PROPOSAL
5:
APPROVAL
OF AN AMENDMENT TO OUR CERTIFICATE OF
INCORPORATION, AS AMENDED (THE “CHARTER”), TO AUTHORIZE OUR BOARD OF DIRECTORS IN ITS DISCRETION TO EFFECT A
REVERSE STOCK SPLIT OF OUR ISSUED AND OUTSTANDING SHARES OF
COMMON STOCK, AT A SPECIFIC RATIO, RANGING FROM ONE-FOR-FIVE
(1:5) TO ONE-FOR-FIFTEEN (1:15), AT ANY TIME PRIOR TO THE ONE-
YEAR ANNIVERSARY DATE OF THE ANNUAL MEETING, WITH THE
TIMING AND EXACT RATIO TO BE DETERMINED BY THE BOARD IF EFFECTED
Overview
Our
Board has determined that it is advisable and in the best interests of us and our stockholders, for us to amend our Charter (the “Reverse
Split Charter Amendment”), to authorize our Board in its discretion to effect a reverse stock split of our issued and outstanding
shares of common stock at a specific ratio, ranging from one-for-five (1:5) to one-for-fifteen (1:15) (the “Approved Split Ratios”),
with the timing and ratio to be determined by the Board if effected (the “Reverse Split”). A vote for this Proposal
No. 5 will constitute approval of the Reverse Split that, if and when authorized by the Board and effected by filing the Reverse Split
Charter Amendment with the Secretary of State of the State of Delaware, will combine between five and 15 shares of our common stock into
one share of our common stock. If implemented, the Reverse Split will have the effect of decreasing the number of shares of our common
stock issued and outstanding. Because the number of authorized shares of our common stock will not be reduced in connection with the
Reverse Split, the Reverse Split will result in an effective increase in the authorized number of shares of our common stock available
for issuance in the future.
Accordingly,
stockholders are asked to approve the Reverse Split Charter Amendment set forth in Appendix A for a Reverse Split consistent with those
terms set forth in this Proposal 5, and to grant authorization to the Board to determine, in its sole discretion, whether or not to implement
the Reverse Split, as well as its specific ratio within the range of the Approved Split Ratios. The text of Appendix A remains subject
to modification to include such changes as may be required by the Secretary of State of the State of Delaware and as our Board deems
necessary or advisable to implement the Reverse Split.
If
approved by the holders of our outstanding voting securities and pursued by the Board, the Reverse Split would be applied at an Approved
Split Ratio approved by the Board prior to the one-year anniversary date of the Annual Meeting and would become effective upon the time
specified in the Reverse Split Charter Amendment as filed with the Secretary of State of the State of Delaware. The Board reserves the
right to elect to abandon the Reverse Split if it determines, in its sole discretion, that the Reverse Split is no longer in the best
interests of us and our stockholders.
Purpose
and Rationale for the Reverse Split
Avoid
Delisting from the Nasdaq. The Nasdaq
Stock Market LLC (“Nasdaq”) requires that the Company maintain a minimum bid price for continued listing on the Nasdaq.
On June 10, 2022, we received a written notice (the “Notice”) from the Listing Qualifications Department of The Nasdaq
Stock Market (“Nasdaq”) indicating that we are not in compliance with the $1.00 Minimum Bid Price requirement set forth in
Nasdaq Listing Rule 5550(a)(2) for continued listing on The Nasdaq Capital Market (the “Bid Price Requirement”).
The Nasdaq Listing Rules require listed securities
to maintain a minimum bid price of $1.00 per share and, based upon the closing bid price of our common stock for the 30 consecutive business
days preceding the date of the Notice, we no longer meet this requirement. The Nasdaq rules provide us a compliance period of 180 calendar
days from the date of the Notice in which to regain compliance with the Bid Price Requirement. As a result, the date by which we have
to regain compliance with the Bid Price Requirement is December 7, 2022. If at any time prior to December 7, 2022 the bid price of our
common stock closes at or above $1.00 per share for a minimum of 10 consecutive business days, the Nasdaq staff (the “Staff”)
will provide us with a written confirmation of compliance and the matter will be closed.
Alternatively, if we fail to regain compliance
with the Bid Price Requirement prior to the expiration of the initial period, we may be eligible for an additional 180 calendar day compliance
period, provided (i) we meet the continued listing requirement for market value of publicly held shares and all other applicable requirements
for initial listing on The Nasdaq Capital Market (except for the Bid Price Requirement) and (ii) we provide written notice to Nasdaq
of our intention to cure this deficiency during the second compliance period by effecting a reverse stock split, if necessary. In the
event we do not regain compliance with the Bid Price Requirement prior to the expiration of the initial period, and if it appears to
the Staff that we will not be able to cure the deficiency, or if we are not otherwise eligible, the Staff will provide us with written
notification that our securities are subject to delisting from The Nasdaq Capital Market. At that time, we may appeal the delisting determination
to a hearings panel.
Failure
to approve the Reverse Split may potentially have serious, adverse effects on us and our stockholders. Our common stock could be delisted
from Nasdaq because shares of our common stock may trade below the requisite $1.00 per share price needed to maintain our listing in
accordance with the Bid Price Requirement. Our shares may then trade on the OTC Bulletin Board or other small trading markets,
such as the pink sheets. In that event, our common stock could trade thinly as a microcap or penny stock, adversely decrease to nominal
levels of trading and may be avoided by retail and institutional investors, resulting in the impaired liquidity of our common stock.
The
Reverse Split, if effected, would have the immediate effect of increasing the price of our common stock as reported on Nasdaq, therefore
allowing us to maintain compliance with Nasdaq Listing Rule 5550(a)(2).
Our
Board strongly believes that the Reverse Split may be necessary to maintain our listing on Nasdaq. Accordingly, the Board has proposed
the Reverse Split Charter Amendment for approval by our stockholders at the Annual Meeting to permit the Board to effect the Reverse
Split if the Board determines it is advisable prior to the one-year anniversary date of the Annual Meeting.
Management
and the Board have considered the potential harm to us and our stockholders should Nasdaq delist our common stock from trading. Delisting
could adversely affect the liquidity of our common stock since alternatives, such as the OTC Bulletin Board and the pink sheets, are
generally considered to be less efficient markets. An investor likely would find it less convenient to sell, or to obtain accurate quotations
in seeking to buy, our common stock on an over-the-counter market. Many investors likely would not buy or sell our common stock due to
difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange,
or other reasons.
Other
Effects. The Board also believes that the increased market price of our common stock expected as a result of implementing the Reverse
Split could improve the marketability and liquidity of our common stock and will encourage interest and trading in our common stock.
The Reverse Split, if effected, could allow a broader range of institutions to invest in our common stock (namely, funds that are prohibited
from buying stock whose price is below a certain threshold), potentially increasing the trading volume and liquidity of our common stock.
The Reverse Split could help increase analyst and broker’s interest in common stock, as their policies can discourage them from
following or recommending companies with low stock prices. Because of the trading volatility often associated with low-priced stocks,
many brokerage houses and institutional investors have internal policies and practices that either prohibit them from investing in low-priced
stocks or tend to discourage individual brokers from recommending low-priced stocks to their customers. Some of those policies and practices
may make the processing of trades in low-priced stocks economically unattractive to brokers. Additionally, because brokers’ commissions
on low-priced stocks generally represent a higher percentage of the stock price than commissions on higher-priced stocks, a low average
price per share of our common stock can result in individual stockholders paying transaction costs representing a higher percentage of
their total share value than would be the case if the share price were higher.
Our
Board does not intend for this transaction to be the first step in a series of plans or proposals effect a “going private transaction”
within the meaning of Rule 13e-3 of the Exchange Act.
Having
an increased number of authorized but unissued shares of common stock available would provide additional flexibility regarding the potential
use of shares of common stock for business and financial purposes in the future, and allow us to take prompt action with respect to corporate
opportunities that develop, without the delay and expense of convening a special meeting of stockholders for the purpose of approving
an increase in our authorized shares. The additional shares could be used for various purposes without further stockholder approval.
These purposes may include: (i) raising capital, if we have an appropriate opportunity, through offerings of common stock or securities
that are convertible into common stock; (ii) expanding our business through potential strategic transactions, including mergers, acquisitions,
licensing transactions and other business combinations or acquisitions of new product candidates or products; (iii) establishing strategic
relationships with other companies; (iv) exchanges of common stock or securities that are convertible into common stock for other outstanding
securities; (v) providing equity incentives pursuant to our 2021 Plan, or another plan we may adopt in the future, to attract and retain
employees, officers or directors; and (vi) other general corporate purposes. We intend to use the additional shares of common stock that
will be available to undertake any such issuances described above. Because it is anticipated that our directors and executive officers
will be granted additional equity awards under our 2021 Plan, or another plan we adopt in the future, they may be deemed to have an indirect
interest in the Reverse Split Charter Amendment, because absent the Reverse Split Charter Amendment, we may not have sufficient authorized
shares to grant such awards.
An
increase in authorized shares of our common stock available for issuance would not have any immediate effect on the rights of existing
stockholders. However, because the holders of our common stock do not have any preemptive rights, future issuance of shares of common
stock or securities exercisable for or convertible into shares of common stock could have a dilutive effect on our earnings per share,
book value per share, voting rights of stockholders and could have a negative effect on the price of our common stock.
Disadvantages
to an increase in the number of authorized shares of common stock may include:
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Stockholders may experience
further dilution of their ownership. |
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Stockholders will not have
any preemptive or similar rights to subscribe for or purchase any additional shares of common stock that may be issued in the future,
and therefore, future issuances of common stock, depending on the circumstances, will have a dilutive effect on the earnings per
share, voting power and other interests of our existing stockholders. |
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The additional shares of
common stock that would become available for issuance due to this proposal would be part of the existing class of common stock and,
if and when issued, would have the same rights and privileges as the shares of common stock presently outstanding. |
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The issuance of authorized
but unissued shares of common stock could be used to deter a potential takeover of us that may otherwise be beneficial to stockholders
by diluting the shares held by a potential suitor or issuing shares to a stockholder that will vote in accordance with the Board’s
desires. A takeover may be beneficial to independent stockholders because, among other reasons, a potential suitor may offer such
stockholders a premium for their shares of stock compared to the then-existing market price. We do not have any plans or proposals
to adopt provisions or enter into agreements that may have material anti-takeover consequences. |
We
have no specific plan, commitment, arrangement, understanding or agreement, either oral or written, regarding the issuance of common
stock subsequent to this proposed Reverse Split at this time, and we have not allocated any specific portion of the proposed effective
increase in the authorized number of shares to any particular purpose. However, we have in the past conducted certain public and private
offerings of common stock and warrants, and we will continue to require additional capital in the near future to fund our operations.
As a result, it is foreseeable that we will seek to issue such additional shares of common stock in connection with any such capital
raising activities, or any of the other activities described above. The Board does not intend to issue any common stock or securities
convertible into common stock except on terms that the Board deems to be in the best interests of us and our stockholders.
Risks
of the Proposed Reverse Split
We
cannot assure you that the proposed Reverse Split will increase the price of our common stock and have the desired effect of maintaining
compliance with Nasdaq.
If
the Reverse Split is implemented, our Board expects that it will increase the market price of our common stock so that we are able to
maintain compliance with the Nasdaq minimum bid price requirement. However, the effect of the Reverse Split upon the market price of
our common stock cannot be predicted with any certainty, and the history of similar stock splits for companies in like circumstances
is varied. It is possible that (i) the per share price of our common stock after the Reverse Split will not rise in proportion to the
reduction in the number of shares of our common stock outstanding resulting from the Reverse Split, (ii) the market price per post-Reverse
Split share may not exceed or remain in excess of the $1.00 minimum bid price for a sustained period of time, or (iii) the Reverse Split
may not result in a per share price that would attract brokers and investors who do not trade in lower priced stocks. Even if the Reverse
Split is implemented, the market price of our common stock may decrease due to factors unrelated to the Reverse Split. In any case, the
market price of our common stock will be based on other factors which may be unrelated to the number of shares outstanding, including
our future performance. If the Reverse Split is consummated and the trading price of our common stock declines, the percentage decline
as an absolute number and as a percentage of our overall market capitalization may be greater than would occur in the absence of the
Reverse Split. Even if the market price per post-Reverse Split share of our common stock remains in excess of $1.00 per share, we may
be delisted due to a failure to meet other continued listing requirements, including Nasdaq requirements related to the minimum number
of shares that must be in the public float and the minimum market value of the public float.
A
decline in the market price of our common stock after the Reverse Split is implemented may result in a greater percentage decline than
would occur in the absence of a reverse stock split.
If
the Reverse Split is implemented and the market price of our common stock declines, the percentage decline may be greater than would
occur in the absence of a reverse stock split. The market price of our common stock will, however, also be based upon our performance
and other factors, which are unrelated to the number of shares of common stock outstanding.
The
proposed Reverse Split may decrease the liquidity of our common stock.
The
liquidity of our common stock may be harmed by the proposed Reverse Split given the reduced number of shares of common stock that would
be outstanding after the Reverse Split, particularly if the stock price does not increase as a result of the Reverse Split.
Determination
of the Ratio for the Reverse Split
If
Proposal 5 is approved by stockholders and the Board determines that it is in the best interests of the Company and its stockholders
to move forward with the Reverse Split, the Approved Split Ratio will be selected by the Board, in its sole discretion. However, the
Approved Split Ratio will not be less than a ratio of one-for-five (1:5) or exceed a ratio of one-for-fifteen (1:15). In determining
which Approved Split Ratio to use, the Board will consider numerous factors, including the historical and projected performance of our
common stock, prevailing market conditions and general economic trends, and will place emphasis on the expected closing price of our
common stock in the period following the effectiveness of the Reverse Split. The Board will also consider the impact of the Approved
Split Ratios on investor interest. The purpose of selecting a range is to give the Board the flexibility to meet business needs as they
arise, to take advantage of favorable opportunities and to respond to a changing corporate environment. Based on the number of shares
of common stock issued and outstanding as of May 23, 2022, after completion of the Reverse Split, we will have between 5,882,559 and
1,960,853 shares of common stock issued and outstanding, depending on the Approved Split Ratio selected by the Board.
Principal
Effects of the Reverse Split
After
the effective date of the proposed Reverse Split, each stockholder will own a reduced number of shares of common stock. Except for adjustments
that may result from the treatment of fractional shares as described below, the proposed Reverse Split will affect all stockholders uniformly.
The proportionate voting rights and other rights and preferences of the holders of our common stock will not be affected by the proposed
Reverse Split (other than as a result of the payment of cash in lieu of fractional shares). For example, a holder of 2% of the voting
power of the outstanding shares of our common stock immediately prior to a Reverse Split would continue to hold 2% of the voting power
of the outstanding shares of our common stock immediately after such Reverse Split. The number of stockholders of record also will not
be affected by the proposed Reverse Split, except to the extent that any stockholder holds only a fractional share interest and receives
cash for such interest after the Reverse Split.
The
following table contains approximate number of issued and outstanding shares of common stock, and the estimated per share trading price
following a 1:5 to 1:15 Reverse Split, without giving effect to any adjustments for fractional shares of common stock or the issuance
of any derivative securities, as of May 23, 2022.
After
Each Reverse Split Ratio
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Current | | |
5:1 | | |
10:1 | | |
15:1 | |
Common stock Authorized(1) | |
| 100,000,000 | | |
| 100,000,000 | | |
| 100,000,000 | | |
| 100,000,000 | |
Common stock Issued and Outstanding | |
| 29,412,798 | | |
| 5,882,560 | | |
| 2,941,280 | | |
| 1,960,853 | |
Number of Shares of common stock Reserved for Issuance (2) | |
| 7,608,147 | | |
| 1,521,629 | | |
| 760,815 | | |
| 507,210 | |
Number of Shares of common stock Authorized but Unissued and Unreserved | |
| 62,979,055 | | |
| 92,595,811 | | |
| 96,297,905 | | |
| 97,531,937 | |
Price per share, based on the closing price of our common stock on May 23, 2022 | |
$ | 0.62 | | |
$ | 3.10 | | |
$ | 6.20 | | |
$ | 9.30 | |
(1)
The Reverse Split will not have any impact in the number of shares of common stock we are authorized to issue under our Charter.
(2)
Includes (i) warrants to purchase an aggregate of 2,292,996 shares of common stock with a weighted average exercise price
of $7.04 per share, (ii) options to purchase an aggregate of 2,629,358 shares of common stock with a weighted average exercise
price of $3.01 per share, (iii) 377,714 shares of common stock underlying unvested restricted stock units and (iv) 2,308,079
shares of common stock reserved for future issuance under the 2021 Plan.
After
the effective date of the Reverse Split, our common stock would have a new committee on uniform securities identification procedures
(CUSIP) number, a number used to identify our common stock.
Our
common stock is currently registered under Section 12(b) of the Exchange Act, and we are subject to the periodic reporting and other
requirements of the Exchange Act. The proposed Reverse Split will not affect the registration of our common stock under the Exchange
Act. Our common stock would continue to be reported on Nasdaq under the symbol “VYNT”, assuming that we are able to regain
compliance with the minimum bid price requirement, although it is likely that Nasdaq would add the letter “D” to the end
of the trading symbol for a period of twenty trading days after the effective date of the Reverse Split to indicate that the Reverse
Split had occurred.
Effect
on Outstanding Derivative Securities
The
Reverse Split will require that proportionate adjustments be made to the conversion rate, the per share exercise price and the number
of shares issuable upon the vesting, exercise or conversion of the following outstanding derivative securities issued by us, in accordance
with the Approved Split Ratio (all figures are as of May 23, 2022 and are on a pre-Reverse Split basis), including:
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2,629,358
shares of common stock issuable upon the exercise
of options outstanding as of May 23, 2022, with a weighted average exercise price of $3.01 per share. |
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377,714
shares of common stock underlying unvested restricted
stock units outstanding as of May 23, 2022; and |
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2,292,996
shares of common stock issuable upon the exercise
of warrants outstanding as of May 23, 2022, with a weighted average exercise price of $7.04 per share. |
The
adjustments to the above securities, as required by the Reverse Split and in accordance with the Approved Split Ratio, would result in
approximately the same aggregate price being required to be paid under such securities upon exercise, and approximately the same value
of shares of common stock being delivered upon such exercise or conversion, immediately following the Reverse Split as was the case immediately
preceding the Reverse Split.
Effect
on Stock Option Plans
As
of May 23, 2022, we had 377,714 shares of common stock underlying unvested restricted stock units, 2,629,358 shares of
common stock underlying options, as well as 2,308,079 shares of common stock available for issuance under the 2021 Plan. Pursuant
to the terms of the 2021 Plan, the Board, or a designated committee thereof, as applicable, will adjust the number of shares of common
stock underlying outstanding awards, the exercise price per share of outstanding stock options and other terms of outstanding awards
issued pursuant to the 2021 Plan to equitably reflect the effects of the Reverse Split. The number of shares subject to vesting under
restricted stock awards and the number of shares issuable as contingent consideration as part of an acquisition by the Company will be
similarly adjusted, subject to our treatment of fractional shares. Furthermore, the number of shares available for future grant under
the 2021 Plan will be similarly adjusted.
Effective
Date
If
approved by the holders of our outstanding voting securities and pursued by the Board, the proposed Reverse Split would become effective
on the date of filing of the Reverse Split Charter Amendment with the office of the Secretary of State of the State of Delaware. On the
effective date, shares of common stock issued and outstanding shares of common stock held in treasury, in each case, immediately prior
thereto will be combined and converted, automatically and without any action on the part of our stockholders, into new shares of common
stock in accordance with the Approved Split Ratio set forth in this Proposal 5. If the proposed Reverse Split Charter Amendment is not
approved by our stockholders, the Reverse Split will not occur.
