prospects or business of the Company or the Subsidiary (as such business is presently conducted and as
it is proposed to be conducted);
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(c) any
sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets or other intangible assets;
(d) any
loans or guarantees made by the Company or the Subsidiary to or for the benefit of its employees, officers or directors, or any members
of their immediate families, other than travel advances and other advances made in the ordinary course of its business; or
(e) to
the Company’s knowledge, any other event or condition of any character that might materially and adversely affect the assets, properties,
financial condition, operating results or business of the Company or the Subsidiary (as such business is presently conducted and as it
is proposed to be conducted).
3. Representations
and Warranties of the Investor. The Investor hereby represents and warrants to the Company on the date hereof and on the Closing
Date that:
3.1 Authorization.
Such Investor 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 this Agreement and otherwise to carry out its obligations
hereunder and thereunder. Such Investor has full power and authority to enter into this Agreement, and the Agreement constitutes its
valid and legally binding obligation, enforceable against such Investor in accordance with its terms except (a) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights
generally, and (b) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable
remedies. The execution, delivery and performance of this Agreement by such Investor and the consummation by it of the transactions contemplated
thereby have been duly and validly authorized by all necessary all necessary corporate, partnership, limited liability company or similar
legal action, as applicable, and no further consent or authorization of such Investor is required.
The
execution, delivery and performance of this Agreement by such Investor and the consummation by such Investor of the transactions contemplated
thereby will not (a) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default
under, any material agreement to which such Investor is a party or by which such Investor is bound or to which any of the property or
assets of such Investor is subject, (b) conflict with or result in any violation of the provisions of the organizational documents
of such Investor, or (c) violate any statute, order, rule or regulation of any court or governmental agency or body
having jurisdiction over such Investor or the property or assets of such Investor, except in the case of clauses (a) and (c), for
such conflicts, breaches, violations or defaults as would not prevent the consummation of the transactions contemplated by this Agreement.
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3.2 Purchase
Entirely for Own Account. This Agreement is made with such Investor in reliance upon such Investor’s representation to the
Company, which by such Investor’s execution of this Agreement such Investor hereby confirms, that the Securities will be acquired
for investment for such Investor’s own account, not as a nominee or agent, and not with a view to the distribution of any part
thereof in violation of the Act or any applicable federal or state securities laws, and that such Investor has no present intention of
selling, granting any participation in or otherwise distributing the same. By executing this Agreement, such Investor further represents
that such Investor does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations
to such person or to any third person, with respect to any of the Securities. Such Investor is acquiring the Securities hereunder in
the ordinary course of its business.
3.3 Disclosure
of Information. Such Investor believes it has received all the information it considers necessary or appropriate for deciding whether
to purchase the Securities. Such Investor further represents that it has had an opportunity to ask questions and received answers from
the Company regarding the terms and conditions of the offering of the Securities, the merits and risks of investing in the Securities
and the business, properties, prospects and financial condition of the Company. Such Investor has sought such accounting, legal and tax
advice as it has considered necessary to make an informed investment decision with respect to its acquisition of the Securities.
3.4 Investment
Experience. Such Investor, either alone or together with its representatives, is an investor in securities of companies in the development
stage and acknowledges that it is able to fend for itself, can bear the economic risk of its investment, and has such knowledge, sophistication
and experience in financial or business matters that it is capable of evaluating the merits and risks of the investment in the Securities
and has so evaluated the merits and risks of such investment. If other than an individual, Investor also represents it has not been
organized for the purpose of acquiring the Securities.
3.5 Accredited
Investor. At the time the Investor was offered the Shares and the Warrants, it was, and as of the date hereof it is, and on each
date on which it converts or exercise or converts any Shares or Warrants, as applicable, it will be an “accredited investor”
within the meaning of Rule 501(a)(1), (a)(2), (a)(3), (a)(7), (a)(8), (a)(9), (a)(12), or (a)(13) under the Act.