Treatment
of Fractional Shares
No
fractional shares of common stock will be issued as a result of the Reverse Split. Instead, in lieu of any fractional shares to which
a stockholder of record would otherwise be entitled as a result of the Reverse Split, we will pay cash (without interest) equal to such
fraction multiplied by the average of the closing sales prices of our common stock on the Nasdaq during regular trading hours for the
five consecutive trading days immediately preceding the effective date of the Reverse Split (with such average closing sales prices being
adjusted to give effect to the Reverse Split). After the Reverse Split, a stockholder otherwise entitled to a fractional interest will
not have any voting, dividend or other rights with respect to such fractional interest except to receive payment as described above.
Upon
stockholder approval of this Proposal 5, if the Board elects to implement the proposed Reverse Split, stockholders owning fractional
shares will be paid out in cash for such fractional shares. For example, assuming the Board elected to consummate an Approved Split Ratio
of 1:5, if a stockholder held six shares of common stock immediately prior to the Reverse Split, then such stockholder would be paid
in cash for the one share of common stock but will maintain ownership of the remaining share of common stock.
Record
and Beneficial Stockholders
If
the Reverse Split is authorized by our stockholders and our Board elects to implement the Reverse Split, stockholders of record holding
some or all of their shares of common stock electronically in book-entry form under the direct registration system for securities will
receive a transaction statement at their address of record indicating the number of shares of common stock they hold after the Reverse
Split along with payment in lieu of any fractional shares. Non-registered stockholders holding common stock through a bank, broker or
other nominee should note that such banks, brokers or other nominees may have different procedures for processing the consolidation and
making payment for fractional shares than those that would be put in place by us for registered stockholders. If you hold your shares
with such a bank, broker or other nominee and if you have questions in this regard, you are encouraged to contact your nominee.
If
the Reverse Split is authorized by the stockholders and our Board elects to implement the Reverse Split, stockholders of record holding
some or all of their shares in certificate form will receive a letter of transmittal, as soon as practicable after the effective date
of the Reverse Split. Our transfer agent will act as “exchange agent” for the purpose of implementing the exchange of stock
certificates. Holders of pre-Reverse Split shares will be asked to surrender to the exchange agent certificates representing pre-Reverse
Split shares in exchange for post-Reverse Split shares and payment in lieu of fractional shares (if any) in accordance with the procedures
to be set forth in the letter of transmittal. Until surrender, each certificate representing shares before the Reverse Split would continue
to be valid and would represent the adjusted number of whole shares based on the approved exchange ratio of the Reverse Split selected
by the Board. No new post-Reverse Split share certificates will be issued to a stockholder until such stockholder has surrendered such
stockholder’s outstanding certificate(s) together with the properly completed and executed letter of transmittal to the exchange
agent.
STOCKHOLDERS
SHOULD NOT DESTROY ANY PRE-SPLIT STOCK CERTIFICATE AND
SHOULD NOT SUBMIT ANY CERTIFICATES UNTIL THEY ARE REQUESTED TO DO SO.
Accounting
Consequences
The
par value per share of common stock would remain unchanged at $0.0001 per share after the Reverse Split. As a result, on the effective
date of the Reverse Split, the stated capital on our balance sheet attributable to the common stock will be reduced proportionally, based
on the Approved Split Ratio selected by the Board, from its present amount, and the additional paid-in capital account shall be credited
with the amount by which the stated capital is reduced. The per share common stock net income or loss and net book value will be increased
because there will be fewer shares of common stock outstanding. The shares of common stock held in treasury, if any, will also be reduced
proportionately based on the Approved Split Ratio selected by the Board. Retroactive restatement will be given to all share numbers in
the financial statements, and accordingly all amounts including per share amounts will be shown on a post-split basis. We do not anticipate
that any other accounting consequences would arise as a result of the Reverse Split.
No
Appraisal Rights
Our
stockholders are not entitled to dissenters’ or appraisal rights under the Delaware General Corporation Law with respect to this
Proposal 5 and we will not independently provide our stockholders with any such right if the Reverse Split is implemented.
Material
Federal U.S. Income Tax Consequences of the Reverse Split
The
following is a summary of certain material U.S. federal income tax consequences of a Reverse Split to our stockholders. The summary is
based on the Internal Revenue Code of 1986, as amended (the “Code”), applicable Treasury Regulations promulgated thereunder,
judicial authority and current administrative rulings and practices as in effect on the date of this Proxy Statement. Changes to the
laws could alter the tax consequences described below, possibly with retroactive effect. We have not sought and will not seek an opinion
of counsel or a ruling from the Internal Revenue Service regarding the federal income tax consequences of a Reverse Split. This discussion
only addresses stockholders who hold common stock as capital assets. It does not purport to be complete and does not address stockholders
subject to special tax treatment under the Code, including, without limitation, financial institutions, tax-exempt organizations, insurance
companies, dealers in securities, foreign stockholders, stockholders who hold their pre-reverse stock split shares as part of a straddle,
hedge or conversion transaction, and stockholders who acquired their pre-reverse stock split shares pursuant to the exercise of employee
stock options or otherwise as compensation. If a partnership (or other entity treated as a partnership for U.S. federal income tax purposes)
is the beneficial owner of our common stock, the U.S. federal income tax treatment of a partner in the partnership will generally depend
on the status of the partner and the activities of the partnership. Accordingly, partnerships (and other entities treated as partnerships
for U.S. federal income tax purpose) holding our common stock and the partners in such entities should consult their own tax advisors
regarding the U.S. federal income tax consequences of the proposed Reverse Split to them. In addition, the following discussion does
not address the tax consequences of the Reverse Split under state, local and foreign tax laws. Furthermore, the following discussion
does not address any tax consequences of transactions effectuated before, after or at the same time as the Reverse Split, whether or
not they are in connection with the Reverse Split.
In
general, the federal income tax consequences of a Reverse Split will vary among stockholders depending upon whether they receive cash
for fractional shares or solely a reduced number of shares of common stock in exchange for their old shares of common stock. We believe
that because the Reverse Split is not part of a plan to increase periodically a stockholder’s proportionate interest in our assets
or earnings and profits, the Reverse Split should have the following federal income tax effects. The Reverse Split is expected to constitute
a “recapitalization” for U.S. federal income tax purposes pursuant to Section 368(a)(1)(E) of the Code. A stockholder who
receives solely a reduced number of shares of common stock will not recognize gain or loss. In the aggregate, such a stockholder’s
basis in the reduced number of shares of common stock will equal the stockholder’s basis in its old shares of common stock and
such stockholder’s holding period in the reduced number of shares will include the holding period in its old shares exchanged.
The Treasury Regulations provide detailed rules for allocating the tax basis and holding period of shares of common stock surrendered
in a recapitalization to shares received in the recapitalization. Stockholders of our common stock acquired on different dates and at
different prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares.
A
stockholder that, pursuant to the proposed Reverse Split, receives cash in lieu of a fractional share of our common stock should recognize
capital gain or loss in an amount equal to the difference, if any, between the amount of cash received and the portion of the stockholder’s
aggregate adjusted tax basis in the shares of our common stock surrendered that is allocated to such fractional share. Such capital gain
or loss will be short term if the pre-Reverse Split shares were held for one year or less at the effective time of the Reverse Split
and long term if held for more than one year. Stockholders should consult their own tax advisors regarding the tax consequences to them
of a payment for fractional shares.
We
will not recognize any gain or loss as a result of the proposed Reverse Split.
A
stockholder of our common stock may be subject to information reporting and backup withholding on cash paid in lieu of a fractional share
in connection with the proposed Reverse Split. A stockholder of our common stock will be subject to backup withholding if such stockholder
is not otherwise exempt and such stockholder does not provide its taxpayer identification number in the manner required or otherwise
fails to comply with backup withholding tax rules. Backup withholding is not an additional tax. Any amounts withheld under the backup
withholding rules may be refunded or allowed as a credit against a stockholder’s U.S. federal income tax liability, if any, provided
the required information is timely furnished to the Internal Revenue Service. Stockholders of our common stock should consult their own
tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.
THE
PRECEDING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF CERTAIN FEDERAL U.S. INCOME TAX CONSEQUENCES OF THE REVERSE SPLIT AND DOES NOT
PURPORT TO BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL POTENTIAL TAX EFFECTS RELEVANT THERETO. YOU SHOULD CONSULT YOUR OWN TAX ADVISORS
AS TO THE PARTICULAR FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX CONSEQUENCES OF THE REVERSE SPLIT IN LIGHT OF YOUR SPECIFIC CIRCUMSTANCES.
Required
Vote and Recommendation
In
accordance with our Charter and Delaware law, approval and adoption of this Proposal 5 requires the affirmative vote of at least a majority
of our issued and outstanding voting securities. Abstentions and broker non-votes with respect to this proposal will be counted for purposes
of establishing a quorum and, if a quorum is present, abstentions, and broker non-votes, if this Proposal 5 is deemed to be a “non-routine”
matter as further discussed in What are broker non-votes?, will have the same practical effect as a vote against this proposal.
THE
BOARD RECOMMENDS A VOTE “FOR” THE APPROVAL OF AN AMENDMENT TO THE
CHARTER TO EFFECT THE REVERSE SPLIT.
PROPOSAL
6:
To
approve, for purposes of complying with Nasdaq Listing Rule 5635(d), the issuance of 20% or more of the Company’s issued and outstanding
common stock from time to time at the company’s discretion pursuant to the Company’s purchase agreement with Lincoln Park
Capital Fund, LLC, dated March 28, 2022
Overview
On
March 28, 2022 we entered into a purchase agreement (the “Lincoln Park Purchase Agreement”) and a registration rights
agreement (the “Lincoln Park Registration Rights Agreement”), with Lincoln Park Capital Fund, LLC (“Lincoln
Park”), pursuant to which Lincoln Park committed to purchase up to $15.0 million of our common stock, subject
to certain limitations and conditions set forth in the Lincoln Park Purchase Agreement, which is attached hereto as Appendix B. Under
the Lincoln Park Purchase Agreement, we issued a commitment fee of 405,953 shares of common stock, or the Commitment Shares, as consideration
for Lincoln Park entering into the Lincoln Park Purchase Agreement.
Under
the terms and subject to the conditions of the Lincoln Park Purchase Agreement, we have the right, but not the obligation, to sell to
Lincoln Park, and Lincoln Park is obligated to purchase, up to $15.0 million of shares of common stock. Such sales of common stock by
us, if any, will be subject to certain limitations, and may occur from time to time, at our sole discretion, over the 30-month period
commencing on May 9, 2022, which is the date which certain conditions set forth in the Lincoln Park Purchase Agreement, all of which
were outside of Lincoln Park’s control, were satisfied, including the registration statement on Form S-1 being declared effective
by the SEC.
Thereafter,
under the Lincoln Park Purchase Agreement, on any business day over the term of the Lincoln Park Purchase Agreement, we have the right,
in our sole discretion, to present Lincoln Park with a purchase notice directing Lincoln Park to purchase (a “Regular Purchase”)
up to (i) 50,000 common shares, (ii) 75,000 common shares if the closing sale price of our common stock is not below $1.50 per share
on Nasdaq or (iii) 100,000 common shares if the closing sale price of our common stock is not below $2.50 per share on Nasdaq. In each
case, Lincoln Park’s maximum commitment in any single Regular Purchase may not exceed $1.0 million. The Lincoln Park Purchase Agreement
provides for a purchase price per share equal to the lesser of: the lowest sale price of our common stock on the purchase date; and the
average of the three lowest closing sale prices for our common stock during the ten consecutive business days ending on the business
day immediately preceding the purchase date of such shares.
In
addition to Regular Purchases, we may direct Lincoln Park to purchase other amounts as accelerated purchases or as additional accelerated
purchases as set forth in the Lincoln Park Purchase Agreement. In all instances, we may not sell shares of our common stock to Lincoln
Park under the Lincoln Park Purchase Agreement if it would result in Lincoln Park beneficially owning more than 9.99% of the outstanding
shares of our common stock. As of May 23, 2022, we have not made any sales of our common stock under the Lincoln Park Purchase Agreement.
Lincoln
Park has no right to require us to sell any shares of our common stock to Lincoln Park, but Lincoln Park is obligated to make purchases
as we direct, subject to certain conditions. There are no upper limits on the price per share that Lincoln Park must pay for shares of
common stock.
There
are no restrictions on future financings, rights of first refusal, participation rights, penalties or liquidated damages in the Lincoln
Park Purchase Agreement or Lincoln Park Registration Rights Agreement except the Company is prohibited (with certain specified exceptions)
from effecting or entering into an agreement to effect an “equity line of credit” or substantially similar transaction whereby
an investor is irrevocably bound to purchase the Company’s securities over a period of time at a price based on the market price
of the common stock at the time of each such purchase.
The
net proceeds under the Lincoln Park Purchase Agreement to us will depend on the frequency and prices at which we sell shares of our common
stock to Lincoln Park. We expect that any proceeds received by us from such sales to Lincoln Park will be used for working capital and
general corporate purposes.
The
terms of the Lincoln Park Purchase Agreement and the Lincoln Park Registration Rights Agreement are complex and only briefly summarized
above. For further information, please refer to the copy of the Lincoln Park Purchase Agreement attached as Appendix B to this proxy
statement, Item 9B of Part II of our Annual Report on Form 10-K filed on March 30, 2022 and the transaction documents filed as exhibits
to such report. The discussion herein is qualified in its entirety by reference to Appendix B and such filed transaction documents.
Why
We Need Stockholder Approval
Nasdaq
Listing Rule 5635(d) requires shareholder approval for certain transactions, other than public offerings, involving the issuance of 20%
or more of the total pre-transaction shares outstanding at less than the applicable Minimum Price (as defined in Listing Rule 5635(d)(1)(A)).
Pursuant
to the terms of the Lincoln Park Purchase Agreement, the aggregate number of shares that we are permitted to sell to Lincoln Park may
in no case exceed 19.99% of the common stock outstanding on the date of execution of the Lincoln Park Purchase Agreement (the “Exchange
Cap”), or 5,796,733 shares (including the Commitment Shares), unless (i) stockholder approval is obtained to issue more, in
which case the Exchange Cap will not apply, or (ii) the average price of all applicable sales of our common stock to Lincoln Park under
the Lincoln Park Purchase Agreement equals or exceeds $1.2474 per share (calculated by reference to the Minimum Price under Listing Rule
5635(d)); provided that at no time shall Lincoln Park, together with its affiliates, beneficially own more than 9.99% of our common stock.
As
of May 23, 2022, we had issued the 405,953 Commitment Shares under the Lincoln Park Purchase Agreement,
leaving 5,390,780 shares of our common stock available for issuance without seeking stockholder approval. However, as of May 23, 2022,
shares of our common stock having an aggregate value of approximately $15.0 million remained available for sale under this offering program.
Based on the closing sale price of our common stock as reported on The Nasdaq Capital Market on such date, to fully utilize the remaining
amount available to us, we would need to issue 24,193,548 shares of common stock to Lincoln Park, which would be in excess of the Exchange
Cap. Therefore, in order to retain maximum flexibility to issue and sell up to the maximum of $15.0 million of our common stock under
the Lincoln Park Purchase Agreement, we are therefore seeking stockholder approval for the sale and issuance of common stock in connection
with the Lincoln Park Purchase Agreement to satisfy the requirements of Nasdaq Listing Rule 5635(d).
Vote
Required for Approval
The
affirmative vote of the holders of a majority in voting power of the shares of stock which are present in person or by proxy at the Annual
Meeting and entitled to vote thereon will be required for the approval of the Nasdaq Approval Proposal. Abstentions are considered “present”
and “entitled to vote,” but broker non-votes, while considered “present,” are not considered “entitled
to vote” with regard to this proposal. As a result, abstentions will have the same practical effect as a negative vote on this
proposal, and broker non-votes, if any, will not affect the outcome of the vote on this proposal.
OUR
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS VOTE “FOR” THE NASDAQ APPROVAL PROPOSAL To
approve, for purposes of complying with Nasdaq Listing Rule 5635(d), the issuance of 20% or more of the Company’s issued and outstanding
common stock FROM TIME TO TIME AT THE COMPANY’S DISCRETION pursuant to the Company’s purchase agreement with Lincoln Park
Capital Fund, LLC, dated March 28, 2022.
OTHER
MATTERS
As
of the date of this proxy statement, the Board does not intend to present at the Annual Meeting of Stockholders any matters other than
those described herein and does not presently know of any matters that will be presented by other parties at the Annual Meeting. If any
other matter requiring a vote of the stockholders should come before the meeting, it is the intention of the persons named in the proxy
to vote with respect to any such matter in accordance with the recommendation of the Board or, in the absence of such a recommendation,
in accordance with the best judgment of the proxy holder.
|
By Order of the Board of Directors |
|
|
|
/s/ John
A. Roberts |
|
John
A. Roberts
President
and Chief Executive Officer |
June
13, 2022
Cherry
Hill, New Jersey
Appendix A
CERTIFICATE OF AMENDMENT OF
FOURTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
VYANT BIO, INC.
Vyant Bio, Inc. (the “Corporation”),
a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify
as follows:
FIRST: That a resolution was duly adopted
on May 24, 2022, by the Board of Directors of the Corporation pursuant to Section 242 of the General Corporation Law of the State
of Delaware setting forth an amendment to the Fourth Amended and Restated Certificate of Incorporation of the Corporation and declaring
said amendment to be advisable. The stockholders of the Corporation duly approved said proposed amendment at an annual meeting of stockholders
held on July 14, 2022, in accordance with Section 242 of the General Corporation Law of the State of Delaware. The proposed amendment
set forth as follows:
Article FOURTH of the Certificate
of Incorporation of the Corporation, as amended to date, be and hereby is further amended by adding the following paragraphs immediately
following the second sentence of Article FOURTH:
Upon effectiveness (“Effective Time”)
of this amendment to the Fourth Amended and Restated Certificate of Incorporation of the Corporation, a one-for-__ reverse stock split
(the “Reverse Split”) of the Corporation’s Common Stock shall become effective, pursuant to which each __ shares of
Common Stock outstanding and held of record by each stockholder of the Corporation (including treasury shares) immediately prior
to the Effective Time (“Old Common Stock”) shall be reclassified and combined into one share of Common Stock
automatically and without any action by the holder thereof upon the Effective Time and shall represent one share of Common Stock from
and after the Effective Time (“New Common Stock”), with no corresponding reduction in the number of authorized shares of
our Common Stock.
No fractional shares of Common Stock will be issued
in connection with the Reverse Split. Stockholders of record who otherwise would be entitled to receive fractional shares, will be entitled
to receive cash (without interest) in lieu of fractional shares, equal to such fraction multiplied by the average of the closing sales
prices of our Common Stock on the exchange the Corporation is currently trading during regular trading hours for the five consecutive
trading days immediately preceding the effective date of the Reverse Split (with such average closing sales prices being adjusted to
give effect to the Reverse Split).
Each holder of record of a certificate or certificates
for one or more shares of the Old Common Stock shall be entitled to receive as soon as practicable, upon surrender of such certificate,
a certificate or certificates representing the largest whole number of shares of New Common Stock to which such holder shall be entitled
pursuant to the provisions of the immediately preceding paragraphs. Any certificate for one or more shares of the Old Common Stock not
so surrendered shall be deemed to represent one share of the New Common Stock for each five shares of the Old Common Stock previously
represented by such certificate.
SECOND: That said amendment will have
an Effective Time of 5:00 P.M., Eastern Time, on the filing date of this Certificate of Amendment to the Fourth Amended and Restated
Certificate of Incorporation.
IN WITNESS WHEREOF, the Corporation has caused
this Certificate of Amendment to be signed by its President and Chief Executive Officer this __ day of _____, 20__.
President and Chief Executive Officer
Appendix B
PURCHASE
AGREEMENT
PURCHASE
AGREEMENT (the “Agreement”), dated as of March 28, 2022, by and between VYANT BIO, INC., a Delaware corporation
(the “Company”), and LINCOLN PARK CAPITAL FUND, LLC, an Illinois limited liability company (the “Investor”).
WHEREAS:
Subject
to the terms and conditions set forth in this Agreement, the Company wishes to sell to the Investor, and the Investor wishes to buy from
the Company, up to Fifteen Million Dollars ($15,000,000) of the Company’s common stock, $0.0001 par value per share (the “Common
Stock”). The shares of Common Stock to be purchased hereunder are referred to herein as the “Purchase Shares.”
NOW
THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Company and the Investor hereby agree as follows:
1.
CERTAIN DEFINITIONS.
For
purposes of this Agreement, the following terms shall have the following meanings:
(a)
“Accelerated Purchase Date” means, with respect to any Accelerated Purchase made pursuant to Section 2(b) hereof,
the Business Day immediately following the applicable Purchase Date with respect to the corresponding Regular Purchase referred to in
clause (i) of the second sentence of Section 2(b) hereof.
(b)
“Accelerated Purchase Minimum Price Threshold” means, with respect to any Accelerated Purchase made pursuant to Section
2(b) hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock on the applicable Purchase
Date with respect to the corresponding Regular Purchase referred to in clause (i) of the second sentence of Section 2(b) hereof
and (ii) the minimum per share price threshold set forth in the applicable Accelerated Purchase Notice.
(c)
“Accelerated Purchase Notice” means, with respect to an Accelerated Purchase made pursuant to Section 2(b)
hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the number of Purchase Shares
specified by the Company therein as the Accelerated Purchase Share Amount to be purchased by the Investor (such specified Accelerated
Purchase Share Amount subject to adjustment in accordance with Section 2(b) hereof as necessary to give effect to the Purchase
Share amount limitations applicable to such Accelerated Purchase Share Amount as set forth in this Agreement) at the applicable Accelerated
Purchase Price on the applicable Accelerated Purchase Date for such Accelerated Purchase.
(d)
“Accelerated Purchase Price” means, with respect to an Accelerated Purchase made pursuant to Section 2(b) hereof,
ninety-five percent (95%) of the lower of (i) the VWAP for the period beginning at 9:30:01 a.m., Eastern time, on the applicable Accelerated
Purchase Date, or such other time publicly announced by the Principal Market as the official open (or commencement) of trading on the
Principal Market on such applicable Accelerated Purchase Date (the “Accelerated Purchase Commencement Time”), and
ending at the earliest of (A) 4:00:00 p.m., Eastern time, on such applicable Accelerated Purchase Date, or such other time publicly announced
by the Principal Market as the official close of trading on the Principal Market on such applicable Accelerated Purchase Date, (B) such
time, from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the total number (or volume) of shares
of Common Stock traded on the Principal Market has exceeded the applicable Accelerated Purchase Share Volume Maximum, and (C) such time,
from and after the Accelerated Purchase Commencement Time for such Accelerated Purchase, that the Sale Price has fallen below the applicable
Accelerated Purchase Minimum Price Threshold (such earliest of (i)(A), (i)(B) and (i)(C) above, the “Accelerated Purchase Termination
Time”), and (ii) the Closing Sale Price of the Common Stock on such applicable Accelerated Purchase Date (to be appropriately
adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction).
(e)
“Accelerated Purchase Share Amount” means, with respect to an Accelerated Purchase made pursuant to Section 2(b)
hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor in an Accelerated Purchase Notice,
which number of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares directed by the Company to be
purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular Purchase referred to in
clause (i) of the second sentence of Section 2(b) hereof (subject to the Purchase Share limitations contained in Section 2(a)
hereof) and (ii) an amount equal to (A) the Accelerated Purchase Share Percentage multiplied by (B) the total number (or volume)
of shares of Common Stock traded on the Principal Market during the period on the applicable Accelerated Purchase Date beginning at the
Accelerated Purchase Commencement Time for such Accelerated Purchase and ending at the Accelerated Purchase Termination Time for such
Accelerated Purchase.
(f)
“Accelerated Purchase Share Percentage” means, with respect to an Accelerated Purchase made pursuant to Section
2(b) hereof, thirty percent (30%).
(g)
“Accelerated Purchase Share Volume Maximum” means, with respect to an Accelerated Purchase made pursuant to Section
2(b) hereof, a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the Company in the applicable
Accelerated Purchase Notice as the Accelerated Purchase Share Amount to be purchased by the Investor in such Accelerated Purchase, divided
by (ii) the Accelerated Purchase Share Percentage (to be appropriately adjusted for any reorganization, recapitalization, non-cash dividend,
stock split, reverse stock split or other similar transaction).
(h)
“Additional Accelerated Purchase Date” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, the Business Day (i) that is the Accelerated Purchase Date with respect to the corresponding Accelerated
Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof and (ii) on which the Investor
receives, prior to 1:00 p.m., Eastern time, on such Business Day, a valid Additional Accelerated Purchase Notice for such Additional
Accelerated Purchase in accordance with this Agreement.
(i)
“Additional Accelerated Purchase Minimum Price Threshold” means, with respect to an Additional Accelerated Purchase
made pursuant to Section 2(c) hereof, the greater of (i) seventy-five percent (75%) of the Closing Sale Price of the Common Stock
on the Business Day immediately preceding the applicable Additional Accelerated Purchase Date with respect to such Additional Accelerated
Purchase and (ii) the minimum per share price threshold set forth in the applicable Additional Accelerated Purchase Notice.
(j)
“Additional Accelerated Purchase Notice” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, an irrevocable written notice from the Company to the Investor directing the Investor to purchase the number
of Purchase Shares specified by the Company therein as the Additional Accelerated Purchase Share Amount to be purchased by the Investor
(such specified Additional Accelerated Purchase Share Amount subject to adjustment in accordance with Section 2(c) hereof as necessary
to give effect to the Purchase Share amount limitations applicable to such Additional Accelerated Purchase Share Amount as set forth
in this Agreement) at the applicable Additional Accelerated Purchase Price on the applicable Additional Accelerated Purchase Date for
such Additional Accelerated Purchase.
(k)
“Additional Accelerated Purchase Price” means, with respect to an Additional Accelerated Purchase made pursuant to
Section 2(c) hereof, ninety-five percent (95%) of the lower of (i) the VWAP for the period on the applicable Additional Accelerated
Purchase Date, beginning at the latest of (A) the applicable Accelerated Purchase Termination Time with respect to the corresponding
Accelerated Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof on such Additional
Accelerated Purchase Date, (B) the applicable Additional Accelerated Purchase Termination Time with respect to the most recently completed
prior Additional Accelerated Purchase on such Additional Accelerated Purchase Date, as applicable, and (C) the time at which all Purchase
Shares subject to all prior Accelerated Purchases and Additional Accelerated Purchases (as applicable), including, without limitation,
those that have been effected on the same Business Day as the applicable Additional Accelerated Purchase Date with respect to which the
applicable Additional Accelerated Purchase relates, have theretofore been received by the Investor as DWAC Shares in accordance with
this Agreement (such latest of (i)(A), (i)(B) and (i)(C) above, the “Additional Accelerated Purchase Commencement Time”),
and ending at the earliest of (X) 4:00 p.m., Eastern time, on such Additional Accelerated Purchase Date, or such other time publicly
announced by the Principal Market as the official close of trading on the Principal Market on such Additional Accelerated Purchase Date,
(Y) such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional Accelerated Purchase, that total
number (or volume) of shares of Common Stock traded on the Principal Market has exceeded the applicable Additional Accelerated Purchase
Share Volume Maximum, and (Z) such time, from and after the Additional Accelerated Purchase Commencement Time for such Additional Accelerated
Purchase, that the Sale Price has fallen below the applicable Additional Accelerated Purchase Minimum Price Threshold (such earliest
of (i)(X), (i)(Y) and (i)(Z) above, the “Additional Accelerated Purchase Termination Time”), and (ii) the Closing
Sale Price of the Common Stock on such Additional Accelerated Purchase Date (to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split, reverse stock split or other similar transaction).
(l)
“Additional Accelerated Purchase Share Amount” means, with respect to an Additional Accelerated Purchase made pursuant
to Section 2(c) hereof, the number of Purchase Shares directed by the Company to be purchased by the Investor on an Additional
Accelerated Purchase Notice, which number of Purchase Shares shall not exceed the lesser of (i) 300% of the number of Purchase Shares
directed by the Company to be purchased by the Investor pursuant to the corresponding Regular Purchase Notice for the corresponding Regular
Purchase referred to in clause (i) of the proviso in the second sentence of Section 2(c) hereof (subject to the Purchase Share
limitations contained in Section 2(a) hereof) and (ii) an amount equal to (A) the Additional Accelerated Purchase Share Percentage
multiplied by (B) the total number (or volume) of shares of Common Stock traded on the Principal Market during the period on the applicable
Additional Accelerated Purchase Date beginning at the Additional Accelerated Purchase Commencement Time for such Additional Accelerated
Purchase and ending at the Additional Accelerated Purchase Termination Time for such Additional Accelerated Purchase.
(m)
“Additional Accelerated Purchase Share Percentage” means, with respect to an Additional Accelerated Purchase made
pursuant to Section 2(c) hereof, thirty percent (30%).
(n)
“Additional Accelerated Purchase Share Volume Maximum” means, with respect to an Additional Accelerated Purchase made
pursuant to Section 2(c) hereof, a number of shares of Common Stock equal to (i) the number of Purchase Shares specified by the
Company in the applicable Additional Accelerated Purchase Notice as the Additional Accelerated Purchase Share Amount to be purchased
by the Investor in such Additional Accelerated Purchase, divided by (ii) the Additional Accelerated Purchase Share Percentage (to be
appropriately adjusted for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar
transaction).
(o)
“Alternate Adjusted Regular Purchase Share Limit” means, with respect to a Regular Purchase made pursuant to Section
2(a) hereof, the maximum number of Purchase Shares which, taking into account the applicable per share Purchase Price therefor calculated
in accordance with this Agreement, would enable the Company to deliver to the Investor, on the applicable Purchase Date for such Regular
Purchase, a Regular Purchase Notice for a Purchase Amount equal to, or as closely approximating without exceeding, One Hundred Fifty
Thousand Dollars ($150,000).
(p)
“Available Amount” means, initially, Fifteen Million Dollars ($15,000,000) in the aggregate, which amount shall be
reduced by the Purchase Amount each time the Investor purchases Purchase Shares pursuant to Section 2 hereof.
(q)
“Average Price” means a price per Purchase Share (rounded to the nearest tenth of a cent) equal to the quotient obtained
by dividing (i) the aggregate gross purchase price paid by the Investor for all Purchase Shares purchased pursuant to this Agreement,
by (ii) the aggregate number of Purchase Shares issued pursuant to this Agreement.
(r)
“Bankruptcy Law” means Title 11, U.S. Code, or any similar federal or state law for the relief of debtors.
(s)
“Base Price” means a price per Purchase Share equal to the sum of (i) the Signing Market Price and (ii) $0.0874 (subject
to adjustment for any reorganization, recapitalization, non-cash dividend, stock split, reverse stock split or other similar transaction
that occurs on or after the date of this Agreement).
(t)
“Business Day” means any day on which the Principal Market is open for trading, including any day on which the Principal
Market is open for trading for a period of time less than the customary time.
(u)
“Closing Sale Price” means, for any security as of any date, the last closing sale price for such security on the
Principal Market as reported by the Principal Market.
(v)
“Confidential Information” means any information disclosed by either party to the other party, either directly or
indirectly, in writing, orally or by inspection of tangible objects (including, without limitation, documents, prototypes, samples, plant
and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation. Information
communicated orally shall be considered Confidential Information if such information is confirmed in writing as being Confidential Information
within ten (10) Business Days after the initial disclosure. Confidential Information may also include information disclosed to a disclosing
party by third parties. Confidential Information shall not, however, include any information which (i) was publicly known and made generally
available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally
available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii)
is already in the possession of the receiving party without confidential restriction at the time of disclosure by the disclosing party
as shown by the receiving party’s files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving
party from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed
by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and
other competent evidence in the receiving party’s possession; or (vi) is required by law to be disclosed by the receiving party,
provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance
in obtaining an order protecting the information from public disclosure.
(w)
“Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
(x)
“DTC” means The Depository Trust Company, or any successor performing substantially the same function for the Company.
(y)
“DWAC Shares” means shares of Common Stock that are (i) issued in electronic form, (ii) freely tradable and transferable
and without restriction on resale and (iii) timely credited by the Company to the Investor’s or its designee’s specified
Deposit/Withdrawal at Custodian (DWAC) with DTC under its Fast Automated Securities Transfer (FAST) Program, or any similar program hereafter
adopted by DTC performing substantially the same function.
(z)
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(aa)
“Fully Adjusted Regular Purchase Share Limit” means, with respect to any reorganization, recapitalization, non-cash
dividend, stock split or other similar transaction from and after the date of this Agreement, the Regular Purchase Share Limit (as defined
in Section 2(a) hereof) in effect on the applicable date of determination, after giving effect to the full proportionate adjustment
thereto made pursuant to Section 2(a) hereof for or in respect of such reorganization, recapitalization, non-cash dividend, stock
split or other similar transaction.
(bb)
“Material Adverse Effect” means any material adverse effect on (i) the enforceability of any Transaction Document,
(ii) the results of operations, assets, business or financial condition of the Company and its Subsidiaries, taken as a whole, other
than any material adverse effect that resulted exclusively from (A) any change in the United States or foreign economies or securities
or financial markets in general that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, (B)
any change that generally affects the industry in which the Company and its Subsidiaries operate that does not have a disproportionate
effect on the Company and its Subsidiaries, taken as a whole, (C) any change arising in connection with earthquakes, hostilities, acts
of war, sabotage or terrorism or military actions or any escalation or material worsening of any such hostilities, acts of war, sabotage
or terrorism or military actions existing as of the date hereof, (D) any action taken by the Investor, its affiliates or its or their
successors and assigns with respect to the transactions contemplated by this Agreement, (E) the effect of any change in applicable laws
or accounting rules that does not have a disproportionate effect on the Company and its Subsidiaries, taken as a whole, or (F) any change
resulting from compliance with terms of this Agreement or the consummation of the transactions contemplated by this Agreement, or (iii)
the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document to be
performed as of the date of determination.
(cc)
“Maturity Date” means the first day of the month immediately following the thirtieth (30th) month anniversary
of the Commencement Date.
(dd)
“PEA Period” means the period commencing at 9:30 a.m., Eastern time, on the fifth (5th) Business Day immediately
prior to the filing of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement (as
such term is defined in the Registration Rights Agreement), and ending at 9:30 a.m., Eastern time, on the Business Day immediately following,
the effective date of any post-effective amendment to the Registration Statement (as defined herein) or New Registration Statement (as
such term is defined in the Registration Rights Agreement).
(ee)
“Person” means an individual or entity including but not limited to any limited liability company, a partnership,
a joint venture, a corporation, a trust, an unincorporated organization and a government or any department or agency thereof.
(ff)
“Principal Market” means The Nasdaq Capital Market (or any nationally recognized successor thereto); provided, however,
that in the event the Company’s Common Stock is ever listed or traded on The Nasdaq Global Market, The Nasdaq Global Select Market,
the New York Stock Exchange, the NYSE American, the NYSE Arca, the OTC Bulletin Board, or the OTCQB or the OTCQX operated by OTC Markets
Group, Inc. (or any nationally recognized successor to any of the foregoing), then the “Principal Market” shall mean
such other market or exchange on which the Company’s Common Stock is then listed or traded.
(gg)
“Purchase Amount” means, with respect to any Regular Purchase, any Accelerated Purchase or any Additional Accelerated
Purchase made hereunder, as applicable, the portion of the Available Amount to be purchased by the Investor pursuant to Section 2
hereof.
(hh)
“Purchase Date” means, with respect to a Regular Purchase made pursuant to Section 2(a) hereof, the Business
Day on which the Investor receives, after 4:00 p.m., Eastern time, but prior to 5:00 p.m., Eastern time, on such Business Day, a valid
Regular Purchase Notice for such Regular Purchase in accordance with this Agreement.
(ii)
“Purchase Price” means, with respect to any Regular Purchase made pursuant to Section 2(a) hereof, the lower
of: (i) the lowest Sale Price on the applicable Purchase Date for such Regular Purchase and (ii) the arithmetic average of the three
(3) lowest Closing Sale Prices for the Common Stock during the ten (10) consecutive Business Days ending on the Business Day immediately
preceding such Purchase Date for such Regular Purchase (in each case, to be appropriately adjusted for any reorganization, recapitalization,
non-cash dividend, stock split or other similar transaction that occurs on or after the date of this Agreement).
(jj)
“Regular Purchase Notice” means, with respect to any Regular Purchase pursuant to Section 2(a) hereof, an irrevocable
written notice from the Company to the Investor directing the Investor to buy such applicable amount of Purchase Shares at the applicable
Purchase Price as specified by the Company therein on the applicable Purchase Date for such Regular Purchase.
(kk)
“Sale Price” means any trade price for the shares of Common Stock on the Principal Market as reported by the Principal
Market.
(ll)
“SEC” means the U.S. Securities and Exchange Commission.
(mm)
“Securities” means, collectively, the Purchase Shares and the Commitment Shares.
(nn)
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
(oo)
“Signing Market Price” means $1.16, representing the average official closing price of the Common Stock on The Nasdaq
Capital Market (as reflected on Nasdaq.com) for the five (5) consecutive trading days ending on the trading day immediately preceding
the date of this Agreement.
(pp)
“Subsidiary” means any Person the Company wholly-owns or controls, or in which the Company, directly or indirectly,
owns a majority of the voting stock or similar voting interest, in each case that would be disclosable pursuant to Item 601(b)(21) of
Regulation S-K promulgated under the Securities Act.
(qq)
“Transaction Documents” means, collectively, this Agreement and the schedules and exhibits hereto, the Registration
Rights Agreement and the schedules and exhibits thereto, and each of the other agreements, documents, certificates and instruments entered
into or furnished by the parties hereto in connection with the transactions contemplated hereby and thereby.
(rr)
“Transfer Agent” means Continental Stock Transfer & Trust Company LLC, or such other Person who is then serving
as the transfer agent for the Company in respect of the Common Stock.
(ss)
“VWAP” means in respect of an Accelerated Purchase Date and an Additional Accelerated Purchase Date, as applicable,
the volume weighted average price of the Common Stock on the Principal Market, as reported on the Principal Market or by another reputable
source such as Bloomberg, L.P.
2.
PURCHASE OF COMMON STOCK.