3.6 No
Disqualification Events. Neither (A) the Investor, (B) any of its directors, managers, executive officers, other officers
that may serve as a director, manager or officer of any company in which it invests, general partners or managing members, nor (C) any
beneficial owner of the Company’s voting equity securities (in accordance with Rule 506(d) of the Act) held by the Investor
is subject to any “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Act.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 6 |
| | |
3.7 Restricted
Securities. Such Investor understands that the Securities will be characterized as “restricted securities” under the
federal securities laws inasmuch as the Securities have been registered under the Act or under the “blue sky” laws of any
jurisdiction and that under such laws and applicable regulations such securities may be resold only if registered pursuant to the Act
or without registration under the Act, if eligible, pursuant to the provisions of Rule 144 promulgated by the SEC pursuant to the
Act (“Rule 144”) or pursuant to another available exemption from the registration requirement of the Act. Such
Investor represents that it is familiar with Rule 144, and understands the resale limitations imposed thereby and by the Act. Such
Investor understands that there is no public trading market for the Shares and Warrants, that none is expected to develop, and that the
Securities must be held indefinitely unless and until the Securities are registered under the Act or an exemption from registration is
available. Such Investor has been advised and understands that the Company, in issuing the Securities, is relying upon, among other things,
the representations and warranties of such Investor contained in this Section 3 in concluding that such issuance is a “private
offering” and is exempt from the registration provisions of the Act. Such Investor is aware that the Company is under no obligation
to effect any such registration with respect to the Securities, or to file for or comply with any exemption from registration, except
as otherwise contemplated in this Agreement.
3.8 Further
Limitations on Disposition. Without in any way limiting the representations set forth above, such Investor further agrees not to
make any disposition of all or any portion of the Securities unless and until:
(a) There
is then in effect a registration statement under the Act covering such proposed disposition and such disposition is made in accordance
with such registration statement;
(b) (i) Such
Investor shall have notified the Company of the proposed disposition and shall have furnished the Company with a detailed statement of
the circumstances surrounding the proposed disposition, and (ii) if reasonably requested by the Company, such Investor shall have
furnished the Company with an opinion of counsel, reasonably satisfactory to the Company that such disposition will not require registration
of such shares under the Act. It is agreed that the Company will not require opinions of counsel for transactions made pursuant to Rule 144
except in unusual circumstances; or
(c) Notwithstanding
the provisions of subsections (a) and (b) above, no such registration statement or opinion of counsel shall be necessary for
a transfer by an Investor that is a partnership to a partner of such partnership or a retired partner of such partnership who retires
after the date hereof, or to the estate of any such partner or retired partner or the transfer by gift, will or intestate succession
of any partner to his or her spouse or to the siblings, lineal descendants or ancestors of such partner or his or her spouse, if the
prospective transferee agrees in all such instances in writing to be subject to the terms hereof, including the representations and warranties
in this Section 3, to the same extent as if he or she were an original Investor hereunder.
3.9 Exculpation
Among Investors. The Investor acknowledges that it is not relying upon any person, firm or corporation in making its investment or
decision to invest in the Company. Neither the Investor nor any of its controlling persons, officers, directors, partners, agents or
employees shall be liable to any other equity holder in the Company for any action heretofore or hereafter taken or omitted to be taken
by any of them in connection with the purchase of the Securities.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 7 |
| | |
3.10 Foreign
Investors. If the Investor is not a United States person (as defined by Section 7701(a)(30) of the Internal Revenue Code), the
Investor hereby represents that it has satisfied itself as to the full observance of the laws of its jurisdiction in connection with
any invitation to subscribe for the Securities or any use of this Agreement, including (i) the legal requirements within its jurisdiction
for the purchase of the Securities, (ii) any foreign exchange restrictions applicable to such purchase, (iii) any governmental
or other consents that may need to be obtained, and (iv) the income tax and other tax consequences, if any, that may be relevant
to the purchase, holding, redemption, sale or transfer of the Securities. The Investor’s subscription and payment for and continued
beneficial ownership of the Securities will not violate any applicable securities or other laws of the Investor’s jurisdiction.
3.11 No
General Solicitation. Such Investor is not, to such Investor’s knowledge, purchasing the Securities as a result of any advertisement,
article, notice or other communication regarding the Securities published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar or, to the knowledge of such Investor, any other general solicitation or general advertisement.