Subject
to the terms and conditions set forth in this Agreement, the Company has the right to sell to the Investor, and the Investor has the
obligation to purchase from the Company, Purchase Shares as follows:
(a)
Commencement of Regular Sales of Common Stock. Upon the satisfaction of all of the conditions set forth in Sections 7 and
8 hereof (the “Commencement” and the date of satisfaction of such conditions the “Commencement Date”)
and thereafter, the Company shall have the right, but not the obligation, to direct the Investor, by its delivery to the Investor of
a Regular Purchase Notice from time to time, to purchase up to Fifty Thousand (50,000) Purchase Shares, subject to adjustment as set
forth below in this Section 2(a) (such maximum number of Purchase Shares, as may be adjusted from time to time, the “Regular
Purchase Share Limit”), at the Purchase Price on the Purchase Date (each such purchase a “Regular Purchase”);
provided, however, that (i) the Regular Purchase Share Limit shall be increased to Seventy-Five Thousand (75,000) Purchase
Shares, if the Closing Sale Price of the Common Stock on the applicable Purchase Date is not below $1.50 and (ii) the Regular Purchase
Share Limit shall be increased to One Hundred Thousand (100,000) Purchase Shares, if the Closing Sale Price of the Common Stock on the
applicable Purchase Date is not below $2.50 (all of which share and dollar amounts shall be appropriately proportionately adjusted for
any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction; provided that if, after giving
effect to the full proportionate adjustment to the Regular Purchase Share Limit therefor, the Fully Adjusted Regular Purchase Share Limit
then in effect would preclude the Company from delivering to the Investor a Regular Purchase Notice hereunder for a Purchase Amount (calculated
by multiplying (X) the number of Purchase Shares equal to the Fully Adjusted Regular Purchase Share Limit, by (Y) the Purchase Price
per Purchase Share covered by such Regular Purchase Notice on the applicable Purchase Date therefor) equal to or greater than One Hundred
Fifty Thousand Dollars ($150,000), the Regular Purchase Share Limit for such Regular Purchase Notice shall not be fully adjusted to equal
the applicable Fully Adjusted Regular Purchase Share Limit, but rather the Regular Purchase Share Limit for such Regular Purchase Notice
shall be adjusted to equal the applicable Alternate Adjusted Regular Purchase Share Limit as of the applicable Purchase Date for such
Regular Purchase Notice); and provided, further, however, that the Investor’s committed obligation under any
single Regular Purchase, other than any Regular Purchase with respect to which an Alternate Adjusted Regular Purchase Share Limit shall
apply, shall not exceed One Million Dollars ($1,000,000). If the Company delivers any Regular Purchase Notice for a Purchase Amount in
excess of the limitations contained in the immediately preceding sentence, such Regular Purchase Notice shall be void ab initio
to the extent of the amount by which the number of Purchase Shares set forth in such Regular Purchase Notice exceeds the number of Purchase
Shares which the Company is permitted to include in such Purchase Notice in accordance herewith, and the Investor shall have no obligation
to purchase such excess Purchase Shares in respect of such Regular Purchase Notice; provided, however, that the Investor
shall remain obligated to purchase the number of Purchase Shares which the Company is permitted to include in such Regular Purchase Notice.
The Company may deliver a Regular Purchase Notice to the Investor as often as every Business Day, so long as all Purchase Shares subject
to all prior Regular Purchases have theretofore been received by the Investor as DWAC Shares in accordance with this Agreement. Notwithstanding
the foregoing, the Company shall not deliver any Regular Purchase Notices to the Investor during the PEA Period.
(b)
Accelerated Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date, in addition
to purchases of Purchase Shares as described in Section 2(a) above, the Company shall also have the right, but not the obligation,
to direct the Investor, by its delivery to the Investor of an Accelerated Purchase Notice from time to time in accordance with this Agreement,
to purchase the applicable Accelerated Purchase Share Amount at the Accelerated Purchase Price on the Accelerated Purchase Date therefor
in accordance with this Agreement (each such purchase, an “Accelerated Purchase”). The Company may deliver an Accelerated
Purchase Notice to the Investor only (i) on a Purchase Date on which the Company also properly submitted a Regular Purchase Notice providing
for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share Limit then in effect on such Purchase
Date in accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the Regular Purchase
Share Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section 2(a) above
on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section 2(a) above)
and (ii) if all Purchase Shares subject to all Regular Purchases, Accelerated Purchases and Additional Accelerated Purchases prior to
the Regular Purchase Date referred to in clause (i) hereof (as applicable) have theretofore been received by the Investor as DWAC Shares
in accordance with this Agreement. If the Company delivers any Accelerated Purchase Notice directing the Investor to purchase an amount
of Purchase Shares that exceeds the Accelerated Purchase Share Amount that the Company is then permitted to include in such Accelerated
Purchase Notice, such Accelerated Purchase Notice shall be void ab initio to the extent of the amount by which the number of Purchase
Shares set forth in such Accelerated Purchase Notice exceeds the Accelerated Purchase Share Amount that the Company is then permitted
to include in such Accelerated Purchase Notice (which shall be confirmed in an Accelerated Purchase Confirmation), and the Investor shall
have no obligation to purchase such excess Purchase Shares in respect of such Accelerated Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the Accelerated Purchase Share Amount which the Company is permitted to include
in such Accelerated Purchase Notice. Within one (1) Business Day after completion of each Accelerated Purchase Date for an Accelerated
Purchase, the Investor will provide to the Company a written confirmation of such Accelerated Purchase setting forth the applicable Accelerated
Purchase Share Amount and Accelerated Purchase Price for such Accelerated Purchase (each, an “Accelerated Purchase Confirmation”).
Notwithstanding the foregoing, the Company shall not deliver any Accelerated Purchase Notices to the Investor during the PEA Period.
(c)
Additional Accelerated Purchases. Subject to the terms and conditions of this Agreement, from and after the Commencement Date,
in addition to purchases of Purchase Shares as described in Section 2(a) and Section 2(b) above, the Company shall also
have the right, but not the obligation, to direct the Investor, by its timely delivery to the Investor of an Additional Accelerated Purchase
Notice on an Additional Accelerated Purchase Date in accordance with this Agreement, to purchase the applicable Additional Accelerated
Purchase Share Amount at the applicable Additional Accelerated Purchase Price therefor in accordance with this Agreement (each such purchase,
an “Additional Accelerated Purchase”). The Company may deliver multiple Additional Accelerated Purchase Notices to
the Investor on an Additional Accelerated Purchase Date; provided, however, that the Company may deliver an Additional
Accelerated Purchase Notice to the Investor only (i) on a Business Day that is also the Accelerated Purchase Date for an Accelerated
Purchase with respect to which the Company properly submitted to the Investor an Accelerated Purchase Notice in accordance with this
Agreement on the applicable Purchase Date for a Regular Purchase of a number of Purchase Shares not less than the Regular Purchase Share
Limit then in effect in accordance with this Agreement (including, without limitation, giving effect to any automatic increase to the
Regular Purchase Share Limit as a result of the Closing Sale Price of the Common Stock exceeding certain thresholds set forth in Section
2(a) above on such Purchase Date and any other adjustments to the Regular Purchase Share Limit, in each case pursuant to Section
2(a) above), and (ii) if all Purchase Shares subject to all prior Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases, including, without limitation, those that have been effected on the same Business Day as the applicable Additional Accelerated
Purchase Date with respect to which the applicable Additional Accelerated Purchase relates, in each case have theretofore been received
by the Investor as DWAC Shares in accordance with this Agreement. If the Company delivers any Additional Accelerated Purchase Notice
directing the Investor to purchase an amount of Purchase Shares that exceeds the Additional Accelerated Purchase Share Amount that the
Company is then permitted to include in such Additional Accelerated Purchase Notice, such Additional Accelerated Purchase Notice shall
be void ab initio to the extent of the amount by which the number of Purchase Shares set forth in such Additional Accelerated
Purchase Notice exceeds the Additional Accelerated Purchase Share Amount that the Company is then permitted to include in such Additional
Accelerated Purchase Notice (which shall be confirmed in an Additional Accelerated Purchase Confirmation), and the Investor shall have
no obligation to purchase such excess Purchase Shares in respect of such Additional Accelerated Purchase Notice; provided, however,
that the Investor shall remain obligated to purchase the Additional Accelerated Purchase Share Amount which the Company is permitted
to include in such Additional Accelerated Purchase Notice. Within one (1) Business Day after completion of each Additional Accelerated
Purchase Date, the Investor will provide to the Company a written confirmation of each Additional Accelerated Purchase on such Additional
Accelerated Purchase Date setting forth the applicable Additional Accelerated Purchase Share Amount and Additional Accelerated Purchase
Price for each such Additional Accelerated Purchase on such Additional Accelerated Purchase Date (each, an “Additional Accelerated
Purchase Confirmation”). Notwithstanding the foregoing, the Company shall not deliver any Additional Accelerated Purchase Notices
to the Investor during the PEA Period.
(d)
Payment for Purchase Shares. For each Regular Purchase, the Investor shall pay to the Company an amount equal to the Purchase
Amount with respect to such Regular Purchase as full payment for such Purchase Shares via wire transfer of immediately available funds
on the same Business Day that the Investor receives such Purchase Shares, if such Purchase Shares are received by the Investor before
1:00 p.m., Eastern time, or, if such Purchase Shares are received by the Investor after 1:00 p.m., Eastern time, the next Business Day.
For each Accelerated Purchase and each Additional Accelerated Purchase, the Investor shall pay to the Company an amount equal to the
Purchase Amount with respect to such Accelerated Purchase and Additional Accelerated Purchase, respectively, as full payment for such
Purchase Shares via wire transfer of immediately available funds on the second Business Day following the date that the Investor receives
such Purchase Shares. If the Company or the Transfer Agent shall fail for any reason or for no reason to electronically transfer any
Purchase Shares as DWAC Shares in respect of a Regular Purchase, an Accelerated Purchase or an Additional Accelerated Purchase (as applicable)
within two (2) Business Days following the receipt by the Company of the Purchase Price, Accelerated Purchase Price and Additional Accelerated
Purchase Price, respectively, therefor in compliance with this Section 2(d), and if on or after such Business Day the Investor
purchases (in an open market transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the Investor of
such Purchase Shares that the Investor anticipated receiving from the Company in respect of such Regular Purchase, Accelerated Purchase
or Additional Accelerated Purchase (as applicable), then the Company shall, within two (2) Business Days after the Investor’s request,
either (i) pay cash to the Investor in an amount equal to the Investor’s total purchase price (including brokerage commissions,
if any) for the shares of Common Stock so purchased (the “Cover Price”), at which point the Company’s obligation
to deliver such Purchase Shares as DWAC Shares shall terminate, or (ii) promptly honor its obligation to deliver to the Investor such
Purchase Shares as DWAC Shares and pay cash to the Investor in an amount equal to the excess (if any) of the Cover Price over the total
Purchase Amount paid by the Investor pursuant to this Agreement for all of the Purchase Shares to be purchased by the Investor in connection
with such Regular Purchase, Accelerated Purchase and Additional Accelerated Purchase (as applicable). The Company shall not issue any
fraction of a share of Common Stock upon any Regular Purchase, Accelerated Purchase or Additional Accelerated Purchase. If the issuance
would result in the issuance of a fraction of a share of Common Stock, the Company shall round such fraction of a share of Common Stock
up or down to the nearest whole share. All payments made under this Agreement shall be made in lawful currency of the United States of
America by wire transfer of immediately available funds to such account as the Company (or the Investor, as applicable) may from time
to time designate by written notice in accordance with the provisions of this Agreement. Whenever any amount expressed to be due by the
terms of this Agreement is due on any day that is not a Business Day, the same shall instead be due on the next succeeding day that is
a Business Day.
(e)
Compliance with Rules of Principal Market.
(i)
Exchange Cap. Subject to Section 2(e)(ii) below, the Company shall not issue or sell any shares of Common Stock pursuant
to this Agreement, and the Investor shall not purchase or acquire any shares of Common Stock pursuant to this Agreement, to the extent
that after giving effect thereto, the aggregate number of shares of Common Stock that would be issued pursuant to this Agreement and
the transactions contemplated hereby would exceed 5,796,733 (representing 19.99% of the shares of Common Stock issued and outstanding
immediately prior to the execution of this Agreement), which number of shares shall be (i) reduced, on a share-for-share basis, by the
number of shares of Common Stock issued or issuable pursuant to any transaction or series of transactions that may be aggregated with
the transactions contemplated by this Agreement under applicable rules of The Nasdaq Stock Market and (ii) appropriately adjusted for
any reorganization, recapitalization, non-cash dividend, stock split or other similar transaction that occurs after the date of this
Agreement (such maximum number of shares, the “Exchange Cap”), unless and until the Company elects to solicit stockholder
approval of the issuance of Common Stock as contemplated by this Agreement, and the stockholders of the Company have in fact approved
the issuance of Common Stock as contemplated by this Agreement in accordance with the applicable rules of The Nasdaq Stock Market. For
the avoidance of doubt, the Company may, but shall be under no obligation to, request its stockholders to approve the issuance of Common
Stock as contemplated by this Agreement; provided, that if stockholder approval is not obtained in accordance with this Section 2(e)(i),
the Exchange Cap shall be applicable for all purposes of this Agreement and the transactions contemplated hereby at all times during
the term of this Agreement (except as set forth in Section 2(e)(ii) below).
(ii)
At-Market Transaction. Notwithstanding Section 2(e)(i) above, the Exchange Cap shall not be applicable for any purposes
of this Agreement and the transactions contemplated hereby, solely to the extent that (and only for so long as) the Average Price shall
equal or exceed the Base Price (it being hereby acknowledged and agreed that the Exchange Cap shall be applicable for all purposes of
this Agreement and the transactions contemplated hereby at all other times during the term of this Agreement, unless the stockholder
approval referred to in Section 2(e)(i) is obtained). The parties acknowledge and agree that the Signing Market Price used to
determine the Base Price hereunder represents the lower of (i) the official closing price of the Common Stock on The Nasdaq Capital Market
(as reflected on Nasdaq.com) on the trading day immediately preceding the date of this Agreement and (ii) the average official closing
price of the Common Stock on The Nasdaq Capital Market (as reflected on Nasdaq.com) for the five (5) consecutive trading days ending
on the trading day immediately preceding the date of this Agreement.
(iii)
General. The Company shall not issue any shares of Common Stock pursuant to this Agreement if such issuance would reasonably be
expected to result in (A) a violation of the Securities Act or (B) a breach of the rules and regulations of the Principal Market. The
provisions of this Section 2(e) shall be implemented in a manner otherwise than in strict conformity with the terms hereof only
if necessary to ensure compliance with the Securities Act, the rules and regulations of the Principal Market.
(f)
Beneficial Ownership Limitation. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not issue
or sell, and the Investor shall not purchase or acquire, any shares of Common Stock under this Agreement which, when aggregated with
all other shares of Common Stock then beneficially owned by the Investor and its affiliates (as calculated pursuant to Section 13(d)
of the Exchange Act and Rule 13d-3 promulgated thereunder), would result in the beneficial ownership by the Investor of more than 9.99%
of the then issued and outstanding shares of Common Stock (the “Beneficial Ownership Limitation”). Upon the written
or oral request of the Investor, the Company shall promptly (but not later than 24 hours) confirm orally or in writing to the Investor
the number of shares of Common Stock then outstanding. The Investor and the Company shall each cooperate in good faith in the determinations
required hereby and the application hereof. The Investor’s written certification to the Company of the applicability of the Beneficial
Ownership Limitation, and the resulting effect thereof hereunder at any time, shall be conclusive with respect to the applicability thereof
and such result absent manifest error.
3.
INVESTOR’S REPRESENTATIONS AND WARRANTIES.
The
Investor represents and warrants to the Company that as of the date hereof and as of the Commencement Date:
(a)
Investment Purpose. The Investor is acquiring the Securities as principal for its own account and not with a view to or for distributing
or reselling such Securities or any part thereof in violation of the Securities Act or any applicable state securities law, has no present
intention of distributing any of such Securities in violation of the Securities Act or any applicable state securities law and has no
direct or indirect arrangement or understandings with any other Persons to distribute or regarding the distribution of such Securities
in violation of the Securities Act or any applicable state securities law (this representation and warranty not limiting the Investor’s
right to sell the Securities at any time pursuant to the Registration Statement described herein or otherwise in compliance with applicable
federal and state securities laws). The Investor is acquiring the Securities hereunder in the ordinary course of its business.
(b)
Accredited Investor Status. The Investor is an “accredited investor” as that term is defined in Rule 501(a)(3) of
Regulation D promulgated under the Securities Act.
(c)
Reliance on Exemptions. The Investor understands that the Securities are being offered and sold to it in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying in part
upon the truth and accuracy of, and the Investor’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Investor set forth herein in order to determine the availability of such exemptions and the eligibility of
the Investor to acquire the Securities.
(d)
Information. The Investor understands that its investment in the Securities involves a high degree of risk. The Investor (i) is
able to bear the economic risk of an investment in the Securities including a total loss thereof, (ii) has such knowledge and experience
in financial and business matters that it is capable of evaluating the merits and risks of the proposed investment in the Securities
and (iii) has had an opportunity to ask questions of and receive answers from the officers of the Company concerning the financial condition
and business of the Company and others matters related to an investment in the Securities. Neither such inquiries nor any other due diligence
investigations conducted by the Investor or its representatives shall modify, amend or affect the Investor’s right to rely on the
Company’s representations and warranties contained in Section 4 below. The Investor has sought such accounting, legal and
tax advice from its own independent advisors as it has considered necessary to make an informed investment decision with respect to its
acquisition of the Securities.
(e)
No Governmental Review. The Investor understands that no U.S. federal or state agency or any other government or governmental
agency has passed on or made any recommendation or endorsement of the Securities or the fairness or suitability of an investment in the
Securities nor have such authorities passed upon or endorsed the merits of the offering of the Securities.
(f)
Transfer or Sale. The Investor understands that (i) the Securities may not be offered for sale, sold, assigned or transferred
unless (A) registered pursuant to the Securities Act or (B) an exemption exists permitting such Securities to be sold, assigned or transferred
without such registration; (ii) any sale of the Securities made in reliance on Rule 144 may be made only in accordance with the terms
of Rule 144 and further, if Rule 144 is not applicable, any resale of the Securities under circumstances in which the seller (or the
Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the Securities Act) may require
compliance with some other exemption under the Securities Act or the rules and regulations of the SEC thereunder.
(g)
Validity; Enforcement. This Agreement has been duly and validly authorized, executed and delivered on behalf of the Investor and
is a valid and binding agreement of the Investor enforceable against the Investor in accordance with its terms, subject as to enforceability
to general principles of equity and to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar laws
relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.
(h)
Residency. The Investor is a resident of the State of Illinois.
(i)
No Short Selling. The Investor represents and warrants to the Company that at no time prior to the date of this Agreement has
any of the Investor, its agents, representatives or affiliates engaged in or effected, in any manner whatsoever, directly or indirectly,
any (i) “short sale” (as such term is defined in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii)
hedging transaction, which establishes a net short position with respect to the Common Stock.
4.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The
Company represents and warrants to the Investor that, except as set forth in the disclosure schedules attached hereto, which exceptions
shall be deemed to be a part of the representations and warranties made hereunder, as of the date hereof and as of the Commencement Date:
(a)
Organization and Qualification. The Company and each of its Subsidiaries is an entity duly incorporated or otherwise organized,
validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite corporate
power and authority to own and use its properties and assets and to carry on its business as currently conducted. Neither the Company
nor any of its Subsidiaries is in violation or default of any of the provisions of its respective certificate or articles of incorporation,
bylaws or other organizational or charter documents. Each of the Company and its Subsidiaries is duly qualified to conduct business and
is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be so qualified or in good standing, as the case may be,
could not have or reasonably be expected to result in a Material Adverse Effect and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. The Company has no
Subsidiaries except as set forth on Schedule 4(a).
(b)
Authorization; Enforcement; Validity. (i) The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement, the Registration Rights Agreement and each of the other Transaction Documents, and to issue the
Securities in accordance with the terms hereof and thereof, (ii) the execution and delivery of the Transaction Documents by the Company
and the consummation by it of the transactions contemplated hereby and thereby, including without limitation, the issuance of the Commitment
Shares (as defined below in Section 5(e)) and the reservation for issuance and the issuance of the Purchase Shares issuable under
this Agreement, have been duly authorized by the Company’s Board of Directors and no further consent or authorization is required
by the Company, its Board of Directors or its stockholders (except as provided in this Agreement), (iii) each of this Agreement and the
Registration Rights Agreement has been, and each other Transaction Document shall be on the Commencement Date, duly executed and delivered
by the Company and (iv) each of this Agreement and the Registration Rights Agreement constitutes, and each other Transaction Document
upon its execution on behalf of the Company, shall constitute, the valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of creditors’
rights and remedies. The Board of Directors of the Company has approved the resolutions (the “Signing Resolutions”)
substantially in the form as set forth as Exhibit C attached hereto to authorize this Agreement, the Registration Rights Agreement
and the transactions contemplated hereby. The Signing Resolutions are valid, in full force and effect and have not been modified or supplemented
in any respect. The Company has delivered to the Investor a true and correct copy of minutes of a meeting of the Board of Directors of
the Company at which the Signing Resolutions were duly adopted by the Board of Directors or a unanimous written consent adopting the
Signing Resolutions executed by all of the members of the Board of Directors of the Company. Except as set forth in this Agreement, no
other approvals or consents of the Company’s Board of Directors, any authorized committee thereof, or stockholders (except as provided
in this Agreement) is necessary under applicable laws and the Company’s Certificate of Incorporation or Bylaws to authorize the
execution and delivery of the Transaction Documents or any of the transactions contemplated thereby, including, but not limited to, the
issuance of the Commitment Shares and the issuance of the Purchase Shares.
(c)
Capitalization. The authorized capital stock of the Company as of December 31, 2021 is set forth in the Company’s Annual
Report on Form 10-K for the year ended December 31, 2021. Except as disclosed in the SEC Documents (as defined below), (i) no shares
of the Company’s capital stock are subject to preemptive rights or any other similar rights or any liens or encumbrances suffered
or permitted by the Company, (ii) there are no outstanding debt securities, (iii) there are no outstanding options, warrants, scrip,
rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares
of capital stock of the Company or any of its Subsidiaries, or contracts, commitments, understandings or arrangements by which the Company
or any of its Subsidiaries is or may become bound to issue additional shares of capital stock of the Company or any of its Subsidiaries
or options, warrants, scrip, rights to subscribe to, calls or commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its Subsidiaries, (iv) there are no agreements or arrangements
under which the Company or any of its Subsidiaries is obligated to register the sale of any of their securities under the Securities
Act (except the Registration Rights Agreement), (v) there are no outstanding securities or instruments of the Company or any of its Subsidiaries
which contain any redemption or similar provisions, and there are no contracts, commitments, understandings or arrangements by which
the Company or any of its Subsidiaries is or may become bound to redeem a security of the Company or any of its Subsidiaries, (vi) there
are no securities or instruments containing anti-dilution or similar provisions that will be triggered by the issuance of the Securities
as described in this Agreement and (vii) the Company does not have any stock appreciation rights or “phantom stock” plans
or agreements or any similar plan or agreement. The Company has furnished to the Investor true and correct copies of the Company’s
Certificate of Incorporation, as amended and as in effect on the date hereof (the “Certificate of Incorporation”),
and the Company’s Bylaws, as amended and as in effect on the date hereof (the “Bylaws”), and summaries of the
material terms of all securities convertible into or exercisable for Common Stock, if any, and copies of any documents containing the
material rights of the holders thereof in respect thereto that are not disclosed in the SEC Documents.
(d)
Issuance of Securities. Upon issuance and payment therefor in accordance with the terms and conditions of this Agreement, the
Purchase Shares shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions, rights of
first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded to a holder
of Common Stock. Upon issuance in accordance with the terms and conditions of this Agreement, the Commitment Shares (as defined below
in Section 5(e)) shall be validly issued, fully paid and nonassessable and free from all taxes, liens, charges, restrictions,
rights of first refusal and preemptive rights with respect to the issue thereof, with the holders being entitled to all rights accorded
to a holder of Common Stock. 5,390,780 shares of Common Stock have been duly authorized and reserved for issuance upon purchase under
this Agreement as Purchase Shares.
(e)
No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the Commitment Shares and
the reservation for issuance and issuance of the Purchase Shares) will not (i) result in a violation of the Certificate of Incorporation,
any Certificate of Designations, Preferences and Rights of any outstanding series of preferred stock of the Company or the Bylaws or
(ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or result in a violation of any law, rule, regulation, order, judgment or decree (including
federal and state securities laws and regulations, the rules of the Principal Market applicable to the Company or any of its Subsidiaries)
or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, except in the case of conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations under clause (ii), which could not reasonably be expected to result
in a Material Adverse Effect. Neither the Company nor its Subsidiaries is in violation of any term of or in default under its Certificate
of Incorporation, any Certificate of Designation, Preferences and Rights of any outstanding series of preferred stock of the Company
or Bylaws or their organizational charter or bylaws, respectively. Neither the Company nor any of its Subsidiaries is in violation of
any term of or is in default under any material contract, agreement, mortgage, indebtedness, indenture, instrument, judgment, decree
or order or any statute, rule or regulation applicable to the Company or its Subsidiaries, except for possible conflicts, defaults, terminations
or amendments that could not reasonably be expected to have a Material Adverse Effect. The business of the Company and its Subsidiaries
is not being conducted, and shall not be conducted, in violation of any law, ordinance or regulation of any governmental entity, except
for possible violations, the sanctions for which either individually or in the aggregate could not reasonably be expected to have a Material
Adverse Effect. Except as specifically contemplated by this Agreement and as required under the Securities Act or applicable state securities
laws and the rules of the Principal Market, the Company is not required to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency or any regulatory or self-regulatory agency in order for it to execute,
deliver or perform any of its obligations under or contemplated by the Transaction Documents in accordance with the terms hereof or thereof.
Except as set forth elsewhere in this Agreement, all consents, authorizations, orders, filings and registrations which the Company is
required to obtain pursuant to the preceding sentence shall be obtained or effected on or prior to the Commencement Date. Except as disclosed
in the SEC Documents, since one year prior to the date hereof, the Company has not received nor delivered any notices or correspondence
from or to the Principal Market, other than notices with respect to listing of additional shares of Common Stock and other routine correspondence.
Except as disclosed in the SEC Documents, the Principal Market has not commenced any delisting proceedings against the Company.
(f)
SEC Documents; Financial Statements. The Company has filed all reports, schedules, forms, statements and other documents required
to be filed by the Company under the Securities Act and the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the
twelve months preceding the date hereof (or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference therein, being collectively referred
to herein as the “SEC Documents”) on a timely basis or has received a valid extension of such time of filing and has
filed any such SEC Documents prior to the expiration of any such extension. As of their respective dates, the SEC Documents complied
in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable. None of the SEC Documents,
when filed, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply in all material respects with applicable accounting requirements and the
rules and regulations of the SEC with respect thereto as in effect at the time of filing. Such financial statements have been prepared
in accordance with United States generally accepted accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial statements
may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and
its consolidated Subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended,
subject, in the case of unaudited statements, to normal, immaterial, year-end audit adjustments. Except as set forth in the SEC Documents,
the Company has received no notices or correspondence from the SEC for the one year preceding the date hereof. The SEC has not
commenced any enforcement proceedings against the Company or any of its Subsidiaries.
(g)
Absence of Certain Changes. Except as disclosed in the SEC Documents, since December 31, 2021, there has been no material adverse
change in the business, properties, operations, financial condition or results of operations of the Company or its Subsidiaries. The
Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law nor
does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
(h)
Absence of Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court, public board, government
agency, self-regulatory organization or body pending or, to the knowledge of the Company or any of its Subsidiaries, threatened against
or affecting the Company, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors in their capacities
as such, which could reasonably be expected to have a Material Adverse Effect.
(i)
Acknowledgment Regarding Investor’s Status. The Company acknowledges and agrees that the Investor is acting solely in the
capacity of arm’s length purchaser with respect to the Transaction Documents and the transactions contemplated hereby and thereby.
The Company further acknowledges that the Investor is not acting as a financial advisor or fiduciary of the Company (or in any similar
capacity) with respect to the Transaction Documents and the transactions contemplated hereby and thereby and any advice given by the
Investor or any of its representatives or agents in connection with the Transaction Documents and the transactions contemplated hereby
and thereby is merely incidental to the Investor’s purchase of the Securities. The Company further represents to the Investor that
the Company’s decision to enter into the Transaction Documents has been based solely on the independent evaluation by the Company
and its representatives and advisors.
(j)
No General Solicitation; No Integrated Offering. Neither the Company, nor any of its affiliates, nor any Person acting on its
or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the
Securities Act) in connection with the offer or sale of the Securities. Neither the Company, nor or any of its affiliates, nor any Person
acting on their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security,
under circumstances that would require registration of the offer and sale of any of the Securities under the Securities Act, whether
through integration with prior offerings or otherwise, or cause this offering of the Securities to be integrated with prior offerings
by the Company in a manner that would require stockholder approval pursuant to the rules of the Principal Market on which any of the
securities of the Company are listed or designated. The issuance and sale of the Securities hereunder does not contravene the rules and
regulations of the Principal Market.
(k)
Intellectual Property Rights. The Company and its Subsidiaries own or possess adequate rights or licenses to use all material
trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights, copyrights, inventions, licenses,
approvals, governmental authorizations, trade secrets and rights necessary to conduct their respective businesses as now conducted. None
of the Company’s material trademarks, trade names, service marks, service mark registrations, service names, patents, patent rights,
copyrights, inventions, licenses, approvals, government authorizations, trade secrets or other intellectual property rights have expired
or terminated, or, by the terms and conditions thereof, could expire or terminate within two years from the date of this Agreement. The
Company and its Subsidiaries do not have any knowledge of any infringement by the Company or its Subsidiaries of any material trademark,
trade name rights, patents, patent rights, copyrights, inventions, licenses, service names, service marks, service mark registrations,
trade secret or other similar rights of others, or of any such development of similar or identical trade secrets or technical information
by others, and there is no claim, action or proceeding being made or brought against, or to the Company’s knowledge, being threatened
against, the Company or its Subsidiaries regarding trademark, trade name, patents, patent rights, invention, copyright, license, service
names, service marks, service mark registrations, trade secret or other infringement, which could reasonably be expected to have a Material
Adverse Effect.
(l)
Environmental Laws. The Company and its Subsidiaries (i) are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with all terms
and conditions of any such permit, license or approval, except where, in each of the three foregoing clauses, the failure to so comply
could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(m)
Title. Except as set forth in the SEC Documents, the Company and its Subsidiaries have good and marketable title in fee simple
to all real property owned by them and good and marketable title in all personal property owned by them that is material to the business
of the Company and its Subsidiaries, in each case free and clear of all liens, encumbrances and defects (“Liens”)
and, except for Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its Subsidiaries and Liens for the payment of federal, state or other taxes, the payment
of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by the Company and its Subsidiaries
are held by them under valid, subsisting and enforceable leases with which the Company and its Subsidiaries are in compliance with such
exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company
and its Subsidiaries.
(n)
Insurance. The Company and each of its Subsidiaries are insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as management of the Company believes to be prudent and customary in the businesses in which the
Company and its Subsidiaries are engaged. Neither the Company nor any such Subsidiary has been refused any insurance coverage sought
or applied for and neither the Company nor any such Subsidiary has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business
or operations of the Company and its Subsidiaries, taken as a whole.
(o)
Regulatory Permits. The Company and its Subsidiaries possess all material certificates, authorizations and permits issued by the
appropriate federal, state or foreign regulatory authorities necessary to conduct their respective businesses, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization
or permit.
(p)
Tax Status. The Company and each of its Subsidiaries has made or filed all federal and state income and all other material tax
returns, reports and declarations required by any jurisdiction to which it is subject (unless and only to the extent that the Company
and each of its Subsidiaries has set aside on its books provisions reasonably adequate for the payment of all unpaid and unreported taxes)
and has paid all taxes and other governmental assessments and charges that are material in amount, shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith and has set aside on its books provision reasonably adequate
for the payment of all taxes for periods subsequent to the periods to which such returns, reports or declarations apply. There are no
unpaid taxes in any material amount claimed to be due by the taxing authority of any jurisdiction, and the officers of the Company know
of no basis for any such claim.
(q)
Transactions With Affiliates. Except as set forth in the SEC Documents, none of the officers or directors of the Company and,
to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company or any
Subsidiary (other than for services as employees, officers and directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments
to or from any officer, director or such employee or, to the knowledge of the Company, any entity in which any officer, director, or
any such employee has a substantial interest or is an officer, director, trustee or partner, in each case in excess of $120,000 other
than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company
and (iii) other employee benefits, including stock option agreements under any stock option plan of the Company.
(r)
Application of Takeover Protections. The Company and its board of directors have taken or will take prior to the Commencement
Date all necessary action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including
any distribution under a rights agreement) or other similar anti-takeover provision under the Certificate of Incorporation or the laws
of the state of its incorporation which is or could become applicable to the Investor as a result of the transactions contemplated by
this Agreement, including, without limitation, the Company’s issuance of the Securities and the Investor’s ownership of the
Securities.
(s)
Disclosure. Except with respect to the material terms and conditions of the transactions contemplated by the Transaction Documents
that will be timely publicly disclosed by the Company, the Company confirms that neither it nor any other Person acting on its behalf
has provided the Investor or its agents or counsel with any information that it believes constitutes or might constitute material, non-public
information which is not otherwise disclosed in the Registration Statement or the SEC Documents. The Company understands and confirms
that the Investor will rely on the foregoing representation in effecting purchases and sales of securities of the Company. All of the
disclosure furnished by or on behalf of the Company to the Investor regarding the Company, its business and the transactions contemplated
hereby, including the disclosure schedules to this Agreement, is true and correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which
they were made, not misleading. The press releases disseminated by the Company during the twelve months preceding the date of this Agreement
taken as a whole do not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the circumstances under which they were made and when made, not misleading.
The Company acknowledges and agrees that the Investor neither makes nor has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in Section 3 hereof.
(t)
Foreign Corrupt Practices. Neither the Company nor any of the Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of the Subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such Persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term
is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA; and the Company, the Subsidiaries and, to the knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected
to continue to ensure, continued compliance therewith.
(u)
DTC Eligibility. The Company, through the Transfer Agent, currently participates in the DTC Fast Automated Securities Transfer
(FAST) Program and the Common Stock can be transferred electronically to third parties via the DTC Fast Automated Securities Transfer
(FAST) Program.
(v)
Sarbanes-Oxley; Internal Accounting Controls. The Company and the Subsidiaries are in compliance in all material respects with
any and all applicable requirements of the Sarbanes-Oxley Act of 2002 that are effective as of the date hereof, and any and all applicable
rules and regulations promulgated by the Commission thereunder that are effective as of the date hereof and as of the Commencement Date.
The Company and the Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that: (i)
transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability, (iii) access to
assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
The Company and the Subsidiaries have established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) for the Company and the Subsidiaries and designed such disclosure controls and procedures to ensure that information required
to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed, summarized and reported,
within the time periods specified in the Commission’s rules and forms. The Company’s certifying officers have evaluated the
effectiveness of the disclosure controls and procedures of the Company and the Subsidiaries as of the end of the period covered by the
most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”). The Company presented
in its most recently filed periodic report under the Exchange Act the conclusions of the certifying officers about the effectiveness
of the disclosure controls and procedures based on their evaluations as of the Evaluation Date. Since the Evaluation Date, there have
been no changes in the internal control over financial reporting (as such term is defined in the Exchange Act) of the Company and its
Subsidiaries that have materially affected, or is reasonably likely to materially affect, the internal control over financial reporting
of the Company and its Subsidiaries.
(w)
Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to any broker, financial
advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated
by the Transaction Documents. The Investor shall have no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section 4(w) that may be due in connection with the transactions
contemplated by the Transaction Documents.
(x)
Investment Company. The Company is not, and immediately after receipt of payment for the Securities will not be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
(y)
Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act, and the Company
has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common
Stock pursuant to the Exchange Act nor has the Company received any notification that the SEC is currently contemplating terminating
such registration. The issued and outstanding shares of Common Stock are listed and posted for trading on the Principal Market, and the
Company is in compliance in all respects with the current listing requirements of the Principal Market; and the Securities will be listed
and posted for trading on the Principal Market at or prior to Commencement, with respect to the Commitment Shares, and prior to the time
of sale to the Investor pursuant to this Agreement, with respect to the Purchase Shares. Except as disclosed in the SEC Documents, the
Company has not, in the twelve (12) months preceding the date hereof, received any notice from any Person to the effect that the Company
is not in compliance with the listing or maintenance requirements of the Principal Market. Except as disclosed in the SEC Documents,
the Company is, and has no reason to believe that it will not in the foreseeable future continue to be, in compliance with all such listing
and maintenance requirements.
(z)
Accountants. The Company’s accountants are set forth in the SEC Documents and, to the knowledge of the Company, such accountants
are an independent registered public accounting firm as required by the Securities Act.
(aa)
No Market Manipulation. The Company has not, and to its knowledge no Person acting on its behalf has, (i) taken, directly or indirectly,
any action designed to cause or to result in the stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any compensation for soliciting purchases of, any
of the Securities, or (iii) paid or agreed to pay to any Person any compensation for soliciting another to purchase any other securities
of the Company.
(bb)
Shell Company Status. The Company is not currently, and has never been, an issuer identified in Rule 144(i)(1) under the Securities
Act.
(cc)
Regulatory Matters. During the 12-month period immediately preceding the date hereof, except as described in the SEC Documents,
the Company and each of its Subsidiaries: (A) is and at all times has been to the Company’s knowledge in material compliance with
all applicable U.S. and foreign statutes, rules, regulations, or guidance applicable to Company and each of its Subsidiaries (“Applicable
Laws”), except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
(B) have not received any notice of adverse finding, warning letter, untitled letter or other correspondence or notice from the U.S.
Food and Drug Administration or any other federal, state, or foreign governmental authority having authority over the Company (“Governmental
Authority”) alleging or asserting noncompliance with any Applicable Laws or any licenses, certificates, approvals, clearances,
authorizations, permits and supplements or amendments thereto required by any such Applicable Laws (“Authorizations”);
(C) possess all material Authorizations and such material Authorizations are valid and in full force and effect and are not in violation
of any term of any such material Authorizations; (D) have not received notice of any claim, action, suit, proceeding, hearing, enforcement,
investigation, arbitration or other action from any Governmental Authority or third party alleging that any product, operation or activity
is in violation of any Applicable Laws or Authorizations and have no knowledge that any such Governmental Authority or third party is
considering any such claim, litigation, arbitration, action, suit, investigation or proceeding; (E) have not received notice that any
Governmental Authority has taken, is taking or intends to take action to limit, suspend, modify or revoke any Authorizations and the
Company has no knowledge that any such Governmental Authority is considering such action; and (F) have filed, obtained, maintained or
submitted all material reports, documents, forms, notices, applications, records, claims, submissions and supplements or amendments as
required by any Applicable Laws or material Authorizations and that all such reports, documents, forms, notices, applications, records,
claims, submissions and supplements or amendments were complete and correct in all material respects on the date filed (or were corrected
or supplemented by a subsequent submission). During the 12-month period immediately preceding the date hereof, to the Company’s
knowledge, the studies, tests and preclinical and clinical trials conducted by or on behalf of the Company were and, if still pending,
are, in all material respects, being conducted in accordance with experimental protocols, procedures and controls pursuant to accepted
professional scientific standards and all Applicable Laws, including, without limitation, the United States Federal Food, Drug and Cosmetic
Act and the laws, rules and regulations of the Therapeutic Products Directorate, the European Medicines Agency, the European Commission’s
Enterprise Directorate General and the regulatory agencies within each Member State granting Marketing Authorization through the Mutual
Recognition Procedure or any other federal, provincial, state, local or foreign governmental or quasi-governmental body exercising comparable
authority; the descriptions of the results of such studies, tests and trials contained in the SEC Documents are accurate and complete
in all material respects and fairly present the data derived from such studies, tests and trials; the descriptions in the SEC Documents
of the results of such clinical trials are consistent in all material respects with such results and to the Company’s knowledge
there are no other studies or other clinical trials whose results are materially inconsistent with or otherwise materially call into
question the results described or referred to in the SEC Documents; and the Company has not received any notices or correspondence from
any Governmental Authority requiring the termination, suspension or material modification of any studies, tests or preclinical or clinical
trials conducted by or on behalf of the Company or its Subsidiaries. The Company has concluded that it uses commercially reasonable efforts
to review, from time to time, the progress and results of the studies, tests and preclinical and clinical trials and, based upon (i)
the information provided to the Company by the third parties conducting such studies, tests, preclinical studies and clinical trials
that are described in the SEC Documents and the Company’s review of such information, and (ii) the Company’s actual knowledge,
the Company reasonably believes that the descriptions in the SEC Document of the results of such studies, tests, preclinical studies
and clinical trials are accurate and complete in all material respects.