3.12 Residence.
If the Investor is an individual, then the Investor resides in the state or province identified in the address of the Investor set forth
on the signature page hereto; if the Investor is a partnership, corporation, limited liability company or other entity, then the
office or offices of the Investor in which its principal place of business is identified in the address or addresses of the Investor
set forth on the signature page hereto.
3.13 Certain
Fees. No fees or commissions are or will be payable by such Investor to brokers, finders or investment bankers with respect to the
purchase of any of the Securities or the consummation of the transactions contemplated by this Agreement. The Investor agrees that it
will indemnify and hold harmless the Company from and against any and all claims, demands or liabilities for broker’s, finder’s,
placement, or other similar fees or commissions incurred by such Investor or alleged to have been incurred by such Investor in connection
with the purchase of the Securities or the consummation of the transactions contemplated by this Agreement.
3.14 Information.
Such Investor shall cooperate reasonably with the Company to provide any information necessary for the Company to make any applicable
filings, including but not limited to, filings with the SEC and pursuant to applicable state securities laws.
3.15 Reliance
by the Company. Such Investor understands that the Securities are being offered and sold in reliance on a transactional exemption
from the registration requirements of federal and state securities laws and that the Company is relying upon the truth and accuracy of
the representations, warranties, agreements, acknowledgments and understandings of such Investor set forth herein in order to determine
the applicability of such exemptions and the suitability of such Investor to acquire the Securities.
4. Other Agreements.
4.1 Legends.
Each certificate evidencing the Securities held by the Investor will be endorsed with a legend similar to the below.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 8 |
| | |
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE/CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
4.2 Governing
Law; Specific Enforcement; Submission to Jurisdiction; Waiver of Jury Trial.
(a) This
Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable to agreements made
and to be performed entirely within such state, without regard to the conflicts of law principles of such state.
(b) The
parties hereto acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were
not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties hereto shall
be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches or threatened breaches
of this Agreement and to enforce specifically the terms and provisions of this Agreement in the courts described in this Section 4.2,
without proof of damages or otherwise (in each case, subject to the terms and conditions of this Section 4.2) (and each party hereto
acknowledges and agrees that any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in accordance with this Section 4.2 shall not be required to provide any bond or other
security in connection with any such order or injunction), this being in addition to any other remedy to which they are entitled at law
or in equity. The parties hereto agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law
or inequitable for any reason, or that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have
an adequate remedy at law.
(c) Each
of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Supreme Court of the State of New
York, New York County, and the United States District Court for the Southern District of New York, for the purposes of any demand, action,
suit, countersuit, arbitration, inquiry, proceeding or investigation by or before any governmental entity or any arbitration or mediation
tribunal (“Action”) or other proceeding arising out of this Agreement and the rights and obligations arising hereunder,
and irrevocably and unconditionally waives any objection to the laying of venue of any such Action or proceeding in any such court, and
further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such Action or proceeding
has been brought in an inconvenient forum. Each party hereto agrees that service of any process, summons, notice or document by registered
mail to such party’s respective address set forth on the signature pages attached hereto shall be effective service of process
for any such Action or proceeding.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 9 |
| | |
(d) Each
party hERETO Hereby waives, to the fullest extent permitted by applicable Law, any right it may have to a trial by jury in respect OF
any ACTION, CLAIM OR OTHER PROCEEDING directly or indirectly arising out of, under or in connection with this Agreement. Each party HERETO
(i) certifies that no Representative of any other party
has represented, expressly or otherwise, that such other party would not, in the event of ANY ACTION, CLAIM OR OTHER PROCEEDING, seek
to enforce the foregoing waiver, (ii) it understands and has considered the implications
of such waiver, (iii) it makes such waiver voluntarily and (iv) acknowledges
that it and the other parties HERETO have been induced to enter into this Agreement by, among other things, the mutual waivers and certifications
in this SECTION 4.2.
4.3 Counterparts.
This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one (1) and the same instrument. 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.
4.4 Titles
and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construing
or interpreting this Agreement.
4.5 Notices.
All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified, (b) when sent by e-mail or facsimile, (c) five (5) days after having been
sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally
recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent to
the respective parties at the addresses set forth on the signature pages attached hereto (or at such other addresses as shall be
specified by notice given in accordance with this Section 4.4).
4.6 Severability.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
4.7 Aggregation
of Stock. All Shares held or acquired by affiliated entities or persons shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 10 |
| | |
4.8 Entire
Agreement. This Agreement and the documents referred to herein constitute the entire agreement among the parties and no party shall
be liable or bound to any other party in any manner by any warranties, representations or covenants except as specifically set forth
herein or therein.
4.9 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 the Investor which purchased at least 50.1% in interest of the Shares based on the initial subscription
amounts hereunder (or, prior to the Closing, the Company and each Investor) 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
an Investor (or group of Investors), the consent of at least 50.1% in interest of the Shares (based on the initial subscription amounts
hereunder) of such disproportionately impacted Investor (or group of Investors) 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 the Investor relative to the comparable rights and obligations of the
other Investors shall require the prior written consent of such adversely affected Investor. Any amendment effected in accordance with
this Section 4.9 shall be binding upon each Investor and holder of Securities and the Company.
4.10 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 the Investor (other
than by merger). The Investor may assign any or all of its rights under this Agreement to any person to whom the Investor 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 this Agreement, the Certificate of Designation and the Warrants that apply to the “Investor”.
4.11 Further
Assurances. Each of the Company and the Investor shall use its respective commercially reasonable efforts to take, or cause to be
taken, all actions to assist and cooperate with the other parties hereto in doing all necessary items to consummate the transactions
hereby contemplated.
NRX Pharmaceuticals, Inc. | Securities Purchase Agreement | Page 11 |
| | |
IN WITNESS WHEREOF, the parties have hereby executed
this Securities Purchase Agreement as of the day set forth above and in the acceptance set forth on the signature page which follows:
SUBSCRIPTION |
|
ACCEPTANCE |
|
|
|
|
|
|
$ |
|
$ |
Subscription Amount Tendered by Investor for the Shares and Warrants |
|
Subscription Amount Accepted by the Company for the Shares and Warrants |
|
|
|
Shares: |
|
|
|
|
|
Warrant Shares: |
|
|
|
|
|
Beneficial
Ownership Blocker ¨ 4.99% or ¨
9.99% |
|
|
INVESTOR:
Address:
E-mail:
Social Security Number or Tax ID Number of Investor:
NRx
Pharmaceuticals, Inc.
| |
By: |
Stephen Willard | |
Title: |
CEO | |
Address: | 1201 Orange Street |
| Suite 600 |
| Wilmington, DE 19801 |
E-mail: | willard@nrxpharma.com |
Exhibit A
Form of Certificate of Designation of
Preferences, Rights and Limitations of Series A Convertible Preferred Stock
Exhibit B
Form of Warrant
Exhibit 99.1
NRx Pharmaceuticals
Announces Definitive Purchase Agreement for Preferred Shares at $0.40 per share
· | NRx
Pharmaceuticals received approximately $1.2 million in cash from existing investors |
· | Preferred
shares to sold at $0.40; shares convert to one common share and one common warrant ($0.40/
strike) after six months |
· | Share
purchase will assist the Company in development of NRX-101 in Suicidal Bipolar Depression
and Chronic Pain and general corporate purposes |
RADNOR, Pa., August 29,
2023 – NRx Pharmaceuticals, Inc. (Nasdaq: NRXP) (“NRx Pharmaceuticals”, the “Company”), a clinical-stage
biopharmaceutical company, today announced that it entered into a definitive purchase agreement
subject to standard closing conditions with accredited investors to purchase 3,000,000 shares of preferred stock at $0.40 per share,
which will convert, after six (6) months into 3,000,000 common shares and 3,000,000 warrants to purchase common stock at a purchase
price of $0.40 per share; the term on these warrants is five (5) years. These
shares may also be converted to common shares at the investor’s option should the closing share price of NRx common stock reach
$1.20 per share during the six-month period.
“In
a very difficult biotechnology capital market, we are pleased to benefit from the support of committed long-term investors who are committing
capital for a minimum of six months. Over those six months, we aim to release data from two important clinical trials, one in Suicidal
Bipolar Depression and one in Chronic Pain,” said Stephen Willard, J.D., Chief Executive Officer
and Director of NRx Pharmaceuticals.