(dd)
Stock Option Plans. Each stock option granted by the Company under the Company’s stock option plan was granted (i) in accordance
with the terms of the Company’s stock option plan and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such stock option would be considered granted under GAAP and applicable law. No stock option granted under the
Company’s stock option plan has been backdated. The Company has not knowingly granted, and there is no and has been no Company
policy or practice to knowingly grant, stock options prior to, or otherwise knowingly coordinate the grant of stock options with, the
release or other public announcement of material information regarding the Company or its Subsidiaries or their financial results or
prospects.
(ee)
Office of Foreign Assets Control Neither the Company nor any of its Subsidiaries, nor to the knowledge of the Company any of the
directors, officers or employees, agents, affiliates or representatives of the Company or its Subsidiaries, is an individual or entity
that is, or is owned or controlled by an individual or entity that is: (i) the subject of any sanctions administered or enforced by the
U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s
Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor (ii) located, organized or resident
in a country or territory that is the subject of Sanctions (including, without limitation, the Balkans, Belarus, Burma/Myanmar, Cote
D’Ivoire, Cuba, Democratic Republic of Congo, Iran, Iraq, Liberia, Libya, North Korea, Sudan, Syria, Venezuela and Zimbabwe). Neither
the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the transactions contemplated hereby, or lend,
contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity: (i) to fund
or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of such
funding or facilitation, is the subject of Sanctions or (ii) in any other manner that will result in a violation of Sanctions by any
individual or entity (including any individual or entity participating in the transactions contemplated hereby, whether as underwriter,
advisor, investor or otherwise). For the past five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and
is not now knowingly engaged in, any dealings or transactions with any individual or entity, or in any country or territory, that at
the time of the dealing or transaction is or was the subject of Sanctions.
(ff)
U.S. Real Property Holding Corporation. The Company is not and has never been a U.S. real property holding corporation within
the meaning of Section 897 of the Internal Revenue Code of 1986, as amended.
(gg)
Bank Holding Company Act. Neither the Company nor any of its Subsidiaries or affiliates is subject to the Bank Holding Company
Act of 1956, as amended (the “BHCA”) and to regulation by the Board of Governors of the Federal Reserve System (the
“Federal Reserve”). Neither the Company nor any of its Subsidiaries or affiliates owns or controls, directly or indirectly,
five percent (5%) or more of the outstanding shares of any class of voting securities or twenty-five percent (25%) or more of the total
equity of a bank or any entity that is subject to the BHCA and to regulation by the Federal Reserve. Neither the Company nor any of its
Subsidiaries or affiliates exercises a controlling influence over the management or policies of a bank or any entity that is subject
to the BHCA and to regulation by the Federal Reserve.
(hh)
Money Laundering. The operations of the Company and the Subsidiaries are and have been conducted at all times in compliance with
applicable financial recordkeeping and reporting requirements and the money laundering statutes and the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or enforced by any applicable governmental agency,
including, without limitation, Title 18 U.S. Code section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money
laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering,
of which the United States is a member and with which designation the United States representative to the group or organization continues
to concur, all as amended, and any Executive order, directive or regulation pursuant to the authority of any of the foregoing, or any
orders or licenses issued thereunder (collectively, the “Money Laundering Laws”), and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with
respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(ii)
Board of Directors. The qualifications of the persons serving as board members and the overall composition of the Board of Directors
of the Company comply with the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder applicable to the Company and the rules
of the Principal Market. At least one member of the Company’s Board of Directors qualifies as a “financial expert”
as such term is defined under the Sarbanes-Oxley Act of 2002 and the rules promulgated thereunder and the rules of the Principal Market.
In addition, at least a majority of the persons serving on the Company’s Board of Directors qualify as “independent”
as defined under the rules of the Principal Market.
(jj)
Benefit Plans; Labor Matters. Each benefit and compensation plan, agreement, policy and arrangement that is maintained, administered
or contributed to by the Company for current or former employees or directors of, or independent contractors with respect to, the Company
has been maintained in compliance with its terms and the requirements of any applicable statutes, orders, rules and regulations, and
the Company has complied in all material respects with all applicable statutes, orders, rules and regulations in regard to such plans,
agreements, policies and arrangements. Since December 31, 2019, each stock option granted under any equity incentive plan of the Company
(each, a “Stock Plan”) was granted with a per share exercise price no less than the market price per common share
on the grant date of such option in accordance with the rules of the Principal Market, and no such grant involved any “back-dating,”
or similar practice with respect to the effective date of such grant; each such option (i) was granted in compliance in all material
respects with Applicable Laws and with the applicable Stock Plan(s), (ii) was duly approved by the Board of Directors or a duly authorized
committee thereof, and (iii) has been properly accounted for in the Company’s financial statements and disclosed, to the extent
required, in the Company’s filings or submissions with the SEC, and the Principal Market. No labor problem or dispute with the
employees of the Company exists or is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers or contractors, that would have a Material Adverse Effect.
(kk)
Information Technology. The Company’s and the Subsidiaries’ information technology assets and equipment, computers,
systems, networks, hardware, software, websites, applications, and databases (collectively, “IT Systems”) operate
and perform in all material respects as required in connection with the operation of the business of the Company and the Subsidiaries
as currently conducted. The Company, and the Subsidiaries maintain commercially reasonable controls, policies, procedures, and safeguards
to maintain and protect their material confidential information and the integrity, continuous operation, redundancy and security of all
IT Systems and all personal, personally identifiable, sensitive, confidential or regulated data (“Personal Data”)
processed and stored thereon, and to the knowledge of the Company, there have been no breaches, incidents, violations, outages, compromises
or unauthorized uses of or accesses to same, except for those that have been remedied without material cost or liability or the duty
to notify any other person, nor any incidents under internal review or investigations relating to the same. The Company and the Subsidiaries
are presently in compliance in all material respects with all applicable laws or statutes and all applicable judgments, orders, rules
and regulations of any court or arbitrator or governmental or regulatory authority, internal policies and contractual obligations relating
to the privacy and security of IT Systems and Personal Data and to the protection of such IT Systems and Personal Data from unauthorized
use, access, misappropriation or modification, except for any such noncompliance that would not have a Material Adverse Effect.
(ll)
Outbreak. Except as disclosed in the SEC Documents and as mandated by or in conformity with the recommendations of a Governmental
Authority, there has been no closure, suspension or disruption to, the operations or workforce productivity of the Company or any Subsidiary
as a result of the COVID-19 pandemic and, except as disclosed in the SEC Documents, any such government mandates have not materially
affected the Company or any Subsidiary. The Company has been monitoring the COVID-19 pandemic and the potential impact on all of its
operations and has put in place measures it considers reasonable and in accordance with the recommendations of Governmental Authorities
to ensure the wellness of all of its employees and surrounding communities where the Company and the Subsidiaries operate while continuing
to operate. Without limiting the generality of the foregoing, since January 1, 2020, Company and its Subsidiaries have taken all steps
reasonable in the circumstances to protect the health and safety of its employees, including implementing and enforcing policies and
procedures to ensure compliance with COVID-19 measures mandated by any Governmental Authority, including rules relating to social distancing,
the use of face masks or personal protective equipment, and a limitation on activities that may increase the risk of transmission of
COVID-19.
(mm)
No Disqualification Events. None of the Company, any of its predecessors, any affiliated issuer, any director, executive officer,
other officer of the Company participating in the offering contemplated hereby, any beneficial owner of 20% or more of the Company’s
outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405
under the Securities Act) connected with the Company in any capacity at the time of sale (each, an “Issuer Covered Person”)
is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act
(a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities
Act. The Company has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.
5.
COVENANTS.
(a)
Filing of Current Report and Registration Statement. The Company agrees that it shall, within the time required under the Exchange
Act, file with the SEC a report on Form 8-K relating to the transactions contemplated by, and describing the material terms and conditions
of, the Transaction Documents (the “Current Report”). The Company shall also file with the SEC, within twenty (20)
Business Days from the date hereof, a new registration statement (the “Registration Statement”) covering only the
resale of the Purchase Shares and all of the Commitment Shares, in accordance with the terms of the Registration Rights Agreement between
the Company and the Investor, dated as of the date hereof (the “Registration Rights Agreement”). The Company shall
permit the Investor to review and comment upon (1) the final pre-filing draft version of the Current Report at least two (2) Business
Days prior to its filing with the SEC, and the Company shall give due consideration to all such comments. The Investor shall use its
reasonable best efforts to comment upon the Current Report within one (1) Business Day from the date the Investor receives the final
versions thereof from the Company. The Investor shall cooperate with the Company as reasonably requested by the Company in connection
with the preparation and filing of the Current Report with the SEC.
(b)
Blue Sky. The Company shall take all such action, if any, as is reasonably necessary in order to obtain an exemption for or to
register or qualify (i) the issuance of the Commitment Shares and the sale of the Purchase Shares to the Investor under this Agreement
and (ii) any subsequent resale of all Commitment Shares and all Purchase Shares by the Investor, in each case, under applicable securities
or “Blue Sky” laws of the states of the United States in such states as is reasonably requested by the Investor from time
to time, and shall provide evidence of any such action so taken to the Investor.
(c)
Listing/DTC. The Company shall promptly secure the listing of all of the Purchase Shares and Commitment Shares to be issued to
the Investor hereunder on the Principal Market (subject to official notice of issuance) and upon each other national securities exchange
or automated quotation system, if any, upon which the Common Stock is then listed, and shall use commercially reasonable efforts to maintain,
so long as any shares of Common Stock shall be so listed, such listing of all such Securities from time to time issuable hereunder. The
Company shall use commercially reasonable efforts to maintain the listing of the Common Stock on the Principal Market and shall comply
in all respects with the Company’s reporting, filing and other obligations under the bylaws or rules and regulations of the Principal
Market. Neither the Company nor any of its Subsidiaries shall take any action that would reasonably be expected to result in the delisting
or suspension of the Common Stock on the Principal Market. The Company shall promptly, and in no event later than the following Business
Day, provide to the Investor copies of any notices it receives from any Person regarding the continued eligibility of the Common Stock
for listing on the Principal Market; provided, however, that the Company shall not be required to provide the Investor copies of any
such notice that the Company reasonably believes constitutes material non-public information and the Company would not be required to
publicly disclose such notice in any report or statement filed with the SEC and under the Exchange Act or the Securities Act. The Company
shall pay all fees and expenses in connection with satisfying its obligations under this Section 5(c). The Company shall take
all action necessary to ensure that its Common Stock can be transferred electronically as DWAC Shares.
(d)
Prohibition of Short Sales and Hedging Transactions. The Investor agrees that beginning on the date of this Agreement and ending
on the date of termination of this Agreement as provided in Section 11, the Investor and its agents, representatives and affiliates shall
not in any manner whatsoever enter into or effect, directly or indirectly, any (i) “short sale” (as such term is defined
in Rule 200 of Regulation SHO of the Exchange Act) of the Common Stock or (ii) hedging transaction, which establishes a net short position
with respect to the Common Stock.
(e)
Issuance of Commitment Shares. In consideration for the Investor’s execution and delivery of this Agreement, the Company
shall cause to be issued to the Investor a total of 405,953 shares of Common Stock (the “Commitment Shares”) immediately
upon the execution of this Agreement and shall deliver to the Transfer Agent the Irrevocable Transfer Agent Instructions with respect
to the issuance of such Commitment Shares. For the avoidance of doubt, all of the Commitment Shares shall be fully earned as of the date
of this Agreement, whether or not the Commencement shall occur or any Purchase Shares are purchased by the Investor under this Agreement
and irrespective of any subsequent termination of this Agreement.
(f)
Due Diligence; Non-Public Information. The Investor shall have the right, from time to time as the Investor may reasonably deem
appropriate and upon reasonable advance notice to the Company, to perform reasonable due diligence on the Company during normal business
hours. The Company and its officers and employees shall provide information and reasonably cooperate with the Investor in connection
with any reasonable request by the Investor related to the Investor’s due diligence of the Company. Each party hereto agrees not
to disclose any Confidential Information of the other party to any third party and shall not use the Confidential Information for any
purpose other than in connection with, or in furtherance of, the transactions contemplated hereby. Each party hereto acknowledges that
the Confidential Information shall remain the property of the disclosing party and agrees that it shall take all reasonable measures
to protect the secrecy of any Confidential Information disclosed by the other party. The Company confirms that neither it nor any other
Person acting on its behalf shall provide the Investor or its agents or counsel with any information that constitutes or might constitute
material, non-public information, unless a simultaneous public announcement thereof is made by the Company in the manner contemplated
by Regulation FD. In the event of a breach of the foregoing covenant by the Company or any Person acting on its behalf (as determined
in the reasonable good faith judgment of the Investor), in addition to any other remedy provided herein or in the other Transaction Documents,
if the Investor is holding any Securities at the time of the disclosure of material, non-public information, the Investor shall have
the right to make a public disclosure, in the form of a press release, public advertisement or otherwise, of such material, non-public
information without the prior approval by the Company; provided the Investor shall have first provided notice to the Company that it
believes it has received information that constitutes material, non-public information, the Company shall have at least 24 hours to publicly
disclose such material, non-public information prior to any such disclosure by the Investor, the Company shall have failed to demonstrate
to the Investor in writing within such time period that such information does not constitute material, non-public information, and the
Company shall have failed to publicly disclose such material, non-public information within such time period. The Investor shall not
have any liability to the Company, any of its Subsidiaries, or any of their respective directors, officers, employees, stockholders or
agents, for any such disclosure. The Company understands and confirms that the Investor shall be relying on the foregoing covenants in
effecting transactions in securities of the Company.
(g)
Purchase Records. The Investor and the Company shall each maintain records showing the remaining Available Amount at any given
time and the dates and Purchase Amounts for each Regular Purchase, Accelerated Purchase and Additional Accelerated Purchase or shall
use such other method, reasonably satisfactory to the Investor and the Company.
(h)
Taxes. The Company shall pay any and all transfer, stamp or similar taxes that may be payable with respect to the issuance and
delivery of any shares of Common Stock to the Investor made under this Agreement.
(i)
Use of Proceeds. The Company will use the net proceeds from the offering as described in the Registration Statement or the SEC
Documents.
(j)
Other Transactions. The Company shall not enter into, announce or recommend to its stockholders any agreement, plan, arrangement
or transaction in or of which the terms thereof would restrict, materially delay, conflict with or impair the ability or right of the
Company to perform its obligations under the Transaction Documents, including, without limitation, the obligation of the Company to deliver
the Purchase Shares and the Commitment Shares to the Investor in accordance with the terms of the Transaction Documents.
(k)
Integration. From and after the date of this Agreement, neither the Company, nor or any of its affiliates will, and the Company
shall use its reasonable best efforts to ensure that no Person acting on their behalf will, directly or indirectly, make any offers or
sales of any security or solicit any offers to buy any security, under circumstances that would (i) require registration of the offer
and sale by the Company to the Investor of any of the Securities under the Securities Act, or (ii) cause this offering of the Securities
by the Company to the Investor to be integrated with other offerings by the Company in a manner that would require stockholder approval
pursuant to the rules of the Principal Market on which any of the securities of the Company are listed or designated, unless in the case
of this clause (ii), stockholder approval is obtained before the closing of such subsequent transaction in accordance with the rules
of such Principal Market.
(l)
Limitation on Similar Transactions. From and after the date of this Agreement until the later of (i) the 18-month anniversary
of the date of the Commencement Date and (ii) 6-month anniversary of the date of termination of this Agreement, the Company shall be
prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its Subsidiaries of Common Stock
or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction, other than in connection with
an Exempt Issuance. The Investor shall be entitled to obtain injunctive relief against the Company and its Subsidiaries to preclude any
such issuance, which remedy shall be in addition to any right to collect damages, without the necessity of showing economic loss and
without any bond or other security being required. “Common Stock Equivalents” means any securities of the Company
or its Subsidiaries which entitle the holder thereof to acquire at any time Common Stock, including, without limitation, any debt, preferred
stock, rights, options, warrants or other instrument that is at any time convertible into or exercisable or exchangeable for, or otherwise
entitles the holder thereof to receive, Common Stock. “Variable Rate Transaction” means an “equity line of credit”
or substantially similar transaction whereby an investor is irrevocably bound to purchase securities over a period of time from the Company
at a price based on the market price of the Company’s Common Stock at the time of each such purchase. “Exempt Issuance”
means the issuance of (a) Common Stock, options or other equity incentive awards to employees, officers, directors or vendors of the
Company pursuant to any equity incentive plan or stock purchase plan duly adopted for such purpose, by the Board of Directors of the
Company or a majority of the members of a committee of directors established for such purpose, (b) (1) any Securities issued to the Investor
pursuant to this Agreement, (2) any securities issued upon the exercise or exchange of or conversion of any shares of Common Stock or
Common Stock Equivalents held by the Investor at any time, (3) shares of Common Stock, Common Stock Equivalents or other securities issued
to the Investor pursuant to any other existing or future contract, agreement or arrangement between the Company and the Investor, or
(4) any securities issued upon the exercise or exchange of or conversion of any Common Stock Equivalents issued and outstanding on the
date of this Agreement, provided that such securities referred to in this clause (4) have not been amended since the date of this Agreement
to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities, (c)
securities issued pursuant to acquisitions, divestitures, licenses, partnerships, collaborations or strategic transactions approved by
the Board of Directors or a majority of the members of a committee of directors established for such purpose, which acquisitions, divestitures,
licenses, partnerships, collaborations or strategic transactions can have a Variable Rate Transaction component, provided that any such
issuance shall only be to a Person (or to the equity holders of a Person) which is, itself or through its subsidiaries, an operating
company or an asset in a business synergistic with the business of the Company and shall provide to the Company additional benefits in
addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the
purpose of raising capital or to an entity whose primary business is investing in securities, or (d) Common Stock issued pursuant to
an “at-the-market offering” by the Company exclusively through one or more registered broker-dealers acting primarily as
agent(s) of the Company pursuant to a written equity distribution or sales agreement between the Company and such registered broker-dealer(s).
6.
TRANSFER AGENT INSTRUCTIONS.
(a)
On the date of this Agreement, the Company shall issue irrevocable instructions to the Transfer Agent substantially in the form attached
hereto as Exhibit D to issue the Commitment Shares in accordance with the terms of this Agreement (the “Irrevocable
Transfer Agent Instructions”). The certificate(s) or book-entry statement(s) representing the Commitment Shares, except as
set forth below, shall bear the following restrictive legend (the “Restrictive Legend”):
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
(b)
On the earlier of (i) the Commencement Date and (ii) such time that the Investor shall request, provided all conditions of Rule 144 under
the Securities Act are met, the Company shall, no later than one (1) Business Day following the delivery by the Investor to the Company
or the Transfer Agent of one or more legended certificates or book-entry statements representing the Commitment Shares (which certificates
or book-entry statements the Investor shall promptly deliver on or prior to the first to occur of the events described in clauses (i)
and (ii) of this sentence), as directed by the Investor, issue and deliver (or cause to be issued and delivered) to the Investor, as
requested by the Investor, either: (A) a certificate or book-entry statement representing such Commitment Shares that is free from all
restrictive and other legends or (B) a number of shares of Common Stock equal to the number of Commitment Shares represented by the certificate(s)
or book-entry statement(s) so delivered by the Investor as DWAC Shares. The Company shall take all actions to carry out the intent and
accomplish the purposes of the immediately preceding sentence, including, without limitation, delivering all such legal opinions, consents,
certificates, resolutions and instructions to the Transfer Agent, and any successor transfer agent of the Company, as may be requested
from time to time by the Investor or necessary or desirable to carry out the intent and accomplish the purposes of the immediately preceding
sentence. On the Commencement Date, the Company shall issue to the Transfer Agent, and any subsequent transfer agent, (i) irrevocable
instructions in the form substantially similar to those used by the Investor in substantially similar transactions (the “Commencement
Irrevocable Transfer Agent Instructions”) and (ii) the notice of effectiveness of the Registration Statement in the form attached
as an exhibit to the Registration Rights Agreement (the “Notice of Effectiveness of Registration Statement”), in each
case to issue the Commitment Shares and the Purchase Shares in accordance with the terms of this Agreement and the Registration Rights
Agreement. All Purchase Shares and Commitment Shares to be issued from and after Commencement to or for the benefit of the Investor pursuant
to this Agreement shall be issued only as DWAC Shares. The Company represents and warrants to the Investor that, while this Agreement
is effective, no instruction other than the Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration
Statement referred to in this Section 6(b) will be given by the Company to the Transfer Agent with respect to the Purchase Shares
or the Commitment Shares from and after Commencement, and the Purchase Shares and the Commitment Shares covered by the Registration Statement
shall otherwise be freely transferable on the books and records of the Company. If the Investor effects a sale, assignment or transfer
of the Purchase Shares, the Company shall permit the transfer and shall promptly instruct the Transfer Agent (and any subsequent transfer
agent) to issue DWAC Shares in such name and in such denominations as specified by the Investor to effect such sale, transfer or assignment.
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor. Accordingly, the
Company acknowledges that the remedy at law for a breach of its obligations under this Section 6 will be inadequate and agrees,
in the event of a breach or threatened breach by the Company of the provisions of this Section 6, that the Investor shall be entitled,
in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and
transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company agrees that
if the Company fails to fully comply with the provisions of this Section 6(b) within five (5) Business Days of the Investor providing
the deliveries referred to above, the Company shall, at the Investor’s written instruction, purchase such shares of Common Stock
containing the restrictive legend from the Investor at the greater of the (i) purchase price paid for such shares of Common Stock (as
applicable) and (ii) the Closing Sale Price of the Common Stock on the date of the Investor’s written instruction.
7.
CONDITIONS TO THE COMPANY’S RIGHT TO COMMENCE SALES OF SHARES OF COMMON STOCK.
The
right of the Company hereunder to commence sales of the Purchase Shares on the Commencement Date is subject to the satisfaction of each
of the following conditions:
(a)
The Investor shall have executed each of the Transaction Documents and delivered the same to the Company;
(b)
The Registration Statement covering the resale of the Purchase Shares and all of the Commitment Shares shall have been declared effective
under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall be pending or threatened by the
SEC; and
(c)
The representations and warranties of the Investor shall be true and correct in all material respects as of the date hereof and as of
the Commencement Date as though made at that time.
8.
CONDITIONS TO THE INVESTOR’S OBLIGATION TO PURCHASE SHARES OF COMMON STOCK.
The
obligation of the Investor to buy Purchase Shares under this Agreement is subject to the satisfaction of each of the following conditions
on or prior to the Commencement Date and, once such conditions have been initially satisfied, there shall not be any ongoing obligation
to satisfy such conditions after the Commencement has occurred:
(a)
The Company shall have executed each of the Transaction Documents and delivered the same to the Investor;
(b)
The Company shall have issued or caused to be issued to the Investor (i) one or more certificates or book-entry statements representing
the Commitment Shares free from all restrictive and other legends or (ii) a number of shares of Common Stock equal to the number of Commitment
Shares as DWAC Shares, in each case in accordance with Section 6(b);
(c)
The Common Stock shall be listed or quoted on the Principal Market, subject only to customary listing conditions, trading in the Common
Stock shall not have been within the last 365 days suspended by the SEC, the Principal Market, and all Securities to be issued by the
Company to the Investor pursuant to this Agreement shall have been approved for listing or quotation on the Principal Market in accordance
with the applicable rules and regulations of the Principal Market, subject only to official notice of issuance and any standard listing
conditions for transactions of this nature;
(d)
The Investor shall have received the opinions and negative assurances of the Company’s counsel, dated as of the Commencement Date,
substantially in the forms heretofore agreed by the parties hereto;
(e)
The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of
such representations and warranties is already qualified as to materiality in Section 4 above, in which case, the portion of such representations
and warranties so qualified shall be true and correct without further qualification) as of the date hereof and as of the Commencement
Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and
correct as of such date) and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required
by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date. The Investor
shall have received a certificate, executed by the CEO, President or CFO of the Company, dated as of the Commencement Date, to the foregoing
effect in the form attached hereto as Exhibit A;
(f)
The Board of Directors of the Company shall have adopted resolutions in substantially the form attached hereto as Exhibit B
which shall be in full force and effect without any amendment or supplement thereto as of the Commencement Date;
(g)
As of the Commencement Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose
of effecting purchases of Purchase Shares hereunder, 5,390,780 shares of Common Stock;
(h)
The Commencement Irrevocable Transfer Agent Instructions and the Notice of Effectiveness of Registration Statement each shall have been
delivered to and acknowledged in writing by the Company and the Company’s Transfer Agent (or any successor transfer agent);
(i)
The Company shall have delivered to the Investor a certificate evidencing the incorporation and good standing of the Company in the State
of Delaware issued by the Secretary of State of the State of Delaware as of a date within ten (10) Business Days of the Commencement
Date;
(j)
The Company shall have delivered to the Investor a certified copy of the Certificate of Incorporation as certified by the Secretary of
State of the State of Delaware within ten (10) Business Days of the Commencement Date;
(k)
The Company shall have delivered to the Investor a secretary’s certificate executed by the Secretary of the Company, dated as of
the Commencement Date, in the form attached hereto as Exhibit C;
(l)
The Registration Statement covering the resale of the Purchase Shares and all of the Commitment Shares shall have been declared effective
under the Securities Act by the SEC, and no stop order with respect to the Registration Statement shall be pending or threatened by the
SEC. The Company shall have prepared and filed with the SEC, not later than one (1) Business Day after the effective date of the Registration
Statement, a final and complete prospectus (the preliminary form of which shall be included in the Registration Statement) and shall
have delivered to the Investor a true and complete copy thereof. Such prospectus shall be current and available for the resale by the
Investor of all of the Securities covered thereby. The Current Report shall have been filed with the SEC as required pursuant to Section
5(a). All reports, schedules, registrations, forms, statements, information and other documents required to have been filed by the
Company with the SEC at or prior to the Commencement Date pursuant to the reporting requirements of the Exchange Act shall have been
filed with the SEC within the applicable time periods prescribed for such filings under the Exchange Act;
(m)
No Event of Default has occurred, or any event which, after notice and/or lapse of time, would become an Event of Default has occurred;
(n)
All federal, state and local governmental laws, rules and regulations applicable to the transactions contemplated by the Transaction
Documents and necessary for the execution, delivery and performance of the Transaction Documents and the consummation of the transactions
contemplated thereby in accordance with the terms thereof shall have been complied with, and all consents, authorizations and orders
of, and all filings and registrations with, all federal, state and local courts or governmental agencies and all federal, state and local
regulatory or self-regulatory agencies necessary for the execution, delivery and performance of the Transaction Documents and the consummation
of the transactions contemplated thereby in accordance with the terms thereof shall have been obtained or made, including, without limitation,
in each case those required under the Securities Act, the Exchange Act, applicable state securities or “Blue Sky” laws or
applicable rules and regulations of the Principal Market, or otherwise required by the SEC, the Principal Market or any state securities
regulators;
(o)
No statute, regulation, order, decree, writ, ruling or injunction shall have been enacted, entered, promulgated, threatened or endorsed
by any federal, state or local court or governmental authority of competent jurisdiction which prohibits the consummation of or which
would materially modify or delay any of the transactions contemplated by the Transaction Documents; and
(p)
No action, suit or proceeding before any federal, state, local or foreign arbitrator or any court or governmental authority of competent
jurisdiction shall have been commenced or threatened, and no inquiry or investigation by any federal, state, local or foreign governmental
authority of competent jurisdiction shall have been commenced or threatened, against the Company, or any of the officers, directors or
affiliates of the Company, seeking to restrain, prevent or change the transactions contemplated by the Transaction Documents, or seeking
material damages in connection with such transactions.
9.
INDEMNIFICATION.
In
consideration of the Investor’s execution and delivery of the Transaction Documents and acquiring the Securities hereunder and
in addition to all of the Company’s other obligations under the Transaction Documents, the Company shall defend, protect, indemnify
and hold harmless the Investor and all of its affiliates, stockholders, members, officers, directors, employees and direct or indirect
investors and any of the foregoing Person’s agents or other representatives (including, without limitation, those retained in connection
with the transactions contemplated by this Agreement) (collectively, the “Indemnitees”) from and against any and all
actions, causes of action, suits, claims, losses, costs, penalties, fees, liabilities and damages, and expenses in connection therewith
(irrespective of whether any such Indemnitee is a party to the action for which indemnification hereunder is sought), and including reasonable
attorneys’ fees and disbursements (the “Indemnified Liabilities”), incurred by any Indemnitee as a result of,
or arising out of, or relating to (a) any misrepresentation or breach of any representation or warranty made by the Company in the Transaction
Documents or any other certificate, instrument or document contemplated hereby or thereby, (b) any breach of any covenant, agreement
or obligation of the Company contained in the Transaction Documents or any other certificate, instrument or document contemplated hereby
or thereby, or (c) any cause of action, suit or claim brought or made against such Indemnitee and arising out of or resulting from the
execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated
hereby or thereby, other than, in the case of clause (c), with respect to Indemnified Liabilities which directly and primarily result
from the fraud, gross negligence or willful misconduct of an Indemnitee. The indemnity in this Section 9 shall not apply to amounts paid
in settlement of any claim if such settlement is effected without the prior written consent of the Company, which consent shall not be
unreasonably withheld, conditioned or delayed. To the extent that the foregoing undertaking by the Company may be unenforceable for any
reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which
is permissible under applicable law. Payment under this indemnification shall be made within thirty (30) days from the date Investor
makes written request for it. A certificate containing reasonable detail as to the amount of such indemnification submitted to the Company
by Investor shall be conclusive evidence, absent manifest error, of the amount due from the Company to Investor. If any action shall
be brought against any Indemnitee in respect of which indemnity may be sought pursuant to this Agreement, such Indemnitee shall promptly
notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing reasonably
acceptable to the Indemnitee. Any Indemnitee shall have the right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the expense of such Indemnitee, except to the extent that (i)
the employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period
of time to assume such defense and to employ counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel,
a material conflict on any material issue between the position of the Company and the position of such Indemnitee, in which case the
Company shall be responsible for the reasonable fees and expenses of no more than one such separate counsel.
10.
EVENTS OF DEFAULT.
An
“Event of Default” shall be deemed to have occurred at any time as any of the following events occurs:
(a)
the effectiveness of a registration statement registering the resale of the Securities lapses for any reason (including, without limitation,
the issuance of a stop order or similar order) or such registration statement (or the prospectus forming a part thereof) is unavailable
to the Investor for resale of any or all of the Securities to be issued to the Investor under the Transaction Documents, and such lapse
or unavailability continues for a period of ten (10) consecutive Business Days or for more than an aggregate of thirty (30) Business
Days in any 365-day period, but excluding a lapse or unavailability where (i) the Company terminates a registration statement after the
Investor has confirmed in writing that all of the Securities covered thereby have been resold or (ii) the Company supersedes one registration
statement with another registration statement, including (without limitation) by terminating a prior registration statement when it is
effectively replaced with a new registration statement covering Securities (provided in the case of this clause (ii) that all of the
Securities covered by the superseded (or terminated) registration statement that have not theretofore been resold are included in the
superseding (or new) registration statement);
(b)
the suspension of the Common Stock from trading on the Principal Market for a period of one (1) Business Day, provided that the Company
may not direct the Investor to purchase any shares of Common Stock during any such suspension;
(c)
the delisting of the Common Stock from The Nasdaq Capital Market, provided, however, that the Common Stock is not immediately thereafter
trading on the New York Stock Exchange, The Nasdaq Global Market, The Nasdaq Global Select Market, the NYSE American, the NYSE Arca,
the OTC Bulletin Board or OTC Markets (or nationally recognized successor to any of the foregoing);
(d)
the failure for any reason by the Transfer Agent to issue Purchase Shares to the Investor within two (2) Business Days after the Purchase
Date, Accelerated Purchase Date or Additional Accelerated Purchase Date, as applicable, on which the Investor is entitled to receive
such Purchase Shares;
(e)
the Company breaches any representation, warranty, covenant or other term or condition under any Transaction Document if such breach
would reasonably be expected to have a Material Adverse Effect and except, in the case of a breach of a covenant which is reasonably
curable, only if such breach continues for a period of at least five (5) Business Days;
(f)
if any Person commences a proceeding against the Company pursuant to or within the meaning of any Bankruptcy Law;
(g)
if the Company, pursuant to or within the meaning of any Bankruptcy Law, (i) commences a voluntary case, (ii) consents to the entry of
an order for relief against it in an involuntary case, (iii) consents to the appointment of a Custodian of it or for all or substantially
all of its property, or (iv) makes a general assignment for the benefit of its creditors or is generally unable to pay its debts as the
same become due;
(h)
a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against the Company in an
involuntary case, (ii) appoints a Custodian of the Company or for all or substantially all of its property, or (iii) orders the liquidation
of the Company or any Subsidiary;
(i)
if at any time the Company is not eligible to transfer its Common Stock electronically as DWAC Shares; or
(j)
if at any time after the Commencement Date, the Exchange Cap is reached (to the extent such Exchange Cap is applicable pursuant to Section
2(e) hereof), and the stockholder approval referred to in Section 2(e)(i) has not been obtained in accordance with the applicable
rules of The Nasdaq Stock Market.
In
addition to any other rights and remedies under applicable law and this Agreement, so long as an Event of Default has occurred and is
continuing, or if any event which, after notice and/or lapse of time, would reasonably be expected to become an Event of Default has
occurred and is continuing, the Company shall not deliver to the Investor any Regular Purchase Notice, Accelerated Purchase Notice or
Additional Accelerated Purchase Notice.
11.
TERMINATION
This
Agreement may be terminated only as follows:
(a)
If pursuant to or within the meaning of any Bankruptcy Law, the Company commences a voluntary case or any Person commences a proceeding
against the Company which is not discharged within 90 days, a Custodian is appointed for the Company or for all or substantially all
of its property, or the Company makes a general assignment for the benefit of its creditors (any of which would be an Event of Default
as described in Sections 10(f), 10(g) and 10(h) hereof), this Agreement shall automatically terminate without any
liability or payment to the Company (except as set forth below) without further action or notice by any Person.
(b)
In the event that (i) the Company fails to file the Registration Statement with the SEC within the period specified in Section 5(a)
hereof in accordance with the terms of the Registration Rights Agreement or (ii) the Commencement shall not have occurred on or before
July 31, 2022, due to the failure to satisfy the conditions set forth in Sections 7 and 8 above with respect to the Commencement,
then, in the case of clause (i) above, this Agreement may be terminated by the Investor at any time prior to the filing of the Registration
Statement and, in the case of clause (ii) above, this Agreement may be terminated by either party at the close of business on July 31,
2022 or thereafter, in each case without liability of such party to the other party (except as set forth below); provided, however, that
the right to terminate this Agreement under this Section 11(b) shall not be available to any party if such party is then in breach
of any covenant or agreement contained in this Agreement or any representation or warranty of such party contained in this Agreement
fails to be true and correct such that the conditions set forth in Section 7(c) or Section 8(e), as applicable, could not
then be satisfied.
(c)
At any time after the Commencement Date, the Company shall have the option to terminate this Agreement for any reason or for no reason
by delivering notice (a “Company Termination Notice”) to the Investor electing to terminate this Agreement without
any liability whatsoever of any party to any other party under this Agreement (except as set forth below). The Company Termination Notice
shall not be effective until one (1) Business Day after it has been received by the Investor.
(d)
This Agreement shall automatically terminate on the date that the Company sells and the Investor purchases the full Available Amount
as provided herein, without any action or notice on the part of any party and without any liability whatsoever of any party to any other
party under this Agreement (except as set forth below).
(e)
If, for any reason or for no reason, the full Available Amount has not been purchased in accordance with Section 2 of this Agreement
by the Maturity Date, this Agreement shall automatically terminate on the Maturity Date, without any action or notice on the part of
any party and without any liability whatsoever of any party to any other party under this Agreement (except as set forth below).
Except
as set forth in Sections 11(a) (in respect of an Event of Default under Sections 10(f), 10(g) and 10(h)), 11(d)
and 11(e), any termination of this Agreement pursuant to this Section 11 shall be effected by written notice from the
Company to the Investor, or the Investor to the Company, as the case may be, setting forth the basis for the termination hereof. The
representations and warranties and covenants of the Company and the Investor contained in Sections 3, 4, 5, and
6 hereof, the indemnification provisions set forth in Section 9 hereof and the agreements and covenants set forth in Sections
10, 11 and 12 shall survive the execution and delivery of this Agreement and any termination of this Agreement. No
termination of this Agreement shall (i) affect the Company’s or the Investor’s rights or obligations under (A) this Agreement
with respect to pending Regular Purchases, Accelerated Purchases or Additional Accelerated Purchases and the Company and the Investor
shall complete their respective obligations with respect to any pending Regular Purchases, Accelerated Purchases and Additional Accelerated
Purchases under this Agreement and (B) the Registration Rights Agreement, which shall survive any such termination, or (ii) be deemed
to release the Company or the Investor from any liability for intentional misrepresentation or willful breach of any of the Transaction
Documents.
12.
MISCELLANEOUS.
(a)
Governing Law; Jurisdiction; Jury Trial. The corporate laws of the State of Delaware shall govern all issues concerning the relative
rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation
of this Agreement, the Registration Rights Agreement and the other Transaction Documents shall be governed by the internal laws of the
State of Illinois, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Illinois
or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Illinois. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the State of Illinois, County
of Cook, for the adjudication of any dispute hereunder or under the other Transaction Documents or in connection herewith or therewith,
or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding
is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed to limit in any way any right to serve process in any
manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(b)
Counterparts. This Agreement may be executed in two or more identical counterparts, all of which shall be considered one and the
same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party; provided
that a facsimile signature or signature delivered by e-mail in a “.pdf” format data file, including any electronic signature
complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com, www.echosign.adobe.com, etc., shall be considered due execution
and shall be binding upon the signatory thereto with the same force and effect as if the signature were an original signature.
(c)
Headings. The headings of this Agreement are for convenience of reference and shall not form part of, or affect the interpretation
of, this Agreement.
(d)
Severability. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this Agreement in that jurisdiction or the validity or enforceability
of any provision of this Agreement in any other jurisdiction.
(e)
Entire Agreement. The Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company,
their affiliates and Persons acting on their behalf with respect to the subject matter thereof, and this Agreement, the other Transaction
Documents and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein
and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty,
covenant or undertaking with respect to such matters. The Company acknowledges and agrees that is has not relied on, in any manner whatsoever,
any representations or statements, written or oral, other than as expressly set forth in the Transaction Documents.