The preferred shares and
warrants subscribed today are not currently registered and may only be purchased by accredited investors. They were sold based on investor
interest and not as part of any general solicitation.
This press release does not
constitute an offer to sell securities, nor shall there be any sale of these securities in any jurisdiction in which such offer, solicitation
or sale would be unlawful prior to the registration or qualification under securities laws of any such jurisdiction.
About
NRX-101
NRX-101,
a fixed dose combination of D-cycloserine and lurasidone, has been granted Fast Track Designation, Breakthrough Therapy Designation,
a Special Protocol Agreement, and a Biomarker Letter of Support from the FDA for Bipolar Depression with Suicidality. NRX-101 is further
being developed to treat chronic pain and PTSD.
Up to
50% of individuals with bipolar disorder attempt suicide over their lifetime, and estimates indicate that up to 20% may die by suicide.
The only FDA-approved treatment for patients with suicidal bipolar depression remains electroconvulsive therapy.
Conventional
antidepressants can increase the risk of suicide in certain patients; hence their labels contain a warning to that effect. NRX-101 is
a patented, oral, fixed dose combination of D-cycloserine and lurasidone, neither of which has shown addiction potential in preclinical
models. Based on the results of the STABIL-B trial, NRX-101 received Breakthrough Therapy Designation from the FDA for the treatment
of patients with severe bipolar depression and acute suicidality after initial stabilization with ketamine or other effective therapy.
NRX-101
is one of the first oral antidepressants currently in late-stage clinical studies targeting the NMDA-receptor in the brain, which represents
potentially a key new mechanism to treat depression with and without suicidality, as well as chronic pain, PTSD and other indications.
About
NRx Pharmaceuticals
NRX-101,
a fixed dose combination of D-cycloserine and lurasidone, has been granted Fast Track Designation, Breakthrough Therapy Designation,
a Special Protocol Agreement, and a Biomarker Letter of Support from the FDA for Bipolar Depression with Suicidality. NRX-101 is further
being developed for chronic pain and PTSD.
Up to
50% of individuals with bipolar disorder attempt suicide over their lifetime, and estimates indicate that up to 20% may die by suicide.
The only FDA-approved treatment for patients with suicidal bipolar depression remains electroconvulsive therapy.
Conventional
antidepressants can increase the risk of suicide in certain patients; hence their labels contain a warning to that effect. NRX-101 is
a patented, oral, fixed dose combination of D-cycloserine and lurasidone, neither of which has shown addiction potential in preclinical
models. Based on the results of the STABIL-B trial, NRX-101 received Breakthrough Therapy Designation from the FDA for the treatment
of patients with severe bipolar depression and acute suicidality after initial stabilization with ketamine or other effective therapy.
NRX-101
is one of the first oral antidepressants currently in late-stage clinical studies targeting the NMDA-receptor in the brain, which represents
potentially a key new mechanism to treat depression with and without suicidality, as well as chronic pain, PTSD and other indications.
Cautionary
Note Regarding Forward-Looking Statements
This
announcement of NRx Pharmaceuticals, Inc. includes "forward-looking statements" within the meaning of the "safe harbor"
provisions of the U.S. Private Securities Litigation Reform Act of 1995, which may include, but are not limited to, statements regarding
our financial outlook, product development, business prospects, and market and industry trends and conditions, as well as the Company's
strategies, plans, objectives, and goals. These forward-looking statements are based on current beliefs, expectations, estimates, forecasts,
and projections of, as well as assumptions made by, and information currently available to, the Company's management.
The
Company assumes no obligation to revise any forward-looking statement, whether as a result of new information, future events or otherwise.
Accordingly, you should not place reliance on any forward-looking statement, and all forward-looking statements are herein qualified
by reference to the cautionary statements set forth above.
CORPORATE CONTACT
Jeremy
Feffer
LifeSci
Advisors, Inc.
jfeffer@lifesciadvisors.com
Matthew
Duffy
Chief
Business Officer
mduffy@nrxpharma.com
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