(f)
Notices. Any notices, consents or other communications required or permitted to be given under the terms of this Agreement must
be in writing and will be deemed to have been delivered: (i) upon receipt when delivered personally; (ii) upon receipt when sent by facsimile
or email (provided confirmation of transmission is mechanically or electronically generated and kept on file by the sending party); or
(iii) one Business Day after deposit with a nationally recognized overnight delivery service, in each case properly addressed to the
party to receive the same. The addresses for such communications shall be:
|
If
to the Company: |
|
|
Vyant
Bio, Inc. |
|
|
2
Executive Campus |
|
|
2370
State Route 70, Suite 310 |
|
|
Cherry
Hill, NJ 08002 |
|
|
Telephone: |
(201)
479-1357 |
|
|
E-mail: |
Andrew.Lafrence@vyantbio.com |
|
|
Attention: |
Andrew
D.C. LaFrence, CFO |
|
|
|
|
|
With
a copy to (which shall not constitute notice or service of process): |
|
|
Lowenstein
Sandler LLP |
|
|
One
Lowenstein Drive |
|
|
Roseland,
NJ 07068 |
|
|
Telephone: |
973-597-2564 |
|
|
Facsimile: |
973-597-2565 |
|
|
E-mail: |
awovsaniker@lowenstein.com |
|
|
Attention: |
Alan
Wovsaniker, Esq. |
|
|
|
|
|
If
to the Investor: |
|
|
Lincoln
Park Capital Fund, LLC |
|
|
440
North Wells, Suite 410 |
|
|
Chicago,
IL 60654 |
|
|
Telephone: |
312-822-9300 |
|
|
Facsimile: |
312-822-9301 |
|
|
E-mail: |
jscheinfeld@lpcfunds.com/jcope@lpcfunds.com |
|
|
Attention: |
Josh
Scheinfeld/Jonathan Cope |
|
With
a copy to (which shall not constitute notice or service of process): |
|
|
Dorsey
& Whitney LLP |
|
|
51
West 52nd Street |
|
|
New
York, NY 10019 |
|
|
Telephone: |
(212)
415-9214 |
|
|
Facsimile: |
(212)
953-7201 |
|
|
E-mail: |
marsico.anthony@dorsey.com |
|
|
Attention: |
Anthony
J. Marsico, Esq. |
|
|
|
|
|
If
to the Transfer Agent: |
|
|
Continental
Stock Transfer & Trust Company LLC |
|
|
17
Battery Place, 8th Floor |
|
|
New
York, NY 10004 |
|
|
Telephone: |
212-845-3277 |
|
|
Email: |
hfarrell@continentalstock.com |
|
|
Attention: |
Henry
Farrell |
or
at such other address and/or facsimile number and/or email address and/or to the attention of such other Person as the recipient party
has specified by written notice given to each other party three (3) Business Days prior to the effectiveness of such change. Written
confirmation of receipt (A) given by the recipient of such notice, consent or other communication, (B) mechanically or electronically
generated by the sender’s facsimile machine or email account containing the time, date, and recipient facsimile number or email
address, as applicable, and an image of the first page of such transmission or (C) provided by a nationally recognized overnight delivery
service, shall be rebuttable evidence of personal service, receipt by facsimile or receipt from a nationally recognized overnight delivery
service in accordance with clause (i), (ii) or (iii) above, respectively.
(g)
Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors
and assigns. The Company shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of
the Investor, including by merger or consolidation. The Investor may not assign its rights or obligations under this Agreement.
(h)
No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective permitted
successors and assigns and, except as set forth in Section 9, is not for the benefit of, nor may any provision hereof be enforced by,
any other Person.
(i)
Publicity. The Company shall afford the Investor and its counsel with the opportunity to review and comment upon, shall consult
with the Investor and its counsel on the form and substance of, and shall give due consideration to all such comments from the Investor
or its counsel on, any press release, SEC filing or any other public disclosure by or on behalf of the Company relating to the Investor,
its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated thereby, not less than 24 hours prior
to the issuance, filing or public disclosure thereof; provided, however, that this provision shall not apply to any portion of any Form
10-K or Form 10-Q that does not relate to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions
contemplated hereby. The Investor must be provided with a final version of any portion of such press release, SEC filing or other public
disclosure relating to the Investor, its purchases hereunder or any aspect of the Transaction Documents or the transactions contemplated
hereby at least 24 hours prior to any release, filing or use by the Company thereof. The Company agrees and acknowledges that its failure
to fully comply with this provision constitutes a Material Adverse Effect.
(j)
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and
shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request
in order to consummate and make effective, as soon as reasonably possible, the Commencement, and to carry out the intent and accomplish
the purposes of this Agreement and the consummation of the transactions contemplated hereby.
(k)
No Financial Advisor, Placement Agent, Broker or Finder. The Company represents and warrants to the Investor that it has not engaged
any financial advisor, placement agent, broker or finder in connection with the transactions contemplated hereby. The Investor represents
and warrants to the Company that it has not engaged any financial advisor, placement agent, broker or finder in connection with the transactions
contemplated hereby. The Company shall be responsible for the payment of any fees or commissions, if any, of any financial advisor, placement
agent, broker or finder relating to or arising out of the transactions contemplated hereby. The Company shall pay, and hold the Investor
harmless against, any liability, loss or expense (including, without limitation, reasonable attorneys’ fees and out of pocket expenses)
arising in connection with any such claim.
(l)
No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express
their mutual intent, and no rules of strict construction will be applied against any party. In addition, each and every reference to
share prices and shares of Common Stock in this Agreement shall be subject to adjustment as provided in this Agreement for reverse and
forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date
of this Agreement.
(m)
Remedies, Other Obligations, Breaches and Injunctive Relief. The Investor’s remedies provided in this Agreement, including,
without limitation, the Investor’s remedies provided in Section 9, shall be cumulative and in addition to all other remedies available
to the Investor under this Agreement, at law or in equity (including a decree of specific performance and/or other injunctive relief),
no remedy of the Investor contained herein shall be deemed a waiver of compliance with the provisions giving rise to such remedy and
nothing herein shall limit the Investor’s right to pursue actual damages for any failure by the Company to comply with the terms
of this Agreement. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Investor
and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach
or threatened breach, the Investor shall be entitled, in addition to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other security being required.
(n)
Enforcement Costs. If: (i) this Agreement is placed by the Investor in the hands of an attorney for enforcement or is enforced
by the Investor through any legal proceeding; (ii) an attorney is retained to represent the Investor in any bankruptcy, reorganization,
receivership or other proceedings affecting creditors’ rights and involving a claim under this Agreement; or (iii) an attorney
is retained to represent the Investor in any other proceedings whatsoever in connection with this Agreement, then the Company shall pay
to the Investor, as incurred by the Investor, all reasonable costs and expenses including reasonable attorneys’ fees incurred in
connection therewith, in addition to all other amounts due hereunder.
(o)
Amendment and Waiver; Failure or Indulgence Not Waiver. No provision of this Agreement may be amended or waived by the parties
from and after the date that is one (1) Business Day immediately preceding the initial filing of the Registration Statement with the
SEC. Subject to the immediately preceding sentence, (i) no provision of this Agreement may be amended other than by a written instrument
signed by both parties hereto and (ii) no provision of this Agreement may be waived other than in a written instrument signed by the
party against whom enforcement of such waiver is sought. No failure or delay in the exercise of any power, right or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
**
Signature Page Follows **
IN
WITNESS WHEREOF, the Investor and the Company have caused this Agreement to be duly executed as of the date first written above.
|
THE
COMPANY: |
|
|
|
|
VYANT
BIO, INC. |
|
|
|
|
By: |
/s/
John A. Roberts |
|
Name: |
John
A. Roberts |
|
Title: |
President
and Chief Executive Officer |
|
|
|
|
INVESTOR: |
|
|
|
|
LINCOLN
PARK CAPITAL FUND, LLC |
|
BY:
LINCOLN PARK CAPITAL, LLC |
|
BY:
ROCKLEDGE CAPITAL CORPORATION |
|
|
|
|
By: |
/s/
Josh Scheinfeld |
|
Name: |
Josh
Scheinfeld |
|
Title: |
President |
EXHIBITS
Exhibit
A |
Form
of Officer’s Certificate |
Exhibit
B |
Form
of Resolutions of Board of Directors of the Company |
Exhibit
C |
Form
of Secretary’s Certificate |
Exhibit
D |
Form
of Letter to Transfer Agent |
EXHIBIT
A
FORM
OF OFFICER’S CERTIFICATE
This
Officer’s Certificate (“Certificate”) is being delivered pursuant to Section 8(e) of that certain Purchase
Agreement dated as of March 28, 2022, (“Purchase Agreement”), by and between VYANT BIO, INC., a Delaware corporation
(the “Company”), and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”). Terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.
The
undersigned, ___________, ______________ of the Company, hereby certifies, on behalf of the Company and not in his individual capacity,
as follows:
1.
I am the _____________ of the Company and make the statements contained in this Certificate;
2.
The representations and warranties of the Company are true and correct in all material respects (except to the extent that any of such
representations and warranties is already qualified as to materiality in Section 4 of the Purchase Agreement, in which case, such representations
and warranties are true and correct without further qualification) as of the date when made and as of the Commencement Date as though
made at that time (except for representations and warranties that speak as of a specific date, in which case such representations and
warranties are true and correct as of such date);
3.
The Company has performed, satisfied and complied in all material respects with covenants, agreements and conditions required by the
Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Commencement Date.
4.
The Company has not taken any steps, and does not currently expect to take any steps, to seek protection pursuant to any Bankruptcy Law
nor does the Company or any of its Subsidiaries have any knowledge or reason to believe that its creditors intend to initiate involuntary
bankruptcy or insolvency proceedings. The Company is financially solvent and is generally able to pay its debts as they become due.
IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ___________.
The
undersigned as Secretary of VYANT BIO, INC., a Delaware corporation, hereby certifies that ___________ is the duly elected, appointed,
qualified and acting ________ of VYANT BIO, INC. and that the signature appearing above is his genuine signature.
EXHIBIT
B
FORM
OF COMPANY RESOLUTIONS
FOR
SIGNING PURCHASE AGREEMENT
UNANIMOUS
WRITTEN CONSENT OF
VYANT
BIO, INC.
In
accordance with the corporate laws of the state of Delaware, the undersigned, being all of the directors of VYANT BIO, INC., a
Delaware corporation (the “Corporation”) do hereby consent to and adopt the following resolutions as the action of the Board
of Directors for and on behalf of the Corporation and hereby direct that this Consent be filed with the minutes of the proceedings of
the Board of Directors:
WHEREAS,
there has been presented to the Board of Directors of the Corporation a draft of the Purchase Agreement (the “Purchase Agreement”)
by and between the Corporation and Lincoln Park Capital Fund, LLC (“Lincoln Park”), providing for the purchase by Lincoln
Park of up to Fifteen Million Dollars ($15,000,000) of the Corporation’s common stock, par value $0.0001 per share (the “Common
Stock”); and
WHEREAS,
after careful consideration of the Purchase Agreement, the documents incident thereto and other factors deemed relevant by the Board
of Directors, the Board of Directors has determined that it is advisable and in the best interests of the Corporation to engage in the
transactions contemplated by the Purchase Agreement, including, but not limited to, the issuance of 405,953 shares of Common Stock to
Lincoln Park as a commitment fee (the “Commitment Shares”) and the sale of shares of Common Stock to Lincoln Park up to the
available amount under the Purchase Agreement (the “Purchase Shares”).
Transaction
Documents
NOW,
THEREFORE, BE IT RESOLVED, that the transactions described in the Purchase Agreement are hereby approved and the Company’s Chief
Executive Officer and/or Chief Financial Officer (the “Authorized Officers”) are severally authorized to execute and deliver
the Purchase Agreement, and any other agreements or documents contemplated thereby including, without limitation, a registration rights
agreement (the “Registration Rights Agreement”) providing for the registration of the shares of the Company’s Common
Stock issuable in respect of the Purchase Agreement on behalf of the Corporation, with such amendments, changes, additions and deletions
as the Authorized Officers may deem to be appropriate and approve on behalf of, the Corporation, such approval to be conclusively evidenced
by the signature of an Authorized Officer thereon; and
FURTHER
RESOLVED, that the terms and provisions of the Registration Rights Agreement by and among the Corporation and Lincoln Park are hereby
approved and the Authorized Officers are authorized to execute and deliver the Registration Rights Agreement (pursuant to the terms of
the Purchase Agreement), with such amendments, changes, additions and deletions as the Authorized Officer may deem appropriate and approve
on behalf of, the Corporation, such approval to be conclusively evidenced by the signature of an Authorized Officer thereon; and
FURTHER
RESOLVED, that the terms and provisions of the forms of Irrevocable Transfer Agent Instructions and Notice of Effectiveness of Registration
Statement (collectively, the “Instructions”) are hereby approved and the Authorized Officers are authorized to execute and
deliver the Instructions on behalf of the Company in accordance with the Purchase Agreement, with such amendments, changes, additions
and deletions as the Authorized Officers may deem appropriate and approve on behalf of, the Corporation, such approval to be conclusively
evidenced by the signature of an Authorized Officer thereon; and
Execution
of Purchase Agreement
FURTHER
RESOLVED, that the Corporation be and it hereby is authorized to execute the Purchase Agreement providing for the purchase of up to Fifteen
Million Dollars ($15,000,000) of the Corporation’s common stock; and
Issuance
of Common Stock
FURTHER
RESOLVED, that the Corporation is hereby authorized to issue to Lincoln Park Capital Fund, LLC, 405,953 shares of Common Stock as Commitment
Shares and that upon issuance of the Commitment Shares pursuant to the Purchase Agreement the Commitment Shares shall be duly authorized,
validly issued, fully paid and nonassessable with no personal liability attaching to the ownership thereof; and
FURTHER
RESOLVED, that the Corporation is hereby authorized to issue shares of Common Stock upon the purchase of Purchase Shares up to the Available
Amount under the Purchase Agreement in accordance with the terms of the Purchase Agreement and that, upon issuance of the Purchase Shares
pursuant to the Purchase Agreement, the Purchase Shares will be duly authorized, validly issued, fully paid and nonassessable with no
personal liability attaching to the ownership thereof; and
FURTHER
RESOLVED, that the Corporation shall initially reserve 5,390,780 shares of Common Stock for issuance as Purchase Shares under the Purchase
Agreement.
Approval
of Actions
FURTHER
RESOLVED, that, without limiting the foregoing, the Authorized Officers are, and each of them hereby is, authorized and directed to proceed
on behalf of the Corporation and to take all such steps as deemed necessary or appropriate, with the advice and assistance of counsel,
to cause the Corporation to consummate the agreements referred to herein and to perform its obligations under such agreements; and
FURTHER
RESOLVED, that the Authorized Officers be, and each of them hereby is, authorized, empowered and directed on behalf of and in the name
of the Corporation, to take or cause to be taken all such further actions and to execute and deliver or cause to be executed and delivered
all such further agreements, amendments, documents, certificates, reports, schedules, applications, notices, letters and undertakings
and to incur and pay all such fees and expenses as in their judgment shall be necessary, proper or desirable to carry into effect the
purpose and intent of any and all of the foregoing resolutions, and that all actions heretofore taken by any officer or director of the
Corporation in connection with the transactions contemplated by the agreements described herein are hereby approved, ratified and confirmed
in all respects.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the Board of Directors has executed and delivered this Consent effective as of __________, 2022.
being
all of the directors of VYANT BIO, INC.
EXHIBIT
C
FORM
OF SECRETARY’S CERTIFICATE
This
Secretary’s Certificate (“Certificate”) is being delivered pursuant to Section 8(k) of that certain Purchase
Agreement dated as of March 28, 2022 (“Purchase Agreement”), by and between VYANT BIO, INC., a Delaware corporation
(the “Company”) and LINCOLN PARK CAPITAL FUND, LLC (the “Investor”), pursuant to which the Company may
sell to the Investor up to Fifteen Million Dollars ($15,000,000) of the Company’s common stock, par value $0.0001 per share (the
“Common Stock”). Terms used herein and not otherwise defined shall have the meanings ascribed to them in the Purchase Agreement.
The
undersigned, Andrew D.C. LaFrence, Secretary of the Company, hereby certifies, on behalf of the Company and not in his individual capacity,
as follows:
1.
I am the Secretary of the Company and make the statements contained in this Secretary’s Certificate.
2.
Attached hereto as Exhibit A and Exhibit B are true, correct and complete copies of the Company’s bylaws (“Bylaws”)
and Certificate of Incorporation (“Charter”), in each case, as amended through the date hereof, and no action has been taken
by the Company, its directors, officers or stockholders, in contemplation of the filing of any further amendment relating to or affecting
the Bylaws or Charter.
3.
Attached hereto as Exhibit C are true, correct and complete copies of the resolutions duly adopted by the Board of Directors of
the Company on _____________, at which a quorum was present and acting throughout. Such resolutions have not been amended, modified or
rescinded and remain in full force and effect and such resolutions are the only resolutions adopted by the Company’s Board of Directors,
or any committee thereof, or the stockholders of the Company relating to or affecting (i) the entering into and performance of the Purchase
Agreement, the Registration Rights Agreement and the other Transaction Documents, or the issuance, offering and sale of the Purchase
Shares and the Commitment Shares, and (ii) and the performance of the Company of its obligations under each of the Transaction Documents
as contemplated therein.
4.
As of the date hereof, the authorized, issued and reserved capital stock of the Company is as set forth on Exhibit D hereto.
IN
WITNESS WHEREOF, I have hereunder signed my name on this ___ day of ____________, 201__.
|
|
|
|
Andrew
D.C. LaFrence |
|
|
Secretary |
|
The
undersigned as Chief Executive Officer of VYANT BIO, INC., a Delaware corporation, hereby certifies that Andrew D.C. LaFrence
is the duly elected, appointed, qualified and acting Secretary of VYANT BIO, INC., and that the signature appearing above is his
genuine signature.
|
|
|
|
John
A. Roberts |
|
|
Chief
Executive Officer |
|
EXHIBIT
D
FORM
OF LETTER TO THE TRANSFER AGENT FOR THE ISSUANCE OF THE COMMITMENT SHARES AT SIGNING OF THE PURCHASE AGREEMENT
[COMPANY
LETTERHEAD]
March
28, 2022
Continental
Stock Transfer & Trust Company LLC |
|
17
Battery Place, 8th Floor |
|
New
York, NY 10004 |
|
Telephone: |
212-845-3277 |
|
Email: |
hfarrell@continentalstock.com |
|
Attention: |
Henry
Farrell |
|
Re:
Issuance of Common Stock to Lincoln Park Capital Fund, LLC
Dear
Mr. Farrell,
On
behalf of VYANT BIO, INC., a Delaware corporation (the “Company”), you are hereby instructed to issue as soon
as possible a book-entry statement representing an aggregate of 405,953 shares of our common stock in the name of Lincoln
Park Capital Fund, LLC. The book-entry statement should be dated March 28, 2022. The book-entry statement should bear the following
restrictive legend:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, UNLESS SOLD PURSUANT TO: (1) RULE 144 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (2) AN OPINION OF HOLDER’S COUNSEL,
IN A CUSTOMARY FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS.
The
book-entry statement should be sent as soon as possible via overnight mail to the following address:
Lincoln
Park Capital Fund, LLC
440
North Wells, Suite 410
Chicago,
IL 60654
Attention:
Josh Scheinfeld/Jonathan Cope
Thank
you very much for your help. Please call me at 612-802-9299 if you have any questions or need anything further.
VYANT
BIO, INC. |
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BY: |
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Andrew
D.C. LaFrence |
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Chief
Financial Officer |
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